CRIMINAL PROCEDURE
What is the rule statement for a search under the Fourth Amendment?
A search occurs when state action intrudes upon a constitutionally protected place. A place is constitutionally protected where there is a reasonable expectation of privacy.
What is the rule statement for the Felony Murder Rule?
The Felony Murder Rule applies when a killing occurs during the commission or attempted commission of an inherently dangerous felony, such as burglary, rape, robbery, arson, or kidnapping.Â
What is the rule statement for the Doctrine of Merger?
Under the doctrine of merger, once a land sale contract is executed and the deed is delivered at closing, all obligations in the contract merge into the deed. After closing, the buyer can only enforce obligations that appear in the deed, not those in the contract.
What is the rule statement for witness competency?
Witnesses must testify based on personal knowledge, have the ability to communicate, and take an oath or make an affirmation to tell the truth. In California, they must also understand the legal duty to tell the truth.
What is the rule statement for a reasonable fee?
A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. In California, the fee may not be unconscionable or illegal. Factors considered include time, difficulty of the case, lawyer's expertise, degree of specialty required, preclusion of other work, amount of fee, relationship with the client, and results obtained.
What is the rule statement for a seizure under the Fourth Amendment?
A seizure occurs when a reasonable person believes he or she is not free to terminate a state encounter or when the state exercises control over property in which the person has ownership or a possessory interest.
What is the rule statement for voluntary manslaughter?
Voluntary manslaughter is an intentional killing, but with adequate provocation that negates malice. Adequate provocation requires:
1. The defendant was provoked into sudden intense passion.
2. The provocation caused the defendant to lose control.
3. A reasonable person would have been provoked.
4. There was not enough time to cool off.
5. The defendant did not cool off.
What is the rule statement for the Doctrine of Equitable Conversion?
Under the doctrine of equitable conversion, once a land sale contract is signed, the buyer is deemed the owner of the real property, even before closing. If the property is destroyed before closing, the risk of loss is placed on the buyer, unless the contract states otherwise.
What is the rule statement for an expert witness in California?
An expert witness in California must base their opinion on principles generally accepted in their field (Kelly-Frye standard) or reliable principles tested for publication, peer review, and error rate (Daubert-Kumho standard). The opinion must be supported by facts and assist the trier of fact.
What is the rule statement for contingency fee agreements?
A contingency fee agreement must be in writing, signed by the client, and include the percentage the lawyer will deduct, as well as the expenses and whether they are deducted before or after the lawyer' s fee. In California, the agreement must also state how expenses not covered will be charged and that fees are not set by law and are negotiable. Contingency fees are prohibited in divorce, alimony, and criminal cases.
What is the rule statement for a STOP?
If the police have a reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts, they may stop a person for investigative purposes.
What is the rule statement for larceny?
Larceny is the:
1. Trespassory taking and carrying away
2. Of another' s personal property
3. With specific intent to permanently deprive them of it.
What is the rule statement for the Implied Warranty of Habitability?
In residential leases, the implied warranty of habitability requires landlords to provide a dwelling that is safe, clean, and fit for human habitation, including essentials like heat, running water, and sewage disposal. If breached, the tenant may:
1. Move out and terminate the lease,
2. Withhold or reduce rent,
3. Repair and deduct from rent, or
4. Remain and sue for damages.
What is the rule statement for present recollection refreshed?
A witness may examine any item to refresh their memory, but testimony must be based on their recollection, not a reading of the item. The adverse party is allowed to inspect the item and introduce relevant portions into evidence.
What is the rule statement for the duty to report misconduct?
A lawyer who knows that another lawyer or judge has committed a violation of the Rules of Professional Conduct that raises a substantial question as to honesty, trustworthiness, or fitness as a lawyer shall report it to the appropriate professional authority.
In California, a lawyer must report:
1. Fraud, misappropriation of funds, and other serious misconduct,
2. Their own felony charges, malpractice suits, sanctions of $1,000+, and findings of gross incompetence or willful misrepresentation.
What is the rule statement for automobile search incident to a lawful arrest?
Under the Fourth Amendment, the police may search the interior compartment of a vehicle, but not the trunk, without a warrant incident to a lawful arrest if they demonstrate at the time of the search:
1. The arrestee is within reach of the compartment and may pose an actual and continuing threat to the officers’ safety or a need to preserve evidence from tampering, or
2. The vehicle contains evidence of the offense of arrest.
What is the rule statement for accomplice liability?
Accomplice liability applies when a person:
1. Aids, abets, assists, or encourages the commission of a crime.
2. Is physically or constructively present when the crime occurs.
An accomplice is liable for the crime committed, as well as any foreseeable crimes committed in furtherance of it.
What is the rule statement for the Shelter Rule?
The Shelter Rule protects a grantee who takes title from a bona fide purchaser (BFP). Even if the grantee would not qualify as a BFP themselves, they are shielded from claims of prior title defects because they received title from a BFP.
What is the rule statement for present sense impression?
A present sense impression is a statement describing or explaining an event or condition made while or immediately after the declarant perceived it. In California, this only applies if the statement explains the declarant's conduct while engaged in that conduct.
What is the rule statement for referrals?
Under ABA rules, a lawyer may not give anything of value for recommending the lawyer's services but may engage in mutual client referrals.
In California, referral fees can be paid if:
1. The client consents in writing,
2. The fee does not increase the cost to the client, and
3. The fee is not unconscionable.
What is the rule statement for a warrant?
A valid search warrant must be:
1. Issued by a neutral and detached magistrate,
2. Based on probable cause supported by oath or affidavit, and
3. Describe with particularity the places to be searched and the items to be seized.
What is the rule statement for the M'Naughten Test?
Under the M'Naughten Test, a defendant is legally insane if, due to a mental disease or defect, they:
1. Were unable to understand the nature or quality of their act, or
2. Did not know that their act was morally wrong.
What is the rule statement for the Rule Against Perpetuities?
The Rule Against Perpetuities (RAP) invalidates any property interest that may vest more than 21 years after the death of a measuring life in being at the time the interest was created. RAP applies to contingent remainders, executory interests, and class gifts.
What is the rule statement for spousal privilege?
Spousal privilege includes:
1. Marital Communications - Communications between spouses during marriage are privileged. Both spouses hold the privilege, even after divorce.
2. Spousal Immunity - In a criminal proceeding, a spouse cannot be compelled to testify against their spouse about events that occurred before or during the marriage. The witness spouse holds this privilege until the marriage ends.
Exception: Actions between spouses or concerning children.
What is the rule statement for sexual relations with a client?
A lawyer may not have sexual relations with a client unless a consensual sexual relationship existed before the attorney-client relationship began.