Criminal Law
Attempt
(1) Intent to commit a specific crime and
(2) An overt act in furtherance of that crime.
Probable Cause
Probable cause exists when there is a fair probability that the search/seizure will result in the discovery of evidence/person has committed a crime. (totality of the circumstances)
Duty of Confidentiality
Relates to all info regardless of whether client deems it confidential, how it was acquired, or whether revealing it might embarrass the client. (broader duty to client to keep confidences and secrets)
Broader than A/C privilege, which only applies to comm. and judicial-type proceedings.
Non Responsive Answer
When a witness goes beyond the scope of question, it should be subject to a motion to strike.
Effect of Assuming or Taking Subject to the Mortgage
Assuming the mortgage: Buyer & seller are personally liable for the mortgage debt, including any deficiency judgment
Taking the property subject to the mortgage: Buyer won’t be personally liable if there is a default in payment, will only suffer foreclosure
Conspiracy
(1) Agreement between or among two or more persons to commit a crime;
(2) Intent to enter into the agreement; and
(3) Intent to achieve the objective of the agreement.
Search Incident to Arrest of a Vehicle
Can search passenger compartment if sus. is unsecured and able to reach it OR if there is reasonable belief it contains evidence.
Client Funds/Property and Records
(1) Must keep records of funds and other prop; (2) Must keep the client informed; and (3) Deliver funds or other prop to client/3rd person entitled to receive the funds or property.
Lawyer must hold prop. of clients/3rd persons separate from own property. Client funds must be kept in a client trust account.
Mercy Rule - Character Evidence
Relevant character (opinion or reputation only) evidence must 1st be offered by the criminal D and then the prosecution can offer only relevant opinion/reputation evidence of the D’s same bad character. (prior acts okay for impeachment, not for truth)
Constructive Eviction
(1) LL breaches a duty set out in the lease
(2) Breach substantially and materially deprives tenant of use and enjoyment of premises
(3) T gives notice and reasonable opportunity to cure, OR LL refuses to repair
Remedy: Move out and termination if done promptly
Involuntary Intoxication
Removes both general/specific intent, and thus is a defense to all crimes.
It may be treated as insanity, so you must also then discuss the four types of insanity.
Exclusionary Rule
When 4th/5th/6th amendment has been violated, the remedy is that the evidence found in the course will be inadmissable at trial
Fee Splitting
Under both the ABA and CA rules, lawyer MAY NOT split a fee with a non-lawyer.
ABA: Lawyer may split fee w/ other attorney as long as they: (1) Get client’s consent, (2) Don’t increase what the fee otherwise would have been, and (3) Either fee is proportional to work done, OR each assumes joint responsibility for rep.
CA: To split fee w/ other attorney, must be written agreement regarding fee split; must obtain client’s informed written consent.
Business Records Exception to Hearsay
(1) Made as part of regularly conducted business activity
(2) At or near time of event recorded
(3) Maintained by custodian of records
(4) Made under conditions deemed trustworthy (pursuant to business duty to make accurate records)
Absence of Business Records also an exception when expected to normally exist
Types of Easements (2 types)
Appurtenant: Held by dominant estate and burdens servient estate.Passes automatically with dominant tenement, regardless if it is mentioned in conveyance. Automatically run with transfer of land unless servient estate is transferred to a BFP w/o notice.
In Gross: Holder has a right to access the property irrespective of their ownership of nearby or adjacent property. Does not run with the transfer of property, there is no dominant estate only a servient.
Voluntary Maslaughter
(1) The intentional killing of a human being
(2) With adequate provocation.
Adequate provocation requires that:
Invocations of Miranda Rules
Unambiguous invocation reasonable officer under circumstances, would understand suspect invoking their right. (Ambiguity favors police)
Right to remain silent, police must stop so that the officer has scrupulously honored the suspect’s right to cut off questioning.
Right to attorney: police may not resume questioning unless an attorney is present, or the suspect reinitiates the conversation with the police.
Continuing Representation of a Concurrent Conflict
Generally, ABA and CA permit acceptance of, or continued representation, if:
Impeachment by Bias
Wit. who has a bias toward/against a party, or incentive to benefit from testimony, has a reason to shade test. and can be impeached w/ evidence of bias, incentive, or motive.
If witness is given an opportunity to explain or deny the bias or motive, extrinsic evidence is admissible.
Lateral Support
Strict Liability if:
(1) Subsidence of land in its natural state and
(2) Subsidence of developed land only if it would have subsided in its natural state.
Negligence: Otherwise, no liability unless excavation done negligently
Receipt of Stolen Property
(1) Receiving possession and control of stolen personal property;
(2) Known to have been obtained by use of a crime;
(3) By another person;
(4) With the intent to permanently deprive the true owner of the property.
Exceptions to PC Requirement: Consent
Must be freely and voluntarily given under the circumstances. (consent may be withdrawn or explicitly limited) Scope is dependent on officer’s reasonable interpretation of consent given.
From the totality of the circumstances, were there (1) no coercive tactics; (2) no force; (3) no threats.
Special Rules for Conflicts Involving Former Government Officers and Employees
Prohibits lawyer from representing client in connection w/ matter in which the lawyer participated personally & substantially in as govt officer/employee, unless appropriate govt agency gives informed written consent.
Former Testimony
Federal
Testimony given under oath in earlier proceeding/depo. by now-unavailable witness is admissible when:
California: Same, EXCEPT no requirement that party’s predecessor in interest was party in earlier civil proceeding, just that party in prior action had similar interest to the party against former testimony is now offered.
Warranty Deed
Warranty Deed: Includes present and future covenants. (see below)
Present Covenants (breached at time of conveyance): Seisin: Authority to Convey (title and possession at time of grant) Right to Convey: Legal right to convey, Against Encumbrances: Not subject to 3rd party interests other than ones explicitly stated in deed
Future Covenants (breached at time of claim against the title) Quiet Enjoyment: Will not be disturbed by 3rd party lawful claim; Warranty: Will defend against reasonable 3rd party claims and compensate for losses; Further Assurances: Promise to execute documents necessary to perfect the title.