Jurisdiction Junction
where is a corporation domiciled for purposes of diversity jurisdiction?
state of incorporation and principal place of business
what is the difference between larceny by trick and false pretenses?
the criminal obtains possession through LBT but title through FP
When is a declarant unavailable for purposes of 804?
-dead / infirmity
-won't testify despite court order to do so
-can't be found
-testify that they don't recall the subject matter
-exempted from testifying due to privilege
what are the 12(b) defenses and when must they be asserted?
lack of SMJ -- any time
lack of PJ -- answer or pre-answer motion
insufficient process -- answer or pre-answer motion
insufficient service of process -- answer or pre-answer motion
improper venue -- answer or pre-answer motion
failure to state a claim upon which relief can be granted -- in any pleading, in a motion for judgment on the pleadings or at trial
failure to join an indispensable party -- in any pleading, in a motion for judgment on the pleadings or at trial
when is an original writing not required under the best evidence rule?
the original is not required, and other evidence of the contents of a writing is admissible if:
-all originals are lost of have been destroyed (unless proponent destroyed them in bad faith)
-no original can be obtained by any available judicial proceed or procedure
-the original is in the possession of a party opponent
-the writing is not closely related to a controlling issue
when is removal improper in diversity cases?
Home-state limitation – if removal is sought solely based on diversity jurisdiction, the claim may not be removed if any defendant is a citizen of the state in which the action was filed
One year rule – a matter cannot be removed based on diversity more than one year after the action is commenced
What is the M'Naughten test?
test for insanity -- D did not know the nature or quality of the act, or at least the wrongfulness of the act because of a defect of reason due to mental disease
what is the difference between a present sense impression and an excited utterance?
a present sense impression is a statement explaining or describing an event or condition made while the declarant perceives it or immediately after.
an excited utterance allows statements about a startling event or condition that is made while the declarant is under the stress or excitement it caused to be admitted
how long does a defendant have to answer a complaint?
21 days unless service is waived, then 60 if in US or 90 if outside US
when are leading questions permitted?
-on cross
-hostile witness
-witness is someone with difficulty communicating
-question is necessary to develop the witness's testimony
how is in personam jurisdiction created?
Voluntary presence – if a defendant is voluntarily present in the forum state and served with process; Doesn’t apply if defendant is brought to the state by fraud or is passing through
Domicile
Consent
Long arm statutes – state statutes that give courts within the state PJ over out of state defendants; must comply with due process
what is malice aforethought?
intent to kill
intent to inflict serious bodily harm
reckless disregard for human life
felony murder (BARRK felonies)
What does the confrontation clause require in order for hearsay statements to be used against a criminal defendant?
Testimonial hearsay statements can be used if the declarant is unavailable and the defendant had a prior opportunity to cross-examine
when does an amendment related back to the date of the original pleading? and when must a party answer an amended pleading?
The amendment asserts a claim or defense that arose out of the transaction(s) or occurrence(s) in the original pleading
The law provides that the applicable statute of limitations allows relation back
The specified days (14) after service of the amended pleading
The time remaining for response to the original pleading
When are specific bad acts admissible?
in civil cases: whenever character evidence is admissible
in criminal cases: when character is an essential element of a crime or defense, MIMIC
for impeachment if the conduct is probative of the truthfulness of the witness
when is the bulge provision applicable?
Applies to third-party defendants joined under rule 14 and a required party who is joined under rule 19
what is the imperfect defense?
if a defendant is charged with murder, the murder charge is reduced to voluntary manslaughter when D contends the use of deadly force was necessary for self defense or the defense of others and D either started the altercation or unreasonably believed in the necessity of using deadly force
what is non hearsay?
declarant-witness's prior statements of identification; prior consistent statements to rebut a charge of fabrication; and prior inconsistent statements made under penalty of perjury
party-opponent statements
what are the elements of a preliminary injunction? how is a permanent injunction different?
Plaintiff is likely to succeed on the merits
The plaintiff is likely to suffer irreparable harm
The balance of equities favor the plaintiff
The injunction is in the public’s best interests
permanent injunction requires actual success on the merits
what is the difference between spousal immunity and marital communications
Spousal immunity applies to criminal cases only, can be asserted only during a valid marriage about events occurring before or during the marriage, whether the witness-spouse can choose (but cannot be compelled) to testify
Marital communications applies to all cases, it is applicable after divorce or death and applied to confidential communications made between spouses during marriage. Either spouse can refuse to testify or keep the other from testifying
If the court’s jurisdiction is based solely on diversity, certain cases do not receive supplemental jurisdiction if they are inconsistent with the requirements for diversity jurisdiction (6)
Impleader
Compulsory joinder
Permissive joinder
Intervention
Claims by plaintiffs added through compulsory joinder
Claims by intervening plaintiffs
what crimes are specific intent crimes, what crimes are malice crimes?
Specific intent: FIAT (first degree murder, inchoate crimes, assault with intent to commit battery, theft crimes)
Malice: common law murder and arson
what are the hearsay exceptions for when the declarant has to be unavailable?
Former testimony
Family history
Statement against interest
Dying declaration
Forfeiture by wrongdoing
What interlocutory orders are immediately appealable?
Injunctions
Class Action Certifications
Collateral Order Doctrine
Admiralty
Appointment of Receiver
Certification by District Court
Bankruptcy
Mandamus
Patent Infringement
what is the difference between present recollection refreshed, past recollection recorded and recorded recollection
Present recollection refreshed is used when the witness is testifying but can no longer recall a fact; the item will help the witness remember; and the witness's testimony is then based on their refreshed recollection, not the item itself
Past recollection recorded -- a record may be used as substantive proof and read into evidence if the witness once knew but cannot recall a fact; the witness made/adopted the fact when it was fresh in their mind; the record accurately reflects the witness's knowledge. Recorded recollection is the hearsay exception that gets this record into evidence