Evidence/Crim
When does the best evidence rule apply
When either 1) the contents of the document are at issue or 2) a witness is relying on the contents of the document when testifying
What are the 3 elements that must be met for and individual to have standard and what are the 3 elements that must be met for an organization to have standing?
Individual Standing
Organizational Standing
What are the three elements to a Rule 26 scope of discovery analysis?
Explain the three main categories for damages in tort law
Damages in tort law fall into three main categories:
Compensatory (ie, actual) damages: money awarded to compensate the plaintiff for his/her actual loss or harm
Nominal damages: a trivial sum of money (eg, $1) awarded to vindicate the plaintiff's rights when no actual loss or harm occurred
Punitive (ie, exemplary) damages: money awarded to punish the defendant for outrageous, malicious, or evil conduct and to deter the defendant and others from engaging in similar conduct in the future
Compensatory damages are available for any tort. But nominal and punitive damages are only available for torts involving intentional conduct (eg, assault, battery) or reckless conduct (eg, reckless driving). A plaintiff cannot recover nominal damages for negligence since this claim requires proof of actual harm. Punitive damages are also not recoverable for negligence because these damages are designed to punish and deter outrageous, malicious, or evil conduct—not unreasonable conduct.
When does a surety's promise to pay for a principal's debt not have to be in writing?
Generally a promise made to a person (i.e., the obligee) that the promisor (i.e., a surety) will be responsible for any debt or other obligation of a third party (i.e., the principal) resulting from the principal’s failure to pay as agreed is subject to the Statute of Frauds, and the surety’s promise must be in writing. However, if the main purpose of a surety in agreeing to pay the debt of the principal is the surety’s own economic advantage, rather than the principal’s benefit, then the contract falls under an exception to the Statute of Frauds, and an oral promise by the surety is enforceable.
What are malice crimes, and what common-law crimes fall into this category?
These crimes require reckless disregard of a high risk of harm. They do not require the defendant to act with ill will toward the victim.
Common-law murder and arson are malice crimes.
What is a political question?
A federal court will not rule on a matter in controversy if it is a political question, meaning (i) the Constitution has assigned final decision-making on this subject to a different branch of government, or (ii) the matter is inherently not one the judiciary can decide.
Explain the Multiparty, Multiforum Trial Jurisdiction Act of 2002 and what your favorite song from 2002 is
Under the Multiparty, Multiforum Trial Jurisdiction Act of 2002, when a civil action “arises from a single accident, where at least 75 natural persons have died in the accident at a discrete location,” only one plaintiff need be of diverse citizenship from one defendant for a federal court to have diversity jurisdiction, provided a defendant resides in a state and a substantial part of the accident took place in another state or other location. (For this purpose, a defendant resides in a state in which the defendant is incorporated, licensed to do business, or, even if not licensed, does business.)
A patron at a resort ranch took part in a supervised horseback trail ride. Prior to the ride, the patron executed a valid release that enumerated the inherent risks of horseback riding and, by its terms, relieved the resort from liability from any loss, damage, or injury to the guest's person or property suffered during the ride attributable to the negligence of the ranch or its employees. The patron was injured by a fall from the horse. The horse reared in response to negligent behavior of another rider. The patron filed suit against the ranch and the other rider for damages resulting from his injuries that totaled $400,000. At trial, it was determined that the ranch was 75 percent at fault for the patron's injuries due to its selection and training of the horse and that the other rider was 25 percent at fault. The applicable jurisdiction recognizes the validity of such releases and has enacted both a modified comparative negligence statute and pure several liability statute. How much can the patron recover from the other rider?
A Nothing, because the other rider was less than 50 percent at fault.
B Nothing, because the patron contractually assumed the risk of falling.
C $100,000, because the rider is liable only for his comparative share of the damages.
D $400,000, because the rider is liable to patron for the full amount of his damages.
Answer choice C is correct because the jurisdiction has adopted a pure several liability statute. Under pure several liability, each tortfeasor is liable only for his proportionate share of the plaintiff’s damages, which in this case is 25 percent of the patron's damages (i.e., $100,000). Answer choice A is incorrect because, even though the jurisdiction has adopted a modified comparative negligence statute, a defendant need not be more than 50 percent at fault in order to be liable to the plaintiff. Answer choice B is incorrect because the patron's express assumption of the risk by contract, by its terms, only barred a negligence action against the ranch, not the patron's fellow rider. Answer choice D is incorrect because the jurisdiction does not follow the joint and several liability doctrine, but instead has enacted a several liability statute.
What is the difference between the UCC perfect-tender rule and the substantial-impairment rule?
Contracts for the sale of goods generally follow the UCC's perfect-tender rule, under which a seller must tender goods conforming to the warranty obligations in the contract. Substantial performance will not suffice. But this rule does not apply to installment contracts, which provide for the delivery of goods in multiple shipments, each to be separately accepted by the buyer.
Instead, installment contracts follow the substantial-impairment rule. This rule allows the buyer to reject tender of nonconforming goods when the nonconformity substantially impairs the value of that shipment to the buyer and cannot be cured.
What is the MPC test for insanity?
The defendant is not guilty if, at the time of the conduct, he, as a result of a mental disease or defect, did not have substantial capacity to appreciate the wrongfulness of the act or to conform his conduct to the law.
Note: This test combines the irresistible-impulse test and the M'Naghten test.
What is the presentment clause
The Presentment Clause requires any bill that has been passed by Congress to be presented to the President. If the President signs the bill, it becomes law. If the President does not, it may either become law or not depending on whether the President vetoes it (either directly or via a “pocket veto”), and if by a direct veto, whether Congress overrides the President’s veto. The federal law that effectively gives the President a so-called “line-item veto” thwarts the procedure set out in the Presentment Clause.
Service may be made within the state in which the federal district court sits by:
(i) Personally serving the summons and complaint on the defendant;
(ii) Leaving the summons and complaint at the defendant's usual place of abode with a person of suitable age and discretion who resides there; or
(iii) Delivering the summons and complaint to an agent appointed by the defendant or otherwise authorized by law to receive service.
Surprise! This is a contracts question
A dairy ordered a tank trailer from a commercial retailer. The contract did not identify a specific tank trailer, but did specify various features that the tank trailer should have. The contract called for the retailer to deliver the tank trailer to the dairy. Subsequently, the retailer acquired a tank trailer from a manufacturer that it believed met the requirements of the contract. Several days later, the retailer, in accordance with the contract, had the dairy’s emblem painted on each side of the tank trailer, and then delivered it to the dairy. The tank trailer did not, in fact, conform to the contract.
At which time did the dairy acquire an insurable interest in the tank trailer?
A: When the contract was entered into.
B: When the retailer acquired the tank trailer from the manufacturer.
C: When the retailer had the dairy’s emblem painted on the tank trailer.
D: When the retailer delivered the tank trailer.
Answer choice C is correct. A buyer acquires an insurable interest in goods upon the identification of the goods. Where the contract is for future goods (i.e., goods that are not both existing and identified), the buyer does not acquire an insurable interest until the seller designates goods as those to which the contract refers, unless the parties have explicitly agreed otherwise. Since the dairy did not select a tank trailer from the retailer’s inventory or otherwise select a specific trailer, the contract was for the sale of future goods. By painting the dairy’s emblem on the tank trailer, the seller effectively designated that tank trailer as the dairy’s. Consequently, at that time, the dairy acquired an insurable interest in it. Although the trailer’s failure to conform to the contract does give the dairy rights against the retailer, the failure does not affect the identification of the trailer. Answer choice A is incorrect because a buyer of goods does not acquire an insurable interest until the goods have been identified. At the time that the contract was entered into, the specific trailer that the dairy would purchase was not identified. Answer choice B is incorrect because the goods had not yet been identified at the time that the retailer acquired the trailer from the manufacturer; the retailer had not taken action to designate the trailer as the one that would satisfy its contractual obligation to the dairy. Answer choice D is incorrect because, while a buyer of goods acquires an insurable interest in fungible goods upon delivery, generally, a buyer does not have an insurable interest in goods until they have been identified.
What is the doctrine of cy pres and do you picture a cyclops when you hear this word?
Under the doctrine of cy pres, a court may make changes to a conveyance in order to come “as near as possible” to the intent of the transferor. While the doctrine of cy pres is most often applied by a court in the context of a charitable gift, it may also be applied to achieve the intent of a grantor or testator by avoiding the effect of the Rule Against Perpetuities.
And yes, I picture a cyclops when I hear this word.
What are the 5 rights guaranteed by the 6th Amendmet
(1) The right to a public trial;
(2) The right to confront witnesses against him,
(3) The right to cross-examine witnesses;
(4) The right to be present at his own trial, and
(5) The right to the assistance of counsel for his defense.
10th Amendment & Commandeering
Under Rule 15 Relation Back Doctrine, what three things do you need to add a new party to a complaint
When is a landlord liable for injuries to the tenant and 3rd parties
1) In common areas such as parking lots, stairwells, lobbies, and hallways;
2) as a result of hidden dangers about which the landlord fails to warn the tenant;
3) on premises leased for public use;
4) as a result of a hazard caused by the landlord’s negligent repair; or
5) involving a hazard that the landlord has agreed to repair.
When will a real covenant bind successors in interest
Writing – covenant is in a writing that satisfies the statute of frauds
Intent to run – promising parties intend for the covenant to run to their successors in interest
Touch and concern – covenant relates to the use, enjoyment, or occupation of the benefited and burdened lands
Horizontal privity – promising parties simultaneously transfer the land and create the covenant
Vertical privity – successor of the benefited estate has a possessory interest and successor of the burdened estate has a promising party's entire ownership interest
Notice – if the person to be bound was a purchaser, that person had notice of the covenant
A mother was subpoenaed and appeared before a grand jury. She was asked where she had been at a certain time on a specified night when a murder had occurred. The mother invoked her Fifth Amendment privilege against self-incrimination and refused to answer the question. The prosecutor believes that the mother’s son committed the murder, and wants the mother’s testimony in order to discredit her son’s alibi. The prosecutor does not believe that the mother is guilty of the murder, but believes she may have committed other crimes.
How can the grand jury compel the mother to answer the question?
Answers:
Answer choice B is correct. “Use and derivative-use” immunity only precludes the prosecution from using the witness’s own testimony, or any evidence derived from the testimony, against the witness. A witness cannot be compelled to provide potentially incriminating testimony unless the witness is granted use and derivative-use immunity. Answer choice A is incorrect because the mother cannot be compelled to provide potentially incriminating testimony unless she is granted use and derivative-use immunity. A witness called to appear before a grand jury may invoke her Fifth Amendment privilege against self-incrimination in response to questions posed by the grand jury or the grand jury’s prosecutor. Answer choice C is incorrect because, although the mother cannot be compelled to provide potentially incriminating testimony unless the mother is granted immunity, the mother need not be granted transactional immunity. Answer choice D is incorrect because use and derivative-use immunity sufficiently protects the mother’s constitutional privilege against self-incrimination in this situation.
What is the 3-part test to determine whether there has been a partial taking
Partial Taking: the regulatory taking affects some economic use of the land, but there is still some economic use available
Three-part test:
A homeowner filed a complaint against a contractor for damages arising from negligent construction of an addition to the homeowner’s house. The complaint was timely and properly filed in federal district court sitting in diversity jurisdiction. Nineteen days after the contractor filed his answer, the homeowner learned that material supplied by a manufacturer and used by the contractor was defective. The next day, without leave of the court or the contractor’s agreement, the homeowner amended the complaint to add the manufacturer as a defendant in this action. The manufacturer filed a motion to dismiss the complaint against her. The manufacturer pointed out that she had no knowledge of the action nor reason to know of it prior to the homeowner’s amendment of the complaint, and that the controlling statute of limitations had expired after the original complaint was filed and before the amended complaint was filed.
Should the court grant the manufacturer’s motion to dismiss?
Answers:
Answer choice A is correct. Because the statute of limitations with respect to the homeowner’s claim against the manufacturer had expired prior to the time that the homeowner amended the complaint to include this claim, the court should grant the manufacturer’s motion to dismiss. Answer choice B is incorrect because a plaintiff may amend a complaint once as of right without seeking leave of the court or consent of the defendant if the amendment is made within 21 days of the service of the defendant’s answer. Here, the homeowner filed the amendment 20 days after the defendant served the answer. Answer choice C is incorrect because the relation back doctrine does not apply in this situation. The amendment added a new claim against a new defendant. The amendment did not add a new claim against an existing defendant that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading. Also, the amendment did not change the defendant against whom the claim was asserted to a defendant who knew or should have known that the action would have been brought against him, but for a mistake concerning the proper party’s identity. Answer choice D is incorrect. Even though the homeowner’s filing of the amended complaint was within the 21-day time period for filing an amendment as of right, the court should grant the motion to dismiss based on expiration of the statute of limitations with regard to the homeowner’s complaint against the manufacturer.
A baker who had a contract for blueberry muffins tried unsuccessfully to negotiate with a blueberry farmer to purchase blueberries. The following evening, the baker waited until the farmer left her roadside stand and then entered the farmer’s adjacent blueberry fields, and picked 25 quarts of blueberries. As the baker was loading the blueberries into his van, the baker had second thoughts about what he had done. Realizing the farmer would have no problem selling the blueberries at his stand, the baker carried the buckets filled with blueberries to the front of the farmer’s stand. A few moments later, he was apprehended and charged with larceny.
Of the following, which would provide baker with the best defense?
A The baker had begun to voluntarily return the blueberries before he was apprehended.
B The baker had not permanently deprived the farmer of her blueberries.
C The farmer would not have suffered a loss because she could have sold the blueberries at her stand.
D The baker had picked the blueberries himself.
Answer choice D is correct. Larceny is the (i) trespassory (ii) taking and carrying away (iii) of the personal property of another (iv) with the intent to permanently deprive that person of the property. The taking of real-property items (e.g., unharvested crops) is not larceny when the defendant’s act of severance occurs immediately before the carrying away of the real-property items. The act of harvesting fruit constitutes the severance of real, rather than personal property. Here, because the baker had picked the blueberries himself, he had effected their severance from the farmer’s field and the blueberries the baker picked are considered to be real rather than personal property. Answer choice A is incorrect because, had the blueberries been personal rather than real property, the baker would have completed the crime of larceny prior to beginning to return the blueberries to the farmer’s stand. He had taken and carried away the farmer’s blueberries with the intent of using those blueberries. Answer choice B is incorrect. Although larceny does require the defendant to possess the intent to permanently deprive the victim of the property, larceny does not require that the victim be permanently deprived of the property. Here, the baker had the intent to use blueberries to make muffins at the time that he picked and transported the blueberries to his van. Answer choice C is incorrect. Although larceny usually results in the victim’s loss of property, larceny does not require the owner of the stolen property to have suffered a loss. Here, even though the farmer could have sold the blueberries that the baker picked at her farm stand presumably without suffering a loss, this is not a defense to the baker’s commission of the crime of larceny.
The owner of a ranch sold a small portion of the northwest corner of the ranch to a young couple. The couple built a residence on the land. The deed provided that the couple and their heirs and assigns would have the right to cross the ranch to access a public road, which ran along the southern boundary of the ranch. The deed, which was promptly recorded by the couple, did not specify where the crossing was to be located and there was no existing trail or path. However, the couple adopted a somewhat circuitous route that fit the contours of the land and the owner acquiesced in their choice.
Several years later, the couple divorced and sold the residence to a writer. The writer continued to use the unpaved route chosen by the couple to access the public road. Since the couple purchased the land, the character of the surrounding area has changed from rural to suburban. Recently, the owner of the ranch sold it to a developer. The developer has subdivided the ranch into lots for homes that are to be accessed by a grid of streets. Because the access route to the writer’s residence prevents the developer from maximizing the development of the ranch land, the developer has offered to connect the writer’s residence to the grid without charge. The connection to the grid would provide the writer not only with greater direct access to the public road but also a paved surface. The writer, however, has refused. The developer brought suit against the writer, seeking a judicial determination as to the location of the writer’s right of access to the public road.
How should the court rule on this action?
Answers:
Answer choice A is correct. The deed by the rancher to the couple created an express easement. Although the location of an express easement is generally spelled out in the deed or other conveyance instrument, here its location was determined by the couple with the rancher’s agreement. Once the location is fixed, under the majority rule, the owner of the servient estate may not unilaterally change the location of the easement. Answer choice B is incorrect because it is the owner of the servient estate, not the owner of the dominant estate, that has the right to fix the location of an easement when the location of the easement is not fixed by the instrument, set by circumstances, or selected by the parties. Moreover, here, the location of the easement was fixed by the rancher’s agreement with the location selected by the couple, so neither owner had the right to select the location of the easement. In addition, once fixed, under the majority rule, neither owner may unilaterally change the location of the easement. Answer choice C is incorrect because, although the owner of the servient estate can fix the location of an easement when it is not specified, the rancher, as owner of the servient estate, did so by agreeing to the access route chosen by the couple. Once fixed, a subsequent owner of the servient estate may not unilaterally relocate the easement. Answer choice D is incorrect because, although the dimensions or use of an easement may be changed if the change is reasonable in light of the purpose of the easement and otherwise not in conflict with the terms of the easement, a unilateral change in the location of an easement is not permitted