bar exam outline: multistate bar exam lecture tapes
Objective theory of K formation: Viewing the actions of the parties as a reasonable person, was a K formed? Public policy tends to presume that a contract was formed. Was an offer made?
Objective (reasonable) present intent to form present K.
Communication of intent and content to offeree.
Offer still outstanding at time of acceptance?
Was the acceptance effective?
Mistake: Terms do not convey intention of one or both of the parties.
Parol evidence rule
Written K exists, and litigation has ensued. One party wants to bring evidence of a term or understanding which is not found within the four corners of the document. Writing must be integrated: Both parties must have intended the writing to be the full and final expression of the terms of the agreement. Is the evidence which the party seeks to bring related to any promise, representation or understanding between the parties which was arrived at prior to or contemporaneous with the formation of the integrated writing? The parol evidence cannot be used to vary or add to the terms of the integrated writing. It can explain an ambiguity or explain a term. Exceptions:
Is the agreement a K? Valuable consideration (focus)
A bargained for legal detriment on both sides of the exchange. My promise to perform (or not perform) an act which, but for this bargain, I am not legally obligated to perform (or not perform). Past consideration is insufficient.
Defenses re: consideration
Want of consideration: Other party incurred no legal detriment. Illusory promise (either no promise or pre-existing duty). Defense to formation.
Failure of consideration: Admits formation, but other party has breached and consideration has failed, and therefore I don't have to perform. Inadequacy of consideration: The bargain was stupid. No defense, unless fiduciary or confidential relationship.Defenses
Oral K is fine, but p can�t recover for breach of K with subject matter covered under SoF. K subjects covered
Those subject matters require a memorandum of essential terms signed by the party to be charged (D ). Need not be the entire integrated K � all we are looking for is evidence of the terms. This is a personal defense for D who can use to void the K, if timely asserted. SoF applies to remedy at law, not equitable remedy, so if D has partially performed, p can try to get equitable remedy.Capacity of parties (makes K voidable)
One of the parties is a minor. Exception if minor has received benefits from K providing necessaries: food, clothing, shelter, medical attention, in which case p can recover in quasi-K for market value of benefits. Lack of mental capacity, either permanent or temporary. Exception if person has received benefits from K providing necessaries: food, clothing, shelter, medical attention, in which case p can recover in quasi-K for market value of benefits. If drugs or alcohol caused the incapacity, if p knew, p is SOL. Lack of capacity (agency)Content of bargain
Constructive fraud Duress
No K need exist. Valuable consideration may not have existed. No statute of frauds analysis. p must show he has been unjustly impoverished due to justifiable reliance on D �s promise.
Third party rights or duties (common law only)
Rights are defined by terms of K. Rights vest when:
Once rights are vested, K cannot be modified or rescinded by parties.
Can bring suit to remedy breach of vested rights.
Incidental beneficiaries: Not an intended beneficiary. No rights.Assignment of rights to TP
One of the parties, after K, seeks to assign his right to receive performance or delegate his duty to perform to an assignee/delegate not mentioned in K.
Present assignment: Manifestation of present intention by party to achieve present transfer of present rights to TP.
Revocable by assignor?
Delegation of duties to TP
Subsequent to formation, one party (delegator) finds TP (delegate) to assume primary responsibility for value (K).
Delegation is null and void if materially prejudices or threatens the commercially reasonable interests of other party.Maturity of obligations (conditions) (focus)
Conditions allocate risk in the event of breech and determine breach. Vague language is construed as a covenant.Types
Contingency must be satisfied simultaneously with maturity of liability. Usually implied-at-law, not express. Used to regulate performance when parties did not otherwise specify. If performance obligations are physically capable of being performed at the same time, then mutual tenders (ready, willing and able to perform) are required.Subsequent
Always express, never implied. Operates as an affirmative defense to breach. Occurrence will extinguish a present liability to perform promise. Example: Your attempted assignment of rights extinguishes my liability.Forms
Has the condition been satisfied?
Express condition must be satisfied precisely. Constructive conditions require only substantial performance.Has the condition been excused?
Doctrine of prevention: Party can�t hinder other party�s performance. Waiver: Once covenant or condition is knowingly waived, it cannot be reclaimed. Express or implied from behavior. Equitable estoppel: Can be reversed before other party relies to his detriment.Obligations of good faith and fair dealing in performance and enforcement of K�s Prospective inability to perform; effect on other party.
Credible information learned that other party has taken some action which puts his performance beyond his control. All covenants of non-breaching party discharged; non-breeching party must bring immediate COA. Breaching party cannot remedy.Failure to give adequate assurances of performance (UCC only)
In face of reasonable insecurity that merchant seller is unlikely to be able to perform, you can make written demand for adequate assurances of performance, and unless merchant gives adequate assurances within commercially reasonable time, you can treat as present breach. My covenants suspended pending receipt of adequate assurances.Has nonperformance been excused?
Subsequent to formation of bargain Physical or legal barriers Objective: No person on the face of the earth could perform.Commercially impracticable.
Cannot be performed except by economic expenditure grossly beyond what is commercially reasonable. Unanticipated by either party at formation date.Frustration of purpose.
Subsequent to formation of bargain, circumstances are such that your performance is of no utility to me, and therefore I seek to have my performance to you excused.Breach
Duty to promptly inspect goods tendered. Prompt and specific notice of nonconformance. Perfect tender rule
Buyer may reject all, some or none of the goods for any nonconformity, and pay for goods accepted. If seller tendered early, he has until K date deadline to perfectly perform (unless he states he won�t), and nonbreaching party must cooperate. If p got most of the goods, D can request extra time and p has to cooperate, but doesn�t have to prejudice commercial interests. p must seek and follow D �s instructions re rejected goods, and follow reasonable instructions at p �s expense, or use self help to preserve the rejected goods to conserve commercial value (including resale & cover, D liable for costs).Failure to follow above procedures = waiver.Material
Essence of the bargain Breach results in immediate COA.
Impaired bargain only in insignificant sense re: quality, quantity or time. Nonbreaching party must continue with performance. Sue for provable damages.Evaluation
Election of substantive rights and remedies Rescission and reformation Remedial rights of defaulting partiesUCC Applicability
Subject matter: Goods.
Types of crimes
Misdemeanors: Punishable by fine or imprisonment of less than one year.
Malum in se
General principles & elements
Mens rea: Guilty state of mind
Levels of mental state
Requirement of intent
Concurrence of actus reus plus mens rea Causation
Hastening the inevitable death of another is still murder. Transferred intent: A�s intent to kill B is transferred to C when the bullet misses B and kills C. Intervening acts
Harm or injury suffered by victimDefenses
Bifurcated trial: First trial determines guilt, and if guilty, second trial determines insanity. Tests: Results in not guilty by reason of insanity, followed by commitment of D to mental institution.
Diminished capacity: As a result of mental defect or disease, D did not have required state of mind required for the offense. Results in not guilty of offense charged, but found guilty of a lesser offense.Intoxication (drugs or alcohol)
Modern law: Juvinile courts will handle the child, either concurrently with adult court or exclusively.Justification and excuse
Right of aggressor: Self defense is usually not available, but becomes available upon complete withdrawl from other party followed by attack by victim; or escalation of force by victim after aggressor�s attack attack. Defense of others
Maj. view is same as self defense where D has reasonable belief of imminent danger of unlawful bodily harm against TP. Min. view is "alter ego" where right to defend is limited to situations where person being defended is justified in using self-defense.No duty for victim to retreat. Defense of property: No deadly force can be used. Reasonable nondeadly force not likely to use serious bodily harm can be used. No spring guns.Law Enforcement
PD can use the amount of nondeadly force which he reasonably believes necessary to arrest or prevent escape. Deadly force can be used to prevent commission of dangerous felony or arrest person reasonably believed to have committed felony. Private citizen can use reasonable amount of non-deadly force to prevent felony or misdomeanor, or to make an arrest where crime has been committed and citizen reasonably believes that person has committed the crime. Citizen can use deadly force only when dangerous felony has been committed and person who force is used against has in fact committed the felony. Resisting unlawful arrest: D can use reasonable nondeadly force to resist unlawful arrest. Can resist lawful arrest by PD only if D does not know arresting person is a PD.Necessity & Duress
Necessity: D reasonably believes that criminal conduct is necessary to avoid imminent injury resulting from natural, nonhuman sources. Example: Killing one person to save two others. Firefighter who destroys property to prevent greater spread. Does not encompass killing someone to save yourself. Duress: D reasonably believes only way to avoid unlawful threats of great bodily harm from another person or imminent death is to engage in unlawful conduct.Domestic authority: Parents or one in loco parentes may use reasonable force to promote child�s welfare. Entrapment: Intent to commit crime originated with law enforcement officers. Elements:
Mistake of fact is a defense if it negates a material element of crime or specific mental state required for commiting crime.
Mistake of law is no defense. Exceptions:
Consent of victim
Fraud or deceit negates the consent. Battery, rape.Inchoate crimes; parties
Specific intent to commit target offense Substantial step in furtherance of the crime. Preparation is not enough. When criminal act is completed, the attempt merges into the act. Impossibility defense:
Specific intent to commit target offense Agreement between two+ individuals to commit offense. Each coconspirator is liable for all foreseeable crimes committed by other conspirators in furtherance of conspiracy. Must have at least two guilty parties for a conviction: If one of two parties is acquitted, the other can�t be convicted. No merger with completed crime (exceptions below). Wharton Rule:
Defenses: Withdrawal is not a defense, unless party informs all other conspirators and thwart the success of the criminal endeavor.Parties to crime
Intent to inflict serious bodily injury (2nd degree) Felony murder (1st degree)
Depraved heart murder (2nd degree)
Criminal negligence: Gross or wanton negligence.
Unlawful act or misdemeanor manslaughter
Failure to act when duty exits.Voluntary manslaughter
Intentional killing, such as in the heat of passion, or where D acts with reasonable (objective) adequate provocation (although MPC is subjective). Imperfect self-defense, such as where D started confrontation, or used excessive force.Other crimes
Intent to maim or do bodily injury by act which either dismembered or disabled use of bodily part.Kidnapping
Unlawful restraint of personal liberty by show of force, to send victim into another location.Rape; statutory rape
Nonconsensual sexual intercourse with a woman against her will. Statutory rape is a strict liability crime. Mistake of age is no defense.Theft
Similar to larceny by trick, but in larceny only possession passes � not title. With false pretenses, D gets possession and title. Usually indicated by the exchange of money. Intent to defraud victim. Credit card fraud, mail fraud, confidence game schemes, violation of blue sky laws (worthless securities), bad checks.Embezzlement
Fraudulent conversion or misappropriation of the personal property of another by one who is in lawful possession (bailment). Defenses
Tresspassory taking carrying away personal property of another with intent to steal (same as larceny) Taking is from victim�s person or presence Taking accomplished by force or intimidation (snatching is usually not enough, unless victim is aware and resists). Intimidation must be threat of immediate bodily injury or death � not future harm, which arouses reasonable fear. Armed robbery even if gun was a toy or unloaded.Receiving stolen goods
Receiver has actual or constructive knowledge that the property is stolen. Buying a TV for $5 out of the back of a van under suspicious circumstances is constructive knowledge.Burglary
Breaking and entering of the dwelling house of another at nighttime with intent (at time of breaking and entering) to commit larceny therein.
Malicious burning of the dwelling of another. Does not have to be intentional: Malicious or recklessness is enough. Charring is enough.Constitutional protection of accused persons (focus)
Specific: D acts with intent to cause consequences of act. General: Substantial certainty that D �s conduct will result in commission of tortuous act. Transferred: D intends tortuous conduct against one party but resulting harm is caused upon another. Only applies to assault, battery, false imprisonment, tresspass to land or chattels. Minors and incompetents are held liable for intentional torts.Harms to the person
D acts intending to cause an offensive or harmful contact with the person of another and an offensive or harmful contact results. Covers the person of p and anything that can be identified with the close person, such as clothing, or something grasped in the hand. Car is an extension of the person, so throwing a snowball at a car is a battery (assuming someone is in the car). Same with horse, chair. p need not be aware of contact or have damages.Assault
D acts intending to place p in imminent apprehension (fear not required) of unpermitted contact and p is placed in such apprehension. Awareness is required. Future threats lack imminency and are insufficient. Words alone are insufficient, unless accompanied by some overt act. Inability of D to injure p is not relevant. Assault followed by battery merges into battery. Battery followed by assault is two separate torts.False imprisonment
D intends to confine p within certain fixed boundaries D �s conduct does in fact cause such confinement by force, threats of force, or unlawful arrest. p is conscious or aware of confinement, or alternatively harmed by it.
Confinement can result regardless of how brief. Shopkeeper�s privilege: Store can detain suspected shoplifter if:
Infliction of mental distress
D conduct must be extreme, outrageous, or reckless. Not necessarily intentional. p suffers severe emotional distress, such as: Suffering, anguish, fright, horror, grief, shame, humiliation, embarrassment, worry, nausia. TP who witnesses physical harm and suffers emotional distress can recover if TP suffers bodily injury, or if:
Negligent infliction: Duty of care owed, foreseeable p within zone of danger, D �s conduct merely negligent.Harms to property interests
On, above or below the land Intentionally entering the land to another or causing a thing or TP to do so.
Privileged entries (defenses)
Trespass to chattels
Intentional intermedeling or damaging of another�s chattels. Liability is for diminished value or cost of repair. Degree of interference determines tort: Minor interference is trespass, but destruction is conversion.Conversion
Intentional exercise of dominion or control over chattel of another. Substantial or serious interference with p �s ownership rights, measured by extent, duration and damage of dominion. Liability for full value of chattel because forced sale is required. Mistake is not a defense.
Defenses to claims for physical harms
Protection of property interests
Reasonable force can be used, but not deadly (i.e. spring gun). Recapture of chattels
Parental discipline: Reasonable force can be used by parent and school. Arrest
Warrantless arrest can be made so long as misdeamenor which is breach of the peace committed in presence of arresting PD or private citizen. Absolute privilege. Warrantless arrest can be made if felony was in fact committed, and you have reasonable grounds to believe person arrested committed it. Absolute privilege if both conditions met. PD has privilege to arrest so long as reasonably believes felony has been committed, and reasonable belief that the person committed the crime.Necessity
Public necessity: Absolute privilege: No liability for any damages. Private necessity: Incomplete privilege: Liability for damage, but not trespass.Mistake
Defense only if D acts quickly to protect his own or public interest. Mistake is no defense to trespass, battery, conversion.Consent
One who consents to a tortuous act cannot later complain. Consent can be express (fighting) or implied (emergency room work on unconscious person). Exceeding consent: A person who consents can complain if the tort exceeds the scope of the consent. Example: Consent to fight, but not with brass knuckles. Fraud or mistake can negate consent.Negligence (focus)
If none owed, no tort exists. Must act as a reasonable, ordinary, prudent person. Must take precautions not to create unordinary risks to others. No duty to take precautions against unforeseeable events or risks. Omissions: No legal duty to render assistance to someone in peril. Exceptions:
Good Samaritan: Licensed Dr�s, nurses who voluntarily render emergency treatment are exempt from liability for ordinary negligence, in some states. Liability still exists for gross negligence.Duty of care is owed only to foreseeable p �s.
Rescuer is a foreseeable p and duty of care is owed to him. It is foreseeable that if your conduct is negligent and places someone in peril, a rescuer may be needed and may be injured. Prenatal injuries: Duty of care owed to fetus (i.e. dr�s negligence), and prenatal injuries are actionable so long as fetus is born alive.Standards of care
Professionals with special skills
Child: Must conform to standard of care of a child of like age, education, intelligence and experience.
Innkeeper/Common carrier: Liability for slight negligence by employees. Automobile driver duty to passengers
Gratuitious bailment: Loaning something to a friend. Owner (bailor) must warn bailee of known defects that exist. Bailment for hire: Bailor must inspect chattel and make chattel safe for protection of bailee. Bailee need exercise only reasonable or ordinary care.Landowners/Possessors of land
Breach of duty
Show events leading up to injury Show D acted unreasonably
Causation (must meet both types)
Proximate legal cause
In hindsight, looking at chain of events, as a matter of policy, should D be held legally responsible for his actions and p �s injury? Limits
Harms traceable to multiple causes: All defendants held liable, and burden of proof on D to show innocence. Multiple tortfeasors
If tortuous acts of two+ parties caused indivisible injury which isn�t capable of apportionment, D �s are held jointly and severally liable. Where divisible injury exists (can be apportioned amongst the D �s), each D is liable for their own act.Intervening cause
Intervening cause harms p after initial negligence by D . D is liable for injury caused by intervening cause if intervening cause was foreseeable.
No liability if unforeseeable (superceding cause).
Types of damages
Payments received from p �s insurance co. or employment benefits are not deducted from D �s liability. Payments from D �s insurance co. do reduce D �s liability.Defenses
Contributory negligence (minority): If p is even slightly at fault (negligent), no recovery from D . Exception: Last clear chance doctrine � where D had last clear chance to avoid injury and failed to do so. Assumption of risk
p voluntarily and knowingly (subjective) exposes himself to risk of harm. May be in addition to to contributory negligence.Limitations on liability and special rules of liability
Independent contractors: Employee has no liability, except:
Joint venture (more limited purpose than a partnership): Each member liable for conduct of other members. Automobile owner generally not liable for tortuous conduct of someone else who is driving.
No vicarious liability for negligence or torious conduct of child, but may be liable for negligence for failure to supervise or control child�s conduct.Be sure to address indemnification of employer by employeeMultiple D issues
Joint and severable liability: Where combined negligent acts of D �s cause indivisible injury to p , each D is jointly and severably liable. Contribution and indemnity
Survival & wrongful death
Tort actions survive p �s death, except torts against intangible interests (defamation, right to privacy). Wrongful death: Spouse or next of kin can bring suit for pecuniary injury resulting to spouse or next of kin for loss of support and loss of consortium. No pain and suffering.Strict liability
Wild animals (lion, bear, snake, sharks)
One who sells a product in a defective condition which is unreasonably dangerous to user or consumer, is strictly liable. Liability is imposed on the entire line: Manufacturer, wholesaler, retailer. But no liability on the occasional seller (i.e. lemonaide stand, PTA bake sale). Misuse is not a defense if the misuse is foreseeable. Liability for failure to give adequate warning or directions. Also discuss negligent manufacturing and warranties.Rule of Rylands v. Fletcher Defenses
Act that inconveniences, obstructs or damages a right common to the general public. Usually a serious interference with public health, safety or peace. p must suffer some harm of a kind that is different from the general public.Private
Substantial and unreasonable interference with p �s use and enjoyment of land. May also be a trespass.Remedies
Money damages Injunction
Abatement by self help after notice to D and refusal by D to take action.Misrepresentation
False representation made by D . Scienter: Knowledge by D that representation is false. Intent to induce p to act or refrain from acting in reliance on false statement. Justifiable reliance by p on misrepresentation. Damages for pecuniary loss.Usually no liability for nondisclosure, unless:
Statement must concern D
Any living person may be defamed, but not deceased person. Defamation of company or product: COA is trade libel, not defamation. Reasonable reader/listener must understand that the statement was concerning D . Group defamation is available.Publication
Communication to TP. Each repetition is actionable. Primary publisher and republishers are both liable.Damage to p �s reputation
Fault on D �s part
p has to show negligence. Malice gives punitive damages.Libel: Written
Truth: Absolute defense Consent Retraction is not a defense, but may mitigate damages. Absolute privileges
Right to Privacy
Facts must be private Disclosure must be objectionable to reasonable person No legitimate public interestIntrusion on private seclusion: Evesdropping, peeping tom�s, unwanted phone calls.Other torts
Introduction of evidence
Objections and offers of proof
Offers of proof
Where trial court excludes evidence, no error on appeal can be established unless offer of proof was made, or reason was apparent from context. Method: Oral or written explanation, or Q&A format.Preliminary questions of admissibility
Determined by trial judge as a matter of law.
Affidavits and hearsay allowedConditional Relevancy: Where relevancy of proffered evidence depends on existence of other fact, evidence admissible until evidence produced re: nonexistence of other fact. Hearings on objections/admissibility
Introduction of parts of a writing: Once part of a writing or recorded statement is introduced, adverse party may request admission of any parts.Lay opinions
Must have personal knowledge: Actually perceived or observed event. Nonexpert may testify in the form of opinions or inferences if:
Expert testimony and scientific evidence
Bases of testimony
Ultimate issue rule: Expert witness may give opinion on ultimate issue ("did testator have mental capacity to make a will?" but not "did T have legal capacity?"). Expert may not given opinion as to whether criminal D did or did not have particular mental state which is an element of the crime. Reliability of scientific evidenceCompetency of witnesses
Witness must take oath or affirmation to testify truthfully Witness must show mental capacity sufficient to understand obligation to tell the truth Witness must have personal knowledge Interpreters are allowed if they qualify as expert witness and take oath to testify truthfully. Any additional requirements imposed by states. Dead man�s statute: Lawsuit involving dead person cannot use testimony regarding transaction involving deceased. If the state has a dead man�s statute, federal court will follow it.Judicial notice: Court will accept certain facts as true, dispensing with need for presentation of formal evidence. Can be done at any stage of the proceeding.
Discretionary, on court�s own motion
State and federal law Indisputable scientific facts (blood test to prove paternity, radar, ballistics test. Adjudicative facts, upon request by party, when supplied with adequate supporting information.Party against whom judicial notice is taken has a right to be heard, either before or after notice is taken (at court�s discretion). Effect
Civil cases: Judicially noticed facts are indisputable. Jury must accept as conclusive. Criminal cases: Jury may accept as conclusive facts which are judicially noticed.Roles of judge and jury
p has burden of persuasion to prove all issues beyond reasonable doubt. D either has to show some evidence of affirmative defense, followed by p showing issue beyond reasonable doubt, or show affirmative defense by by preponderance of evidence.Presumption
Inference jury must draw which shifts burden of production to opposing party.
Irrebuttable presumption: Basic facts conclusively establish presumed facts. Example: Child under certain age incapable of committing intentional tort. Criminal cases: Presumptions are constitutional, but only permissive presumptions, which allows jury to use presumption, but they don�t have to.
Mode and order
Exclusion of witnessesImpeachment, contradition, and rehabilitation
Inconsistent statements and conduct
Foundation: Witness need only be given opportunity to explain or deny statement on direct or cross. Any inquiry permitted regardless of relevancy, but witness� response limited by collateral matter rule (TP can�t be called to refute witness� answer re: collateral matter).Bias and interest
Always material, never collateral. Impeachment can occur by intrinsic questioning or extrinsic testimony. Foundation requires asking witness about facts that form basis for bias.
Conviction of crime
Felony convictions used to show bad character: Admissible if probative value outweighs prejudicial effect. Crimes bearing on untruthfulness: Judge has no discretion to exclude. Crimes can�t be introduced if committed more than 10 years ago, unless court determines probative value exceeds prejudicial effect and advance written notice to opposing party is given.
Specific instances of conduct
Prior unconvicted bad acts relating to truthfulness: Q�s on cross-examination may inquire, but no more.Character for truthfulness
Reputation and opinion evidence of witness� character for untruthfulness: Both allowed, but limited to character trait for untruthfulness.Ability to observe, remember, or relate accurately
Sensory defects: Intrinsic or extrinsic evidence re: ability of witness to perceive, observe or remember. Foundation requires prior questioning re: sensory deficiency ("do you normally wear glasses?").Impeachment of hearsay declarants Rehabilitation of impeached witnesses Religious beliefs are inadmissible to attack credibility.Proceedings to which evidence rules applyRelevancy and reasons for excluding relevant evidence
Legal relevancy: Otherwise relevant evidence is excluded for policy reasons (balancing test). Probative: Evidence must have some logical tendency to prove or disprove a fact of consequence. Materiality: Evidence bears on a fact or consequence re: particular matter before the court.Exclusion for unfair prejudice, confusion, or waste of time
Confusion of issue
Undue delay Waste of time Needless presentation of cumulative evidenceAuthentication and ID
Scientific evidence or tests
Lay person with familiarity, so long as familiarity wasn�t acquired for purposes of litigation. Comparison by expert witness. Comparison by trier of fact.Telephone conversations
Calls to residence: Showing that call was made to number assigned by telephone company, and self identification by person who was called. Calls to business: Showing that call was made to number assigned by telephone company, and call related to business reasonably transacted over telephone.Photograph: Must be accurate portrayal of what it depicts. Self-authentication
Domestic public documents under seal Certified foreign public documents Certified copies of public records Official publications of a public agency Newspapers and periodicals Trade inscriptions, i.e. label on a can of food Notarized documents Commercial paperCharacter
Character: General description of person�s disposition. Methods of proving character
Criminal D can use circumstantial character evidence when:
Habit and routine practice
Habit: Circumstantial evidence of person�s regular response to repeated specific situation. Evidence of habit of a person or routine practice of an organization, whether corroborated or not, and regardless of presence of witnesses, is relevant to prove conduct in conformity with routine practice. Opinion or specific conduct can be used to prove.Other crimes, acts, transactions, and eventsReal, demonstrative and experimental evidenceBest evidence rule
Applies to writings, recordings, photographs
Original is required Exceptions:
Duplicates and photocopies are admissible and treated as the original, unless genuine question of authenticity Summaries of voluminous records
Privileges and other policy exclusions
Nonessential (not furthering some purpose of the relationship) TP�s destroy confidentiality. Known or reasonably anticipated evesdroppers destroy confidentiality, but unknown and unanticipated do not. Communications made in public are never confidential.Holder
Only holder can assert or waive privilege. Waiver can be complete or partial.Spousal immunity and marital communications
Spousal privilege: Protects all communications, not just verbal, prior to and during marriage.
Attorney-client and work product
Attorney is one who is actually licensed or who client reasonably believes to be licensed. Holder is the client, but attorney may assert privilege for client. Exceptions
Work-product: Material prepared by attorney for her own use not protected by attorney-client privilege, but protected under work-product doctrine.
Includes psychoanalysis, psychologists, psychiatrists. Protects verbal communications and observations (x-ray, visual). Exceptions
Both priest and penitent are holders of the privilege.Self incrimination Insurance coverage
Evidence that person has or does not have liability insurance, and statements made in connection ("I ran the red light, but I have insurance"), is inadmissible to prove negligence. Exceptions:
Subsequent remedial measures cannot be used to prove negligence or culpable conduct (purpose is to encourage people to make repairs without fear of liability). Except:
Compromise, payment of medical expenses, and plea negotiations
Offer to settle disputed claim and statements connected therewith ("I was at fault. Let�s settle.") are inadmissible to prove liability for claim or amount (encourages settlement). Except:
Offer to pay medical bills is inadmissible to prove liability for injury. Statements made in connection ARE admissible. Offers to plead guilty or nolo contendre, even if withdrawn, are inadmissible against maker of plea. Except:
Past sexual conductHearsay and admissibility (focus)
Declarant must be available and subject to cross. If statement was sworn testimony in a proceeding, admissible both substantively and to impeach. Otherwise, only admissible to impeach.Prior consistent statements
Declarant must be available and subject to cross. Nonhearsay where offered to rebut charge of recent fabrication (i.e. that witness is biased or lying) or improper influence.Prior identifications
Declarant must be available and subject to cross. Prior statement of identification made after person perceived him.Admissions
Direct: Statement of a party, offered against him, by opposing party ("admission of party-opponent"). Conduct or silence
Statements whose relevance is independently significant of their truth.
Behavior which actor does not intend to mean as communicative statement, but which may be interpreted as a communicative statement. Example: Person opens umbrella not to communicate that it is raining, but so that they don�t get wet. Pilot who brings his family onto the plane � not to show it�s safe. Compare with signaling directions.State of mind
Independently relevant circumstantial evidence can be used to prove knowledge, intent, attitude or belief of either declarant or listener.Hearsay exceptions
Unavailability of declarant required Present sense impression
Statement describing or explaining event or condition made while declarant was perceiving event or condition, or immediately thereafter. No time for reflection or deliberation. Declarant need not be available or even known.Excited utterances
Utterance relating to a startling event or condition, made while declarant was under the stress of the excitement caused by the event or condition.
Condition need only relate to the startling event. Declarant need not be available or even known. Res gesti: Always a wrong answer.Statements of mental, emotional or physical conditions
Intent, pain, bodily health
Statement must relate to the present; not past, although past mental state re: declarant�s will is admissible.Statements of past physical condition
Medical history or past/present symptoms of a person (not necessarily the person seeking treatment). Made to any person for the purpose of medical diagnosis or treatment.Past recollection recorded
Where witness� memory has failed to be refreshed, witness may read into evidence statements from a writing if:
Writing itself is not admitted into evidence � only read into evidence, unless adverse party consents.Business records
Record or report of acts or events kept in ordinary course of regularly conducted business.
Absence of business entry can be used to prove nonoccurance of event or nonexistence of record. Example: Absence of DMV record re: driver�s license.Public records and reports
Types of records
Custodian of record must have official duty to record. Court has discretion to exclude due to lack of trustworthiness. Absence of public record is admissible.Other records
Vital records Religious organization records (baptism, etc.) Marriage certificates Family records, such as statements made in family bibles, engravings on tombstones, genealogy charts, and inscriptions on family portraits. Statements in ancient documents (>20 yo) if found in place where it aught to be, and some form of authentication. Example: Map to show existence of a road. Final judgments entered after trial or upon plea of guilty to felony. Used to prove truth of matter asserted, not of character.Learned treatises
Statements contained in published treatises and periodicals admissible if:
Statements in treatise are read into evidence. Treatise itself is not admitted unless offered by adverse party.Catch-all (equivalency) exception
Evidence offered must be more probative than any other evidence on point. Court must find "circumstantial guarantees of trustworthiness" equivalent to other hearsay exceptions. Admission of statement must best serve interests of justice. Advanced written notice must be given to opposing party.Other
Declaration made while under imminent belief of death concerning cause or circumstances of purportedly imminent death. Can be used in criminal homicide case, or any civil case.Declaration against interest
Statement of nonparty which was against penal, pecuniary or proprietary interest when made. If statement against penal interest offered to exculpate accused, corroborating circumstances must be shown which clearly indicate trustworthiness of declaration. Versus admission
Unavailability of declarant required
Interests in property
Defeasible fees simple
Fee tail: Fee simple whose inheritance was limited to grantee�s lineal descendents. Example: "To B, and the heirs of his body" or "To B, and the male heirs of his body." Life estates: Fee simple where a duration is measured by live of human being. Example: "X conveys property to A for life of A" or "X conveys property to A for the life of B" (per ultra vie � life of another).
Executory interests: Cuts short a prior estate. Future contingent interest created in favor of transferee in the form of springing or shifting use, which on the happening of the described contingency will be executed into a legal estate which cannot be described as a remainder.
RAP: No contingent interest exists unless it must vest or fail, if at all, no later than 21 years after some identifiable life in being at the time the interest is created.
Restraints on alienation: Restrict grantee�s power to convey property to others. Invalid if imposed on fee simple. Restraints on lesser estates are generally valid.
Concurrent estates: Ownership/possession by 2+ persons at same time.
Tenancy by the entirety: Ownership by both H and W, with right of survivorship. Unity required:
Tenancy in common: Co-tenants own undivided, separate, distinct share of property.
Leasehold/Nonfreehold estates (possession)
T�s duty to pay rent
T�s duty to repair: Affirmative duty to make ordinary repairs. T�s duty not to commit waste
T�s duty of care (tort liability)
LL duty to deliver possession of premesis
LL duty to warn of dangerous conditions (fitness of premises)
LL duty to repair: None, unless he undertakes repairs and is negligent.Fixtures
For a chattel to become a fixture:
Trade fixtures: Chattels annexed to land for pecuniary gain during tenancy; removable by T.Contract
Eviction: Occurs where LL or paramount title holder excludes T from possession. Covenant of quiet enjoyment
Surrender, mitigation of damages, and anticipatory breachNonpossessory interests
Excessive use requires injunction to stop misuse.Licenses: Permits a person to come onto the land of another without being viewed as a tresspassor. Not an interest in land: Much less significant than an easement. Generally revocable at discretion of licensor, but not if coupled with an interest (i.e. ownership interest in goods located on the land). Example: Free parking at shopping center. Covenants running with land: K which may be enforced by successors in interest.
Equitable servitudes: Restriction on the use of land that is enforceable in equity.
Other interests in land
Taking and aspects of zoningRights incident to possession
Limitations of claims
Lateral and subjacent support
Real Property Contract
Creation and construction
Risk of lossInterests before conveyance
Earnest-money depositsRelationships after conveyance
Land description and boundaries
Covenants for title
Breached, if at all, when deed is delivered (do not run with land):
Breached, if at all, after deed is delivered (run with land, and can be enforced by remote grantees); requires showing of damages:
Conveyancing by will
Priorities and recording
Types of priority
Scope of coverage
Real property mortgages
Tip: Boil down to a list of government powers to determine best way to uphold a challenged statute. Judiciary
A3 vests judicial authority in the (one) Supreme Court, and inferior courts as Congress may establish.
A1 courts consists of administrative, legislative, military, D.C. and bankruptcy courts.
Congress has plenary power to define and limit jurisdiction of lower federal courts.Types of cases heard
Discretionary: Requires 4 justices to accept case State court decisions Decisions from lower federal courts (U.S. Courts of Appeal)Judicial review
Applies only to U.S. Supreme Court Requires final judgment from state�s highest court that the case may reach. Where state court decision establishes both adequate and independent substantive or procedural state ground upon which case was decided, Supreme Court will not hear the case, even though state court may have erroneously decided federal constitutional issue.Case or controversy requirement
Actual and definite dispute between parties having adverse legal interests.
p has personal stake in outcome: Injury in fact arising from conduct being complained of. Redressability: Relief sought must eliminate harm alledged. Injury must be fairly traceable to D �s conduct. Third-party standing generally not allowed, except when close relationship between p and TP, and special need to adjudicate exists (i.e. where TP can�t adequately protect their own interest). Examples: Doctor raises issue of abortion for patient, or school for students, or labor union for members. Abstract or generalized grievance (citizen standing) is usually denied.
Non-justiciable issue committed to another branch of government. Factors
Guarantee clause: Every state guaranteed republican form of government. Legislative apportionment can be reviewed, and court can compel state to re-apportion districts. Amendment ratification process: Court cannot determine duration of time for state to ratify amendment. That is congress� job. Congress and president has exclusive control over the military organization, arming or discipline. Court cannot determine age, residency and citizenship requirements for its members. Foreign affairs is reserved for congress and president.11th Amendment
State cannot be sued in federal court by its own citizens, citizens of foreign state, or citizens of foreign country, without consent. Does not bar suits against local government. State officials can still be sued for federal law violations � just not the government itself. When civil rights are involved, courts can strip states of 11th amendment immunity.Abstention doctrine
Pullman: Federal court will generally abstain where unsettled issue of state law exists, because state court decision on issue may preclude need for federal review. Federal court retains jurisdiction pending state decision. Younger: Federal court will abstain from pending state criminal proceedings. Prevents p from going to federal court to receive civil injunctive relief from state criminal proceedings. Forces p from going through state criminal proceeding. Also applies to criminally related civil proceedings (welfare fraud) and civil contempt proceedings.Separation of powers
Federal government has only that authority that the Constitution gives it. All other powers retained by states through 10th Amendment, which is where state finds its police powers (health, safety, welfare, morals or aesthetics).Powers of Congress (A1�8)
Tax is valid if the dominant intent is fiscal revenue raising.Spending
Congress can attach strings to money, but the strings must be reasonable. Even if the strings wouldn�t be proper legislation.Power over federal property (A4�3): Congress has the power to dispose of and make all rules and regulations regarding the territory or other property of the US.
War and defense
Declare war Regulate militia Raise and support troopsNecessary & Proper clause: Congress can use any reasonable means necessary and proper to execute enumerated powers. Enforcement of 13th, 14th and 15th AmendmentsPowers of President
President must faithfully execute the laws. Appointment & removal: Can appoint purely executive officers, ambassadors, supreme court justices, etc. with senate consent. Can appoint to agencies and commissions with executive powers without senate consent. Congress cannot appoint inferior officers, but can delegate such appointment to judiciary or executive. President can remove any purely executive official, but not federal judges or fixed-term executive official without good cause. Veto legislation within 10 days, subject to override by 2/3rds vote. Pardon power: Extends only to offenses against the U.S. (federal crimes, not state crimes). Executive privilege: Refusal to disclose information. Absolute as to military and diplomatic secrets; otherwise merely a qualified privilege. Absolute immunity from civil suits for actions taken in office (but Clinton may have changed this).Commander-in-chief
Deploy military troops even before outbreak of war. Broad emergency powersTreaty and foreign affairs
Shared with congress (not plenary) Sources
Federal interbranch relationships
Federalism: Relations of nation and states in federal system
Dormant commerce clause / Authority reserved to the states
Must be reasonable and nondiscriminatory. Must have substantial nexus between state interest and activity being taxed. Goods in the stream of interstate commerce may not be taxed. Instrumentalities involved in interstate commerce (planes, trains, boats) can be taxed so long as it is fairly apportioned as to the extent of taxpayer use in the state. Example: Airline can be taxed based on number of days plane is in the state�s airports. Direct taxes must be apportioned. Indirect taxes must be geographically uniform.Supremacy clause
Preemption: If the federal government intends to occupy the area, any conflicting state laws are invalid. Supercession doctrine: Federal law supercedes state laws in direct conflict. But in the area of health and safety regulations, state can enact standards which are more strict than federal.National power to override or extend state authority
Relations among states
Individual rights (majority of the focus in this section)
Economic regulation valid if rationally related to legitimate government interest. Fundamental rights: Strict scrutiny.
Procreation: Also affected by limits on contraception. Education
Travel: Right to move freely from state to state.
Vote: 1 person, 1 vote
Notice and hearing available whenever there is a serious deprivation of life, liberty or property interest (right or privilege).
Balance severity of harm if procedures are not granted against government interest in administrative efficiency (cost).Takings (5th and 14th): Private property taken for public use by confiscation, physical occupation, regulation denying owner all reasonable economically viable use of land.
Equal protection: Used where law affects some persons, but not all. If it affects all, use substantive due process. Applies to federal gvmt via 14th, and states through 5th.
National origin Criteria: Characteristics which are unalterable, and history of purposeful unequal treatment. Reemptory jury challenges on the basis of race violate EP and are unconstitutional in both civil and criminal cases.Fundamental rights
Burden: State must show that the law is necessary to a compelling interest. No less restrictive alternative means available.Intermediate scrutiny
Burden: State must show that the law is substantially related to an important state interest.Rational basis
Applies to all other areas not already covered. Most common are: Poverty, age, mental retardation, necessities of life, social and economic welfare measures. Burden on p to show that the law is not rationally related to any legitimate interest. p usually loses.Privileges and immunities clause
Obligation of contracts, bills of attainer, ex post facto laws (usually wrong answers)
Government involvement must be neutral
Government may not pass a law preferring or aiding one religion over another. Test:
Government sponsored religious activities in public schools are unconstitutional. Examples: Required non-denominational prayer. Daily bible reading, even if excusal allowed. Moment of silent voluntary prayer. Forbidding teaching of evolution. Government aid to religious schools for construction grants and salary supplements is unconstitutional at elementary and secondary levels. Government aid to parochial schools, which cannot even possibly be used for religious purposes, is constitutional. But also has to be made available to public schools on same terms. Examples: Bussing (but not for field trips), health tests, loan of textbooks (but not a/v equipment � might be used for religious purposes). Tax benefits
Opening prayers: Based on long tradition of practice, opening prayer is ok if done by state legislator, but not judge. Public displays: OK so long as secular purpose (celebrate holiday season) such that benefit to church is incidental, and no excessive entanglement. Examine who erected the display (city good, church bad), and what it contained (no one religion favored).Free exercise
Violation where government burdens persons because of their religious beliefs. Beliefs are absolutely protected. Court may not determine reasonableness of beliefs (whether one religion is right and another is wrong or invalid), but court can determine sincerity. Conduct in furtherance of those beliefs may be regulated. Courts balance burden to person vs. government interest in regulation of that conduct.
Examples (free exercise claim usually loses):
Regulation of speech content
Selective incorporation of bill of rights to states via 14th amendment due process clause