Evidence
Explain the best evidence rule.
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by an act of Congress. It only applies where the contents of a writing are at issue. It is NOT applicable when first hand testimony, rather than the record of the event, is used to prove the content of the record.
What is the anti-commandeering doctrine?
The federal government cannot use an enumerated power to force a state legislature to pass a law or a state executive official to administer a federal program.
List and explain the three types of federal subject matter jurisdiction.
1. Federal Question- the face of the plaintiff's complaint pleads a violation or question of federal law.
2. Diversity- the action involves parties who are citizens of different states. The amount in controversy is greater than $75,000.
3. Supplemental- the claim arises out of the same case or controversy as the claim that gives rise to the original subject matter jurisdiction.
What are the four elements of a crime?
1. actus reus
2. mens rea
3. concurrence
4. causation
What must be shown for a child support order to be modified?
A substantial change in circumstances affecting the needs of the children or the ability of the parents to pay.
Define relevant evidence.
Relevant evidence is evidence that tends to make the existence of any fact more probable or less probable than it would be without the evidence.
When may the government place restraints on the time, place, and manner of speech in public areas?
It may do so if the regulation:
1. is content-neutral as to both subject matter and viewpoint;
2. is narrowly tailored to serve an important government interest;
3. leaves alternative channels of communication open.
What is the proper venue in any action?
1. the district in which any defendant resides, if all of the defendants reside in the same state
2. the district where a substantial portion of events occurred
3. the district in which any defendant would be subject to personal jurisdiction, if there is no other district in which the action could be brought.
What are the three requirements that must be met for one to be an accessory after the fact?
1. a completed felony must have been committed
2. the accessory must have known of the commission of the felony
3. the accessory must have personally given aid to the felon to hinder the felon's apprehension, conviction, or punishment
What are the 5 grounds for a "fault" divorce?
1. Adultery
2. Desertion
3. Extreme Cruelty
4. Voluntary Drug Addiction and Habitual Drunkenness
5. Insanity
What are the four exemptions where an out of court statement, even though it is offered for its truth, is admissible?
1. Statements by party opponent;
2. Prior sworn inconsistent statements;
3. Prior consistent statements; and
4. Prior identifications.
What is the abstention doctrine?
A federal court may abstain or refuse to hear a particular case when there are undecided issues of state law presented. The doctrine permits the state court to resolve issues of state law, making a decision on the constitutional issue unnecessary.
Name the three categories of challenges for cause in jury trials and explain each.
1. General disqualification- a person may lose the right to sit on a jury due to a felony conviction or some other inherent disqualification.
2. Implied bias- a person may be removed if the attorney believes a bias may exist.
3. Actual bias- a person may be removed for cause if they indicate during voir dire that they would use predetermined beliefs or principles to decide the case instead of deciding the cased based upon the facts.
What are the four categories of mens rea for murder?
1. intent to kill-specific intent
2. intent to cause serious bodily harm
3. depraved heart
4. felony murder- burglary, arson, rape, robbery, kidnapping (BARRK)
What three requirements must be met to incorporate a document by reference in a will?
1. The document must be IN EXISTENCE at the time the will is executed
2. The language of the will must SUFFICIENTLY DESCRIBE the writing to permit its identification
3. The will must MANIFEST AN INTENT TO INCORPORATE the document.
Define spousal and marital communications privilege.
SPOUSAL: protects communications before AND during the marriage. The privilege is lost at divorce; this is for criminal cases only.
MARITAL: protects communications ONLY during marriage; privilege survives divorce and applies to both civil and criminal cases.
What are the 5 limitations on jurisdiction of the federal courts?
1. Ripeness
2. Advisory opinions
3. Mootness
4. Political questions
5. Standing
MNEMONIC: RAMPS
What is the difference between a summary judgment motion and a JMOL motion?
A summary judgment motion is based on evidence that party MAY introduce at trial, while a JMOL motion is based on evidence ACTUALLY introduced at trial.
What is conspiracy?
What are the 5 requirements for an express trust?
1. a SETTLOR with capacity to convey
2. a clear and unequivocal PRESENT INTENT to create a present trust relationship
3. a competent TRUSTEE with duties
4. a definite BENEFICIARY
5. the same person is not the SOLE TRUSTEE and SOLE BENEFICIARY
BONUS: In addition, there must be a present and unequivocal disposition in trust of specific property then owned by the settlor, and the trust must have a valid trust purpose.
List 5 categories under FRE 804 that require the declarant to be unavailable.
1. Former Testimony
2. Statements under belief of impending death
3. Statements against interest
4. Statements of personal or family history
5. Statements made where the defendant has caused the declarant's unavailability called "forfeiture by wrongdoing."
What are the 6 rights protected by the privileges and immunities of national citizenship?
1. to travel from state to state
2. to petition Congress for redress of grievances
3. to vote for national offices
4. to enter public lands
5. to be protected while in custody of U.S. Marshals
6. to assemble peaceably
List the objections that may be raised by either motion or responsive pleading.
1. lack of subject-matter jurisdiction
2. lack of personal jurisdiction
3. improper venue
4. insufficient process
5. insufficient service of process
6. failure to state a claim upon which relief can be granted
7. failure to join a party under Rule 19
Define voluntary and involuntary manslaughter
Voluntary- an INTENTIONAL killing mitigated by adequate provocation or other circumstances negating malice aforethought.
Involuntary- an UNINTENTIONAL killing resulting without malice aforethought caused either by criminal negligence or during the commission or attempted commission of an unlawful act.
What are the four types of spousal support? Define each one.
1. Permanent periodic- paid regularly for the lifetime of the recipient
2. Rehabilitative- paid regularly for a limited period
3. Lump sum- payable all at once or in a series of payments
4. Reimbursement- payable all at once or in a series of payments