Colorado Bar Exam COMPLETE set of review sheets
Colorado Bar Exam COMPLETE set of review sheets
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Date Created: 03/07/14
TORTS Intentional Torts 1 Assault Act by A creating reasonable apprehension in H of immediate harm il or offensive contact to H Apparent ability creates reasonable apprehension if H doesn t know if impossibility Words alone lack immediacy Words can negate immediacy conditional or future threat Battery Harm il or offensive contact to H Contact can be indirect False imprisonment Act or omission on part of A that con nes or restrains H to a bounded area H must be aware of con nement Area not bounded if there s freedom of movement or reasonable means of escape Shopkeeper s privilege In iction of mental distress Act by A amounting to extreme and outrageous conduct that causes injurysevere distress Recklessness will satisfy intent requirement If A knows of H s sensitivity used against A Conduct not normally outrageous may become so if a It s continuous or repetitive b It s committed by common carrier or innkeeper c It s committed against fragile class of H elderly very young or pregnant Actual damages are required proof of physical injury not required Trespass to land Physical invasion of H s property May be done by throwing ball onto land Surface air and underground If odor or vibrations then nuisance Trespass to chattels Act by A that interferes with H s right of possession in a chattel 2 types intermeddling directly damaging chattel and dispossession depriving H of possession Actual damage required Conversion Act by A that interferes with H s right of possession in a chattel and interference is so serious that it warrants requiring A to pay chattel s ill value Extent of damage determines whether it s trespass or conversion Mistake no defense a Acts of conversions 1 wrongful acquisition theft 2 wrongful transfer 3 wrongful detention and 4 substantially changing severely damaging or misusing a chattel b Remedies 1 damages fair market value at time of conversion or 2 possession replevin Defenses to Intentional Torts 1 Consent H must have capacity to consent can be express implied arise through custom and usage or through H s own conduct A cannot exceed scope of consent Self Defense when person reasonably believes she s being or about to be attacked she may use force as necessary to protect against injury Deadly force may only be used when person believes she faces threat of deadly force Duty to retreat before using deadly force unless in own home Defense of Others one may use force to defend another if he reasonably believes that other person could ve used force to defend himself A not liable if he reasonably believed that other person was in danger but was mistaken Defense of Property one may us reasonable force to defend his real or personal property Request to desist and leave must be made unless futile or dangerous Deadly force can t be used to defend property alone Not available against one with privilege necessity etc Necessity defense only to property torts Person may interfere with real or personal property of another if it s reasonably and apparently necessary to avoid threatened injury from natural or other force and when threatened injury is more serious than invasion taken to avoid it 2 types of necessity a Public necessity act is for public good and b Private necessity act is to bene t individual or property from destruction or serious harm and A must pay for damages Negligence Duty of care 1 General duty of care you owe duty to all foreseeable Hs people who are foreseeable victims of your failure to take precautions Rescuers and viable fetuses are foreseeable victims You must exercise amount of care that would be taken by reasonable person under same or similar circumstances mental de ciencies and inexperience don t matter Child s duty of care child must exercise degree of care that a reasonable child of like age intelligence and experience would exercise under the circumstances Exception for adult activities child is held to adult standard of care for that activity Children under 4 are legally incapable of negligence Professional s duty of care professional is required to possess and exercise knowledge and skill of member of same profession in good standing in similar community Custom of profession is standard of care for professionals Informed consent doctor is obligated to explain risks of medical procedure to patient in advance of patient s decision to go forward failure to give information is negligence and is actionable as malpractice 4 exceptions a Don t have to disclose commonly known risks b Don t have to disclose info if patient declines information patient waives c Don t have to disclose if patient is incompetent usually mentally incompetence and d Don t have to disclose if disclosure would be harmful upset the patient so much it d make them sick or give them heart attack Attractive nuisance infant trespassers Landowner has duty to avoid reasonably foreseeable risk of harm to kids by fake conditions on his property Child doesn t have to be attracted H must show a Dangerous condition on land that owner is or should be aware of b Owner knows or should know kids frequent area c Condition is likely to cause injury and is dangerous because of child s inability to appreciate risk and d Expense of remedying situation is slight compared to risk 10 11 Duty of owners andor occupiers of land no duty owed to undiscovered trespassers For activity conducted on land duty of reasonable care is owed to discovered trespassers licensees and invitees For encounters with conditions on land owner s duties vary a For discovered trespassers owner must protect against known arti cial highly dangerous conditions on the land b For licensees licensee is person who enters on land with owner s permission for her own purpose or business not owner s bene t ie social guests must protect against known concealed conditions Must warn of dangerous conditions unlikely to be discovered by licensee and exercise reasonable care in conduct of active operations on land No duty to inspect or repair c For invitees invitees enter land in response to landowner s invitation and enter for business purpose or as member of public ie store must protect against concealed conditions that owner knew or should ve known about Same duties as to licensees plus duty to make reasonable inspections d For off premises no duty to protect from natural conditions on land but there s duty for unreasonably dangerous artificial conditions or structures abutting adjacent land ie falling trees Automobile driver to guest guest in automobile is owed duty of ordinary care In few guest statute states one is liable to nonpaying passengers only for reckless conduct Negligence per se statutory duty of care Statute must be designed to protect class of persons in which H falls and must have been intended to protect against kind of injury that H suffered Exceptions where compliance with statute is more dangerous than violation and where compliance is impossible under circumstances Affirmative duty to act no general duty to rescue Exceptions A put H in peril A undertakes aid of H there s special relationship between A and H close family inviter to invitee common carrier or innkeeper to guest If exception applies there s duty to rescue reasonably under the circumstances Common Carriers and Innkeepers held to very high degree of care liable for slight negligence H must be passenger or guest Bailment duties legal relationship created when someone gives property to someone else for safekeeping Bailor is owner bailee is holdercustodian ie leaving car with valet storage company safe deposit box animal boarding kennel a Duties owed by bailor for gratuitous bailment bailor must inform of known dangerous defects in the chattel For bailment for hire bailor must inform of chattel defects of which he is or should be aware b Duties owed by bailee bailee39s standard of care depends on who bene ts from bailment 1 For sole benefit of bailor there39s low standard of care 2 For sole benefit of bailee high standard of care 3 For mutual bene t bailment ordinary care standard 12 Negligent in iction of emotional distress no duty to protect against this a Zone of danger rule applies requires that H suffers physical manifestations and H was exposed to physical harm by A s actions b Bvstander recoverv H must have close relationship with victim and have been a witness c Phvsical iniurv not required if 1 erroneous report of relative s death and 2 mishandling of relative s corpse Negligence Breach of Duty 1 2 Breach of duty H must point to speci c conduct that violates duty of care standard Res ipsa loguitur H must prove 2 things 1 the event is one that doesn t normally occur in absence of negligence and 2 the injurycausing instrumentality was in A s exclusive control Once proved H will get to jury survives directed verdict Violation of statute existence of duty and breach may be established by proving A violated statute negligence per se H must still prove causation and damages Custom and usage may be used to show standard of care Evidence of custom is always admissible but never conclusive for whether there was negligence Negligence Causation 1 Causation H must show that A s conduct was cause of his injury For liability H must show both actual and proximate causation Actual causation Cause in fact a General test A s conduct is cause in fact of an injury when injury wouldn t have occurred but for A s negligence b Substantial factor test use with multiple As and commingled cause Was the actor of either A a substantial factor in causing H s injuries c Burden shifting use with multiple As and unknown cause Burden of proof is shifted to As to disprove causation If neither exonerates himself then joint and several liability Proximate causation Legal causation Proximate cause is limitation on A s liability Person is only liable for those harms that are within risk of activity If result of A s negligence is foreseeable A will be liable Intervening cause won t cut off A s liability in subsequent malpractice negligence rescue reaction forces or subsequent diseaseaccident cases If negligence of 3rd party criminal conduct or acts of God were foreseeable A is liable Negligence Damages 1 2 Damages H must prove damages as part of her prima facie case of negligence Eggshell skull rule A is liable for ill extent of damages he causes even if extent was unforeseeable Collateral course rule H s recovery from A not reduced by payments H gets from collateralother sources ie insurance Personal injury H is to be compensated for all his damages past present and prospective both special and general Foreseeability of extent of harm irrelevant one takes H as one nds him Property damage measure of damage is reasonable cost of repair or if property is nearly destroyed fair market value at time of accident Punitive damages H may recover this if A s conduct is wanton and willful reckless or malicious Nonrecoverable items such items include 1 interest from date of damage in personal injury action and 2 attomey s fees Duty to mitigate as in all cases H has duty to take reasonable steps to mitigate damages ie seek appropriate treatment Negligence Defenses 1 Contributory negligence H s failure to use relevant degree of care for hisher own safety is complete bar to recovery in states that still recognize it Not defense to intentional torts a Last Clear Chance Permits H to recover despite her ConN The person with last clear chance to avoid an accident and fails to do so is liable for negligence LCC is ITS rebuttal to A s defense of ConN b Helpless peril A will be liable if he knew or should ve known that H was in helpless peril c Inattentive peril H could ve extricated herself if she was attentive A must have actually known of ITS inattentive peril Assumption of risk express assumption completely bars recovery except where it d violate public policy ie negligent medical treatment For implied assumption of risk H must have known of risk and voluntarily taken that risk anyway Absence of altematives and emergency situations destroy voluntariness and are bar to recovery Not defense to intentional torts but is defense to wanton and willful misconduct Comparative negligence H s contributory negligence isn t complete bar to recovery Where comparative negligence exists it trumps other affirmative defenses except assumption of risk a Pure comparative negligence H s recovery reduced by her of fault b Modi ed comparative negligence nothing if she s more than 50 at fault H recovers Strict Liability liability without fault 1 Animals Strict liability for wild animals unless H knowingly and voluntarily does something to cause injury no strict liability for domestic animal unless H knows of animal s dangerous propensities No strict liability for trespassers if owner not negligent but owner may be liable for intentional torts for injuries in icted by vicious watchdogs Abnormally dangerous activities 3 requirements for strict liability to apply to dangerous activities a Activity must involve risk of serious harm to persons or property limitation harm must be within that risk causing activity to be classi ed as abnormally dangerous b Activity must be one that can t be performed safely without risk of serious harm no matter how much care is taken and c Activity is unusualuncommon within the particular community ie blasting explosives toxic chemicals nuclear energy Limitation harm must be within risk that causes activity to be classi ed as abnormally dangerous 3 Products related injury A must be merchant of type of goods involved Product must be defective either manufacturing or design defect Defect must have existed at time product left hands of the seller and H must not have misused product must have made foreseeable use 4 Defenses in traditional jurisdictions conduct amounting to contributory negligence won t bar recovery Conduct equivalent to assumption of risk will bar recovery good defense to strict liability In comparative negligencefault jurisdictions comparative faultnegligence will be applied Products Liability 1 Liability of a supplier of defective product to someone injured by product 2 Elements 1 Defect and 2 Existence of defect when product left A s control 3 5 theories of liability H can use a Intent A will be liable to anyone injured by unsafe product if A intended results or knew they were likely to occur Most likely tort is battery b Negligence negligent conduct of A leading to supplying of defective product c Strict Products Liability defect must have existed when product left A s control d Implied warranties of merchantability and fitness for a particular purpose 2 warranties implied in every sale of goods 1 Merchantability refers to whether goods are of average acceptable quality and generally t for ordinary purpose for which goods are used and 2 Fitness for particular purpose seller knows or has reason to know particular purpose for which goods are required and that buyer is relying on seller s skill or judgment in selecting the goods e Representation theories in addition to implied warranties A may be liable when product doesn t live up to representation 2 representation theories 1 Express warranty any affirmation of fact or promise conceming goods that become part of bargain creates express warranty 2 Misrepresentation of fact seller will be liable for misrepresentations of fact of a product where 1 statement was of material fact conceming quality or uses of goods not mere puffery and 2 seller intended to induce reliance by buyer Reliance required 4 Types of Defects a Manufacturing defect one product is different from rest b Design defect all products are same but have dangerous propensity c Inadequate warning danger must not be apparent to users d Government safety standards product s noncompliance with government safety standards but compliance is evidence not conclusive that product is not defective e Scienti cally unknowable risks A not liable for dangers not foreseeable at time of marketing f Unavoidablv unsafe products manufacturers will not be held liable for some dangerous products ie knives if danger is apparent and there s no safer way to make the product Disclaimers irrelevant in negligence or strict liability cases if there are personal injury or property damages In implied warranties disclaimers rejected in personal injury cases but upheld for economic loss Vicarious Liability liable for another 1 Respondeat Superior employer is vicariously liable for torts of an employee if committed within scope of employment a Detour v frolic Employers will be liable for conduct that s minor detour from work but not for frolic b Intentional torts Employer isn t liable for intentional torts of employees unless violence is party of job or employer condones it c Negligent hiring Employers may be liable for own negligence by negligently selecting or supervising their employees not vicarious liability Independent Contractor principal won t be vicariously liable for torts of agent if agent is independent contractor Exceptions a IC is engaged in inherently dangerous activities ie excavating next to public sidewalk blasting b Duty is nondelegable because of public policy considerations ie duty to use due care in building a fence around an excavation site c Employer may be liable for own negligence in selecting or supervising IC ie hospital liable for contracting with unqualified doctor who negligently treats patient not vicarious liability Automobile owners generally owner has no liability for torts of people driving his car but with exceptions a Family car doctrine owner is liable for torts of immediate family or household members driving with his express or implied permission b Permissive use liability on owner for damage caused by anyone driving with owner s consent c Negligent entrustment owner may be liable for own negligence in entrusting car to a driver Some states impose liability on owner if she was present in car at time of accident on theory she could ve prevented negligent driving and was herself negligent in not doing so Not VL Parent child parents not vicariously liable for torts of children at common law but most states make parents liable for intentional torts of their minor children up to a certain amount a Child acting as agent for parents courts may impose VL for torts during agency b Parent liable for own negligence in allowing child to do something dangerous or if child has propensity and don t use due care to preventmitigate such conduct Bar owner patronTavernkeeper liability can attach where patron gets drunk and goes out and gets in accident Liability is based on ordinary negligence foreseeable risk of serving minor or very drunk adult instead of VL Bailor for bailee bailor not VL for torts of bailee Maybe liable for own negligence in entrusting bailed object not VL Partners and Joint Venturers each member of partnership or joint venture is VL for torts of another member done in scope and course of partnership or joint venture General hint before trying to assign VL look at direct liability rst ie negligence Nuisance 1 Private nuisance conduct that causes substantial and unreasonable interference with the use and enjoyment of land Courts will weigh equities of both parties in deciding whether to enjoin A s activity Public nuisance conduct that causes physical or moral harm to public in general H can maintain public nuisance action if she suffers from injury unique from rest of community Defenses a Legislative authority for nuisance activity ie zoning ordinance is not absolute defense but is persuasive b Conduct of others no one actor is liable for all damage caused by concurrence of his acts and others ie 10 mills polluting a stream Each is responsible for its own pollution c Contributorv negligence no defense to nuisance unless H39s case rests on negligence d Coming to the nuisance one may come to nuisance purchasing land next to already existing nuisance and then pursue an action Usually not bar to action unless she came to nuisance for sole purpose of bringing suit Remedies always awarded a Abatement by self help in private nuisance this is available after notice to A and his refusal to act Only necessary force may be used In public nuisance cases only public authority or private party suffering unique damage can seek injunction or abatement an injunction Damages usually Defamation 1 Common law elements statement made by A that is false and that is of and conceming H published to 3rd party and causes damage to H and his reputation Publication disclosure of defamatory statement to just one other person is sufficient Intentional disclosure not required negligence counts Libel written defamation jury may presume damages Slander spoken defamation H must prove special damages actual nancial loss Exception H can recover presumed damages in slander per se Slander per se statements that impugn one s trade or profession statements that accuse of serious crime statements that imply loathsome disease leprosy or STDs and statements that impute unchastity to a woman Constitutional requirements 1stA protects speech on matter of public concern In defamation cases involving such speech 2 extra elements to prima facie case a Falsity of the defamatory statement and b Fault of A 1 Public of cials or gures must prove malice knowledge of falsity or reckless disregard for truth 2 Private persons need not prove malice Only negligence regarding falsity of statement must be proved if matter of public concem 3 In matters of public concem all HS must prove malice to get presumed or punitive damages Defenses a Consent complete defense Rules of consent in intentional torts apply b LMII where H doesn t have to prove falsity statement is about private person truth is complete defense for A c Absolute privilege can never be lost A can be protected by absolute privilege for 1 Remarks made during judicial proceedings 2 By legislators in debate 3 By federal executive officials 4 In compelled broadcasts and 5 Between spouses d Qualified privilege can be lost through abuse Statements made in socially useful or approved contexts 1 Speaker may have qualified privilege for following a Reports of official proceedings b Statements in interest of publisher defense of one s actions property or reputation c Statements in interest of recipient and d Statements in common interest of publisher and recipient 2 Qualified privilege can be lost if a Statement isn t within scope of privilege or b It s shown that speaker acted with malice 3 A bears burden of proving privilege exists e Mitigating factors no malice retraction anger of speaker provoked by H may be considered by jury on damages issue but aren t defenses to liability No liability for reasonable mistakes Invasion of Privacy Appropriation use of ITS name or picture for commercial gain without permission Liability limited to ads or promotions of products and services Newsworthiness exception Intrusion upon seclusion act of prying or intruding must be objectionable to reasonable person ie wiretapping peeping Must be in place where H has expectation of privacy No trespass required Photos in public places aren t actionable False light widespread dissemination of information that portrays H in false light attributes to H views he doesn t hold or actions he didn t take Requires publicity If matter is in public interest malice of A must be proved Public disclosure of private facts widespread dissemination of ITS private facts Disclosure of ITS private facts must be objectionable Newsworthiness exception Damages no need to prove special damages Emotional distress and mental anguish are sufficient Defenses Consent absolute and quali ed immunities applies only to false light and public disclosure of private facts defamation privileges Fraud Misrepresentation 1 Elements Affirmative misrepresentation fault intentional or reckless intention to induce reliance justi able reliance and damages Intentional Misrepresentation fraud deceit Misrepresentation of material fact intent to induce reliance justi able reliance and damages H must suffer actual pecuniary loss No defenses Negligent Misrepresentation misrepresentation by A in professional capacity breach of duty toward H justi able reliance and damages Liability attaches only if H s reliance is foreseeable Limited to commercial setting Intentional Interference with Business Relations 1 Elements 1 Existence of a valid contractual relationship between H and 3rd party or valid business expectancy of H 2 A s knowledge of relationship or expectancy 3 Intentional interference by A inducing a breach or termination of the relationship or expectancy and 4 Damages Inducing breach of contract intentional act causing 3rd person to breach existing contract with H Must be valid contract not terminable at will Such inducement to breach can be privileged where there s relationship of con dencecounseling clergy lawyer parent Interference with contractual relations even if interference doesn t cause breach A may be liable if his interference makes performance under contract more difficult Interference with prospective economic advantage A may be liable for interfering H s expectation of economic benefit from 3rd persons even in absence of existing contracts Theft of trade secrets H must own valid trade secret information providing a business advantage PrivilegesDefenses A s conduct may be privileged where it s proper attempt to obtain business for itself or protect its interest especially if A is interfering only with H s prospective business rather than with existing contacts Wrongful Institution of Legal Proceedings 1 Malicious Prosecution a Institution of criminal proceedings against H b Termination in H s favor c Absence of probable cause for prior proceedings insuf cient facts for reasonable person to believe H was guilty or A actually didn t believe H to be guilty d Improper purpose something other than bringing person to justice and e Damages 2 Prosecutors are immune from liability 3 Wrongful Civil Proceedings most places extend malicious prosecution to cover civil cases 4 Abuse of process a Wrongful use of process for an ulterior purpose and b De nite act or threat against H in order to accomplish ulterior purpose Multiple Defendants 1 Joint and several liability when 2 or more negligent acts combine to proximately cause indivisible injury each actor will be jointly and severally liable for entire damage If injury is divisible each A is liable for only their portion 2 Satisfaction recovery of full payment Only one allowed Until there s satisfaction one may sue against all jointly liable parties 3 Release release of one party doesn t discharge other tortfeasors unless provided for in release agreement 4 Contribution where all As are at fault Paying A can recover proportional share from other As Comparative contribution allows recovery based on degree of fault of each tortfeasor 5 Indemnity passive A receives ill reimbursement from active A ie respondeat superior Indemnity available By contract In vicarious liability situations Under strict products liability and In some jurisdictions where there is difference in degree of fault ie retailers negligently relying on product s condition may receive indemni cation from manufacturer One whose liability is based on secondary duty may recover from primary duty person PPP Wrongful Death and Survival Actions 6 Note these aren t separate cause of actions but just labels that apply to tort actions where tort resulted in victim s death Wrongful death actions brought by A s bene ciaries for pecuniary injury suffered because of victim s death ie money victim would ve earned in his life Victim s creditors have no claim on award Survival tort action brought by A s estate based on claims involving torts to property or torts resulting in personal injury Claims victim could ve brought while alive Torts against personal interest such as defamation invasion of privacy malicious prosecution expire upon victim s death Interference with family relationships a Loss of consortium uninjured spouse can sue for loss of services society and sex of injured spouse b Parent child parent may bring action for loss of child s services due to A s intentional or negligent tort Child has no action in most states against one harming parent c Defense any defense preventing recovery by victim also prevents recovery by family member Tort Immunities 1 2 Family general rule is no immunity Govemmental no immunity when government is engaged in proprietary function ie something usually carried out by private individual Government retains immunity when engaging in discretionary government activity ie police military refighting Charitable abolished in most states Tort Privileges 1 U Recapture of Chattels one may use only peaceful means to recover chattel Force may be used only if in hot pursuit of someone who stole chattel Timely demand rst required unless clearly futile or dangerous On wrongdoer s land owner must demand and then is privileged to enter on land and reclaim at reasonable time and manner On wrongdoer s land owner must give notice and if landowner refuses may enter and reclaim at reasonable time and manner Chattel owner liable for any damage caused by entry On land through owner s fault left behind no privilege to enter on land and chattel may be recovered only through legal process Privilege of Arrest Necessity person may interfere with real or personal property of another when it s necessary to avoid threatened injury that s more serious Discipline parent or teacher may use reasonable force in disciplining children Shopkeeper privilege may detain an individual for reasonable period of time if reasonably believe individual was shoplifting EVIDENCE Relevance 1 De nition evidence is relevant if it has any tendency to make a material fact more or less probable than it would be without the evidence Rule All relevant evidence is admissible unless some exclusionary rule applies or court makes a discretionary determination that probative value of evidence is substantially outweighed by pragmatic reasons risk of unfair prejudice confusion of issues misleading to jury undue delay waste of time unduly cumulative Burdens of proof a Burden of producing evidence party who has burden of pleading usually has burden of producing or going forward with evidence suf cient to make out prima facie case Once party has satis ed burden it s up to other side to show evidence to rebut evidence b Burden of persuasionproof after parties have done burden of production of evidence question is whether party with burden has satis ed it c Civil burden of persuasion is usually by preponderance of the evidence but some cases require proof of clear and convincing evidence d Criminal burden is beyond reasonable doubt Relevant evidence of similar occurrences inadmissible except 1 2 P s accident history to show fraudulent scheme or if cause of H s damages is in issue Similar accidents caused by same event or conditions to show existence of dangerous condition causation or prior notice to A Intent in issue to prove intent from prior conduct ie discrimination Comparable sales on issue of value as some evidence of value of property in similar location at similar time period admissible to prove value Habit or business routine describes person s regular response to a speci c set of circumstances Admissible to infer how person or business acted on occasion at issue Habit is de ned by frequency and particularity of conduct Showing that business had an established business routine is relevant to show that a particular event occurred Industry custom as standard of care to show adherence to or deviance from an industry wide standard of care However industry custom isn t conclusive on this point e g an entire industry may be acting negligently PolicyBased Exclusions of Evidence 1 Liability insurance whether someone does or doesn t have liability insurance is inadmissible except to show proof of ownershipcontrol of the instrumentality to impeach or as part of admission Subsequent remedial measures inadmissible except to show proof of ownershipcontrol prove feasibility of safer condition if either is disputed by A or prove that opposing party destroyed evidence Settlements or offers to settle a disputed claim inadmissible except for purpose of impeaching witness on grounds of bias Note that this exclusion includes all statements made in course of settlement offers to plead guilty withdrawn guilty pleas plea of nolo contendere and any statements made in plea discussions are inadmissible Offers to pay hospital or medical expenses inadmissible but other statements made in connection with such an offer are admissible Witnesses 1 2 Presumed competent as long as witness has personal knowledge of testimony and takes oathaf rmation Disquali cation of witnesses witnesses may be disquali ed for infancy insanity and judges and jurors Dead Man s Acts in civil action an interested party is incompetent to testify in support of her own interest against the estate of a decedent conceming communications or transactions between the interested party and the decedent Only in states no federal DMA Leading questions generally not allowed on direct examination Allowed on cross examination CX But allowed on direct for preliminary introductory matters youthfulforgetful witness hostile witness witness is adverse party or under adverse party s control Improper questions questions that are misleading can t be answered without making unintended admission compound requiring single answer to more than one question argumentative conclusionary cumulative unduly harassing or embarrassing or that assume facts not in evidence are improper and not permitted Refreshing recollection Present recollection recorded If witness s memory fails he may be shown any memo or tangible item to jog his memory Not admitted into evidence so it doesn t have to be authenticated or satisfy best evidence rule and is not hearsay Adversary has right to inspect it use it in CX and introduce it into evidence but proponent cannot introduce as evidence Past recollection recorded hearsay exception Foundation writing failed to jog memory witness had personal knowledge at former time writing was made or adopted by witness when event was fresh witness can vouch for accuracy at the time it was made It can be read to the jury but only adversary may introduce it into evidence Lay witnesses lay opinion admissible if rationally based on witness s personal knowledge and help il to jury in deciding a fact Examples drunksober speed of vehicle saneinsane emotion of other person handwriting smell Inadmissible as to whether one acted as an agent or whether K was formed Expert witnesses must have qualifications in relevant subject area education andor experience Must testify on proper subject matter scientific technical or specialized knowledge that will be helpful in deciding a fact Must base opinion on reasonable degree of probability or reasonable certainty and on personal knowledge evidence in trial records or facts outside 10 11 12 records if of a type reasonable relied on by experts in the eld cannot read this to the jury may only state in general terms what he relied on Opinion must be reliable determined by testing of principles or methodology rate of error acceptance in the discipline and peer reviewpublication Ultimate issues lay or expert opinion evidence may address an ultimate issue but cannot use terms of legal jargon In criminal case expert cannot testify on intentmental state of A Learned treatise hearsay exception May be read into evidence as substantive evidence during case in chief or during CX to impeach or contradict expert comes in as substantive evidence Must be established as reliable by admission of the expert another expert s assertion or the court may take judicial notice Not introduced as exhibit only read aloud Exclusion and sequestration of witnesses upon party s request or on judge s own motion judge will order witnesses excluded from the courtroom except 1 party or a designated officer or employee of party 2 person whose presence is essential to the presentation of a party s case or 3 person statutorily authorized to be present Judicial Notice 1 2 Recognition of fact as true without requiring evidence to be presented Judicial notice of fact courts take JN of indisputable facts that are either matters of common knowledge notorious facts or capable of veri cation by resort to easily accessible sources of accuracy manifest facts Conclusive in civil case but not criminal cases In criminal cases jury may accept but not required to Courts MUST take JN of federal and state law and its official regulations Adiudicative facts facts relating to the particular case Legislative facts facts relating to legal reasoning and lawmaking need not be of common knowledge nor capable of veri cation to get JN Presumptions 1 Rule requiring that a particular inference be drawn from a set of facts Form of substitute proof isn t required anymore once evidence has established presumption Effect of shifting burden of production a presumption operates until rebutted to shift burden of production to party against whom presumption applies Doesn39t shift burden of persuasion Rebutting presumption presumption is overcome or destroyed when adversary produces evidence contradicting presumed fact Once such evidence is admitted presumption is no longer valid Types of rebuttable presumptions a Permissible inferences may allow party to meet his burden of production ie establish prima facie case but doesn t shift burden to other party 1 Inference of negligence arising from res ipsa loquitur 2 Inference that destroyed evidence was unfavorable to the party that destroyed it and 3 Inference of undue in uence when will s drafter is also principal bene ciary b Presumptions in criminal cases presumption of innocence in criminal cases are merely permissible interference Burden of production never shifts to accused Judge can t tell jury it must nd presumed fact but jury may regard basic facts as sufficient evidence of presumed fact If fact establishes guilt or negates intent must be proved BRD c Conclusive presumptions because it can t be rebutted a conclusive presumption ie that a child under age of 7 can t commit a crime is more a rule of substantive law 5 Common rebuttable presumptions a Legitimacy every person is presumed to be legitimate b Against suicide when cause of death is in dispute there s presumption in civil cases that it wasn t suicide c Sanity every person is presumed sane in civil and criminal cases unless proved otherwise d Death from absence if person is unexplainably absent for 7 years with no contact he s presumed dead e Ownership of caragent driver proof of ownership of motor vehicle creates presumption that owner was driver or driver was owner s agent f Chastity every person is presumed chaste and virtuous g Regularity it s presumed that persons acting in an official office are properly performing their duties h Continuance proof of the existence of a person or condition at given time raises presumption that it continued for as long as usual with things of that nature i Mail delivery letter properly addressed stamped and mailed is presumed to have been delivered j Solvency person is presumed solvent and every debt is presumed collectible k Bailee s negligence proof of delivery of goods in good condition to bailee and failure of bailee to return the goods in the same condition create presumption that bailee was negligent 1 Marriage upon proof of marriage ceremony marriage is presumed valid 6 Con icting presumptions when two or more con icting presumptions arise judge should apply the presumption better for policy and logic Privileges 1 Testimonial privileges permit one to refuse to disclose and prohibit others from disclosing certain con dential information in judicial proceedings 2 Federal privileges only privileges recognized by federal courts are attorney client privilege privilege for spousal communications and psychotherapistsocial worker client privilege 3 Waiver of privilege privilege can be waived by failure to claim privilege voluntary disclosure or waiver provision in K 4 Attorney Client applies to con dential communications between attomey and client made during professional 10 legal consultation unless privilege is waived by client or an exception is applicable Note joint client rule as to third parties Exceptions to privilege future crime or fraud client puts legal advice in issue attomey client dispute PhysicianPatient applies to con dential communication or information acquired by physician from patient for purpose of diagnosis or treatment Also applies to psychotherapists Federal distinction in action based solely on federal law privilege exists for psychotherapists only and not regular physician patient con dences Exception to privilege where patient expressly or impliedly puts physical or mental condition in issue Husband Wife spousal immunity in federal criminal cases only a Spousal immunity witness spouse is holder of privilege and cannot be compelled to testify against A spouse b Con dential marital communications Confidential communications between spouses in any type of case both spouses hold privilege Other spouse must consent to waiver c Exceptions to both privileges communications in furtherance of future crime or fraud and communications destructive of the family unit spousal or child abuse Self incrimination under 5thA witness cannot be compelled to testify against himself Any witness compelled to appear in a civil or criminal proceeding may refuse to give an answer that ties the witness to the commission of a crime Clergv or accountant privilege Privilege exists for statements made to member of the clergy or accountant the elements of which are very similar to ACP Professional joumalist privilege No constitutional right for professional joumalist to protect source of information so any privilege is limited to state statutes Govemmental privileges Official information not otherwise open to public or ID of an informer may be protected by governmental privilege No privilege exists if ID of informer is voluntarily disclosed by holder Impeachment Generally 1 Accreditingbolstering own witness not allowed unless witness s credibility has been attackedimpeached Exception prior id of person by trial witness comes in as substantive evidence Impeaching own witness may do so freely Rehabilitation witness who has been impeached may be rehabilitated by a Explanation on redirect On redirect witness may explain or clarify facts brought out on CX b Opinionreputation evidence for truthfulness when witness s character for truth and veracity has been attacked other witnesses may be called to testify to good reputation for truthfulness of impeached witness or to give their opinions as to truthfulness of impeached witness c Prior consistent statement party may not usually rehabilitate witness by showing prior consistent statement True even when witness was impeached by prior inconsistent statement If testimony of witness was attacked by express or implied charge that he s lying or exaggerating because of some motive prior consistent statement is admissible to rebut and as substantive evidence of truth of its contents Impeachment Methods 1 Witness may be impeached by either CX eliciting facts from witness that discredit his own testimony or EE putting other witnesses on stand who will introduce facts discrediting his testimony Prior inconsistent statements on some prior occasion witness made a material statement inconsistent with current testimony Cannot be used as af rmative evidence unless it was under oath at prior formal proceeding Witness must be confronted or be able to respond at some point timing exible Exception if witness is opposing party don t have to give him opportunity to explain or deny prior statement Bias interest or motive to misrepresent evidence that witness is biased or interested in outcome of case tends to show that witness has motive to lie Before witness can be impeached by EE of bias or interest must first be asked about it Conviction of Crime witness may be impeached by proof of conviction arrest or indictment not enough for certain crimes any crime involving dishonesty or false statement and felony crimes Pending review or appeal doesn t affect use of conviction No confrontation required Method of proof ask witness or introduce conviction record Exceptions a Remote juvenile and constitutionally defective convictions if more than 10 years have elapsed since date of conviction or the date of release from con nement conviction is inadmissible Juvenile convictions also inadmissible Conviction obtained in violation of A s constitutional rights also invalid b Pardon conviction may not be used to impeach if witness has been pardoned based on innocence and hasn t been convicted of subsequent felony Sensorv deficiencies can impeach by showing anything that could affect witness s perception or memory or that he doesn t know what he s talking about No confrontation required extrinsic evidence allowed Bad character for truthfulness any witness is subject to this impeachment method Witness can be impeached by showing he has bad reputation for truthfulness Extrinsic evidence allowed Only opinion andor reputation evidence allowed Bad acts acts that re ect poorly on character for truthfulness Bound by witness s answer no extrinsic evidence allowed Cannot ask about an arrest just whether he did the act Contradiction to show witness lied or made a mistake to something in direct examination EE and impeachment not allowed if issue is collateral Character evidence 1 Offered as substantive not impeachment evidence to 1 prove character when it s ultimate issue in case or 2 serve as circumstantial evidence of how person probably acted Means of proving character depending on jurisdiction purpose of offer and nature of case one or all of following methods of proving characters may be available a Evidence of speci c acts b Opinion testimony of witness who knows the person and c Testimony about person s general reputation in community Criminal cases inadmissible by state to prove conduct in conformity A may introduce evidence of a relevant character trait with reputation or opinion testimony cannot use specific acts to illustrate Opens the door to prosecution rebuttal may ask whether witness knows about speci c acts but must take witness s answer and may call its own character witnesses Victim s character in self defense case except in rape cases criminal A may introduce reputationopinion evidence of victim s violent character to infer victim was 1 aggressor Prosecution may rebut with evidence of victim s character for peace ilness and A s character for violence A may introduce evidence of victim s speci c acts of violence only to show that A was aware of them and they show A s state of mind fear in responding to victim s aggression Victim s character in a sex offense case evidence offered to prove sexual behavior or sexual disposition of the victim is generally inadmissible Rape shield law makes such evidence inadmissible except to show that A wasn t perpetrator semen or other evidence is from someone else or to show victim s sexual conduct with A to prove consent defense or where exclusion violates A s due process rights Civil cases character inadmissible unless it s an essential element of claim or offense Only applies to negligent hiringentrustment and defamation cases speci c acts allowed plus reputationopinion Specific acts of misconduct evidence of a person s other crimes or misconduct is inadmissible if offered only to established criminal mind or bad character unless MIMIC exceptions apply MIMIC exceptions A s prior crimes or bad acts inadmissible to prove conduct in conformity but 6 situations where bad acts are admissible to show something speci c about the crime charged Motive Intent absence of Mistakeaccident Identity Common scheme or plan Method of proof introducing conviction or proving that crime occurred with sufficient evidence from which a reasonable juror could conclude A committed crime May be used in state s case in chief A does not have to open door Other sexual misconduct to show propensitv in sexcrime prosecution or civil action in case alleging sexual assault or child molestation can show prior specific sexual misconduct of A as state s case in chief or for any relevant purpose including propensity for sex crimes Real demonstrative and experimental evidence Actual physical evidence addressed directly to judge May be direct circumstantial original or prepared demonstrative General conditions of admissibility must be relevant and meet following requirements a Authentication object must be identified as what proponent claims it to be either by 1 testimony of witness recognizing object or 2 evidence that object was in unbroken chain of possession b Condition of object if condition is important must be shown to be in substantially same condition c Balancing test policy or principle may outweigh need to admit real evidence ie physical inconvenience of bringing object into courtroom indecency or impropriety or undue prejudice Types of real proof a Reproductions and explanatory real evidence relevant photographs diagrams maps or other reproductions are admissible if their value is not outweighed by danger of unfair PJ Items used entirely for explanatory purposes are permitted but usually not admitted into evidence not given to jury b Maps charts models etc usually admissible for purpose of illustrating testimony but must be authenticated c Exhibition of child in paternity suits in patemity suits almost all courts allow exhibition of child to show whether she s race of putative father Courts are divided regarding propriety of exhibition for purpose of showing physical resemblance d Exhibition of injuries generally permitted in personal injury or criminal case but courts can exclude if too prejudicial e Jurv view of the scene court can permit jury to visit places at issue in civil or criminal case Need for view and changes in condition of premises are relevant factors f Demonstrations court may permit experiments or demonstrations to be performed in courtroom Demos of bodily injury may not be allowed if it would unduly dramatize injury Documentary evidence writings recordings photographs 1 Documentary evidence must be relevant to be admissible In case of writings authenticity of document is one aspect of its relevancy Authentication of writings content of writing won t be received in evidence unless writing is authenticated by proof showing that writing is what proponent claims it is If relevance of writing depends on source or authorship must authenticate it How to authenticate a Authentication bv pleadings or stipulation genuineness of document may be admitted by pleadings or stipulation b Admissions writing may be authenticated by evidence that party against whom it s offered has either admitted its authenticity or acted upon it as authentic c Evewitness testimonv witness observed X sign it or heard X acknowledge it d Handwriting veri cation lay witness may testify on basis of familiarity with X s writing formed prior to trial Expert may testify on basis of comparison with handwriting samples Judge and jury may compare handwriting samples Jury may compare with handwriting exemplar Nonexpert without personal knowledge of handwriting cannot become familiar with it for purposes of testifying e Ancient document rule authenticity may be inferred if document is more than 20 years old is facially free of suspicion and was found in place of natural custody f Reply letter doctrine document can be authenticated by evidence that it was received in response to a prior communication to alleged author g Self authenticating documents certain writings prove themselves ie official publications certi ed copies of public records on le in public office certified business records newspapers and periodicals trade inscriptions and labels acknowledged documents commercial paper Authentication of photographs admissible only if identified by witness as portrayal of certain relevant facts and veri ed by witness as fair and accurate representation of things portrayed Not necessary to call photographer to authenticate photo witness familiar with scene is suf cient Unattended camera if photograph is taken when no one can authenticate scene photo may be admitted upon showing that camera was properly operating at relevant time and photo was developed from lm from that camera Authentication of X Ravs electrocardiograms etc X ray cannot be authenticated by witness testimony that it s correct representation of facts Must be shown that process used is accurate machine was working and operator was quali ed to use it Custodial chain must be established to ensure no tampering with X ray Authentication of oral statements When statement is admissible only if said by specific person ie admission by party authentication as to identity of speaker is required a Voice identification voice may be identified by opinion of anyone who has heard the voice at any time including after litigation has begun for sole purpose of testifying b Telephone conversation Statements made during telephone conversation may be authenticated by one of parties to call who testi es that l he recognized the other party s voice 2 the speaker had knowledge of certain facts that only a particular person would have 3 he called a particular person s number and a voice answered as that person or that person s residence or 4 he called a business and talked with the person answering the phone about matters relevant to the business Best Evidence Rule BER original writings rule 1 Rule party seeking to prove the contents of writing must either introduce the original or an acceptable excuse for its absence If excuse is acceptable secondary evidence may be used oral testimony or copy 6 Applies to writings sound recordings x rays pictures and films when they are introduced to prove their contents BER applies to 2 primary situations a Writing is legally operative document or b Witness is testifying to facts she learned solely from reading about them in writing Does not apply if witness with personal knowledge testi es to facts that exist independent of the recorded facts Doesn t apply to collateral matters summaries of voluminous records too inconvenient to examine everything so proponent may present summary or public records What quali es as the original writing itself and any counterpart intended to have the same effect eg duplicate original negative of lm or print from negative computer print out Duplicate is admissible to same extent as original if no genuine issue as to authenticity Excuses for nonproduction of original lost or cannot be found with due diligence destroyed without bad faith cannot be obtained with legal process Court must be persuaded by preponderance of evidence Escapes BER can be avoided for voluminous records certified copies of public records collateral documents Parol Evidence Rule PER 1 If agreement is reduced to writing that writing is the agreement and hence constitutes only evidence of it Prior or contemporaneous negotiations or agreements are merged into the written agreement and they are inadmissible to vary the terms of the writing When the PER doesn t apply to exclude evidence of prior or contemporaneous agreements a Incomplete or ambiguous contract PE is admissible to complete an incomplete contract or explain an ambiguous term b Reformation of contract PER doesn t apply where party alleges facts ie mistake entitling him to reformation c Challenge to validity of contract PER is admissible to show that contract is void or voidable or was made subject to valid condition precedent that hasn t been satis ed Subsequent modifications PER applies only to negotiations prior to or at the time of the execution of contract PER is admissible to show subsequent modification or discharge of written contract Hearsay l Hearsay is an out of court statement by a declarant offered to prove the truth of the matter asserted Inadmissible unless an exception or exclusion applies Reason for excluding hearsay is that adverse party was denied opportunity to CX the witness Non hearsav statements if it isn t offered to prove what is asserted in the statement it is not hearsay Categories of non hearsay purposes verbal act such as contract defamation or perjury to show effect on person who heard or read the statement and circumstantial evidence of speaker s state of mind Hearsav on hearsav double hearsav out of court statement that incorporates other hearsay is admissible only if each part of the statement falls within exception If any part is inadmissible entire statement is inadmissible Nonhearsay No Exception Required 1 Prior statements by witnesses prior statements of trial witnesses 3 hearsay exclusions making statement nonhearsay a Prior statement of identification of person b Prior inconsistent statement under oath and c Prior consistent statement to rebut charge that witness is lying or exaggerating because of some motive Admission bv PartvOpponent to be an admission statement need not have been against declarant s interest when made and may even be in form of an opinion Personal knowledge isn t required Types of party opponent admissions a Judicial and extrajudicial admissions formal judicial admissions ie pleadings stipulations etc are conclusive Informal judicial admissions made during testimony and extrajudicial evidentiary admissions aren t conclusive and can be explained b Adoptive admissions party may make admission by expressly or impliedly adopting or acquiescing in statement of another c Silence adoptive admission if reasonable person would ve responded but party remains silent in the face of accusatory statements his silence may be considered an implied admission Silence in face of police accusations in criminal case is almost never considered admission Silence may be admission only if 1 Party heard and understood the statement 2 Party was physically and mentally capable of denying statement and 3 Reasonable person accusation d Vicarious admissions 1 Co parties admissions of a party are not receivable against her co parties merely because they happened to be joined as parties 2 Principal agent agent s statements concerning any matter within scope of agency made while employment relationship exists aren t hearsay and are admissible against principal 3 Partners after partnership is shown to exist admission of one partner relating to partnership is binding upon co partners 4 Co conspirators admission of conspirator made to 3rd party in furtherance of conspiracy are admissible against co conspirators However admissions of conspirator are admissible against another conspirator only if there was opportunity to CX declaring conspirator 5 Privies in title and joint tenants gstate courts only admissions of each joint owner are admissible against other J T and admissions of former owner of property made at the time she held title are admissible against those claiming under her grantees heirs etc would ve denied These statements aren t FRE admissions but may be admissible under hearsay exception ie statement against interest 6 Preliminary determinations before admitting hearsay as vicarious admission court must make preliminary determination of declarant s relationship with party against whom statement is offered Statement alone isn t suf cient to establish relationship Hearsay Exceptions Unavailability Required 1 2 Unavailability declarant is unavailable if on grounds of death or illness absence from jurisdiction privilege not to testify stubbom refusal to testify and lack of memory Former testimony testimony of now unavailable witness given at another hearing or deposition is admissible if a Party against whom testimony is offered was a party in privity grantorgrantee life tenant remainderman with a party in the former action b Former action involved the same subject matter causes of action need not be identical c Testimony was given under oath and d Party against whom testimony is offered had opportunity to develop the declarant s testimony ie by direct cross or redirect examination e Grand jury testimony of unavailable declarant is not admissible against A under former testimony but is admissible under prior inconsistent statement Statement against interest statement against declarant s own pecuniary proprietary or penal interest In criminal cases statement against penal interest must be corroborated if offered to exculpate A Dying declaration statement made under belief of impending and certain death conceming the cause or surrounding circumstances of the declarant s death Actual death not necessary Available in all civil cases but only in criminal homicide cases Statements of personal or family history statements concerning births marriages divorces relationship genealogical status etc are admissible if declarant is member of the family in question or closely associated with it and statements are based on declarant s personal knowledge of the facts or of family reputation Statements offered against pagty procuring declarant s unavailability if witness unavailable due to party s wrongdoing that s proved by preponderance of the evidence prior statements are admissible against that party Hearsay Exceptions Unavailability Irrelevant 1 Present state of mind contemporaneous statement concerning declarant s state of mind physical condition emotions or sensations is admissible Usually offered to establish intent or as circumstantial evidence that intent was carried out Excited utterance statement conceming a startling event and made while declarant is still under the stress of excitement caused by the event Present sense impression description of event made while the event was occurring or immediately thereafter Must be virtuously contemporaneous no more than 30 to 40 seconds after event 10 ll Present physical condition statement made to anyone about declarant s current physical condition Statement for pugpose of medical treatment or diagnosis statement made to medical personnel concerning past or present symptoms or general cause of condition for purpose of treatment or diagnosis Business records records of any type of business made in regular course of business that business regularly keeps and was made at or about the time of event recorded and which consists of information observed by employees of business or statement that falls within an independent hearsay exception Foundation can call sponsoring witness eg author or record or custodian of records or can use written certi cation under oath Past recollection recorded if witness memory cannot be revived party may introduce memo that witness made at or near time of event Writing itself is not admissible must be read to the jury Official records and other official writings a Public records writing must have been made by and within scope of duty of public employee and must have been made at or near time of the event Police report with witness statements not qualifying under business records may be admitted under public records Even of cer s opinion and factual not legal conclusions would be admissible but test statements of others contained in report to make sure they re admissible or they ll be excluded even if report is admitted b Records of vital statistics admissible if report was made to a public of cer pursuant to law requirements c Statement of absence of public record evidence in form of certification or testimony from custodian of public records that she diligently searched and failed to find a record is admissible to prove that matter wasn t recorded or infer that matter didn t happen d Judgments certi ed copy of a judgment is always admissible proof that such judgment has been entered Felony conviction admissible in criminal and civil actions Prior criminal acquittal is inadmissible Judgment in previous civil case is inadmissible e Ancient documents and documents affecting property interests statements in any authenticated document 20 years or more old are admissible as are statements in any document affecting an interest in property regardless of age f Learned treatises admissible as substantial proof if called to attention of or relied upon by an expert witness and established as reliable authority by the testimony of that witness other expert testimony or judicial notice g Reputation admissible under several exceptions as evidence of character personal or family history land boundaries or community s general history h Family records statements of fact concerning personal or family history contained in family bibles jewelry engravings genealogies tombstone engravings etc are admissible 12 i Market reports and other published compilations are admissible if generally used and relied upon by public or by persons in specific occupation Declaration of intent statement of declarant s intent to do something in future is admissible to prove declarant s conduct Also admissible to prove someone else s conduct if declarant said he was going to do something with that person Hearsay Residual Exception 1 Residual Catch All exception for hearsay not covered by exception FRE requires a That hearsay statement possess guarantees of trustworthiness b Statement is strictly necessary and c Notice is given to the adversary as to the nature of the statement Constitutional issues a Because use of hearsay in criminal case may violate Confrontation Clause prior testimonial evidence is inadmissible against A unless hearsay declarant is unavailable and A had opportunity to CX the declarant at time of statement b Hearsay rules and other exclusionary rules can t be applied if it d deprive A of right to fair trial or deny right to compulsory process circumstantial CONSTITUTIONAL LAW J usticiability doctrines 1 Whether a case is justiciable federal court may address it depends on whether there s a case or controversy No advisory opinions Standing H is proper party to bring a matter to court for adjudication if he alleges and proves injury H must show that she has been or will be directly and personally injured by the unlawful government action which affects her rights under Constitution or federal law Injury need not be econorr1ic causation causal connection between injury and conduct complained of and redressability decision in H s favor must be capable of eliminating her grievance Generally no 3rd party standing except if there s close relationship between H and injured party injured party unlikely to be able to assert his own rights such as criminal As on behalf of prospective jurors about discrimination or associational standing No generalized grievances except that taxpayers have standing to challenge govemment expenditure as violations of the Establishment Clause but not govemment grants of property to religious institutions Ripeness H isn t entitled to review of statute or regulation before its enforcement ie may not obtain declaratory judgment unless U will suffer some harm or immediate threat of harm Mootness H must present live controversy If events that happen after ling end H s injury case is dismissed as moot Exceptions wrong capable of repetition but evading review eg abortion cases voluntary cessation by A which A is free to resume at any time class action suits as long as one member has live claim Political question will not be heard by federal courts Examples republican form of government clause president s conduct of foreign policy impeachment and removal process Supreme Court and lower federal court review 1 2 SCOTUS review 2 ways cases can come to SCOTUS 1 writ of certiorari or 2 appeal rare Final judgment rule SCOTUS can only hear cases after nal judgment of the highest state court of a US court of appeals or of three judge federal district court Independent state ground for SCOTUS review there must not be an independent and adequate state law ground of decision that would make SCOTUS decision irrelevant even if federal issues are involved State law grounds are adequate if they re fully dispositive of the case and decision is not based on federal case interpretations of identical federal provisions 11th Amendment federal and state courts can t hear suits against state governments under 11thA principle of sovereign immunity Exceptions express waiver by state under 5 of 14thA federal govemment may sue state Suits against state officers Allowed May be sued for injunctive relief or for money damages to be paid out of their own pockets but cannot be sued if state treasury will be paying retroactive damages Legislative Power Article 1 1 2 10 There must be an express or implied power for every Congressional act Police power no general federal police power Only state and local govemments have general police power Federal govemment has police power over military Indian reservations federal lands and DC MILD Necessary and proper clause Congress may adopt all laws necessary and proper to execute any power granted to any branch of the federal government Must be linked with another federal power cannot stand alone Taxing and spending power Congress may TampS for general welfare Commerce power Congress may regulate channels of interstate commerce instrumentalities of interstate commerce and activities that have a substantial effect on interstate commerce War and related powers Congress has power to declare war raise and support armies and provide for and maintain a navy Economic regulation during war and in postwar period to remedy wartime disruptions ok Congress can make rules for govemment and regulation of armed forces Military courts have jurisdiction over all offenses committed by active servicemembers both at time of offense and when charged Property power Congress has power to dispose of and make rules for territories and other properties of US No express limitation on power to dispose of property federal takings eminent domain must be for purpose of effectuating an enumerated power under some other Constitution provision 10th Amendment all powers not granted to the federal govemment nor prohibited to the states are reserved to the states or the people Congress may not compel state regulatory or legislative action but can induce by putting certain strings on grants Congress may prohibit harmful commercial activity by state governments 5 of the 14th amendment Congress may not create new rights or expand the scope of rights under 5 May only prevent or remedy violations of rights recognized by the courts Delegation of powers no limit on Congress s ability to delegate legislative power to executive agencies or judiciary Must set intelligible standards to guide exercise of discretion Congress may not delegate executive power to itself or its of cers Legislative vetoes and line item vetoes are unconstitutional as violations of the presentment clause and bicameralism Executive Power Article II 1 Foreign policy a Treaties negotiated by President and rati ed by Senate 23rd vote Treaties prevail over con icting state law If federal law con icts more recent one wins If treaty con icts with Constitution it s invalid b Executive agreements effective when signed by President and head of foreign country No senate approval required Can be for any purpose EAs 2 prevail over con icting state laws but never over con icting federal laws or the Constitution c Commander in chief has broad power to use US troops in foreign countries political question No power to declare war Congress may limit President in its military appropriations every 2 years Domestic affairs a Appointment and removal only President appoints ambassadors federal judges and officers of US Congress may vest appointment power of inferior of cers in President heads of departments or lower federal courts Congress can t give itself appointment power President may fire any executive of cer Congress may limit to good cause removal from some executive offices but may not deny removal b Impeachment and removal President Vice President federal judges and officers of US can be impeached and removed for treason or high crimes and misdemeanors House of Representatives has sole power of impeachment majority vote required Senate then holds a trial to remove 23 vote required c Immunity President has absolute immunity to civil suits for money damages for actions while in of ce no immunity while in office for actions prior to taking office d Executive privilege President has privilege to keep certain communications secret Applies to presidential papers and conversations but must yield to important govemment interests e Pardon power President may pardon those accused or convicted of federal crimes Exception cannot pardon crime underlying an impeachment Cannot pardon for impeachment or civil contempt f Veto if President vetoes act of Congress act may still become law if veto is overridden by 23 vote of House and Senate 1 Pocket veto President has 10 days to exercise veto power If he fails to act bill is automatically vetoed if Congress is not in session If Congress is in session the bill becomes law Federalism Dormant Commerce Clause and Privileges and Immunities Clause 1 Dormant Commerce ClauseNegative Commerce Clause negative implications of the commerce clause State and local laws are unconstitutional if they place undue burden on interstate commerce inferred from Congress s commerce power or favor local economic interests Article IV Privileges and Immunities Clause no state may deprive citizens of other states of the privileges and immunities it affords its own citizens Anti discriminatory provision Corporations and aliens not protected 14thA Privileges and Immunities Clause never the right answer unless question involves right to travel was extremely limited by slaughterhouse cases If law does NOT discriminate against outofstaters Article IV PIC doesn t apply If law burdens interstate commerce it violates dormant commerce clause if burdens exceed benefits Analysis if law DOES discriminate against outof staters 1 if law burdens interstate commerce violates dormant commerce clause unless it is necessary to achieve an important government purpose 2 exceptions Congress approved or state is acting as market participant state is selling or hiring labor etc 2 if law discriminates with respect to ability to earn a livelihood it violates Article IV PIC unless it s necessary to achieve an important govemment purpose the law must discriminate against outofstaters only and the discrimination must be on civil liberties or important economic activities Corporationsaliens cannot use Article IV PIC Full faith and credit clause if judgment is entitled to full faith and credit must be recognized in sister states Interstate compact clause concems agreements between states If agreement increases states power at expense of federal power congressional approval is required Federalism State taxation of interstate commerce 1 General rules States may not use their tax systems to help in state business State may only tax activities if there is a substantial nexus to the state State taxation of interstate businesses must be fairly apportioned to the activity related to that state Protection of individual liberties state action 1 2 Generally state action is required Private conduct need not comply with the constitution Congress may apply constitutional norms to private conduct by statute under 13thA and related laws re private racial discrimination and under the commerce power Congress may not use 5 of 14thA to regulate private behavior Public function exception Constitution applies if private entity is performing task that is traditionally exclusively done by the govemment eg running a town holding elections Narrow Entanglement exceptions Constitution applies if govemment affirmatively authorizes encourages or facilitates unconstitutional activity Either govemment must stop what it is doing or private entity must comply with Constitution Protection of individual liberties levels of scrutiny 1 Rational basis test law must be rationally related to a legitimate govemment purpose Means must be rational to obtain goal Some conceivable legitimate purpose must exist court won t just look at actual purpose Challenger has burden of proof Intermediate scrutinv law must be substantially related to an important government purpose More than just a legitimate purpose Courts look only to actual purpose Govemment usually has burden of proof Applies to quasi suspect classi cations Strict scrutiny law must be necessary to achieve a compelling govemment purpose Law must be vital and the means necessary Courts look only to actual purpose Govemment has burden of proof to show no less restrictive method could achieve the objective Applies to fundamental rights interstate travel privacy voting and 1StA rights and suspect classi cations There must be no less burdensome alternative to achieve govemment s goal Procedural due process 1 Fair process ie notice and hearing is required for government agency to individually take a person s life liberty or property Only intentional not negligent deprivation violates DPC Has there been a deprivation of life liberty or property Deprivation of liberty occurs if there is a loss of signi cant freedom provided by constitution or statute Deprivation of property occurs if there is an entitlement and that entitlement is not ful lled Entitlement exists when there s reasonable expectation of continued receipt of a bene t Govemment negligence not sufficient for deprivation of due process must be intentional govemment action or at least reckless action Failure to protect from private harms generally doesn t deny DP What procedures are required Balance three things to determine whether procedures are required 1 importance of the interest to the individual 2 ability of additional procedures to increase accuracy of the fact nding and 3 govemment s interest in administrative efficiency Substantive due process Economic liberties 1 2 Rational basis test used for laws affecting economic rights eg employment regs consumer protections Takings clause 5thA Govemment may take private property for public use but must pay just compensation Taking can be possessory always a taking no matter how small or regulatory ie leaves no reasonable economically viable use of land merely reducing value is not enough Contracts clause No state shall impair the obligations of contracts Applies only to statelocal interference with existing contracts Interference with private contracts must meet intermediate scrutiny Interference with govemment contracts must meet strict scrutiny Ex post facto clause government may not pass ex post facto law that criminally punishes conduct legal when it was done or increases punishment after commission of the crime Only applies to criminal Retroactive civil liability need only meet rational basis Substantive due process privacy rights 1 Strict scrutiny privacy is fundamental right protected under substantive due process so strict scrutiny generally applies Right to marry strict scrutiny Statute restricting rights of prison inmates to marry will be upheld if reasonably related to legitimate penological interests Right to procreate strict scrutiny Right to custody of one s own children permanent deprivation requires strict scrutiny Right to keep the family together strict scrutiny Applies to extended family not just children Right to control upbringing of one s children SS Parents have rights to make decision about care custody and control of kids Right to purchase and use contraceptives SS State can t prohibit distribution Right to abortion SS can t be applied because state has 2 compelling interests that often compete protecting woman s health and protecting the fetus Undue burden test applies not strict scrutiny Prior to viability states may not prohibit abortions but may regulate them so long as they do not create an undue burden on the ability to obtain abortions After viability may prohibit except where endangers mother s life No govemment duty to subsidize abortions or provide in public hospitals Spousal consentnotice laws unconstitutional Parental notice for minor ok if there s alternative of going before judge Right to refuse medical treatment no level of scrutiny has been set yet but the right exists Substantive due process Right to Vote 1 2 Restrictions on right to vote other than on basis of residence age and citizenship are invalid unless they pass SS a Reasonable time periods for residency ie 30 days are valid Congress may override in presidential elections and substitute its own b Conditioning right to vote or hold of ce on ownership of property usually invalid Exception special purpose elections c Poll taxes are unconstitutional d States may require early registration to vote in primaries Dilution of right to vote a One person one vote applies whenever any level of govemment state or local decides to select representatives to government body by popular election from individual districts Doesn t apply to special elections for officials dealing with matters of special interest ie water storage districts b Gegrymandering race and other suspect classi cations can t be main factor in drawing boundaries of voting districts unless district plan can pass SS Equal Protection 1 2 Approach to EP problems What is the classi cation What level of scrutiny should be applied Does this law meet the level of scrutiny Proving discriminatory classi cation for SS or IS to apply there must be intent on part of govemment to discriminate Intent may be shown by a Law that is discriminatory on its face b Discriminatory application of a facially neutral law or c Discriminatory motive behind law most difficult to prove because discriminatory effect alone isn t enough there must be motive such as history of discrimination Constitutional provisions Equal Protection Clause EPC of 14thA applies only to state and local govemments EP is applied to federal govemment through 5thA DPC which includes EP requirement Suspect classifications race national origin and alienage SS 10 ll Ouasi suspect classi cations gender and legitimacy IS Other classifications RB used for all other classifications including age disability wealth economic and sexual orientation ie mandatory retirement ages may be established Education isn t indamental right so there s no denial of EP when wealthier kids can afford to pay for access to best state operated schools Racenational origin classifications SS applies If law is facially neutral must prove both discriminatory impact and intent SS also applies to laws bene ting a minority Numerical set asides require that setaside is needed as a remedy for documented past discrimination Race can be 1 factor in school admissions decisions Cannot disrupt seniority systems for affirmative action Alienage classifications SS is generally used but only RB is used for alienage classi cations that concem self govemment and democratic process eg voting being a teacher police of cer juror or probation of cer and for Congressional discrimination against aliens IS used for children of undocumented aliens Undocumented aliens aren t suspect classi cation so laws on them are subject to RB Gender classi cations IS Court requires exceedingly persuasive justi cation If law facially neutral must prove both discriminatory impact and intent Intentional discrimination against women is invalid but classifications benefiting women that are designed to remedy past discrimination are generally valid Intentional discrimination against men is invalid but certain laws have been found to be substantially related to important government interest ie statutory rape laws allmale draft Legitimacv classi cation IS Laws that deny a bene t to all non marital children and grant to all marital children are unconstitutional Fundamental rights right to interstate travel privacy voting and lStA rights SS 1stA Freedom of Speech 1 Content based v contentneutral restrictions content based regulations banning communication of specific ideas must meet SS 2 kinds of content regulations subject matter and viewpoint Content neutral regulation of conduct associated with speaking such as time of speech sound level etc need only meet IS a Content usually unconstitutional to place burdens on speech because of its content except for certain categories of speech obscenity defamation etc b Conduct conduct related to speech can be regulated by contentneutral time place and manner restrictions Prior restraints SS Prevents speech before it occurs rather than punishing it afterwards Rarely allowed Govemment must show that some special societal harm will otherwise result Must comply with court order until vacated Government has burden Applies to seizures of books and films and movie censorship cases To be valid prior restraint must provide safeguards a Standards must be narrowly drawn reasonable and de nite b Injunction must promptly be sought and 4 1stA 2 4 5 1 A 1 2 c There must be prompt and final determination of validity of restraint Vagueness and overbreadth law is vague if you cannot tell what speech is allowed and what is prohibited Overbroad if it regulates substantially more speech than Constitution allows Fighting words statutes though ghting words are unprotected speech have been held unconstitutionally vague and overbroad There must be defined standards Symbolic speech regulation must have an important interest unrelated to suppression of message and must not have impact on communication greater than necessary to achieve govemment purpose Anonvmous speech protected Unprotected or less protected speech Incitement to illegal activity govemment may punish if there s substantial likelihood of imminent illegal action and speaker intended to cause such illegal conduct Fighting words fighting words are personally abusive words that are likely to incite immediate physical retaliation in average person Merely annoying words not enough Attempt to punish ghting words are usually vague or overbroad so should be invalid on MBE Obscenitv and sexuallv oriented speech not protected Government may use zoning ordinances to regulate the location of adult businesses Child pomography is absolutely unprotected Govemment may not punish private possession of obscenity except for child pom Profaneindecent speech is generally protected fuck the draft except in the schools and over the broadcast media Speech is obscene if it describes or depicts sexual conductmaterial that a Appeals to the prurient interest community standard b Is patently offensive and an affront to contemporary community standards and c Lacks serious value literary artistic political or scienti c using national reasonable person standard Commercial speech Protected if it s truthful False and deceptive commercial speech not protected True but misleading commercial speech can be prohibited For other commercial speech IS applies Defamation not protected in sex using Places available for speech Public forums govemment properties that government is constitutionally required to make available for speech ie public parks and streets Regulations must be subject matter and view point neutral SS applies Must be time place or manner regulation that serves an important govemment purpose and leaves open adequate altemative places for speech Limited public forums govemment properties that govemment could close to speech but chooses to open to speech on permanent or lin1ited basis Use same rules as for public forums Time place and manner restrictions TPM regulations must be a Content neutral b Narrowly tailored to serve an important government interest and c Leaves open alternative channels of communications Non public forums govemment property that govemment can and does close to speech Regulation must be reasonable rational basis and view point neutral ie sidewalks in front of post of ce military bases outside of jails Private property no 1StA right to access private property for speech 1 A Freedom of Association 1 2 Fundamental right SS applies To punish membership in group it must be proven that person actively affiliated with group knowing of its illegal activities and with specific intent of furthering those illegal activities Required disclosure of group membership where such disclosure would chill association must meet SS Prohibiting group from discriminating is constitutional unless law interferes with intimate association or expressive activity 1 A Freedom of Religion 1 Free Exercise Clause government shall make no law prohibiting the free exercise of religion Prohibits interference with religious beliefs but doesn t prohibit regulation of conduct If government action regulates general conduct including religious conduct it s valid exceptions unemployment bene ts for those who quit jobs for religious reasons and education of Amish children To be challenged law must be motivated by a desire to interfere with the religion If law not neutral strict scrutiny Establishment Clause government shall make no law respecting an establishment of religion Test is there must be a secular purpose for the law the effect must be neither to advance nor inhibit religion and there must not be excessive entanglement with religion SEX test Strict scrutiny School sponsored religious activity is invalid but school accommodation of religion is valid Financial bene ts to religious institutions government may give aid to defined class of persons if defined without reference to religion or religious criteria even if most recipients use it to attend religious school Aid to colleges and hospitals ok as long as government requires aid to be used for nonreligious purposes Aid to religious grade schools and high schools usually found to have secular purpose but if program has detailed regulations to prevent effect of advancement of religion law will be invalid for excessive entanglement CRIMINAL LAW amp PROCEDURE CRIMINAL LAW Actus Reus 1 Physical act A must have either performed voluntary physical act or failed to act under circumstances imposing legal duty to act Act is a bodily movement Some acts don t give rise to liability non volitional acts re exiveconvulsive acts acts done while unconscious or asleep Omission as an act generally no legal duty to rescue A liable for failure to act only when there s a duty imposed by law to act A has knowledge of facts giving rise to duty to act and it is reasonably possible for A to act 5 situations where law imposes a duty statute contract relationship voluntary assumption of care or where A created the peril Mens Rea 1 Specific intent crime may require a specific intent or objective as an element of the crime With speci c intent the intent cannot be inferred from the doing of the act Specific intent crimes major specific intent crimes and the intent required are a Solicitation intent to have solicited person commit the crime Attempt intent to complete the crime Conspiracy intent to have the crime completed First degree premeditated murder premeditation Assault intent to commit battery attempted battery Larcenv and robbery intent to permanently deprive the other of his interest in the property taken Burglary intent to commit a felony in the dwelling Forgery intent to defraud False pretenses intent to defraud Embezzlement intent to defraud Malice malice crimes are common law murder and arson Intent required is reckless disregard of an obvious risk that the particular harmful result will occur Defenses to SI crimes ie voluntary intoxication don t apply to malice crimes General intent any other crime not in the other 3 categories is general intent Intent may be inferred merely from the doing of the act Transferred intent doctrine applies Motive is irrelevant for element of intent a Transferred intent A can be liable where she intends harm that s actually caused but to different victim or object Defenses may also be transferred Applies to homicide battery and arson Doesn t apply to attempt Person found guilty of crime on basis of transferred intent is usually guilty of 2 crimes the completed crime against actual victim and attempt against intended victim Strict liability no intent required If crime is in administrative regulatory or morality area and statute does not contain adverbs like willfully then it is strict liability Consent and mistake are no defenses to strict liability crimes any defense that negates intent not available A can be found guilty from mere fact that he 13939 P 939 1quot TOO committed the act Common strict liability offenses are selling liquor to minors and statutory rape Model penal code mental states Purposely A s conscious object Knowinglywillfully A aware that conduct is of a particular nature or will necessarily cause a particular result Recklessly A knows of substantial and unjusti able risk and consciously disregards it Negligence A fails to be aware of a substantial and unjusti able risk where such failure is a substantial deviation from standard duty of care Homicide 1 6 Murder unlawful killing of a human being with malice aforethought a Malice aforethought 1 Intent to kill 2 Intent to in ict great bodily harm 3 Reckless indifference to an unjusti ably high risk to human life depraved heart or 4 Intent to commit felony felony murder Degrees of Murder murder will be 2nd degree murder unless it s deliberate and premeditated a 1 degree murder if A made decision to kill in a cool and dispassionate manner and actually re ected on idea of killing even if very brie y it s 1 degree Murder based on premeditation requires specific intent Felony murder b 21101 degree murder all other murder except felony murder which is 1 degree Felony murder any death caused in the commission of or in attempt to commit an enumerated felony is murder 1 degree murder Malice is implied from intent to commit felony a Limitations on felonymurder rule Defenses 1 A must be guilty of underlying felony 2 Felony must be distinct from the killing itself ie commission of aggravated battery that causes victim s death doesn t qualify as underlying felony 3 Death must have been foreseeable result of felony 4 Death must have been caused before A s immediate ight from the felony ended If A has reached temporary safety then subsequent murders aren t felony murder 5 Dead person must not have been co felon Enumerated felonies usually includes arson robbery burglary mayhem rape and kidnapping and other inherently dangerous felonies Voluntary manslaughter killing that would be murder but for the existence of adequate provocation a Adequate provocation provocation is adequate if it would arouse intense passion in an ordinary person A was in fact provoked there was not sufficient time to cool down and A did not in fact cool down Imperfect self defense can reduce murder to voluntary manslaughter Involuntary manslaughter killing committed with criminal negligence A was negligent or during the commission of an unlawful act misdemeanor or felony that s not included within felony murder rule a Misdemeanor manslaughter killing while committing misdemeanor or unenumerated felony Crimes against the Person 1 Battery unlawful application of force to the person of another resulting in either bodily injury or offensive touching Battery with deadly weapon resulting in serious injury or of childwomanpolice of cer is aggravated battery in some states General intent crime Assault either an attempt to commit a battery or the intentional creation other than by mere words of a reasonable apprehension in the mind of the victim of imminent bodily harm If there s actual touching it s battery not assault Mayhem dismemberment or permanent disablement of a bodily part Abolished in many states False imprisonment unlawful con nement of person to a bounded area wo valid consent Kidnapping unlawful confinement of person that involves either 1 some movement of victim or 2 concealment of victim in a secret place pe unlawful carnal knowledge of a woman by a man not her husband without her effective consent The slightest penetration is enough Statutory rape carnal knowledge of a female under the age of consent It is a strict liability crime consent and mistake are no defenses to statutory rape Lack of consent lack of effective consent exists where a Intercourse is accomplished by actual force b Intercourse is accomplished by threats of great and immediate bodily harm c Victim is incapable of consenting due to unconsciousness intoxication or mental condition or d Victim is fraudulently caused to believe that act isn t intercourse Crimes against Property 1 Larceny taking and carrying away tangible personal property of another by trespass with intent to permanently deprive that person of her interest in the property Taking with belief that it is yours or you have some right to it is not common law larceny Embezzlement fraudulent conversion of personal property of another by person in lawful possession of that property Intent to restore the exact same property is a defense Not embezzlement if A had claim of right to property Embezzler gets possession not title False pretenses obtaining title to personal property of another by intentional false statement of past or existing fact with intent to defraud the other Note that promise for something in future doesn t count Larceny by trick if victim tricked into giving up mere possession it is larceny by trick but with false pretenses title is obtained Robbery larceny plus force Taking of personal property of another from the victim s person or presence by force or threats of immediate death or physical injury to the victim a member of his family or some person in the victim s presence with the intent to permanently deprive 10 him of it Threat of future harm doesn t count From the person is broadly interpreted picking a pocket is not enough force Extortion common law extortion consists of the corrupt collection of an unlawful fee by of cer under color of office Modem statutes often also define extortion blackmail as obtaining property by means of threats to do harm or to expose information Distinguish from robbery don t have to take from the person or his presence and threats are future Receipt of stolen property receiving possession and control of stolen property known to have been obtained in a manner constituting a criminal offense by another person with the intent to permanently deprive the owner of his interest in it Constructive possession is suf cient If property has been recovered by police and is being used as bait with owner s permission it is no longer stolen Forgery making or altering writing with apparent legal signi cance so that it is false with intent to defraud Also includes fraudulently obtaining signature of another Uttering a forged instrument offering as genuine an instrument that may be the subject of forgery and is false with intent to defraud Malicious mischief malicious destruction of or damage to the property of another Malice requires no ill will or hatred but it does require that the damage or destruction have been intended or contemplated by A Crimes against the Dwelling l Burglary breaking and entry of dwelling of another at nighttime with intent to commit a felony within the structure Breaking requires only minimal force At common law coming through a wide open door or window is not a breaking but then a breaking could occur inside Placing any portion of the body or any instrument used to commit the crime into the structure is an entry Structure must be used for sleeping purposes even if that is not its main function Intent to commit felony within must exist at time of breaking it cannot be formed afterwards Arson malicious buming of dwelling of another There must be damage to structure of the dwelling Mere blackening or smoke damage is not enough but charring is OK Must be material wasting of the structure so carpet bums alone are not enough An explosion is not enough unless it causes a fire Houseburning malicious burning of one s own dwelling if the structure is situated either in a city or town or so near to other houses as to create a danger to them Common law misdemeanor Inchoate Offenses l 2 Solicitation asking another to commit a crime with the intent that the person solicited commit the crime Not necessary that person solicited actually agree or complete the crime Merger applies upon agreement Conspiracy agreement between two or more persons with intent to enter into agreement and intent by at least two of the parties to achieve the criminal objective of the agreement Specific intent Conspirators are liable for foreseeable crimes committed by other conspirators in furtherance of conspiracy Conspirators don t have to know each other No express agreement required No merger a Overt Act Most states require an overt act in furtherance of conspiracy minority grounds liability with agreement itself b Defenses Withdrawal no defense to conspiracy itself but may be to underlying crime Impossibility no defense Attempt act done with intent to commit a crime that falls short of completing the crime Speci c intent plus a substantial step beyond mere preparation in the direction of commission of a crime Remember that A cannot attempt a criminally negligent act a Overt Act A must commit an act beyond mere preparation Act or omission must constitute a substantial step in a court of conduct planned to culminate in commission of the crime Much more substantial than overt act required for conspiracy b Defenses factual impossibility no defense Legal impossibility is defense Abandonment no defense Merger applies if attempted crime is completed Accomplice liability 1 principal in 1 degree principal in 2nd degree accessory before the fact accessory after the fact the first three actors can be guilty of the principal offense Accessory after the fact is treated separately Accessory before the fact person who assisted or encouraged but was not present Accessory after the fact one who assists another knowing that he has committed a felony in order to help him escape arrest or punishment Treated separately Punishment for this crime usually bears no relationship to the principal offense Mental state to be accomplice must actively aidcounselencourage principal with intent to encourage the crime Mere knowledge that crime will result is not enough Without intent mere presence at crime is not enough even if presence seems to condone Scope of liability accomplice is responsible for the crimes he did or counseled and for any other crimes committed in the course of committing the crime contemplated to the same extent as the principal as long as the other crimes were foreseeable Inability to be principal is no bar to accomplice liability Exclusions from liability members of protected class necessary parties not provided for in statute withdrawal before the crime became unstoppable Insanity 1 4 insanity tests a M Naghten rule A doesn t know right from wrong A lacked ability to know wrongfulness of his actions or understand naturequality of his actions Loss of control due to mental illness is no defense b Irresistible impulse test Impulse that A cannot resist A lacked capacity for self control and free choice c Durham or New Ham shire test but for the mental illness A wouldn t have done it Crime was 4 product of A s mental illness ie crime would not have been committed but for the mental illness d ALI or MPC test Combination of M Naghten and irresistible impulse test A lacked the substantial capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of the law Procedural issues all A presumed sane A must raise insanity defense If insanity raised can t refuse court ordered psych exam Postacquittal commitment to mental institution in most states A acquitted by reason of insanity may be committed to mental institution until cured Con nement may exceed maximum sentence Mental condition during criminal proceedings under DP A may not be tried convicted or sentenced if as result of mental disease or defect he s unable to 1 understand the nature of proceedings against him or 2 assist his lawyer in preparation of his defense A may not be executed if he s incapable of understanding nature and purpose of the punishment Diminished capacity some states recognize this defense under which A may assert that as result of mental defect short of insanity he didn t have mental state required for crime Most states allowing this limit it to speci c intent crimes Intoxication 1 Voluntary intoxication result of intentional taking without duress of substance known to be intoxicating Defense only to specific intent crimes Negates mens rea Defense not available if A purposely becomes drunk in order to assert defense Not defense to crimes involving malice recklessness negligence or strict liability Involuntarv intoxication results from taking of an intoxicating substance without knowledge of its nature under direct duress imposed by another or pursuant to medical advice while unaware of the substance s intoxicating effect Defense to all crimes May be treated as a mental illness and A entitled to acquittal if he meets the jurisdiction s insanity test J ustification defenses 1 Justification defenses arise when society has deemed that although A committed crime shouldn t be punished because circumstances justify the action Self defense such force as reasonably appears necessary to protect from imminent use of unlawful force may be used No retreat required before using non deadly force Generally no retreat required for using deadly force but minority view requires it unless you are in your home making an arrest or being robbed or raped Right of aggressor to use self defense only if he effectively withdraws and communicates intent to do so or if victim escalates the attack Defense of others A has right to defend others if she believes person assisted has legal right to use force in own defense Only need reasonable appearance of right to use force No need for special relationship between A and person defended May use same amount that victim could reasonably use Defense of a dwelling no deadly force allowed except to protect inhabitants Defense of other property deadly force never allowed Nondeadly force can be used to defend property but can t be used if request to desist or refrain from activity would suf ce Force can t be used to regain possession of wrongfully taken property unless in immediate pursuit of taker Crime prevention force reasonably necessary to prevent felony or serious breach of the peace Deadly force allowed only to prevent felony dangerous to human life Use of force to effectuate arrest or resist unlawful arrest non deadly force can be used by cops to effectuate arrest Deadly force ok if needed to prevent felon s escape and felon threatens death or serious bodily harm Resisting arrest non deadly force may be used to resist improper arrest even if known cop is doing it Deadly force can be used if person doesn t know person arresting him is a cop Necessity defense to all crimes except homicide A reasonably believed that commission of the crime was necessary to avoid an imminent and greater injury than that involved in crime Objective test A cannot be at fault in creating the necessity Good faith belief not enough Exculpatory defenses l Duress A reasonably believed that another person would imminently in ict death or great bodily harm upon him or member of his family if he did not commit the crime Defense to all crimes except homicide Mistake or ignorance of fact any mistake is defense to specific intent crime to negate mens rea Reasonable mistakes are defense to general intentmalice crimes Mistake is never defense for strict liability Mistake or ignorance of law generally not a defense even if based on attomey advice and reasonable Exceptions l Statute proscribing conduct wasn t published or made reasonably available prior to conduct 2 there was reasonable reliance on a statute or judicial decision or 3 there was reasonable reliance on official interpretation or advice Consent defense where the lack of consent of the victim is element of crime Consent must be voluntary party must have been legally capable of consenting and no fraud was used to obtain consent Condonation or criminality of the victim is no defense Forgiveness by victim is not defense Consent is almost never a defense here Entrapment narrow Criminal design had to originate with police and A had to not be predisposed to commit the crime Merely providing opportunity for predisposed person to commit crime isn t entrapment Offenses involving Judicial Procedure 1 2 3 Perjury intentional taking of a false oath in regard to a material matter in a judicial proceeding Subornation of perjury procuring or inducing another to commit perjury Bribery at common law bribery was the corrupt payment or receipt of anything of value for official action Under modern statutes may be extended to nonpublic officials and either offering of bribe or taking of a bribe may constitute crime Compounding a crime agreeing for valuable consideration not to prosecute another for felony or to conceal the commission of felony or the whereabouts of felon under modern statutes refers to any crime Misprision of a felony at common law misprision of a felony consisted of the failure to disclose knowledge of the commission of felony or to prevent the commission of felony Under modem doctrine no longer crime in some jurisdictions but in others it requires some affirmative action in aid of felon CRIMINAL PROCEDURE Constitutional Rights Binding on States and Federal Government 1 2 SJ 39gt 4th Amendment prohibition against unreasonable searches and seizures and the exclusionary rule 5th Amendment privilege against compulsory self incrimination 5thA prohibition against double jeopardy 6thA right to speedy trial 6 hA right to public trial 6 hA right to jury trial 6thA right to confront witnesses 6thA right to compulsory process for obtaining witnesses 6thA right to assistance of counsel in felony cases and in misdemeanor cases in which imprisonment is imposed 8thA prohibition against cruel and unusual punishment Exclusionary Rule 1 Exclusionarv rule judgemade rule that prohibits introduction of evidence obtained in violation of A s 4thA 5thA and 6thA rights Illegally obtained evidence is inadmissible at trial Fruit of poisonous tree doctrine evidence obtained or derived from exploitation of original illegality generally excluded Exceptions whereby state can break the chain between illegality and evidence a Evidence obtained from source independent of original illegality b Intervening act of free will by A ie A is illegally arrested but then released and then comes back to station to confess and c Inevitable discovery ie prosecution can show that police would ve discovered evidence whether or not police acted illegally Limitations on exclusionary rule a Inapplicable to grand juries unless evidence was obtained in violation of federal wiretapping statute civil proceedings internal agency rules and parole revocation proceedings b Inapplicable when police act in good faith based on 1 case law 2 facially valid statute or ordinance or 3 computer report containing clerical errors not made by police c Inapplicable when police act in good faith reliance on defective search warrant unless 1 underlying affidavit was so lacking in probable cause it couldn t be relied on 2 warrant was defective on its face 3 af ant lied to or misled the magistrate or 4 magistrate has wholly abandoned his judicial role d Some illegally obtained evidence may still be used to impeach A s credibility if he takes stand at trial An otherwise voluntary confession taken in violation of Miranda is admissible for impeachment Evidence obtained from illegal search may be used to impeach A but not others Miranda violations fruits derived from statements obtained in violation of Miranda may be admissible despite the exclusionary rule Harmless error test if illegal evidence is admitted resulting conviction should be overturned unless state can show beyond a reasonable doubt that error was harmless Never applies to denial of RTC at trial this error is never harmless 4 A Arrests and other Detentions 1 2 4thA states that people should be free from unreasonable searches and seizures Seizure occurs when reasonable person would believe that he is not free to leave or terminate an encounter with the government Arrest occurs when police take a person into custody against her will for purposes of criminal prosecution or interrogation Arrest warrant for arrest in a public place a warrant is generally not required However police generally must have a warrant for a non emergency arrest of a person in his home Probable cause requirement arrest must be based on probable cause ie trustworthy fact or knowledge suf cient for a reasonable person to believe that the suspect has committed or is committing a crime Investigatory detentions Stop and frisk if police have reasonable suspicion of criminal activity or involvement in completed crime supported by articulable facts not merely a hunch they may detain person for investigative purposes If police also have reasonable suspicion that detainee is armed and dangerous they may frisk for weapons Detention must be no longer than necessary to conduct a limited investigation to verify suspicion If during detention probable cause arises the detention becomes an arrest Brief property seizures are similarly valid if based on reasonable suspicion Automobile stops police may not stop a car without at least reasonable suspicion to believe that law has been violated However if special law enforcement needs are involved police may set up roadblocks to stop cars without reasonable suspicion as long as the block is based on a neutral articulable standard and designed to serve a purpose related to automobiles and their mobility Pretextual stops are permitted as long as the police have reasonable suspicion to believe driver violated a traf c law Police may order occupants of vehicle to get out in interest of officer safety If of cer believes occupants to be armed may frisk them and search passenger compartment for weapons even after ordering occupants out 10 Detention to obtain a warrant if police have probable cause to believe that suspect has hidden drugs in his home they may for a reasonable time prevent him from going inside so that they can prevent him from destroying the drugs while they obtain search warrant Occupants of premises to be searched valid search warrant for contraband allows police to detain occupants of the premises during a proper search Station house detentions police must have full probable cause for arrest to bring suspect to the station for interrogation or fingerprinting 4 A Search and Seizure 1 2 4 Like arrests evidentiary searches and seizures must be reasonable to be valid under 4thA Search and seizure issues should be approached using following analysis a Does A have 4thA right seizure by government conceming place or thing in which A had reasonable expectation of privacy b Did govemment have valid warrant issued by neutral and detached magistrate on a showing of probable cause and reasonably precise as to the place to be searched and items to be seized c If police didn t have valid warrant did they make valid warrantless search and seizure State conduct required only govemment search and seizure violates someone s constitutional rights Public police private persons deputized as of cers of the public police or people acting at the direction of the police are govemment actors Standing to object to legality of a search person must have his own reasonable expectation of privacy with respect to place searched or items seized Totality of the circumstances determination Person has legitimate expectation of privacy anytime he 1 owned or had right to possession of the place searched 2 place searched was his home regardless of ownership or right to possess or 3 he was an ovemight guest of owner of place searched You do not have an expectation of privacy in things held out to the public such as sound of your voice style of your handwriting bank accounts location of your car things seen across open elds or from public air space odors from luggage garbage by curb Searches conducted pursuant to a warrant police must have warrant to search unless search is pursuant to one of 6 exceptions to warrant requirement Probable cause is required to obtain warrant Warrant must be precise on its face must describe with particularity the places to be searched and items to be seized Search of third party premises allowed as long as there s probable cause to believe evidence will be found Warrant must be issued by neutral and detached magistrate Only police may execute warrant and it must be done without unreasonable delay Police must knock and announce unless there s reasonable suspicion that it would be dangerous or futile to do so Any contraband or fruitsinstruments of crime lawfully discovered during search may be seized even if not speci ed in the warrant Cannot search people on premises not named in the warrant Warrant based on affidavit will be invalidated if A proves all 3 of following a False statement was included in af davit by af ant of cer applying for warrant b Affiant intentionally or recklessly included false statement and c False statement was material to nding of PC Exceptions to warrant requirement a Search incident to lawful arrest police may search person and areas into which he might reach to obtain weapons or destroy evidence wingspan including the entire passenger compartment of a car Police may also make protective sweep of the area if they believe accomplices may be present Search must be at same time and place of arrest Police may make an inventory search at the station of the arrestee s belongings and may make an inventory search of impounded vehicle If arrest is unlawful any search incident to that arrest is also unlawful b Automobile exception if police have probable cause to believe that vehicle contains fruits instrumentalities or evidence of crime they may search the whole vehicle including trunk and any container that might contain item for which they had probable cause to search no matter who owns it Car may be towed to station and searched later If car itself is contraband police may seize it from public place without warrant Probable cause may arise after car is stopped but must be present before search If probable cause is only for container recently placed in the car may only search that container Depends what they are looking for If they are looking for drugs can look in suitcase but if they are looking for illegal aliens can t look in suitcase c Plain view police may make warrantless seizure when they 1 are legitimately on premises 2 discover evidence fruits or instrumentalities of crime or contraband 3 see such evidence in plain view and 4 have probable cause to believe ie it must be immediately apparent that item is evidence contraband or a fruit or instrumentality of crime Plain view includes any place officer can legally look d Consent warrantless search is valid if police have voluntary and intelligent consent Scope of search limited to scope of consent If police claim to have warrant that negates consent Police not required to tell you that you don t have to consent Anyone with right to use property can consent e Stop and frisk police of cer may stop person without probable cause if he has reasonable and articulable suspicion of criminal activity If cop reasonably believes person is armed may conduct protective frisk Frisk limited to pat down of outer clothing unless of cer has speci c information about location of weapon Officer may reach into clothing and seize any item that officer reasonably believes based on its plain feel from the outside is a weapon or contraband 8 10 f Hot pursuit Emergencies and Evanescent evidence once police enter under hot pursuit search can be unlimited Can enter any place in hot pursuit There s no general emergency exception but 1 Police in hot pursuit of eeing felon may make warrantless search and seizure and may even pursue suspect into private dwelling 2 Police may seize without warrant evidence likely to disappear before warrant can be obtained and 3 Contaminated food or drugs children in trouble and buming res may justify warrantless searches and seizures Administrative inspections and searches inspectors must have warrant for searches of private residences and commercial buildings but PC required for warrant is more lenient Must show general and neutral enforcement plan to justify issuance of warrant Exceptions allowing warrantless administrative searches a Administrative searches to seize contaminated food b Admin searches of business within highly regulated industry Inventory searches of arrestees Searches of airline passengers prior to boarding e Searches of probationers homes when there are reasonable grounds for search f Searches of government employees desks and le cabinets where scope is reasonable and there s work related need or reasonable suspicion of work related misconduct g Drug tests of railroad employees involved in an accident h Drug tests of persons seeking customs employment in positions connected to drug interdiction and i Drug tests of public school students who participate in extracurricular activities Searches in foreign countries and at borders 4thA doesn t apply to searches of aliens by US officials in foreign countries Neither citizens nor foreigners have 4thA rights at border Roving patrols may stop for reasonable suspicion of illegal aliens Fixed border checkpoints need no suspicion to stop but need probable cause to search Wiretapping and eavesdropping wiretapping and other forms of electronic surveillance violating reasonable expectation of privacy constitutes 4thA search Warrant required for both Warrant may issue for wiretapping if 1 there s probable cause 2 suspected persons are named 3 conversations to be overheard are described with particularity 4 tap is limited to short time and 5 terminated when desired info obtained and 6 retum is made to court showing what conversations have been intercepted Unreliable ear exception for wiring people everyone risks that person they talk to is wired or an informant Pen registers devices recording only phone numbers dialed from speci c phone not controlled by 4thA but judicial approval is required before use spoiled or 9 Confessions 1 14thA voluntariness for selfincriminating statements to be admissible under DPC must be voluntary under totality of circumstances Involuntary if of cial compulsion If involuntary confession is admitted harmless error test applies if conviction doesn t need to be overturned because there s other overwhelming evidence of guilt 6thA right to counsel right to counsel guaranteed in all criminal proceedings which includes all critical stages of a prosecution after formal judicial proceedings have begun after charges filed This right is OFFENSE SPECIFIC Prohibits police from deliberately eliciting incriminating statement from A outside presence of counsel after A has been charged unless he waived RTC 5thA right to remain silent and right to counsel Miranda warnings required prior to interrogation of custodial suspect probation interviews and routine traffic stops not custodial a Miranda warnings for admission or confession to be admissible under 5thA person in custody must prior to interrogation be informed that 1 He has right to remain silent 2 Anything he says can be used against him in court 3 He has right to presence of an attomey and 4 If he cannot afford an attorney one will be appointed for him if he so desires b Suspect may waive Miranda rights if waiver is knowing voluntary and intelligent shrugging shoulders or silence is not waiver Questioning or any conduct police know or should know might produce a damaging statement is interrogation Spontaneous statements by accused admissible without Miranda warnings Accused may terminate interrogation anytime by invoking either right to remain silent or right to counsel Police must scrupulously obey request to remain silent Invocation of this right indicates A needs help with the process in general so it is NOT offense speci c Statements made in violation are generally inadmissible but may be used to impeach A at trial Note public safety exception to Miranda SCOTUS has allowed interrogation without Miranda warnings where it was prompted by concem for public safety ie to locate hidden gun that could ve harmed innocent people 5 A Privilege against Compelled SelfIncrimination 1 When asserted person may refuse to answer question where response might furnish a link in the chain of evidence needed to prosecute A Must be claimed in civil case to prevent privilege from being waived in later criminal proceedings Method for invoking criminal A has right not to take stand and not be asked to do so Others must assert privilege per question Scope of protection compelled testimony only not physical evidence State may use A s body to incriminate him eg make him show a tattoo Prohibitions against burdens on assertion of the privilege prosecutor cannot comment on A s silence after being arrested or refusal to testify A may ask for jury instruction that no inference be drawn Harmless error test applies if prosecutor impermissibly comments Exception if defense counsel says A wasn t allowed to tell his side of the story Elimination of privilege cannot assert the right where there s grant of immunity or no possibility of incrimination eg statute of limitations has run a Use and derivative use immunity guarantees that witness s testimony and evidence located by means of testimony won t be used against witness but he may still be prosecuted if prosecutor shows that evidence to be used against witness was from independent source b Immunized testimony testimony obtained by promise of immunity is involuntary and coerced May not be used for impeachment of A Any immunized testimony can be used in trial for perjury Waiver of privilege taking the stand waives privilege for criminal A Disclosing incriminating information is a waiver for other witnesses Pretrial Identification 1 6thA right to counsel A has right to counsel at any post charge lineup or show up No RTC at photo identifications or when police take physical evidence such as handwriting samples or ngerprints Due process standard pretrial ID cannot be unnecessarily suggestive or create substantial likelihood of misidenti cation eg A is only black person in lineup Remedy unconstitutional pretrial ID will be excluded at trial unless witness has an independent source for the ID such as chance to observe at the scene of the crime Exclusion rarely granted Admissibility should be determined at suppression hearing Govemment must prove l counsel was present 2 A waived counsel or 3 there s independent source for in court ID A must prove DP violation Pretrial Procedures 1 4 Preliminary hearing A s liberty can be restricted only on nding of PC If PC already found no prelim hearing necessary If A arrested without a warrant and signi cant restraints on liberty have been imposed jail must have a prelim hearing to determine probable cause within a reasonable time It is an informal non adversarial proceeding No remedy for denial but evidence discovered from unlawful detention can be excluded under ER Pretrial detention and bail most states have created right to bail unless capital charge Bail must be set no higher than necessary to ensure A s appearance at trial Refusal to grant bail or excessive bail may be immediately appealed Preventive detention ok Arbitrary denial of bail violates due process Grand juries secret proceeding A has no right to notice counsel presence confrontation of witnesses or presentation of evidence No right to have evidence excluded Exclusion of minorities is reversible error Speedy trial totality of the circumstances standard for whether A s 6thA right to speedy trial has been violated Consider length of delay reason for delay whether A asserted right prejudice to A Remedy is dismissal with prejudice Right attaches when A is arrested or charged Violation of this right to permit prosecution to inde nitely suspend charges A doesn t need to know of charges for speedy trial right to attach Prosecutor s duty to disclose exculpatory evidence failure is violation of due process Reversible error if A proves that it was favorable to him and prejudice has resulted there was probability that result of case would ve been different Notice of defenses A must notify prosecution of intent to use insanity plea or alibi defense and must give list of alibi witnesses State must provide list of rebuttal alibi witnesses State can t comment on A s failure to use any witnesses on the list as supporting alibi or failure to present alibi itself Competency to stand trial A incompetent if he 1 lacks rational and factual understanding of chargesproceedings or 2 lacks sufficient present ability to consult with counsel with reasonable degree of understanding A s burden is to prove by preponderance of evidence but CampCE burden is unconstitutional Trial Right to Fair Trial 1 2 Right to a public trial guaranteed by 6thA and 14thA Right to an unbiased judge due process violation if judge has actual malice against A or nancial interest in guilty verdict Right to confront witnesses 6thA gives criminal A right to confront adverse witnesses but right isn t absolute Can be denied if denial serves an important public purpose e g protecting children A can voluntarily leave courtroom and can be removed if disruptive Burden of proof and sufficiency of evidence due process requires state to prove guilt BRD May impose burden on A to prove affirmative defenses such as insanity or self defense Trial Right to Jury Trial 1 General right to jury trial attaches when A is tried for serious offenses Offense is serious if imprisonment for more than 6 months is authorized Also no right to jury trial in juvenile delinquency proceedings Contempt no jury trial right in civil contempt proceedings In criminal contempt proceedings there s right to jury if cumulative penalties greater than 6 months are imposed Summarily imposed ie judge imposes during trial contempt can exceed 6 months punishment without jury Judge can place contemnor on probation for up to 5 years probation without jury as long as revocation of probation wouldn t result in imprisonment for more than 6 months Number and unanimity of jurors at least 6 jurors required for jury trial right Unanimity required for 6 people 102 and 93 have been approved for 12 people Right to venire selected from representative crosssection of community A must show under representation of a distinct and numerically significant group in the venire to show that his jury trial right was violated Peremptory challenges using them to exclude potential jurors on race or gender basis is unconstitutional and violates EPC A must show facts or circumstances that raise inference that exclusion was based on race or gender Upon such a showing prosecution must come forward with race neutral explanation for strike even unreasonable explanation is ok as long as it s race neutral and judge then determines whether there was discrimination Trial Right to Counsel 1 2 4 A has RTC Violation of this right at trial requires reversal For nontrial denials harmless error test applies Stages at which 6thA RTC applies custodial interrogation 5thA post indictment interrogation whether or not custodial prelim hearing to prosecute arraignment post charge lineups guilty plea and sentencing felony trials misdemeanor trials when imprisonment actually imposed ovemight recesses during trial appeals of right Stages at which RTC does NOT apply blood sampling taking handwriting or voice exemplars pre charge or investigative lineups photo ID preliminary hearing to detain brief trial recesses during A s testimony discretionary appeals parole and probation revocation proceedings and post conviction proceedings Waiver of right to counsel and right to defend oneself there s right to defend oneself if waiver of counsel is knowing and intelligent No right to self representation on appeal Effective assistance of counsel effective assistance of counsel is presumed This right extends to 1 appeal Claimant must prove 1 deficient performance by counsel and 2 that but for deficiency result of the proceeding would ve been different ie wouldn t have been conviction or jail sentence would ve been shorter in order to win an ineffective counsel claim a Factors not constituting ineffective assistance trial tactics failure to argue frivolous issues rejection of A s request for continuance and failure to raise constitutional defense that s later invalidated Con icts of interest automatic reversal if counsel informs court of con ict of interest and court refuses to appoint new counsel A s con ict of interest with his attomey is rarely ground for relief Guilty Pleas and Plea Bargains 1 Taking the plea guilty plea is waiver of 6thA right to jury Judge must advise A personally go over nature of charges maximum possible penalty and mandatory minimum that A has right not to plead guilty and that by pleading guilty A waives his right to a trial Must be adequate record of guilty plea Remedy is withdrawal of plea and enter new pleadings Withdrawing plea after sentencing pleas are generally not disturbed after sentencing collateral attack but there are 4 good reasons that court will recognize 1 plea was not voluntary 2 lack of jurisdiction 3 ineffective assistance of counsel or 4 failure of prosecutor to keep an agreedupon plea bargain Plea bargaining enforceable against prosecutor and A but not judge who doesn t have to accept plea Guilty plea is not involuntary merely because it s entered in response to prosecution s threat to charge A with more serious crime if he doesn t plead guilty Collateral effects of guilty pleas guilty plea may be used as conviction in other proceedings when relevant such as basis for sentence enhancement Rights in Sentencing Punishment and Appeal 1 Procedural rights in sentencing A has RTC at sentencing Cannot vindictively penalize A at subsequent trial for exercising his right to appeal Cruel and unusual punishment 8thA prohibits cruel and unusual punishment Penalty grossly disproportionate to seriousness of offense committed is cruel and unusual Status crimes violate 8thA Death penalty any death penalty statute that does not give A chance to present mitigating facts and circumstances is unconstitutional There can be no automatic category for imposition of death penalty State may not by statute limit the mitigating factors All relevant mitigating evidence must be admissible or statute is unconstitutional Only jury and not judge may determine the aggravating factors justifying imposition of death penalty a Can t impose death penalty on rapists insane prisoners mentally retarded persons or those under 16 Constitutional problems on appeal indigents must be given counsel at 1 appeal if it s provided as matter of right by the state Collateral attack upon conviction habeas corpus No right to counsel at habeas hearing A in custody may bring habeas petition 5 A Double Jeopardy 1 2 Under 5thA person may not be retried for the same offense once jeopardy has attached When ieopardv attaches at impaneling and swearing in of jury in jury trial or swearing in of rst witness in bench trial Commencement of juvenile proceedings bars subsequent criminal trial for same offense DJ generally doesn t attach in civil proceedings other than juvenile hearings DJ Exceptions that permit retrial a Hung jury at first trial b Trial discontinued due to manifest necessity to abort original trial or at behest of A on any ground not constituting acquittal on the merits c A s successful appeal of conviction d A s breach of plea bargain Same offense if crime requires an additional element the other doesn t then not same offense Lesser included offenses count as the same Exception new evidence such as victim later dies Separate sovereign rule separate sovereigns may try A for same offense if each have jurisdiction local government not separate from state CONTRACTS amp SALES Governing law and types of contracts 1 U Common law common law supplements UCC unless otherwise displaced by it UCC Article 2 covers transactions in goods If UCC and common law con ict UCC prevails 3 elements required to create contract 1 Mutual assent offer and acceptance 2 Consideration or substitute and 3 No defenses to formation K created by formation Contracts may be express formed by language oral or written or implied formed by manifestations of assent other than oral or written language ie by conduct a Quasi Contract not a contract but is way to avoid unjust enrichment Even if agreement doesn t qualify as contract under QC a party can recover bene t conferred on other party K created by acceptance Ks are either bilateral requires exchange of promises or unilateral requires exchange of an act for a promise Most Ks are bilateral a Unilateral Ks are limited to 2 circumstances 1 where offeror indicates that performance is only way to accept or 2 where there s offer to the public contemplating acceptance by performance ie reward Void Voidable and Unenforceable Ks a Void contract K without any legal effect from the beginning ie agreement to commit crime b Voidable contract K that party may elect to avoid or ratify ie contract by minor c Unenforceable contract K otherwise valid but for which some defense exists ie Statute of Frauds Contract formation Mutual Assent 1 2 For agreement to be enforceable there must be mutual assent one party must accept other s offer Mutual assent is manifested through the process of offer and acceptance consideration and capacity to contract Parties must come to agreement on contract s terms Objective manifestation of assent would a reasonable person believe a contract has been formed Contract formation Offer 1 To be valid offer must be a An expression of promise undertaking or commitment to enter into contract b De nite and certain in its terms and 1 Real estate transactions require ID of land and price terms 2 Sale of goods Ks require quantity to be certain or capable of being made certain Requirements and output offers are good enough 3 In employment contract duration must be speci ed c Offer must be communicated to offeree Terms must be certain and definite Under common law all essential terms must be covered subject matter price and quantity UCC has a more liberal contract formation contract formed if parties intend to contract and there is a reasonably certain basis for giving a remedy Requirementsoutput contracts satisfy UCC formation requirement even without naming speci c quantities UCC implies good faith as a term Language words of promise undertaking commitment Distinguish from words that merely indicate intention to sell or interest in buying Targeted to number of people who could actually accept Advertisements generally not offers because terms aren t definite and certain Not targeted to small number of people Some ads are offers though ex first come first served Auctions an offer is made by seller of goods up for auction Acceptance occurs at fall of hammer With reserve indicates that the seller reserves the right to withdraw if bid too low Without reserve means any bid cements the deal Auctions are with reserve unless explicitly offered without reserve Offers looking toward unilateralbilateral contract Looking toward unilateral contract offer seeks performance and contract is formed upon performance Looking toward bilateral contract offer seeks return promise and contract is formed when return promise is given Revocation bv OR OR s statement or conduct unambiguously indicating change of mind that OE is aware of Effective at time of receipt and before acceptance Revocation can be direct or indirect Offers not supported by consideration or detrimental reliance can be revoked at will by OR even if he promised not to revoke for amount of time Limitation on OR s power to revoke a Detrimental reliance mere preparation can be foreseeable reasonable reliance makes offer irrevocable b Unilateral contract part performance OR s offer becomes irrevocable once performance has begun OE bound to complete under prevailing view contract is formed once performance begins under minority view only option contract is formed at start of performance making offer irrevocable for a reasonable time main contract not formed until performance complete OE not bound to complete c Acceptance cannot revoke after acceptance start of performance is acceptance in bilateral contracts d Option Ks require consideration for promise not to revoke for a certain period Party with power of acceptance has paid for offer s irrevocability e Merchant s rm offer under UCC applies to promises by merchants not to revoke offers for a sale of goods must be in writing 3 month limit on rm offers no matter what offer says Contract formation Acceptance Termination of Offer a Rejection OE may reject offer 1 expressly or 2 by making a counteroffer both a rejection and a new offer Rejection is effective when received 10 Offer can be revived by OR Rejection of option doesn t terminate the offer b Lapse of time offer may be terminated by OE s failure to accept within time speci ed or within reasonable period of time if no deadline c Death or incapacity of either party will terminate offer unless offer is kind that can t be terminated bc supported by consideration etc Insanity need not be communicated to other party d Destruction of subject matter e Supervening illegality of contract Counter offer rules counter offer terminates original offer conditional acceptance treated like a counter offer common law mirror image rule Valid acceptance of bilateral K requires OE with power of acceptance unequivocal terms of acceptance and communication of acceptance Acceptance by unauthorized means is effective if it s actually received by OR while offer still exists Extraomitted terms under common law acceptance must mirror OR s terms neither omitting nor adding terms Otherwise it may be counterofferrejection Under UCC acceptance need not mirror offer s terms If one party is nonmerchant terms of offer control If both are merchants acceptance terms usually included UCC battle of the forms between merchants new terms are part of contract unless it makes a material change or is objected to by other party when not between merchants new terms not part of deal unless agreed to Improper performance constitutes acceptance and creates contract at same time it is breach of the contract created Accommodation rule where seller sends nonconforming goods with explanation not treated as an acceptance Mailbox rule general rule is that communications are effective when received Mailbox rule exception acceptance is effective upon dispatch Exception to mailbox rule if rejection sent before acceptance whichever arrives rst is effective If acceptance sent rst and then rejection the contract is formed upon dispatch but if OR gets rejection first and changes position in reliance then OE estopped from enforcing contract acceptance of option contract is effective only upon receipt by OR Silence as acceptance general rule is OR cannot force OE to speak up to keep from accepting an offer Exception silence may be acceptance if OE silently takes the offered bene ts especially where there have been prior dealings this way or trade practice creates commercially reasonable expectation that silence represents acceptance Also if there s express waiver of communication in offer or offer requires an act as acceptance Crossoffers because an offer is effective on receipt offers stating the same terms that cross in the mail don t form K Formation problems a Unilateral K OE of unilateral perform K must act with knowledge of offer and be motivated by it Normally no duty to notify of acceptance unless requested Offeree must know of offer to accept it If he acts without knowledge and learns of offer later acts were not acceptance b Bilateral K OE s ignorance of certain terms may be defense to formation of K Oppressive terms or provisions against public policy may prevent K formation Blanket form recitals that state that offeree has read and understood all terms won t prevent court from holding that there s no K if reasonable person wouldn t understand provisions Contract formation Consideration 1 2 Courts will enforce bilateral or unilateral K only if it s supported by consideration or its substitute Bargainedfor exchange Parties must exchange something In bilateral Ks they exchange promises In unilateral Ks they exchange a promise for an act Bargain element is lacking in past consideration problems E no bargain involved no consideration when one gives a gift to another Act of forbearance by promise will form bargain if it benefits promisor If one party gives other peace of mind or gratification in exchange for something may be sufficient for bargain Past or moral consideration Promise given in exchange for something already done doesn t satisfy bargain Exceptions a When past obligation is unenforceable because of technical defense ie statute of limitations it will be enforceable if a new promise is made in writing or is partially performed b If a past act was performed by promise at promisor s request a new promise to pay for that act will be enforceable Legal value benefit detriment test Exchange must be of some bene t to PR or detriment to PE refraining from something you could legally do is a detriment distinguish from a promise to make a gift which has no detriment Adequacy of consideration law doesn t look to adequacy of consideration mere peppercorn is enough Forbearance to sue promise to refrain from suing on claim may be consideration if claim is valid or claimant in good faith believes claim is valid Preexisting dutv rule at common law promise to perform preexisting legal duty does not count as consideration because PE is already bound to perform Exceptions new or different consideration is provided look for any change in duty on either side unforeseen circumstances promise to ratify voidable obligation ie promise to ratify minor s K after reaching majority promise to go through with K despite attempted fraud if modification is fair and equitable courts struggle to uphold it UCC does not require new consideration for modifications only good faith Mutual and illusorv promises consideration must exist on both sides of K but bene t doesn t have to ow to all If only one party bound to perform then illusory promise and not enforceable Requires mutuality Ks that satisfy mutuality requirement a Requirements and output Ks check wording of contract terms Valid requirements or output K term will say all the widgets I require or all that 10 11 you produce but if it says all the widgets I want or all you want to sell me is illusory b Conditional promises unless condition is entirely within promisor s control c Ks where party has right to cancel if that right is somehow restricted ie must give 60 days notice d Voidable promises ie one made by infant Unilateral and option Ks and f Gratuitous suretyship promises made before consideration ows to principal debtor Substitutes for consideration in some situations consideration isn t necessary to create K liability Substitutes will suffice Detrimental reliance promissory estoppel UCC modi cations promises to pay legal obligations barred by law Promissory estoppel as substitute for consideration promise that might reasonably induce reliance person relies injustice can be avoided only by enforcing remedy may be limited or adjusted as justice requires S39 Capacity 1 Minors must be at least 18 to contract minor can void contract at his option If other party is adult he is bound unless minor avoids it Upon majority minor may affirm contract and then become bound Misrepresentation of age is irrelevant to minor s ability to avoid but adult may have action in tort against minor for fraud Minor cannot avoid contract for necessities Insanity or mental incapacity incompetent person may disaf rm when lucid or through a representative if he cannot understand nature and significance of contract at time of contracting Intoxicated or drugged persons may disaffirm upon recovery if he could not understand the nature and significance of contract at time of contracting Necessaries cannot be avoided by anyone but not contract liability quasi K Implied reaffirmation exists when contract made by person without capacity who later gains capacity and retains benefits of agreement without complaint Mistake Duress and Misrepresentation 1 Unilateral mistake generally no relief unless non mistaken party knew about other s mistake then contract will be voidable at mistaken party s option Mutual mistake rescission allowed if mistake was as to material fact made by both parties about a basic assumption on which contract was made note rescission is not allowed for mistakes as to value or opinion Latent ambiguity contract seems clear at time of contracting but subsequently discovered facts reveal that agreement can be interpreted in more than one way If both parties unaware of ambiguity no contract unless they had same subjective intent If both were aware no contract unless same subjective intent If one party aware contract enforceable according to intention of innocent Party Mistakes by IntermediaryTransrnission typo by telegraph company becomes part of contract unless receiver has reason to know that there is a mistake in document Duress makes contract unenforceable includes economic duress Misrepresentation material misrepresentation that induces other party to enter into agreement makes contract unenforceable even if it s an honest misrepresentation Enforceability of Contract Provisions 1 2 Illegality at time of contracting unenforceable if subject matter is illegal Covenants not to compete enforceability depends on reasonableness of the time limitation and of the geographic limitation Exculpatory clause contracting away liability for negligence not against public policy but cannot do so for gross negligence or intentional torts Unconscionability oppressive terms unfair surprise tested at time of contracting Seldom good defense on MBE Warranties 1 2 4 Express warranties promise affirmation description or sample that is part of basis of the bargain Implied warranties merchantability tness for particular purpose a Merchantability in every sale by merchant dealing in sale of such goods there s implied warranty that goods are merchantable Test is whether goods are t for the ordinary purposes for which such goods are used and failure of such is usually basis in merchantability suit No difference if seller didn t know of defect and couldn t have discovered it b Fitness for particular purpose arises when any seller merchant or not has reason to know of particular purpose for which goods are to be used and that buyer is relying on seller s skill and judgment to select suitable goods Limiting warranties can t disclaim express warranty re core description of goods Disclaimer of implied warranties must be conspicuous Must mention merchantability by name if disclaiming As is or with all faults disclaims both implied warranties Limiting remedies ok for both express and implied but unconscionability test applies Prima facie unconscionable to prevent recovery for personal injuries in consumer goods cases Third Party Beneficiaries 1 Incidental v intended beneficiaries intended beneficiary has the right to sue while incidentals do not Factors to determine whether one is intended is party expressly designated in contract Is performance made directly to third party Is third party speci cally given any rights under the contact etc 2 kinds of intended bene ciaries a Creditor beneficiary person to whom debt is owed by prornisee and b Donee bene ciary person who prornisee intends to bene t gratuitously Vesting when 3rd party s rights vest this cuts off ability of PR and PE to modify or rescind K Vesting occurs when the bene ciary manifests assent in some manner invited or requested by the contract parties sues to enforce promise or materially changes position in reliance on promise Who may sue Defenses a 3rd party bene ciary V PR 1 3rd may sue PR on K PR may raise any defense that he has against PE against 3rd 2 Whether PR may use defenses PE would have against 3rd depends on whether PR made absolute promise to pay or only promise to pay PR s debt to 3rd If it s absolute PR can t use PE defenses if not then PR can use PE s defenses b 3rd V PE creditor beneficiary can use promisee on existing obligation between them May also sue promisor but may obtain only one satisfaction Donee has no right to sue promisee unless grounds for detrimental reliance remedy exist c PE V PR PE may sue PR both at law and in equity for specific performance if PR isn t performing for 3rd person Assignment and Delegation 1 Assignment typically X obligor contracts with Y assignor Y assigns his right to X s performance to Z assignee Non assignable rights rights that would materially affect rights and duties of OR rights under future contract that does not yet exist prohibited by law Non assignment provisions clause prohibiting assignment of the K will be seen as barring only delegation of assignor s duties Clause prohibiting assignment of K rights doesn t bar assignment but gives obligor right to sue for damages If K provides that attempts to assign will be avoid parties can bar assignment Also if assignee has notice of non assignment clause assignment will be ineffective Assignment for consideration an assignment for consideration is irrevocable An assignment not for consideration is revocable Gratuitous assignment no consideration so it s revocable unless 1 OR already performed 2 AE is given token of assignment 3 assignment is in writing or 4 there s detrimental reliance by AE Revocable by death or bankruptcy of AROE notice from AR to AE or OR AR taking performance from OR or later assignment by AR to another this revokes assignment to 1 AE Defenses AE can directly sue OR OR may assert any defenses against AE that he would ve had against AR AE can sue AR for wrongfully revoking irrevocable assignment but AR won t be liable if OR is incapable of performance Delegation typically Y obligordelegator promise to perform for X oblige Y delegates her duty to Z delegate Doesn t excuse delegator unless there s novation Can t delegate if performance requires special skills original party has special reputation or contract prohibits it Under UCC assignment of rights carries with it implied assumption of duties Novation substitutes new party for an original party to the K Requires agreement of all parties and completely releases the original party Statute of Frauds SoF Contracts within the SoF certain agreements must be in writing to be enforceable a Contract concerning interest in land must be in writing included in this are sales of land leases for more than one year easements over land for more than one year and mortgages Not included contract to build 1 Part performance exception oral contract for land may be enforceable if contract has been partly performed eg price paid buyer in possession buyer made improvements buyer may seek recovery of any bene t he has conferred b Promise to pay debt of another suretvship must be in writing Exception main purpose rule purpose of the debt is personal economic interest of guarantor c Long term contracts contract not capable of being performed in less than one year must be in writing d Contracts in consideration of marriage must be in writing e Promise by executoradministrator to pay debts of decedent s estate from his own pocket must be in writing f Contracts for sale of goods for more than 500 under Article 2 must be in writing Exceptions specially manufactured goods admission of contract in court part performance no merchant requirement written confirmation of an oral agreement between merchants Covenants not to compete must be in writing Y LEGS plus covenant not to compete M Marriage Y Ks over one Year L Land E Executor G Goods of 500 or more S Surety SoF Writing under common law SoF is satis ed if writing contains following can be several pieces of writing rhoggwgm a ID of parties sought to be charged b ID of K s subject matter c Terms and conditions of the agreement d Recital of the consideration and e Signature of the party to be charged SoF Writing under UCC writing must be sufficient to ID that K exists have quantity term and signature of A Merchant exception merchant s failure to respond timely to written assertion of K signed by another merchant is bound Exceptions when SoF doesn t apply a Full performance of services contracts b Payment of real estate contract requires two of the following to make oral contract for sale of real estate enforceable 1 part payment by the buyer 2 possession by buyer or 3 improvement by the buyer c Delivered goods d Judicial admission in court admission that there was K or part performance such as in pleadings discovery or testimony Contract modifications in determining whether there must be written evidence of contract modi cation apply SoF to agreement with the alleged change If contract as allegedly modified is within SoF then there must be written evidence of modi cation Parol Evidence Rule PER 1 Purpose is to determine effect parties intended to give to writing extends only to evidence of agreements prior to or contemporaneous to writing not those after the writing Application of PER writing must be an integration nal expression If K is complete integration no parol evidence allowed complete if intended as a final writing and a complete statement of agreement terms If K is partial integration then parol evidence may supplement the writing but not contradict it is partial if is intended to be final but not necessarily contain all terms Merger this is nal agreement clauses are typically given effect Exceptions or quali cations parole evidence may be admitted to a Show formation defects fraud duress mistake illegality b Show existence of condition precedent to a K c Clarify an ambiguity parties intent regarding ambiguous terms d Consideration problems ie consideration stated in K was never paid e Prior valid agreement which as by mistake is incorrectly re ected in the writing f Existence of collateral agreement if it doesn t contradict or vary main K and if it wouldn t naturally be included in main K g Subsequent modi cations h Under UCC can show usage of trade course of dealing or course of performance to explain or even supplement integrated agreement Conditions 1 Condition is an event the occurrence or nonoccurrence of which will create limit or extinguish the absolute duty to perform a promise modifier Condition v promise Basic test for whether K provision is a promise or a condition intent of the parties as judged by agreement words prior practices of parties and custom in the business The failure of a promise constitutes breach but failure of condition relieves party of obligation to perform Types of conditions a Condition precedent one that must occur before an absolute duty arises in other party b Condition concurrent condition capable of occurring together as where property is tendered in exchange for cash c Condition subsequent condition that cuts off an already existing duty of performance d Express condition conditions expressed in K e Implied condition implied in fact conditions condition to be inferred from evidence of parties intention f Constructive conditions implied in law conditions conditions read into K by the court without regard to the parties intention in order to ensure that parties receive what they bargained for May relate to time of performance ie which party performs first Excuses of condition duty of performance becomes absolute when conditions are either performed or excused a Excuse of condition by failure to cooperate party who wrongfully prevents condition from occurring will no longer be given bene t of it b Excuse by actual breach an actual material breach by one party excuses other s duty of counterperformance Minor breach might suspend duty but won t excuse it c Excuse bv anticipatorv repudiation it must be clear not just an expression of doubt Applies only if there are executory unperformed duties on both sides of bilateral K If nonrepudiating party has already performed his part of the K must wait until time originally set for performance because repudiator may change his mind before then Repudiation can be retracted until nonrepudiating party has accepted the repudiation or detrimentally relied on it Anticipatory repudiation gives nonrepudiating party 4 options 1 Treat the K as totally repudiated and sue immediately 2 Suspend his own performance and wait until the performance is due to sue 3 Treat repudiation as an offer to rescind and treat the K as discharged or 4 Ignore the repudiation and urge performance but by urging repudiating party to perform nonrepudiating party is not waiving repudiation can still sue for breach and is excused from performing unless repudiation is retracted d Excuse by prospective inability or unwillingness to perform party might have reasonable grounds to believe other party will be unable or unwilling to perform when performance is due Innocent party may suspend own performance until she receives adequate assurances of performance If not she may treat failure as repudiation e Excuse by substantial performance where party has partially performed his duties but has committed a minor breach rule of substantial performance avoids forfeiture of retum performance Applies only where constructive conditions are involved Application to express conditions might defeat express intent of parties Not applied if breach was willful 1 Substantially performing party may be required to pay damages to compensate other party for incomplete performance 2 Sale of goods although UCC sets forth the perfect tender rule it s subject to exceptions ie seller s right to cure defective tender f Excuse bv divisibilitv of contract when party performs one of the units of divisible K she s entitled to agreed equivalent for that unit even though she doesn t do other units 1 Divisible K Performance of each party is divided into 2 or more parts under the K number of parts due from each party is the same and performance of each part by one party is the agreed equivalent of the corresponding part by the other party 2 Installment K under UCC K requiring or authorizing delivery in separate lots is an installment K Buyer may declare total breach only if defects in an installment substantially impairs value of entire K g Excuse bv waiver or estoppel 1 Excuse bv Estoppel waiver party may waive condition by saying he won t insist on it But waiver can be retracted anytime unless other party relies on it then party is estopped from asserting the waiver 2 Election waiver if condition is broken bene ting party may either terminate his liability or continue under the K If he continues he waives the condition 3 Conditions that may be waived if no consideration given for waiver the condition must be one that s unimportant to main purpose of K Otherwise waiver is gift and unenforceable 4 Waiving condition doesn t waive one s right to damages for other s defective performance h Excuse bv impossibilitv impracticabilitv or frustration conditions may be excused by impossibility impracticability or frustration of purpose Risk of loss 1 When applicable after contract but before buyer gets goods the goods are damaged and neither the buyer nor the seller is to blame Rujles Agreement controls Breaching party is liable for any uninsured loss If common carrier seller has risk of loss until completion of delivery obligation If not common carrier merchant seller has risk of loss until buyer actually receives goods takes physical possession If not common carrier nonmerchant seller has risk of loss until seller tenders the goods makes goods available to the buyer Liability if buyer has risk he pays contract price for damaged or destroyed goods If seller has risk must provide new goods at no cost to buyer Leased goods general rule is owner retains risk of loss even though in possession of lessee Finance lease exception lessee bears risk of loss Carrier Contracts a Shipment Ks seller hasn t agreed to delivertender at particular destination Doesn t have to make sure goods make it to destinationbuyer Only required to give goods to carrier make K for shipment notify buyer Failure to make shipment K or notify buyer is ground for rejection if failure results in material delay or loss b Destination Ks seller has agreed to deliver to destination Must make sure goods make it to buyer c FOB Ks Ks that specify that delivery is FOB to a point FOB free on board point is the delivery point Delivery point may be seller s place of shipment or goods nal destination d FAS Ks Ks that specify FAS free alongside delivery seller must deliver the goods alongside the vessel to port of delivery or on dock designated by buyer Disputes over Performance Contracts for sales of goods under UCC a Perfect tender rule goods delivered must be exactly as stated in contract or violates perfect tender rule B has option to reject non conforn1ing goods b Seller s right to cure may cure a non perfect tender until time for performance is due If time for performance passed can still cure if thought buyer would nd non conforming goods acceptable ie based on past dealings May cure by giving notice of intention to cure and making new tender of conforming goods which buyer must then accept c Installment sale contracts exception to perfect tender rule If one installment not perfect B cannot reject that installment or whole contract Use substantial impairment test d Acceptance once B accepts goods cannot later reject them B must have chance to inspect goods Advance payment without opportunity to inspect not acceptance B s delay in inspecting goods in his possession is acceptance e Revocation of acceptance B can revoke his acceptance and return goods for refund Requires both substantial impairment and difficulty of discovery f Payment checks are acceptable but S doesn t have to accept checks If S rejects check must give B additional reasonable time to make altemative payment Common law contracts a Substantial performance this is breach but not material breach Recovery of money damages permissible Only material breach excuses under common law b Divisible contracts where contract divides payment into per unit arrangement substantial performance judged in unit by unit basis Excused performance material breach by one party excuses performance by other party in common law Under UCC less than perfect tender excuses performance Anticipatory repudiation must be unequivocal Non breacher may be excused from further performance await performance for reasonable period of time sue immediately for damages or ignore repudiation and urge performance If party that repudiated later retracts and wants to perform innocent party has to allow performance if retraction was timely meaning before innocent party relied on the repudiation but innocent party can require adequate assurances of future performance by the repudiating party Remedies 1 Goal is to use money damages to put victim of breach in as good a position as would have been had contract been fully performed and not breached Total and partial breach of K a Totalmaterial breach if as result of breach nonbreaching party doesn t receive substantial bene t of her bargain then breach is material Nonbreaching party 1 may treat K as at an end any duty of counterperformance is discharged and 2 has an immediate right to all remedies for breach of entire K including total damages b Partialminor breach may allow the aggrieved party to recover damages but she must still perform under K If minor breach is coupled with anticipatory repudiation it s material and she need not perform Timeliness of Performance failure to perform by time stated in K isn t material breach if it s done within reasonable time But if nature of K makes timely performance important or K expressly says time is of the essence then it s material breach Expectation damages damages that put H in same dollar position as if contract has been performed without breach eg lost profits 3 step analysis What would H have if no breach What does H have after breach Reconcile Must be certain Courts won t award speculative damages ie new business that fails to open on time due to NS breach Lost pro ts would be too speculative unless H can present evidence of comparable business profits Conseguential or special damages must be reasonably foreseeable at time of contracting in contemplation of the parties at time of contract Awarded in addition to standard damages Punitive damages generally not awarded in contract law Courts want to encourage efficient breaches of contract Exception subject matter of contract so personal that personal injury and mental anguish could be foreseen at time of contracting Generally not awarded in commercial contract cases Incidental damages cost of entering into replacement deal Always recoverable Mitigation rule victim of breach cannot recover for damages she could ve avoided or mitigated Construction contract damages if owner breaches damages are contract price minus cost to complete the job or could compute damages by awarding pro t plus cost incurred to date if contractor breaches by failing to complete the job damages are difference between original contract price and price paid because of breach 10 11 12 13 14 15 if contractor breaches by completing job incorrectly under the contract damages are either the cost to comply with contract specs or the amount by which market value is diminished as a result of the breach Quasicontract or restitution Prevents unjust enrichment One party confers bene t on another and has reasonable expectation of compensation they were not a volunteer and allowing A to keep bene t would be unjust enrichment Appropriate remedy when contract failed breaching party can sometimes recover value conferred where no contract exists at all divisible contracts Liguidated damages cannot act as penalty Damages must be difficult to ascertainestimate at contracting Amount must be reasonable forecast of compensatory damages Per day amount is reasonable but a fixed total amount is not a reasonable forecast Provisions will be valid if meets above standards difficult to estimate damages and reasonable forecast Speci c performance traditionally viewed as equitable remedy Courts reluctant to award this unless money damages are inadequate Available for land and unique goods but not for services too much like involuntary servitude May enjoin breaching employee from working for competitor for duration of employment K if services contracted for are rare or unique Defenses against Speci c Performance a Laches claim that H has delayed bringing action and delay prejudiced A b Unclean Hands claim that party seeking specific performance is guilty of wrongdoing in transaction being sued upon and c Sale to bona de purchaser claim that subject matter has been sold to person who purchased for value and in good faith Reclamation recovery of goods by unpaid seller from buyer who was insolvent at time of delivery of goods Seller has 10 days from delivery of goods to make reclamation claim buyer must still have goods Rescission and Restitution non breacher may rescindcancel and sue for damages at law or in equity If non breacher transferred benefit to breacher while attempting to perform non breacher is entitled to restitution for benefit transferred Measure of damages a Ks for sale of goods difference between K price and market price when seller tenders goods or buyer learns of breach If buyer breaches seller may withhold or stop delivery of goods resell the goods and recover the difference or recovery ordinary damages for nonacceptance If buyer already accepted goods or seller can t resell seller may recover K price If seller breaches under UCC buyer may reject nonconforming goods cancel cover recover goods identified to K obtain specific performance in some cases or recover damages for nondelivery If buyer accepts nonconforming goods may recover difference of value between nonconforming goods and requested goods b Ks for sale of land difference between K price and fair market value c Employment Ks if breached by employer measure is full K price less wages earned elsewhere after breach If breached by employee measure is whatever it costs to replace employee d Construction Ks if breached by owner builder will be entitled to pro ts resulting from K plus any costs expended If owner breaches after completion of construction measure is full K price plus interest If K is breached by builder owner is entitled to cost of completion plus compensation for delay Builder might be able to offset for work done to date to avoid unjust enrichment of owner e Installment Ks If one installment payment isn t made only minorpartial breach Can recover only that payment But K may include acceleration clause making entire amount due on late payment Discharge of Contractual Duties 1 Once it s established that there s immediate duty to perform either because duty is unconditional or condition has been satis ed or excused then duty must be discharged Discharge by Performance or tender of performance duty may be discharged by complete performance or tender of performance assuming tendering party has present ability to perform Discharge by Condition Subsequent duty discharged by occurrence of condition subsequent Discharge by illegality duty discharged by supervening illegality of subject matter Discharge by Impossibility duty may be discharged by impossibility Nobody could perform according to K terms Impossibility must arise after K was entered into Party who has rendered part performance prior to impossibility may recover in quasi contract Impossibility examples include a Death or physical incapacity of person necessary to effectuate contract unless services can be delegated b Subsequent destruction of K s subject matter or means of performance as long as promisor wasn t at fault c Destruction of subject matter of K to build v subject matter of K to repair If K to build is accidentally destroyed builder isn39t discharged because he can still start over and rebuild If K to repair is accidentally destroyed repairer s performance is discharged by impossibility because there s nothing left to repair Discharge bv Impracticabilitv impracticability requires that party encounter extreme and unreasonable dif culty or expense that wasn t anticipated Mere change in dif culty or expense due to normal risks that could ve been anticipated increase in price of raw materials won t warrant discharge by impracticability Discharge bv Frustration of Purpose duty may be discharged by frustration of purpose which requires a Supervening event b That was not reasonably foreseeable at the time of entering into the K 10 11 12 13 14 15 c Which completely or almost completely destroys the purpose of the K and d The purpose was understood by both parties Discharge bv Rescission a Mutual rescission both parties expressly agree to rescind K Mutual agreement to rescind will be enforced where a bilateral K is partially performed If K is unilateral mutual rescission is ineffective unless there s new consideration by nonperforming party party without duty to perform promissory estoppel or original offeree manifests intent to make gift of obligation owed her Mutual rescission may be made orally unless subject is within SoF or it involves K for sale of goods requiring rescission in writing b Unilateral rescission rescission may be unilateral where only one party wants to rescind K Party must have adequate legal grounds mistake misrepresentation or duress Partial Discharge bv Modification of Contract must be mutual assent to modifying agreement Consideration is necessary although courts will find it where each party was limited his right to enforce original K Consideration not necessary if modi cation is a correction or for modification of K for sale of goods Discharge bv Novation duty may be discharged by novation ie new K substituting new party for one of original parties to K Necessary elements a Previous valid K b Agreement among all parties including new party c Immediate extinguishment of K duties as between original parties and d Valid new K Discharge bv Cancellation duties can be discharged by canceling original agreement Discharge by Release duties can be discharged by release andor covenant not to sue Release must be in writing and supported by new consideration or promissory estoppel Discharge bv Substituted Contract where parties to K enter into a second K that expressly or impliedly immediately revokes the first K Discharge bv Accord and Satisfaction a Accord agreement in which one party to K agrees to accept performance different from original promise Requires consideration Consideration less than that of original K will be ok if it s of different type or to be paid to 3rd party Doesn t discharge K duty Just suspends the other party s right to enforce it Payment of smaller amount than is due on claim is valid consideration if made in good faith and there s bona de dispute on claim Often done by tendering check marked payment in full Cashing payment marked payment in full is an accord and satisfaction even if the language is marked out b Satisfaction performance of accord Discharges both accord and original debt Discharge bv Account Stated duties discharged by an account states ie parties agree to amount as nal balance due from one to other as settlement of all prior 16 17 18 transactions between them There must have been more than one prior transaction Writing is required if one or more of original transactions was subject to SoF Discharge by Lapse lapse of time if each party s duty is condition to other s duty and neither party performs her duty Discharge by Operation of Law ie K duty of performance is merged in court judgment for breach of that duty discharge in bankruptcy bars any right of action on K Effect of Running of Statute of Limitations where SoL on action has run it s held that action for breach of K may be barred Not discharge but just unenforceable PROPERTY PERSONAL PROPERTY Found Property 1 Gifts 1 2 Generally must distinguish between rights of those who nd lost property and those who nd abandoned property Lost property if owner accidentally gives up possession of property with no intent to relinquish title and control property is lost When owner of lost property comes to retrieve it finder has to give it up Abandoned property if owner physically gives up possession and has intent to relinquish title and control then property is abandoned Anyone who finds the property then owns it Inter vivos gifts given during the lifetime of the donor Requires donative intent by donor valid acceptance by the donee silence is suf cient and valid delivery transfer of possession that is either actual or symbolic Delivery 1 party checks from donor are considered delivered only when they are cashed Donee cannot sue if donor stops payment before donee cashes check a 3rd party check that s indorsed over is considered delivered when paper check is tumed over b Stock certificate is delivered when the paper is delivered to donee doesn t matter if not transferred on the books yet c Agents delivery to an agent of donee is complete for donee once agent takes possession Item in possession of donor s agent is not delivered yet so donor can call agent back Gifts causa mortis given in contemplation of death Generally contingent on donor s dying and some emergency circumstances Need an imminent risk if death likely to occur The gift is not valid if donor survives or if donee dies first Liens l 2 De nition primitive security device designed to secure a debt Personal property with respect to personal property this is right to retain an item that you have improved in value eg repaired until you get paid Requirements debt associated with services provided Title is in debtor Possession is with creditor Bailments 1 Creation bailments arise when someone takes possession of someone else s property with permission for a particular purpose Issues How much care the bailee must take and what liability he will have if the item is damaged Examples of bailments checking your coat lending your car to a friend valet parking What is within the scope of a bailment general rule is that bailee must have some knowledge or reasonable expectation for an item inside property in order to be liable If something is usually inside a coat pocket eg 6 sunglasses bailee will usually be responsible For unexpected items bailee will not be liable unless you told bailee of the item and the bailee manifests intent to take care of it Safe deposit boxes bank is bailee of anything you put in your box Parking lots and garages if you tum over your keys bailment If you keep your keys no bailment General care owed by a bailee reasonable prudence under the circumstances Limitation of liability bailees often attempt to have people give up liability Bailee cannot completely exculpate himself but he can limit liability with proper notice MORTGAGES AND SALES OF LAND Land Contracts 1 Land Ks and Statute of Frauds land contract must be in writing signed by party against whom enforcement is sought must describe the land and it must state some consideration Exception to SoF requirement is doctrine of part performance Doctrine of equitable conversion once K is signed equity regards buyer as owner of the real property Seller s interest right to proceeds of sale is considered personal property If party dies before K is completed seller s interest passes as personal property and buyer s interest passes as real property If seller dies his interest passes to heirs but they must give up title to buyer at closing If buyer dies his heirs can demand conveyance at closing Doctrine of part performance if two out of three of the following are present specific performance of an oral contract for sale of land will be granted 1 buyer takes physical possession of the land 2 buyer pays all or a substantial part of purchase price andor 3 makes substantial improvements Risk of loss apply doctrine of equitable conversion equity regards as done that which ought to be done Once contract is signed buyer is owner of land subject to condition that he pay purchase price at closing If during time between contract and closing the land is destroyed through no fault of either party buyer bears risk of loss unless contract says otherwise Some states place risk on seller unless buyer has title or possession at time of loss If property is damaged or destroyed seller must credit any re or casualty insurance proceeds he receives against the purchase price by buyer Implied promises in every land contract seller promises to provide marketable title adverse possession encumbrances defects in title and zoning violations render title unmarketable Seller promises not to make any false statements of material fact majority rule holds sellers liable for latent material defects seller cannot get around this rule by making a general sold as is disclaimer land contract contains no implied warranties of tness or habitability 6 7 Closing after closing seller is not liable for implied warranty of marketability of title only for promises made in deed Remedy if title isn t marketable buyer must notify seller and give him reasonable time to cure defects If seller fails to cure buyer s remedies include rescission damages specific performance with abatement and a quiet title suit a Liguidated damages Sales Ks usually require buyer to deposit earnest money with seller and provide in case of buyer s default seller may retain earnest money as liquidated damages Courts usually uphold this if amount is reasonable Deeds 1 Lawful execution of deed deed must be in writing signed by grantor and ID the parties and land Deed need not recite consideration nor must consideration pass to make a deed valid Description of the land doesn t have to be perfect only an unambiguous description and good lead to ID of property required Defective deeds void deed will be set aside by court even if property passed to a BFP but voidable deed will be set aside only if property hasn t passed to BFP Void deeds include those that were forged were never delivered or were obtained by fraud in the factum grantor was deceived and didn t realize she was executing deed Voidable deeds include those executed by minors or incapacitated persons and those obtained through fraud in the inducement duress undue in uence mistake and breach of duciary duty If deed is delivered with name of grantee left blank courts assume person taking delivery has authority to fill in name of grantee and if that s done then deed is valid But if land description is left blank deed is void unless grantee was explicitly given authority to fill in the description Deed to dead person is void and conveys no title Awareness of grantee s death is irrelevant Fraudulent deeds even if deed complies with requirements may be set aside by grantor s creditors if it was made deed won t be set aside against grantee who took in good faith and paid reasonable value a With actual intent to hinder delay or defraud any creditor of the grantor or b Without receiving a reasonably equivalent value in exchange for the transfer and the debtor was insolvent or become insolvent as result of transfer Delivery satisfied when grantor physically or manually transfers the deed to the grantee Permissible to use mail agent or messenger Delivery doesn t require actual physical transfer of the instrument itself Legal standard for delivery present intent of grantor to be immediately bound irrespective of whether the deed itself has been literally handed over Express rejection of deed defeats delivery Oral conditions attached to delivery drop out and are not enforceable Delivery by escrow is permissible escrow agent holds with instructions to transfer when certain conditions are met once they are met title passes automatically to grantee Title passes upon delivery and cannot be cancelled or taken back If grantee retums deed to grantor it s ineffective To retum title to grantor grantee must draw up new deed and 10 deliver it to grantor Delivered deed that provides title won t pass until grantor s death is valid and creates future interest in grantee If deed is delivered with oral condition it won t matter Quitclaim deed releases whatever interest grantor has Contains no covenants Owner not even promising he has title 3 types of deeds used to convey property interests other than leaseholds general warranty deed special warranty deed and quitclaim deed Difference is scope of title assurance covenants for title Covenant for title not to be confused for real covenants written promises to do or not do something on property General warranty deed warrants against all defects in title including those attributable to grantor s predecessors typically contains all six covenants present and future 8 and 9 below First 3 are breached at time of conveyance present covenants if at all Last 3 are future covenants and breached only upon disturbance of grantee s possession future covenants a Covenant of seisin grantor has estate she purports to convey Must have both title and possession at time b Covenant of right to convey authority to make the grant Title alone will satisfy c Covenant against encumbrances grantor covenants against existence of physical eg encroachments or title eg mortgages encumbrances d Covenant for quiet eniovment grantor covenants that grantee won t be disturbed in possession by 3rd party s claim of title e Covenant of warranty grantor agrees to defend against claims of title by 3rd party and to compensate grantee for any loss sustained f Covenant for further assurances grantor promises to perform acts necessary to perfect title conveyed Not one of usual covenants but is frequently given Present covenants these are breached at time deed is delivered statute of limitations for breach of present covenant begins to run from the time of delivery 3 present covenants covenant of seisin grantor owns estate covenant of right to convey covenant against encumbrances Future covenants these are breached when grantee is disturbed in possession statute of limitations doesn t begin to run until time of disturbance 3 future covenants covenant of quiet enjoyment grantee won t be disturbed by 3rd party s claim of title covenant of warranty covenant for further assurances Statutorv special warranty deed contains two promises that grantor makes only on behalf of himself 1 grantor promises that he has not conveyed estate to anyone other than grantee and 2 that estate is free from encumbrances made by grantor Recording System 1 Puppose recording acts exist to protect BFPs and mortgagees BFP is one who purchases for value without notice that someone else got there first Recording statutes don t protect donees heirs or devisees 3 types of recording acts 1 notice statutes 2 racenotice statutes and 3 race statutes Notice Actual notice prior to B s closing B gets literal knowledge of A s existence Inquiry notice constructive notice B is on notice of whatever an examination of the land would reveal Record notice constructive notice B on notice of anything properly recorded in chain of title Bona fide purchaser person must be purchaser without notice actual constructive or inquiry and pay valuable consideration Must be without notice at time of conveyance Notice recording act Conveyance of an interest in land shall not be valid against any subsequent BFP without notice thereof unless that conveyance was recorded Subsequent BFP prevails over prior grantee who failed to record BFP must have no actual or constructive notice at time of conveyance Subsequent BFP is protected regardless of whether she records at all Pure race recording act No conveyance or mortgage of an interest in land is valid against any subsequent purchaser whose conveyance is first recorded Whoever records rst has title Notice is irrelevant Only 2 states have this statute Race notice recording act Conveyance of an interest in land shall not be valid as against any subsequent BFP without notice thereof whose conveyance is first recorded Subsequent BFP is protected only if she takes without notice AND records before prior grantee To prevail B must be a BFP and win the race to record 2 brightline rules if B is BFP and we are in a notice jurisdiction B wins regardless if whether or not she records properly before A does If B is a BFP and we are in a race notice jurisdiction B wins if she records properly before A does Chain of Title problems 1 Shelter rule one who takes from BFP will prevail against any entity that the transferorBFP would have prevailed against Transferee takes shelter in the status of transferor and steps into the shoes of that BFP even if she wouldn t qualify as a BFP herself Doesn t apply if she previously held title Wild deed if recorded deed is not connected to the chain of title it s a wild deed Doesn t impart constructive notice because BFP couldn t nd it It is incapable of giving record notice of its existence Nullity Estoppel bv deed one who conveys realty in which he has no interest is estopped from denying the validity of that conveyance if he subsequently acquires the interest that he has previously transferred Not applicable to quit claim deeds Types of security interests in real estate first 3 are most important 1 Mortgage debtornotemaker is mortgagor Lenderbank is mortgagee On default lender can realize on mortgaged real estate only by having judicial foreclosure sale conducted by sheriff Deed of trust debtornotemaker is trustor He gives deed of trust to 3rd party trustee who is usually closely connected to lender the beneficiary On default lender instructs trustee to foreclose the deed by trust of sale Installment land contract installment purchaser obtains title only when full contract price has been paid off Forfeiture clauses allow vendor upon default to cancel contract retake possession and retain all money paid Such clauses are common Courts try to avoid forfeiture by using equity of redemption grace period for purchaser to pay accelerated full balance and keep land after default restitution requires vendor to refund purchaser any excess money after damages treat as mortgage requires judicial foreclosure sale waiver accepting late payments frequently must notify purchaser of intent to reinstate strict performance and must allow reasonable time for makeup of late payments and election of remedies damages or speci c performance Absolute deed if given for security purposes can be treated by court as equitable mortgage to be treated as any other mortgage ie creditor must foreclose by judicial action Sale leaseback landowner may sell her property for cash and then lease it back from purchaser for a long period of time May be treated as a disguised mortgage Mortgages 1 2 Creation mortgage is a conveyance of security interest in land intended by parties to be collateral for repayment of a monetary obligation It is the union of two elements debt and voluntary transfer of a security interest in debtor s land to secure the debt Debtor is mortgagor bank is mortgagee Mortgage must satisfy SoF unless equitable mortgage Parties rights unless and until foreclosure debtor mortgagor has title and the right to possession Creditor mortgagee has a lien the right to look to the land if there is default on the debt Transfer all parties to mortgage can transfer their interests Note and mortgage must pass to same person for transfer to be complete Mortgage automatically follows properly transferred note Creditor can transfer by 1 endorsing the note and delivering to transferee or 2 by executing a separate document of assignment When note is endorsed and transferred transferee is eligible to be holder in due course HDC which means he takes note free of personal defenses that could have been raised against original mortgagee but is still subject to the real defenses If possession of note has been transferred by original mortgagee any payment to that mortgagee won t count so HDC of note can demand payment even if mortgagor had no notice of transfer Holder in due course to be a HDC of the note note must be 1 negotiable and made payable to the named mortgagee 2 original note must be endorsed and signed by named mortgagee 3 original note must be delivered to transferee photocopy unacceptable 4 transferee must take note in good faith without any notice of illegality and transferee must pay value for the note meaning some amount that is more than nominal Personal defenses lack of consideration fraud in the inducement unconscionability waiver estoppel Real defenses material alteration duress fraud in the factum incapacity illegality infancy insolvency Sale of mortgaged property lien remains on the land so long as the mortgage instrument has been properly recorded If buyer assumes the mortgage then B is primarily liable but O remains secondarily liable If B takes subject to the mortgage B is not liable on the debt but the land remains subject to mortgage so if 0 defaults land can be foreclosed on Dueonsale Clauses appears in most modern mortgages If mortgagor transfers his interest in property without lender s consent lender can demand full payment of loan Foreclosure 1 only by proper judicial proceeding no self help allowed Foreclosure sales are usually conducted by auction At foreclosure land is sold and sale proceeds go to satisfy the debt Sale proceeds if not enough personal action against debtor for a de ciency judgment If surplus junior liens are paid off in order of priority and any remaining surplus goes to debtor Attomey s fees and expenses of foreclosure come off the top before mortgagees paid Effect on various interests foreclosure terminates interests junior to the mortgage being foreclosed No effect on senior interests Once foreclosure of a superior claim has occurred and proceeds distributed junior lien holders can no longer look to the land for satisfaction Debtor and junior lien holders are necessary parties to foreclosure action failure to include necessary party results in preservation of that party s claim Priorities creditor must properly record to get priority Priority amongst recorded mortgages determined by rst in time rst in right rule Purchase money mortgage PMM always has superpriority note that after acquired collateral clauses are permitted Subordination agreements are permissible Purchase money mortgages PMM mortgage given in exchange for funds used to purchase the property Given either to seller as part of purchase price or to 3rd party lender PMMs have priority over nonPMMs even if non PMM was recorded first Redemption in equity at any time prior to foreclosure sale debtor has right to redeem land and free it of the mortgage Debtor must pay off amount due plus any costs If there s acceleration clause mortgagee can declare the full balance due in the event of default so debtor must pay full balance plus accrued interest plus costs in order to redeem Debtor cannot waive right to redeem this is called clogging the equity of redemption and is prohibited Statutory redemption gives debtor right to redeem for some fixed period after foreclosure sale Where recognized it only applies after the sale and amount to be paid is usually the foreclosure sale price not the amount of original debt In most states debtor has right to possession during redemption period which is usually 6 months to a year Redemption nullifies foreclosure sale REAL PROPERTY Freehold Estates 1 Fee simple absolute absolute ownership of potentially infinite duration Freely alienable devisable and descendible Common law required words of limitation and heirs not required today No accompanying iture interest Defeasible fees fee simple estates that can be terminated upon happening of a stated event Fee simple determinable Defeasible fee Possibility of reverter Freehold estate that terminates automatically upon the happening of a stated condition Need clear words of condition so long as during while until Freely alienable devisable and descendible but always subject to the condition Creates possibility of reverter in grantor Fee simple subject to condition subsequent Defeasible fee Right of entry Freehold estate that terminates upon the happening of stated condition and the exercise by grantor of right of reentry Not automatic termination Must have clear words of condition on condition that but if subject to the condition that Must explicitly reserve right of reentry Right of reentry also called power of termination Fee simple subject to executorv interest Defeasible fee Terrninates automatically upon happening of stated event Estate goes to a third party not grantor Words of condition Must specify who will take Fee tail Freehold estate that limits the estate to grantee s lineal blood descendants Grantor holds a reversion or could specify someone a remainderman Must have words of limitation heirs of the body Fee tail is virtually abolished today this language creates fee simple in grantee Life estate Freehold estate measured by the life of the grantee or a third party pur autre vie life of another Always measured by terms of a life never in terms of years Title reverts to grantor or speci ed remainderman when measuring life dies Need words for life or clear indication that a life estate is intended Accompanying future interest reversion or remainder Life tenant entitled to all ordinary uses and profits from land Life tenant must not commit waste a Voluntary or affirmative waste overt conduct that causes decrease in value b Permissive waste or neglect land is allowed to fall into disrepair or life tenant fails to reasonably protect the land c Ameliorative waste life tenant must not engage in acts that will enhance property s value unless all future interest holders are known and consented Future Interests 1 Reversion retained by grantor automatically when he conveys less than his full estate other than FSD or FS subject to condition subsequent Not subject to RAP Possibility of reverter retained by grantor automatically when he conveys a fee simple determinable or life estate determinable Not subject to RAP Right of reentry retained by grantor when he conveys a fee simple subject to condition subsequent Not automatic Not subject to RAP Also called power of termination Merger when one acquires all of the present and future interests in land except a contingent remainder under common law that contingent remainder is destroyed Executory interests future interests that either cut short preceding estates or follow a gap after them Future interest in a 3rd party which is not a remainder and that cuts the prior estate short upon the happening of a stated event or condition Either divests a transferee s preceding freehold estate shifting interest or follows a gap in possession or cuts short a grantor s estate springing interest Not considered vested and are subject to RAP but not destructible a Springing executory interest divests the interest of grantor or follows a gap in possession in which estate reverts to grantor examples O to A for life and one year later to B and heirs or O to A if and when he marries X b Shifting executory interest divests the interest of grantee by cutting short prior estate created in same conveyance Examples O to A and heirs but if B returns from Paris then to B or O to A for life then to B and heirs but if B ever farms the land then to C and heirs Remainder Future interest created in 3rd person grantee that is capable of becoming possessory upon the expiration of a prior possessory estate of known fixed duration created in the same conveyance in which the remainder is created Must be expressly created a Vested remainder created in grantee who is in being or ascertainable no condition precedent attached 3 kinds indefeasibly vested O to A for life then to B subject to complete defeasance O to A for life then to B but if B doesn t graduate then to C and vested subject to open 0 to A for life then to B s children if B has children at time of grant Vested remainder subject to open vested remainder created in class of persons ie children that s certain to become possessory but is subject to diminution by birth of additional persons in class Vested remainder subject to total divestment vested remainder subject to condition subsequent a Contingent remainder created in a grantee that is unascertainable or where there is a condition precedent to grantee s taking Accompanied by a reversion in grantor Condition is precedent if it must be satisfied before remainderman has right to possession b Doctrine of destructibility of contingent remainders contingent remainder is deemed destroyed and O or O s heirs would take in fee simple if remainder still contingent at termination of preceding estate Half of the states have abolished this rule so that O or O s heirs would hold the estate subject to a springing executory interest c Rule in Shellev s case rule of law against remainders in grantee s heirs Present and future interests merge and grantee would get fee simple absolute Virtually abolished today d Doctrine of worthier title Remainder in grantor s heirs is invalid and becomes a reversion in grantor rule of construction against remainders in grantor s heirs Still applies in most states Presumption that a reversion to grantor is intended instead of a contingent remainder in O s prospective heirs ie if A grants Blackacre to B for life then to heirs of A B has life estate and A has reversion 9 10 Class gifts class is a group of persons having a common characteristic eg children nephews The share of each member is determined by number of persons in the class Class gift of remainder may be vested subject to open where at least one group member exists or contingent where all group members are unknown a When class closes rule of convenience In absence of express intent class closes when some class member demands distribution of her share of class gift Persons in gestation at time class closes are included in the class b Example 1 T s will devises property to W for life then to A s kids A has 3 T dies A has another kid 4 W dies A has another kid 5 Class closed at W s death so first 4 kids are in class but 5 is excluded c Example 2 T s will devises residue of estate to those of A s kids that attain age 21 If any of A s children is 21 at T s death class closes Otherwise it closes when one of A s kids reaches age 21 Trusts trust is fiduciary relationship regarding speci c property res where trustee holds legal title to property subject to enforceable equitable rights in beneficiary Creator of trust is settlor who must own property at time trust is created and must ve had intent to create trust RAP applies to future interests of bene ciary of private trust a Creation of trust Trust can be created by will testamentary trust inter vivos transfer of trust res or inter vivos declaration that settlor is holding property in trust b Charitable trust must have charitable purpose Rules governing charitable trusts differ from private trusts in 3 ways 1 charitable trust must have indefinite beneficiaries 2 may be perpetual RAP doesn t apply and 3 the cy pres doctrine which allows court to select altemative charity when settlor s purpose becomes impractical or impossible applies Charitable trust may be enforced by state AG RAP applies to shift from private to charitable use or charitable use to private use Rule Against Perpetuities RAP 1 2 Rple no interest in property is valid unless it may vest if at all within 21 years after some life in being measuring life at the creation of the interest Validity of a grant is determined at time of creation and it does not matter if it actually vests within the RAP period If there s any possibility the interest might vest more than 21 years after life in being interest is void Applies to contingent remainders executory interests certain vested remainders subject to open class gifts rights of 1 refusal options to purchase not attached to leasehold and powers of appointment When RAP runs for interests granted by will it runs from date of testator s death For deeds it s date of delivery For irrevocable trust period runs from date it s created It runs on revocable trust from date it becomes irrevocable When RAP vests interest vests when it becomes 1 possessory or 2 indefeasibly vested remainder or vested remainder subject to total divestment Once an interest is vested RAP no longer applies 10 11 Four steps to analysis 1 classify the future interest does RAP apply 2 What are the conditions precedent to the vesting of the future interest 3 Find a measuring life 4 Will we know with certainly within 21 years of our measuring life if a future interest holder can take Charity to charity exception gift from one charity to another does not violate RAP Class gifts and RAP gift to an open class that is conditioned on the members surviving to an age beyond 21 violates RAP If RAP voids a gift to any member of the class the gift is void as to all class members even those whose interests are already vested bad as to one bad as to all Executory interests and RAP many shifting executory interest violate RAP An executory interest with no limit on the time within which it must vest violates RAP Fertile octogenarian anyone regardless of age is deemed capable of having children for RAP purposes Unbom spouse problem when gift following a widow s life estate cannot vest until the widow dies it violates RAP A person s widow or widower is not determined until his death so it may turn out to be someone not in being at time of disposition On exam it will look like this O to A for life then to A s widow for life then to A s children who are then living the gift to the children are void Reform of RAP wait and see determines interest s validity upon termination of preceding life estate or second look doctrine Validity of any suspect future interest is determined on basis of facts as they now exist at conclusion of measuring life eliminating the anything is possible line of inquiry uniform statutory rule against perpetuities usRAP codi es common law RAP and provides for an alternative 90year vesting period Both wait and see and usRAP embrace cy pres doctrine as near as possible and allow the courts to reform a disposition so that it most closely matches grantor s intent and complies with RAP They also both embrace the reduction of any offensive age contingency to 21 years Rule Against Restraints on Alienation 1 Any restriction on the transferability of a legal as opposed to equitable interest is void Doesn t apply to equitable interests ie spendthrift clauses in trust instruments Restraints on alienation of equitable interests are valid and OK 3 types of restraints on alienation a Disabling restraints renders attempted transfers ineffective Disabling restraint on any type of legal interest fee simple life estate is void b Forfeiture restraints an attempted transfer forfeits the interest c Promissory restraints attempted transfer breaches a covenant All absolute restraints on fee simples are void so grantee may freely transfer property Restraints on fee simples for a limited time and reasonable purpose likely to be upheld Valid restraints on alienation a Forfeiture and promissory restraints on life estates b Forfeiture restraints on transferability of future interests Reasonable restrictions in commercial transactions Rights of rst refusal and e Restrictions on assignment and sublease of leaseholds ie requiring landlord s consent 9 Concurrent Estates 1 Estate in land can be held concurrently by several persons all of whom have right to enjoyment and possession of the land Joint tenancy two or more own with the right of survivorship when one tenant does his share passes automatically to surviving joint tenants Interest is alienable but not devisable or descendible All 4 unities required for creation time title interest possession I 9 Brad PITT Right to partition Must state explicitly that joint tenancy with right of survivorship is intended Must use a straw to create joint tenancy in O and A a Severance J T can be severed in 5 ways sale buyer is tenant in common partition voluntary in kind forced mortgage in a title theory state creditor sale or murder Tenancy in common two or more own with no right of survivorship Only unity of possession is required Right to partition Alienable inheritable Tenants can hold different interests in the property but each is entitled to possess the whole Wrongfully excluding one tenant from the property is called wrongful ouster Absent ouster cotenants are not entitled to rent from cotenants in exclusive possession Cotenants are entitled to their share of rents from third parties No adverse possession unless ouster Cotenants must not commit waste Tenancy by the entirety protected marital interest between husband and wife with the right of survivorship Requires fth unity of person At common law this was presumed in any conveyance to husband and wife even if not expressly stated in the grant No right to unilateral partition Severed by death divorce mutual consent execution by a joint creditor but a creditor of only one spouse cannot touch Deed or mortgage executed by only one spouse is ineffective Rights and duties of co tenants a Possession each cotenant has right to possession of all portions of property but no right to exclusive possession Can t bring possessory action unless ousted b Rents and profits cotenant in possession has right to retain profits from her own use of property Must share net rents from 3rd parties and net profits gained from exploitation of land such as mining c Effect of one cotenant encumbering property JT or tenant in common may encumber her interest by mortgage or judgment lien but may not encumber interests of other co tenants ie one tenant in common mortgages her interest bank can foreclose only on mortgagor s interest If JT is involved mortgage or lien doesn t severe JT but foreclosure sale will Lender runs risk that mortgagor will die before foreclosure and extinguish lender s interest d Remedy of partition any cotenant has right to partition either in kind physical division of land among co tenants or by sale or division of proceeds e Expenses for preservation of property contribution Co tenant who pays more than her share of necessary repairs is entitled to contribution from other co tenants if she noti ed them of need for repairs No right to contribution for cost of improvements unless there s partition Contribution can be demanded for taxes or mortgage payments on the entire property Reimbursement to cotenant in sole possession is limited to extent that expenditures exceed rental value of her use f Duty of fair dealing NonFreehold Estates 1 Tenancy for years estate measured by a xed time Continues for a fixed period of time no matter how short Usually created by written leases SoF applies to tenancy that is over one year Terminates automatically upon end of time stated no notice required Right to renew must be stated in the lease Periodic tenancy an ongoing continuing repetitive estate Continues for successive periods ie month to month until terminated by proper notice by either party It continues until one party gives valid notice Date of termination is not speci ed in the lease 3 ways to create express agreement implication or operation of law either an oral lease violating SoF or hold over tenant situation Termination occurs by giving proper notice Notice required to be equal to length of period 1 month notice for monthtomonth except if period is year to year then only 6 months notice is required Last day of period is effective day of termination Tenancy at will tenancy for no xed period of duration Terminable at will of either landlord or tenant Unless expressly agreed to be tenancy at will payment of regular rent will be treated as periodic tenancy Either party may terminate at any time without notice Other ways to terminate death of either party waste by tenant assignment by tenant transfer by landlord lease by landlord Tenancy at sufferance bare possession of a hold over tenant This tenancy allows landlord to recover rent Tenancy lasts only until landlord evicts tenant or holds tenant to a new lease term Holdover tenant if tenant continues in possession after right to possession has ended landlord may evict him or bind him to a new periodic tenancy Terms and condition of expired tenancy govern new one but if landlord notifies tenant of increased rent by holding over tenant has acquiesced to new terms even if he objected Exceptions 1 tenant remains in possession for only a few hours after expiration or leaves a few items of personal property 2 delay isn t tenant s fault ie severe illness or 3 it s a seasonal lease Landlord can t bind tenant in these situations Landlord and Tenant 1 Leasehold estate in land under which tenant has present possessory interest in leased premises and landlord has future interest reversion Lease K that governs landlord tenant relationship Covenants in lease are generally independent since if one covenant is breached doesn t breach entire K 4 Exceptions doctrines of actual and constructive eviction and implied warranty of habitability Some states allow landlord to terminate lease for nonpayment of rent Tenant s duties tenant s duties are to pay rent and keep premises in reasonable good repair by not committing waste If lease says tenant must repair and maintain then tenant is liable for all damage to the property regardless of cause unless the landlord caused the damage an express covenant to repair and maintain makes tenant an absolute insurer of the property but majority rule now is that tenant may terminate lease if premises destroyed without tenant s fault absent express promise to the contrary Tenant not responsible for normal wear and tear even where express covenant to repair and maintain Tenant has duty to 3rd parties for injuries sustained even where landlord expressly promised to make all repairs 3 types of waste a Voluntary affirmative waste tenant intentionally or negligently damages premises or exploits minerals on property b Permissive waste occurs when tenant fails to protect premises from damage by elements Tenant liable for ordinary repairs excluding wear and tear If duty is shifted to landlord tenant has duty to notify promptly c Ameliorative waste tenant alters the leased property increasing its value Tenant is liable for cost of restoration Exception tenant can make this type of change if he s long term tenant and change re ects changes in neighborhood Landlord s remedies for tenant s breach of duty if tenant fails to pay rent landlord can sue both for damages and to throw tenant off property If tenant unjusti ably abandons leasehold landlord may treat abandonment as an offer of surrender and accept by retaking the premises or landlord may re rent the premises on tenant s behalf and hold tenant liable for any deficiency Majority rule is that landlord must at least try to re rent premises as a mitigation principle Landlord must not use self help Landlord s duties and tenant remedies a Duty to give possession landlord must give tenant actual possession at time lease begins If he doesn t he is in breach and tenant entitled to damages b Implied warranty of habitability for residential property Landlord must provide property that is reasonably suited for residential use If landlord breaches tenant can move out and terminate repair and deduct reduce rent or remain and sue c Implied covenant of quiet enjoyment applies to both commercial and residential leases Tenant has right to quiet use and enjoyment of the premises without interference from landlord Breach by partial constructive or total eviction 1 Total eviction terminates lease and ends tenant s obligation to pay rent 2 Partial eviction does not terminate lease but it ends tenant s obligation to pay rent unless by someone else then rent gets apportioned 3 Constructive eviction occurs when landlord fails to provide service that he is supposed to provide thus making the premises 10 ll 12 uninhabitable must be a substantial interference with quiet enjoyment by landlord tenant must give notice and abandon within reasonable time after breach Landlord not liable for acts of other tenants but has duty not to permit nuisance and must control common areas Retaliatorv eviction landlord may not terminate lease or penalize tenant in retaliation for tenant s exercise of legal rights including reporting housing or building code violations Many states presume retaliation if landlord acts within 90180 days after tenant exercises rights To overcome presumption landlord must show valid non retaliatory reason for his actions Fixtures once moveable chattel that by virtue of its annexation to real property manifests the intention to permanently improve the real property It has become so affixed to land it s ceased being personal property and becomes part of realty part of the real property and may not be removed Removal by tenant is waste Trade xtures are xtures placed by a commercial tenant for business purposes and may be removed by tenant before termination of the lease Assignment and sublease assignment is a complete transfer of tenant s remaining lease term If tenant retains any part of remaining term other than right to reenter upon breach transfer is sublease partial transfer A lease is both a contract and a conveyance and these are independent grounds of liability Assignor remains liable on lease through privity of contract Assignee is liable through privity of estate Sublessee remains liable on both privity of estate and contract Sublessee is not liable to landlord because neither privity exists Non assignment and nonsublease clauses are valid but construed narrowly Waiver by the landlord once is a permanent waiver unless otherwise specified Transfer bv landlord transfer to another terminates privity of estate but privity of contract remains New landlord liable under privity of estate but only under privity of contract if he assumes it If landlord transfers to the tenant it is a release and tenant gets a fee simple Tenant consent not required for transfer to new landlord Condemnation if entire leasehold taken by eminent domain tenant s liability for rent is extinguished because both leasehold and reversion have merged in contemnor and there s no longer leasehold estate Lessee entitled to compensation If taking is temporary or partial tenant not discharged from rent obligation but is entitled to compensation ie share of condemnation award Landlord s tort liability general rule at common law is no duty to tenant or tenant s invitees for injuries incurred on premises during life of the lease 5 exceptions a Latent defects if at time of lease signing landlord knows or should know of dangerous condition tenant couldn t discover landlord must disclose not repair it Otherwise landlord will be liable for injuries If tenant accepts after disclosure assumes the risk for herself and others and landlord not liable b Fumished short term residence landlord renting fully furnished residence for short period summer 13 cottage is under stricter duty Liable for injuries from any defect whether or not he knew of it c Common areas under landlord s control landlord has duty of reasonable care in maintaining common areas halls elevators d Negligentlv undertaken repairs although landlord not liable for injuries from dangerous condition after tenant takes possession if landlord does repairs he owes duty of reasonable care If landlord covenants to repair or has legal duty to repair he s liable for injuries resulting from failure to repair or negligent repair e Public use exception landlord liable for injuries to members of the public if at the time of lease he 1 knows or should know of dangerous condition 2 has reason to believe tenant may admit public before repairing condition and 3 fails to repair condition Tenant s tort liability tenant is always liable to 3rd party invitees for negligent failure to correct dangerous conditions on the land regardless of whether landlord may be contractually liable or not Servitudes Easements l Easements profits covenants and servitudes are nonpossessory interests in land creating right to use land possessed by someone else Overuse or misuse of easement doesn t terminate only remedy is injunction against misuse Easement non possessory interest in land involving a right of use Appurtenant easements directly benefit the use and enjoyment of a specific piece of land and burden another An easement in gross has no dominant estate Easement must bene t only the holder of the easement use to bene t other property is excessive and may be enjoined as outside the scope Easement holder has duty to keep easement in repair and has right to enter to make repairs even if easement does not specifically provide Easement holder has right to use another s tract of land for special purpose lay pipe access a road or lake Easement is presumed to be of perpetual duration unless specifically limited by grant Types of easements a Affirmative easement holder is entitled to make affirmative use of servient tenement b Negative easements restrictive covenant Entitles holder to compel possessor of servient tenement to refrain from engaging in an activity on the servient estate building a structure in excess of 3 stories are generally con ned to only 4 types of easements 1 for light 2 for air 3 for lateral and subjacent support and 4 for ow of an arti cial stream c Restrictive covenants restrictions relating to land Restrictions on air light support or ow of arti cial streams are negative easements Easement appurtenant easement is appurtenant when it benefits holder in his physical use or enjoyment of another tract of land For an easement to be appurtenant must be 2 tracts dominant tenement estate benefited by easement and servient tenement estate subject to easement Passes with bene ted land whether or not it s 10 11 12 mentioned Burden also passes with servient estate unless new owner is BFP with no actual or constructive notice Easement in gross holder acquires right to use servient tenement independent of his possession of another tract of land ie easement bene ts holder rather than parcel Easement in gross for holder s personal pleasure ie right to swim in pond isn t transferable but one that serves economic or commercial interest is transferable 3 methods of creating easement express grant or reservation implication and prescription Express easements arise with express grant or reservation of an easement Must comply with SoF if for more than a year Express grant must be in writing and signed by holder of servient tenement unless duration is brief 1 year or less to be outside SoF Reservation arises when grantor conveys title to land but reserves right to use tract for special purpose Can be reserved for grantor only not anyone else Easements by implication created by operation of law Exception to SoF 2 types of easement by implication easement implied from existing use quasi easement and easement implied without any existing use subdivision plat a Easement implied from existing use quasi easement Easement may be implied if prior to division of single tract apparent and continuous use exists on servient part that s reasonably necessary to dominant land s use and enjoyment and court determines that parties intended use to continue after division of land b Easement implied without any existing use Subdivision plat when lots are sold in subdivision with reference to recorded plat or map showing streets leading to lots lot buyers have implied easements to use streets Profit a prendre holder of profit a prendre has implied easement to pass over surface of land and to use it as necessary to extract product c Easement by necessity when property is landlocked no access to public road or utility line Exists even if requirements of prior use are not satisfied but must be privity Owner of servient estate may choose location if reasonable Easements by prescription arises like title by adverse possession 4 requirements continuous use for statutory period default is 20 years open and notorious use actual use not symbolic and hostile use without servient landowner s permission Cannot be acquired in public land Easements bv estoppel created where there s detrimental reliance based on permission by servient estate holders There must be reasonable reliance on the continued performance and inducement for that reliance Reliance must be in good faith To prevent unjust enrichment Public easements and dedication general rule is no easement can be created in favor of the public also called an easement by custom Dedication can be express or implied Negative easements must be expressly created by writing signed by grantor Only recognized in four categories light air support stream water from an artificial ow 13 14 Transfer of easements appurtenant easements automatically transfer with dominant estate Pass with servient estate only if grantee had notice Easements in gross generally not transferable if personal but commercial easements in gross are freely alienable Termination of easements a Merger unity of ownership if same person acquires ownership of both easement and servient estate the dominant and servient estates merge and easement is destroyed Even if there s later separation easement won t be automatically revived b Release easement including easement in gross which is usually inalienable can be terminated by deed of release from owner of easement to owner of servient tenement c Abandonment mere nonuse not enough easement is extinguished when holder demonstrates by physical action ie building structure that blocks access to easement on adjoining lot intent to permanently abandon easement Merely expressing wish to abandon not enough d Estoppel oral expressions of intent to abandon easement not enough unless in writing release or accompanied by action abandonment But if owner of servient estate changes position in reliance on representations made or conduct by owner of easement easement terminates by estoppel e Prescription to terminate by prescription must be adverse continuous interruption of use for prescription period typically 20 years f End of necessity easements by necessity expires as soon as necessity ends g States conditions original easement grant may specify when or under what conditions easement will terminate h Destruction of servient land not willful by owner involuntary destruction of structure in which there s easement extinguishes easement Voluntary destruction doesn t end easement i Condemnation of servient tenement by government extinguishes all easements Not sure if holders are entitled to compensation Servitudes Profits Licenses Covenants and Equitable Servitudes 1 Profits profits entitle the holder of benefit to take some resources soil timber materials fish etc from servient estate Implied in every pro t is the right to go onto land and remove resources Accompanied by implied easement to go on land and get the resource Use easement rules to analyze Pro t may be ended through surcharge misuse that overly burdens servient estate Licenses license allows holders to go upon the land of another Not an interest in land but a mere privilege revocable at will of licensor Freely revocable unless there s estoppel licensee invests lots of money or labor in reliance on license License is estopped and becomes easement by estoppel which lasts until holder receives enough bene t to reimburse him for money spent or license is coupled with an interest irrevocable as long as interest lasts ie vendee of chattel may enter seller s land to remove chattel and future interest holder may enter and inspect land for waste No writing required not subject to SoF Anytime an easement is attempted but fails due to SoF a license is created and if money is spent in furtherance of the oral license then it becomes irrevocable and is treated like an easement very similar to easement by estoppel Real covenants covenants running with the land at law real covenant normally found in deed is written promise to do or not do something on the land They run with land at law so subsequent owners may enforce or be burdened by covenants a Restrictive covenants promise to do or not do something related to the land b Covenants at law enforced at law To run with the land need 4 requirements 1 intent of parties that it run 2 notice to person against whom enforcement is sought 3 covenant must touch and concem the land and 4 there must be privity For a burden to run against a successor in interest there must be both vertical and horizontal privity For a bene t to run in favor of a successor in interest there need only be vertical privity c Requirements for burden to run 1 intent original parties must have intended that successor in interest to the covenanter be bound by covenant 2 notice subsequent purchaser must have actual inquiry or record notice of arrangement at time of purchase 3 horizontal privity at time promisor entered into covenant with prornisee 2 must ve shared some interest in the land independent of covenant ie grantorgrantee landlord tenant mortgagee mortgagor 4 vertical privity successor in interest to covenanting party must hold entire durational interest held by covenanter at time he made covenant and 5 touch and concern negative covenants touch and concern land if they restrict holder of servient estate in his use of that land Affirmative covenants touch and concem land if they require servient holder to do something d Requirements for benefit to run 1 intent covenanting parties must have intended that successors in interest to covenantee be able to enforce covenant 2 vertical privity benefits of covenant run to assignees of original estate or any lesser estate any succeeding possessory estate may enforce Horizontal privity not required and 3 touch and concem bene t of covenant touches and concems land if promised performance bene ts covenantee and her successors in their use and enjoyment of land e Remedy for breach of covenant award of money damages collectible from A s general assets If injunction sought promise must be enforced as equitable servitude instead of covenant f Termination covenant may be terminated by 1 written release 2 merger of bene ted and burdened estates or 3 condemnation of the burdened property Equitable servitudes covenant that regardless of whether it runs with the land at law will be enforced at equity against the assignees of the burdened land who have 6 notice of covenant Usual remedy is injunction Difference between equitable servitude and real covenant is remedy sought If money damages it s real covenant If injunction equitable servitude Single promise can create both Created by covenant contained in writing a 3 requirements for servitude to be enforceable 1 intent that restriction be enforceable by successors ininterest 2 notice to subsequent purchaser 3 restriction must touch and concern the land No privity requirement b Equitable servitudes in subdivisions also called mutual rights of enforcement and reciprocal negative servitudes have 2 requirements intent to create servitude on all plots and notice actual record or inquiry c Exception negative equitable servitudes may be implied from common scheme for development of residential subdivision and notice of covenants They ll be implied if at time sales in subdivision started developer had plan that all parcels would be subject to restriction Evidenced by 1 recorded plat 2 general pattern of restrictions or 3 oral representations to early buyers Grantee must have notice to be bound actual inquiry or record notice d Burden to run intent successor has notice actual inquiry or record and covenant touches and concems the land e Benefit to run intent and servitude touches and concems land No privity of estate required f Defenses to enforcement court won t enforce equitable servitude if 1 person seeking enforcement is violating same restriction on his own land unclean hands 2 bene ted party acquiesced in violation of the servitude by one burdened party 3 benefited party acted in such a way that reasonable person would believe covenant was abandoned estoppel 4 benefited party fails to bring suit against violator within reasonable time laches or 5 neighborhood has changed so much that enforcement would be inequitable g Termination release merger changed conditions or condemnation Horizontal privitv refers to nexus between the original parties to the covenant they must be in succession of estate granteegrantor landlordtenant or mortgagormortgage Horizontal privity is the one that is usually lacking Vertical privity refers to those who subsequently obtain the property subject to covenant and the original party from whom they got the property The successor in interest must take the full estate Usually present unless successor acquired through adverse possession Adverse Possession 1 Rule for possession to ripen into title requirements possession must be open continuous uninterrupted for statutory period exclusive adverse and actual notorious and hostile OCEAN No claim of right required Owner does not have to know Possessor s subjective state of mind irrelevant No adverse possession against state land Titles acquired by adverse possession are not marketable If owner doesn t within statutory period take action to eject title vests in possessor Constructive adverse possession if one goes onto property under color of title and only possesses a portion of the whole constructive adverse possession can give title to all Amount possessed must bear reasonable relation to the whole and the property must be unitary Adverse possession against concurrent owners can only occur when possessor excludes cotenants from possession and statute runs Exclusion starts the clock not absence of the other cotenant Ouster Future interest rules SoL doesn t run against holder of future interest until the interest becomes possessory 1 E clock runs at death of life tenant Fee simple determinable clock runs at happening of stated condition Fee simple subject to condition subsequent clock runs when grantor exercises right of reentry Tacking one adverse possessor may tack onto his time with the land his predecessor s time so long as there is privity which is satisfied by any non hostile nexus such as blood contract deed or will Tacking not allowed when there has been ouster Periods of possession must pass directly no gaps Disability statute of limitations will not run against a true owner who is af icted by a disability insanity infancy imprisonment at the inception of the adverse possession Rights to Support of Land 1 2 Owner of property has right to use and possess the surface airspace and soil of property Lateral support ownership of land includes right to have land supported in its natural state by adjoining land Subiacent support underground occupant of land eg mining company must support surface and buildings existing on date subjacent estate was created Liability for subsequently built buildings requires negligence If land is improved by buildings and adjacent landowner s excavation causes that improved land to cave in the excavator will be liable only if he acted negligently Strict liability does not attach to the excavator s actions unless H shows that because of NS actions H s improved land would have collapsed even in its natural state Water Rights 1 2 major doctrines for determining the allocation of water in watercourses such as streams rivers and lakes a Riparian doctrine water belongs to those who own the land bordering the water course Those people are known as riparians who share the right of reasonable use of the water One riparian is liable to another if his or her use unreasonably interferes with other s use Domestic use trumps commercial and can be unlimited Natural uses human uses such as consumption gardening trumps artificial uses irrigation manufacturing b Prior appropriation doctrine individuals acquire rights by actual use Water initially belongs to state but right to divert it and use it can be acquired by an individual regardless of whether or not he s a riparian owner Rights are determined by priority of bene cial use The norm for allocation is first in time first in right Any productive or beneficial use of water including use for agriculture is suf cient to create appropriation right Appropriative right can be lost by abandonment Percolating water groundwater water beneath the surface of the earth that isn t confined to a known channel Surface owner entitled to make reasonable use of groundwater but such use must not be wasteful Surface water landowner can use surface water water without a channel that passes over land such as rainfall seepage etc within her property lines for any purpose Common enemv rule followed by 12 the states landowner may change drainage or make any other changesimprovements on his land to get rid of the water ie dikes Many courts have modified rule to prohibit unnecessary harm to other s land Landowner can capture eg by dam or in barrels as much surface water as he wishes Surface water can be diverted to any purpose on or off the land Owners below have no cause of action unless diversion was malicious Right in Airspace 1 Right to airspace above a parcel isn t exclusive but owner is entitled to freedom from excessive noise Right to Exclude 1 2 Possessor of real property has right to exclude others from property Remedies for invasions include actions for a Trespass land invaded by tangible physical object b Private nuisance land invaded by intangibles such as odors or noise c Continuing trespass land repeatedly invaded by trespasser and d Eiectment or unlawful detainer to remove a trespasser or tenant This action can be joined with a demand for money damages Cooperatives Condominiums and Zoning 5 7 Cooperatives title to land and buildings is held by corporation that leases individual apartments to its shareholders Because of their economic interdependence and because individual owners are tenants a direct restraint on the alienation of an individual interest is valid Condominiums each owner owns the interior of his individual unit plus an undivided interest in the exterior and common areas Unit ownership is treated as fee ownerships so ordinary rules against restraints on alienation apply Zoning state may enact statutes to reasonably control the use of land for protection of the health safety morals and welfare of its citizens Zoning power is based on state s police power and limited by EPC and DPC of l4thA and takings clause of 5thA Cities and counties have zoning power only if authorized by state enabling act a Nonconforming use use that exists at time of passage of zoning act that doesn t conform to statute can t be eliminated at once b Special use permit one that must be obtained even though zoning is proper for intended use Often required for hospitals funeral homes drive in businesses etc c Variance departure from restrictions of zoning ordinance granted by administrative action Takings zoning ordinance may so reduce the value of property that it constitutes taking under SW and 14thA Local govemment must pay damages to landowner equal to value reduction If ordinance regulates activity considered a nuisance at common law won t be taking even if it leaves land with no value To determine if there was taking court must balance 1 social goals of regulation 2 diminution in value of the property and 3 owner s reasonable expectations for use of property Exactions government demands that in exchange for zoning approval for new project landowner gives up some land for public purpose such as street widening are unconstitutional unless government passes RB Wills Estates and Trusts 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 To be valid a will must be In Writing Executed by a testator who s at least 18 Executed by a testator who s competent Signed by the testator and Witnessed and signed by at least 2 individuals as Witnesses 09PP A holographic Willis valid if a Material portions of the will are in the testator s handwriting and b The will is signed by the testator c No witnesses are necessary A decedent s estate not effectively disposed of by will passes by intestate succession to the decedent s heirs and if there is no surviving spouse it passes to the decedent s descendants by representation All siblings inherit the same share no matter What Heir who has rejecteddisclaimed his share has his share passed by representation to his own heirs Only divorce not a legal separation has the effect of nullifying a spouse s rights Spouse can take an elective share calculated by length of marriage of decedent s augmented estate despite his attempt to disinherit her in his Will Augmented estate is the aggregate value of the decedent39s probate estate and the nonprobate transfers After spouse takes elective share remainder of estate will pass to the heirs or intended beneficiaries Spouse may also claim homestead andor family allowance Decedent can disinherit his children as long as it s intentional A will may be revoked by validly executing a subsequent will that revokes the previous will or by performing a revocatory act Without descendants the intestate share of a decedent s surviving spouse is the first 200000 plus 34 of any balance of the estate Rule Against Perpetuities a Interest must vest not later than twentyone years after some life in being b A remainder interest in the grandchildren is a contingent class gift c Contingent remainders are subject to RAP When a testator writes more than one Will all of the Wills will be read together and given effect unless one or more of the subsequent wills revokes a prior will or are inconsistent One who kills the decedent may not take under the will or through right of survivorship to joint property will pass as though killer died before decedent Torts 1 2 3 4 5 6 7 8 9 10 11 12 13 Elements of Negligence must explain how each is satisfied or not satisfied a Existence of duty of care b Breach of duty of care c Causation proximate cause etc and d Damages Elements of Intentional Torts a Act by A voluntary b Intent either specific or general c Causation Battery Intentional and unlawful application of force to another person resulting in either bodily injury or an offensive touching Assault Intentionally causing reasonable apprehension of immediate harmful or offensive contact immediate harm to H Aggravated BatteryAssault contact resulting in serious bodily injury False Imprisonment intentionally causing the restraintcon nement of H to a bounded area Intentional In iction of Emotional Distress Intentionally extreme and outrageous conduct by A causing severe emotional distress Trespass to Land Intentional physical invasion of H s real property Trespass to Chattels intentional act by A that interferes with H s right of possession in a chattel Conversion intentional act by A interfering with H s right of possession in a chattel and the interference is so seriouspermanent as to require payment for full value Defenses to Intentional Torts Consent Self Defense Defense of Others Defense of Property Reentry upon Land Recapture of Chattels Privilege of Arrest Necessity Fquot C 1quot P P Defenses to Negligence a Contributory negligence b Assumption of risk c Comparative negligence Defamation Common law defamatory language about H publication to 3rd persons and damage to H s reputation 14 15 16 17 18 19 20 21 Defamation Matter of Public Concern Constitutional Falsity of defamatory language and fault of A Right to Privacy a Appropriation of H s name or picture unauthorized use of such for commercial purposes b Intrusion upon seclusion c Publication of facts placing H in false light d Public disclosure of private facts of H Misrepresentation a Intentional Misrepresentation Fraud deceit misrepresentation of a knowingly false material fact with intent to induce reliance by H b Negligent Misrepresentation Misrepresentation by A in business or professional capacity and breach of duty toward a speci c H Strict Liability a Animals Strict liability for wild animals but not domestic animals b Ultrahazardous or abnormally dangerous activities Products Liability a Defect b Existence of defect when product left A s control c Implied warranties of merchantability and fitness in every sale of goods Nuisance a Private nuisance substantial unreasonable interference with another private individual s use or enjoyment of own property b Public nuisance Act that unreasonably interferes with health safety or property rights of the community ie brothel Vicarious Liability a Respondeat superior Employer is liable for torts of employee committed within scope of employment Liable for negligent hiring 1 Detour v frolic Minor deviation detour versus major or substantial deviation frolic 2 Abandonment of service whether an employee who was once within the scope of employment has left the scope then employer would no longer be liable 3 Re entry to service when an employee who has once abandoned service re enters service and the employer resumes being liable b Independent contractors principal is not liable for torts of independent contractor unless 1 IC is engaged in dangerous activity ie blasting 2 Duty is nondelegable because of public policy ie duty to use due care in building fence around excavation site c Joint Enterprise Partners are liable for torts of other partners within scope of partnership d Automobile Owner for driver owner not liable for driver s torts while driving his car e Bailor for bailee not liable for bailee f Parentchild no liability for child s intentional torts but liable for negligent supervision of kid Multiple Defendants a Joint and several liability b Satisfaction full payment and Release releasing one A c Contribution A who pays more than his share of damages can have claim against other jointly liable parties for excess d Indemnity shifting entire loss among or between tortfeasors Secured Transactions 1 2 3 4 5 6 7 8 9 To have a perfected security interest a party must have a security agreement that attaches and is filed With the proper office A security interest is not enforceable until it has attached Attachment defined a Written security agreement b Value must be given by secured party c Debtor must have rights in the collateral or the power to transfer rights in the collateral to the secured party d Description of collateral describing equipment and fixtures is adequate Perfection requires ling in the proper office in state of debtor s registration a Secretary of State for chattels b County clerk for real estate and fixtures Fixtures are goods that have become so related to particular real property that an interest in them arises under real property law Chattels defined as equipment and other property easily removed Afteracquired property clauses are generally enforceable Security interest may attach to them Buyers in the ordinary course of business take free of perfected security interests other good faith purchasers do not To be a buyer in the ordinary course of business a person must purchase goods from a merchant who deals in goods of that kind Sales of Goods 1 2 3 4 5 6 7 8 9 10 11 The contract for the sale of a product is a contract for the sale of goods and is governed by Article 2 of the UCC Between merchants additional terms become part of the contract unless a Offer expressly limits acceptance to the terms of the offer b They materially alter it c Notification of objection to them has already been given or is given Within a reasonable time after notice of them is received Even though if writings of the parties did not establish a contract a contract can be formed by the conduct of the parties UCC 2207 The terms of the contract are agreed upon by party plus those supplied by the UCC If writings do not agree on arbitration or express Warranty then neither are in the contract The UCC supplies an implied Warrant of merchantability Cover is defined as the reasonable purchase of substitute goods Where writing for sale of goods is NOT required SWAP Takes contract out of SOF S Specially made goods W Written confirmation by a merchant A Admission in court or P Performance Right to demand assurances arises when a party has insecurities that the other will not perform Anticipatory repudiation requires a clear indication that the other party is unwilling or unable to perform Additional terms a For the purchase or sale of goods an acceptance with additional terms is still an acceptance and a contract is formed with or Without the new terms b Otherwise ie sale of land an acceptance proposing additional terms is a rejection and counteroffer so no contract is formed Property 1 2 3 4 Adverse possession OCEAN 09PP Open Continuous period of occupancy must be continuous for entire statutory period Exclusive must not share with owner Adverse and actual occurred and without permission of owner Notorious sufficiently apparent to put owner on notice Rule Against Perpetuities a All interests must vest within 21 years of some life in being at the creation of the interest b RAP applies only to contingent remainders executory interests vested remainders subject to open and in most states options to purchase c RAP doesn t apply to reversion possibilities of reverter right of entry d RAP applies to a shift from a private to charitable use or a charitable to private use The issue is whether the estate created is a Easement b License the use is terminable at the will of the grantor and may be granted orally Personal and revocable privilege c Covenant Easements a Easement is the right to use all part or some of another person s property b Three factors that court will examine in determining intention of the parties 1 Surrounding circumstances ie physical location and the use of the two properties 2 The language creating the contract 3 Intent of parties will guide court c Failure of easement creates a license d Easement appurtenant benefits a specific parcel of land and runs with it Touches and concerns the land e Easement in gross is personal and does not run with the land f Prescriptive easement Need to establish adverse open and notorious continuous and uninterrupted use for the prescriptive period g Implied Easement of Necessity 1 Unity of title existed in both parcels 2 The subject parcel was severed from unified parcel and necessity was caused by severance 3 The need for the easement came into existence at time of conveyance h Implied Easement Based on Prior Use 1 Easement based on prior use was created without any writing 2 Common ownership of the property prior to severance 3 Severance of the property into two or more separate parcels with ownership in one of the parcels being transferred to a third party 4 Continuation of the use after severance is necessary for useenjoyment of the dominant estate i Termination of easement Easement may be terminated by 1 Written release or 2 Abandonment or 3 Merger 5 6 7 8 9 10 11 12 Fee Simple a To create a fee simple words limiting the duration of the estate must be used b Fee simple determinable interest 1 Any limitation which creates an estate in fee simple and provides that the property will automatically revert to the grantor on the occurrence of a stated event 2 Typically uses language such as quotwhilequot quotuntilquot or quotso long asquot 3 Grantor will have retained a quotpossibility of reverterquot c Fee simple subject to a condition subsequent 1 Any limitation which creates an estate in fee simple and provides that the grantor enter and retake the property 2 Typically uses language such as quotprovided thatquot or quoton the condition thatquot 3 Grantor will have retained a quotright of entryquot Life estate a Usually indefeasible ends only when the life tenant dies b Life estate can be determinable subject to a condition subsequent and subject to an executory interest Reversionary interests a All reversionary interests are vested and therefore not subject to RAP Rule Against Restraints on Alienation a Applies only to legal interests b Restrains on the alienation of equitable interest ie spendthrift clauses in trust instruments are valid Covenants for title a Covenant for quiet enjoyment b Covenant of Warranty Zoning ordinances generally invalid if they have no reasonable relation to public Welfare Are too restrictive Are discriminatory as to a particular parcel Are beyond the grant of authority Violate due process OR Are racially discriminatory quot P P Reversionary interest a If owner leases property to someone for period of time ie 99 years so long as property is used for specific purpose then owner has automatic reversionary interest b Owner s reversionary interest is vested 99 years and not subject to RAP Landlord and Tenant a Rights and responsibilities of Landlord 1 Deliver quiet use and enjoyment to tenant b Rights and responsibilities of Tenant 1 Payment of rent 2 Not committing Waste 3 If not expressly restricted can assign c Identification of constructive eviction 1 Conduct or neglect by landlord which makes premises uninhabitableunusable etc d C 13 Joint Tenancy a Joint tenancy requires taking title at the same time by the same instrument with identical b c d 2 Breaches covenant of quiet enjoyment implied in every lease 3 Actual intent to evict immaterial 4 Relieves tenant of obligation to pay but he must actually vacate Assignment 1 An assignment occurs only when a lessee transfers entire remaining interest in leasehold 2 If lessee transfers less than entire interest it is a sublease 3 Prior to assignment Tenant39s obligation to Landlord is based on privity of contract and privity of estate 4 After assignment Tenant39s obligation to Landlord based on Privity of Contract Hold over 1 Exceptions to hold over doctrine landlord can t bind tenant to new tenancy A Tenant remains in possession for only a few hours after termination or leaves a few articles of personal property B The delay is not the tenant s fault ie severe illness or C It is a seasonal lease interests and with the same right to possess the property the quotfour unitiesquot Cotenants can agree to a voluntary partition If one is unwilling the other can compel a judicial partition as a matter of right Partition can be in kind or by sale 14 Equitable servitudecovenant An equitable servitudecovenant in a ground lease is enforceable against assignee of the original a tenant if 1 The original parties to the ground lease intended that it run 2 The covenant touches and concems the land and 3 The assignee has notice of the restriction Familv Law Mneumonics PATERNITY FDIC P aternity must be established by mutual consent or court order before there s a CS obligation right to parenting time A doptivebiological parents not grandparentsstepparents generally have duty of child support T esting tissueblood can be ordered by court to establish paternity E stoppel defenses rarely effective R ebuttable presumption that husband is father N ational reciprocity for CS enforcement full faith and credit I n personam jurisdiction on Dad T ermination of parent child relationship if CampCE of voluntary abandonmentunfitness Y ou movant have burden of establishing paternity Voidabe marriages grounds must exist before marriage F raud D uress or dare I nability to consummate or incapacity C hild subject was underage COIFFED marital agreements C ontract which requires consideration capacity conscionability fairness O verreaching none I n writing signed by both parties and I ndependent counsel not determinative F ull and fair disclosure exhibits F raud none E nforceable not void by public policy D uress none MAID grounds for dissolution M arital misconduct not factor unless impacts children A dequate notice to other party I rretrievable breakdown of marriage D omicile required A LIE mandatory disclosure A ssets L iabilities I ncome E xpenses HEDDEC CScustodyjurisdiction H ome state kid must have lived in for at least 6 months before start of proceeding E videncesignificant connections if kid doesn t have home state state with most connections and info about kid D eclined jurisdiction one state can decline jurisdiction if another state is more appropriate forum D efault no other state could take jurisdiction under other criteria E mergency emergency jurisdiction can only be exercised on temporary basis if kid is abandoned or needs protection from abuse C onduct unjustifiable state can t exercise jurisdiction if party engaged in unjustifiable conduct CADS marital property maintenance C ontribution of parties financial or homemaker or emotional A ge and health of parties D uration of marriage S pecific sources of income and Standard of living WISH best interests of child W ishes of child and parents I ntegration of child into home and community and physical proximity of parents S haring of love and affection with other parent H ealth physical and mental of the parties including credible evidence of child or spousal abuse SAGE child support Standard of living if parties not divorced A ge and needs of child G ross income of both parents and child E ach parent s overnights Family Law 1 2 3 4 5 6 7 8 A divorce action is initiated by filing a Verified Petition for Dissolution The only ground for divorce in Colorado is the irretrievable breakdown of a marriage no fault a An irretrievable breakdown is presumed 1 If the parties agree or 2 If one spouse says so and the other doesn t deny it b Otherwise whether there has been an irretrievable breakdown is a question of fact for the judge to decide after hearing all the evidence c First the court must continue the hearing for 3060 days and order the parties to undergo counseling in the interim d MAID grounds for dissolution M Marital misconduct not factor unless impacts kids A Adequate notice to other I Irretrievable breakdown D Domicile needed Temporary injunctions that automatically issue upon filing DIP a Prohibition of H and W from disturbing each other s peace b Prohibition of canceling or modifying health insurance c Prohibition of transferring concealing or in any way disposing of any marital property Disclosures A LIE A Assets L Liabilities I Income E Expenses Property Division and Maintenance CADS a Marital property is subject to an equitable and just division not necessarily equal b CADS C Contribution of parties A Age and health of parties D Duration of marriage S Specific sources of income amp Standard of living Child Support SAGE S Standard of living if parties not divorced A Age and needs of child G Gross income of both parents and child E Each parent s overnights Common Law Marriages a Common law marriages are recognized in Colorado b CLMs require 1 Intentagreement to be married and 2 Habit and reputeholding themselves out as married Bigamy a Marriage to 2nd spouse is voidvoidableprohibited if spouse is still married to someone else 9 10 11 12 13 b Marriage would become valid once impedimentillegalityprohibited circumstances of 1 marriage is removed c 2nd spouse is a putative spouse prior to leaming of 1 marriage Paternity P Paternity must be established by mutual consent or court order before CS obligationright to parenting time arises A Adoptivebiological parents generally have duty of CS not grandstep parents T Testing tissueblood can be ordered by court to establish patemity E Estoppel defenses are rarely effective R Rebuttable presumption that husband is father N National reciprocity for CS enforcement full faith and credit I In personam jurisdiction on Dad T Termination of parentchild relationship if CampCE of voluntary abandonmentunfitness Y You movant have burden of establishing paternity FDIC voidable marriages grounds must exist before marriage F Fraud D Duress or dare I Inability to consummate or incapacity C Child subject was underage COIFFED marital agreements C Contract which requires consideration capacity conscionability fairness O Overreaching none I In writing signed by both parties Independent counsel not determinative F Full and fair disclosure F Fraud none E Enforceable and not void by public policy D Duress none HEDDEC CScustody jurisdiction H Home state Kid must ve lived in for at least 6 months before start of proceeding E Evidencesignificant connections if kid has no home state then state with most connections and info about kid D Declined jurisdiction one state can decline jurisdiction if another state is more appropriate forum D Default jurisdiction no other state could take jurisdiction under other criteria E Emergency jurisdiction can only be exercised on temporary basis if kid is abandoned or needs protection from abuse C Conduct unjustifiable State can t exercise jurisdiction if party engaged in unjustifiable conduct WISH best interests of child W Wishes of child and parents I Integration of child into home and community and physical proximity of parents S Sharing of love and affection with other parent H Health physical and mental of the parties including credible evidence of child or spousal abuse Criminal Procedure 1 2 Due Process Clause of 14th Amendment Identification procedures are subject to DP standards Linchpin of DP is reliability DP violation requires in the totality of the circumstances state action police overbearing the will of the accused a b c 4th Amendment Search and Seizure Protects against unreasonable search and seizures Fourth Amendment prohibits search and seizure absent a warrant or an exception Exclusionary Rule prohibits the admission of evidence seized in violation of the 4th amendment Fourth Amendment analysis A valid Fourth Amendment arrest requires probable cause Probable cause to arrest consists of reasonable grounds to believe a crime has been committed and that the suspect committed the crime A valid arrest in an individual39s home requires an arrest warrant a b c d 1 2 3 Search 1 2 9 Generally a search must be supported by a search warrant Evidence seized in a search which violates the Fourth Amendment will be suppressed Fruit of the poisonous treeexclusionary rule Search must be supported by probable cause Definition of probable cause to search reasonable grounds to believe that evidence of a crime is likely to be found Information from witness or victim is sufficient If there was no search warrant there must be a recognized exception to the requirement for a warrant A B C D E F Search incident to a lawful arrest limited to area from which immediate attack could be launched 1 In cars search incident to a lawful arrest exception only encompasses search of passenger compartment and not trunk 2 Protective sweep the police are permitted to conduct a quotprotective sweepquot of a home during a lawful arrest based on reasonable suspicion that the area to be swept harbors an individual posing a danger ie if they have a specific reason to be concerned Exigent circumstances or hot pursuit exception lawful arrest requires exigent circumstances The need to preserve evidence can constitute exigent circumstances Stop and frisk exception 1 Police must have articulable and reasonable suspicion of criminal activity 2 Limited to protective frisk for weapons 3 Further limited to the passenger compartment of a vehicle Plain view exception police may seize items connected to a crime if they have lawful access to the items ie they could seize the money if they were legitimately conducting a protective sweep of the basement Consent exception the police need not advise a suspect that he has the right to refuse to consent 1 Recognize that a person who consents must have authority over the premises Automobile exception Police must have probable cause to believe vehicle contains evidence of crime before the search is made Covers entire car including packages in trunk 3 U 39gt Exclusionary rule Remedy for violation may be exclusion of evidence Extends to statements gotten as a result of an illegal search No reasonable expectation of privacy in discarded or abandoned property 4thA not implicated by consensual encounters Stop occurs when one reasonably believes he s not free to leave A stop is less intrusive than an arrest One is not stopped until he submits to police s commands or show of authority ie cop placing hand on person Stop only proper if supported by reasonable and articulable grounds for suspicion of criminal activity A police officer may order the driver and the passengers of a stopped vehicle to exit the vehicle during a traffic stop Frisk permissible when supported by reasonable and articulable grounds to believe suspect is armed or dangerous Purpose is officer safety Scope of frisk limited to search for and recovery of suspected weapons Defense to illegal frisk inevitable discovery claim Arrest requires either an arrest warrant or exigent circumstances including hot pursuit Arrest must be supported by probable cause Probable cause for arrest reasonable grounds to believe that a crime has been committed and that the suspect committed the crime Generally the arrest warrant is required for an arrest in a person39s home Arrest warrant is never required for an arrest outside the home Taking A to police station likely amounts to arrest Must have adequacy of grounds for arrest Identification after illegal arrest may be fruit of the poisonous tree Even if grounds for arrest were inadequate ID may still be attenuated result of independent source 5th Amendment Miranda Rights Interrogation while under arrest or in custody requires Miranda warnings Awareness that Miranda warnings include the right to counsel or silence Failure to give wamings violates A s 5thA right to be free from compelled selfincrimination not 6thA RTC Miranda v Arizona analysis a b c CIO quot7 1 2 3 4 Recognize issue of custody Custody determined by formal arrest or significant restraint on freedom of movement Recognize issue of interrogation Interrogation element is met even in the absence of direct questioning if words or actions by the police were reasonably likely to elicit an incriminating response Miranda warnings are triggered by custodial interrogation Upon assertion of RTC interrogation must cease If A reinitiates conversation or makes spontaneous statement then A may have waived earlier assertion of right Subsequent confession may not be a product of voluntary waiver Waiver of Miranda must be knowing intelligent and voluntary If police fails to scrupulously honor A s assertion of right to remain silent Miranda is violated In ToC was statement product of the police officer overbearing A s will If yes DP is violated Suspect must knowingly waive Miranda rights A valid Miranda waiver not affected by 4 5 1T1 09 P 0 1 failure to advise a suspect than an attorney has been called on his behalf or 2 deceiving suspect39s lawyer Voluntariness analysis 1 Recognition of issue of voluntariness 2 Definition of voluntariness whether one39s free will is overborne by coercive police activity Admissibility analysis 1 Recognition of Miranda issueadmissibility of statements 2 Statement inadmissible in caseinchief because Miranda violation is admissible for impeachment if it was voluntary 3 Statement inadmissible in caseinchief for violation of Fourth Amendment may be admissible for impeachment if it was voluntary th Amendment Right to Counsel May apply to identification procedures Applies only after adversary proceedings are commenced No 6thA protection applies to photo arrays Upon assertion of RTC interrogation must cease Recognize that Sixth Amendment may require police to halt questioning after filing of formal charges f Sixth Amendment right is offense specific and does not bar otherwise valid police questioning of unrelated charge g Recognize issue that surreptitious use of cellmate after arraignment violates Sixth Amendment right to counsel h Recognize privilege to withhold identity of confidential informant i Recognize 6th Amendment right to counsel at critical stages j Right to counsel exists at post charging inperson lineup Lack of an attorney at the lineup may give rise to 6th amendment right to counsel challenge k An improper identification of the defendant violates his or her DP right 1 Courts however have found that the 6th amendment does not apply to photo lineups m An identification is constitutionally improper when 1 the identification is unnecessarily suggestive and 2 there is a substantial likelihood of misidentification n In court identification may be tainted by suggestive prior identification procedure o In court identification may be allowed if it has a source sufficiently independent of any unconstitutional pretrial violations p Factors to be considered if there is an independent basis for the incourt identification are 1 the witness opportunity to view the criminal at the time of the crime 2 the witness degree of attention 3 the accuracy of the witness prior description of the criminal 4 the level of certainty of the witness and 5 the length of time between the crime and the confrontation Double Jeopardy a Prior acquittal bars retrial b Imposition of a harsher sentence upon reconviction gives rise to presumption it s product of vindictiveness c A s retrial after appeal is not barred by DJ Corporations 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 A shareholder may sue by means of a shareholder derivative suit for a wrong to the corporation Generally shareholder cannot bring an individual suitdirect action against a corporation for harm done to the corporation unless it is a harm unique to that shareholder A shareholder must have standing to bring the derivative suit Shareholder must make a demand upon the Board of Directors to take suitable action prior to filing suit Derivative proceeding may not be commenced until 90 days after demand shareholder must wait 90 days unless a The corporation rejected the demand or b It d cause irreparable harm to wait The corporation must be named as a party A because its failure to assert its own claim justifies making it a A Suit may be dismissed if at least 2 directors determine in good faith after reasonable inquiry that the suit is not the corporation39s best interests A derivative suit may be settled or dismissed only with court approval Shares may be voted upon in person or by proxy A proxy is a written authorization from the owner of the shares giving power to another to vote the shares Most proxy appointments are revocable An irrevocable proxy must be coupled with an interest If there s a con ict between the articles and the bylaws the articles prevail Treasury stock is stock that at one time was outstanding and which the corporation has repurchased Treasury stock cannot be voted Directors have fiduciary duties of loyalty and care to the corporation Evidence 1 Generally evidence must be relevant in order to be admissible 2 Probative value of evidence must outweigh prejudice 3 Relevant evidence has tendency to make existence of any fact of consequence to the determination of action more or less probable than it would be Without evidence 4 Generally hearsay is inadmissible unless an exception applies 5 Hearsay is an out of court extrajudicial statement offered for the truth of the matter asserted 6 Hearsay exceptions unavailability required a Unavailability b Former testimony depositions may be admissible but not grand jury testimony unless used for inconsistent statements c Statement against interest statement is against witness s interest since it would subject him to criminal or civil liability d Dying Declarations statements made under belief of impending death e Statements of Personal or Family History f Statements offered against party procuring dec1arant s unavailability 7 Hearsay exceptions unavailability not important a Present state of mind b Excited utterances a statement made while under the stress of excitement caused by a startling event c Present sense impressions 1 The statement describes the incident and 2 it was made immediately after the start of the incident d Declaration of physical condition e Business records permits the admission of business records if 1 The records were made at or near the time of the event 2 By a person with knowledge 3 Were kept in the regular course of a business activity f Past recollection recorded may be read to the jury but may not be received as an exhibit Test 1 insufficient memory to testify and 2 the memo must have been made when the matter was fresh in Witness memory g Publicofficial records and other official Writings 1 Absence of Public records exception provides that evidence to prove the absence of a record is admissible in the form of testimony that a diligent search failed to disclose the record Where the record is one that was regularly made and preserved by the office h Ancient documents and documents affecting property i Learned Treatises j Reputation k Family Records and Vital Statistics 1 Market Reports 8 Residual Exception intended to apply only to highly reliable and necessary evidence 9 Nonhearsay 10 11 12 13 14 15 16 17 18 a Prior statements by witness b Admission by a party opponent hearsay statements are admissible if offered by party opponent The best evidence rule requires that an original document be used unless the original is unavailable for some reason other than misconduct of proponent a Exceptions 1 Original is unavailable 2 Original is unavailable through judicial process 3 Deals with only collateral matters 4 Proponent has given notice to the adversary of his intent to offer the proof at trial b Applies only if content is being proven Habit evidence must tend to show a habit that a person would ve acted in conformity therewith ie injuring students Character evidence is generally inadmissible but can be admissible through reputation or opinion testimony as long as it refers only to truthfulness MIMIC admissible prior acts of misconduct M Motive I Intent M Mistake absence of I Identity C Common plan or scheme Impeachment Prior inconsistent statement a A witness testimony may be impeached as long as he s given a chance to explain or deny it b H can impeach own witness if 1 Adverse party 2 Hostile and uncooperative 3 Party was required by law to call this witness 4 Surprise testimony that s harmful to own party Judicial Notice fact must be one not subject to reasonable dispute in that it is either a Generally known within the community or b Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned Expert Testimony a An expert witness is qualified by establishing special knowledge skill experience training or education b Expert testimony only allowed when specialized knowledge will assist the trier of fact Lay Testimony a Lay witness restricted to opinions a based on personal perception and b helpful to a clear understanding of testimony or determination of a fact at issue Subsequent remedial efforts evidence is not admissible to prove negligence Criminal Law 1 2 3 4 5 6 Murder a Killing of another human with malice aforethought b 1 degree requires specific intent Malice aforethought IRIP I rip incredible farts a Intent to kill b Intent to in ict great bodily injury c Reckless indifference to human life d Intent to commit a felony felony murder causing the death of someone in the course of felony Manslaughter CNH killing another without malice a Elements 1 Killing during commission of an unlawful act or misdemeanor 2 Killing resulting from criminal negligence 3 Killing in the heat of passion b Voluntary manslaughter unlawful quotheat of passionquot killing of another 1 Heat of passion requires provocation without time to cool off 2 4 factors for adequate provocation 1 Sudden and intense passion that would cause a reasonable person to lose control 2 A lost control Even if a reasonable person would ve been provoked and A wasn t no reduction to manslaughter 3 Cooloff period not enough time to cool off 4 A didn t cool off If A calmed down then no reduction to manslaughter c Involuntary Manslaughter unlawful killing of another with criminal negligence or in a criminal manner 1 An act or omission that causes the death of another 2 With a culpable mental state of recklessness or criminal negligence 3 Criminal negligence 1 Creation of substantial and unjustifiable risk to human life 2 Under circumstances constituting a gross deviation from the ordinary standard of care Burglary a Common law Unlawful breaking and entry into the dwelling of another person at night with intent to commit a felony therein b MPC enters building with intent to commit a crime therein Doesn t require felony Robbery a The taking of property b From the person or presence of another c By force or intimidation d With intent to permanently deprive Larceny a Taking and carrying away b Of the personal property of another c By trespass or without owner s consent d With intent to permanently deprive 7 8 9 10 11 12 13 14 15 16 17 Trespass knowing and unlawful or unconsented entry into a building or occupied structureproperty Trespass to Land a physical invasion b intent c causation Trespass to Chattels a Intentional act b Dispossession or c Interference with possessory interest Conversion a Intentional interference with possessory rights so seriouspermanent as to require payment for full value Battery unlawful application of force to another person resulting in either bodily injury or an offensive touching Assault attempted battery or conduct placing another in fear of imminent bodily harm Aggravated BatteryAssault battery that results in serious bodily injury Committed if a Deadly weapon used or b Serious injury caused or c Against police officer Accessory beforeafter the fact a Accomplice must intentionally assistaidabet b A completed felony crime must have been committed or the A must have known that the felony was committed c The assistance must have given to the felon personally the A must have taken affirmative acts to hinder the felon s arrest Conspiracy agreement between 2 or more people to accomplish a criminal objective If one person doesn t intend to commit crime no conspiracy If one person agrees and then withdraws still liable bc he already agreed Requires overt act Receipt of Stolen Property a If police have already recovered property and use it with owner s permission no longer stolen and A can t be convicted of receiving stolen property b If A intended to receive property believing it to be stolen can be convicted of attempted receipt of stolen property Insanity a A person is not responsible for criminal conduct if at the time of such conduct as a result of a mental disease or defect b He lacks substantial capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law c Burden of proof 1 A is presumed sane until he shows evidence of insanity 2 Prosecution then has burden of proving beyond reasonable doubt that A was sane at time of crime 18 19 20 21 22 23 24 25 d 4 insanity tests 1 M Naghten A doesn t know right from wrong 2 Irresistible Impulse A can t resist impulse 3 Durham But for mental illness A wouldn t have done it 4 MPC combination of M Naghten and II Solicitation inducing another to commit a felony with the specific intent that he she commit the crime Arson requires the malicious buming of the dwelling of another Car is not a dwelling so no arson a Damage must be caused by fire charring etc b Explosion not enough unless it causes a fire Attempt intent to commit crime and an act in furtherance of that intent a Attempt is a specific intent crime even if actual crime isn t b Attempt requires substantial step Defenses a Voluntary intoxication defense negates specific intent Applies only to Robbery and Larceny b Self defense not available if A provoked V Not available if A tried to resist known cop since he has no right to resist cop 1 One claiming selfdefense must have had reasonable fear of great bodily harm and that person must not have been aggressor 2 Imperfect selfdefense is also a possible defense c Factual impossibility defense no defense to conspiracy Arises only when A has failed to complete crime because of impossibility d Mistake usually raised as defense to completed crime 1 Mistake of fact may negate intent required A As to speci c intent crimes A39s mistake need not have been reasonable B As to general intent crimes A39s mistake must have been reasonable 2 Mistake of Law A Only exception is reasonable reliance on official statement e Defense of others 1 Defense permits same degree of force with which victim is being attacked f Defense of property does not excuse deadly force g Heat of passion requires provocation without time to cool off ie killing of close relative A person found guilty of crime on basis of transferred intent is usually guilty of 2 crimes a The completed crime against the actual victim and b Attempt against the intended victim Definition of voluntary act as any willed contraction of a muscle or product of the effort of determination of the actor as distinguished from intent or other culpable mental state Intentional In iction of Emotional Distress a Extremeoutrageous conduct b Intent to cause severe emotional distress c Resulting severe emotional distress Violation of right to privacy a Intrusion upon seclusion or b Public disclosure of private facts Contracts 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 A valid contract must consist of an offer acceptance mutual assent and consideration A contract requires a bargain and exchange offer and a manifestation of mutual assent acceptance Consideration is an act forbearance or return promise bargained for and given in exchange for promise Common law governs contracts because it is not sale of goods The material terms of an offer are Parties Subject matter Time of performance Price and if sale of goods Quantity 0999quot A contract may be either express implied or quasi When a rejection is followed by an acceptance first to be received is effective Specific performance is available for real estateland sale contracts If a nonmistaken party has no reason to know of the mistake by the other party the other party cannot take advantage of a mistake to void the agreement Ordinarily an offer cannot be accepted by silence A revocation is not effective until it has been communicated to and received by the offeree In response to repudiation H may do 1 of 3 things plus suspend own performance a Seek assurances b Await performance for commercial reasonable time or c Resort to any remedy for breach even if H noti es A that it would await A s performance and has urged retraction or cover Cover damages measured by difference between cost of cover and contract price Party can recover under promissory estoppel a Reasonable expectation that party would act on promise b Other party in fact reliedacted on promise Statute of Frauds must be in writing Agreements covered by SoF MY LEGS M Marriage Y within one Year L Land E Executor or administrator G Goods for 500 or more S Surety Parol Evidence Rule A writing intended by the parties to be the final written statement of their agreement may not be contradicted by prior statements agreements negotiations etc whether oral or written Doesn t bar admission of evidence of prior agreementpromises when theory of recovery is promissory estoppel QuasiContract avoid injustice by preventing unjust enrichment of one party at other s expense H must show a that he conferred a bene t on A b that he had a reasonable expectation of being compensated and c that the benefits were conferred at the expressed or implied request of Owner Constitutional Law 1 2 3 Standards of review Strict scrutiny government must show that the regulation is a 1 2 3 4 Necessary to accomplish A compelling government interest and Is narrowly tailored to serve that interest Are there less burdensome means available Intermediate scrutiny government must show that regulation is 1 2 Substantially related to accomplish An important government interest Rational basis govemment must show that regulation is 1 2 Rationally related to accomplish A legitimate government interest First Amendment Freedom of Speech Applies to state through 14th Amendment Restrictions on speech a b f 1 2 3 Restrictions on speech may be contentbased or content neutral If speech restriction is content based then subject to SS If contentneutral then subj ect to IS Public and NonPublic forums 1 A public forum is government property that traditionally has been open to expressive activity and is subject to SS for speech regulation 2 In a nonpublic forum the government only needs to show that the regulation is rationally related to serve the interest Defamation 1 First amendment may provide immunityprotection from liability if plaintiff is a public official or public figure 2 A public official is a govemment employee who has or appears to the public to have substantial responsibility for the conduct of government affairs ie exgovernor 3 A public figure is a person who occupies a position of persuasive power and in uence or one who has placed himself in the forefront of a particular public controversy in order to in uence its resolution 4 Malice is required for public figureofficial 5 Malice publication of a defamatory statement with knowledge that it was false or in reckless disregard of whether it was false Establishment Clause prohibits government from aiding any religion 1 LemonLynch three part test for Establishment Clause A Whether purpose secularreligion B Whether primary effect of conduct is to advance or inhibit government and religion C Whether conduct creates an excessive entanglement between government and religion Free Exercise Clause prohibits government interference with religious beliefs Due Process Clauses of the 5th and 14th Amendments DP depends on whether the protected interest is a property interest State law determines whether there s a protected property interest a b A property interest is determined by Whether the individual entitlement is grounded in state law or based on a legitimate claim Federal law not state law determines What process is due 3 factors to determine What process is due 1 The private interest that will be affected by the official action 2 The risk of an erroneous deprivation of such interest through the procedures used 3 The government s interest including fiscal and administrative burdens that a procedural requirement would entail 4 Equal Protection Clause a b The EPC is the appropriate analysis to use Where the law treats certain classes of people differently than others Suspect classifications subject to SS 1 Race A All racial classifications imposed by government must be analyzed under SS B Attaining a diverse student body can be a compelling state interest C University cannot use racial quotas but may consider race or ethnicity D Racial classifications would not Withstand judicial scrutiny 2 National origin 3 Sometimes Alienage Quasi Suspect classifications subject to IS 1 Gender A Genderbased decisions in admissions to state schools are subject to IS B Gender classifications likely would not Withstand judicial scrutiny 2 Legitimacy Non Suspect classifications subject to RB 1 Height is not a suspect classification so will be subject to RB 2 Age A If the state Wants to raise the driving age for safety reasons there Would be a legitimate state interest in safety and reducing the car accident rate B Age classifications would likely Withstand judicial scrutiny Political Gerrymandering 1 EPC requires one man one vote and prohibits dilution of voting strength of particular groups 2 Test for claim of political gerrymandering A Intentional discrimination B Against an identifiable group C Which has a discriminatory effect any of three elements CO Civ Pro amp Federal Jurisdiction 1 2 3 4 5 6 7 8 9 Federal jurisdiction a Federal district courts have original jurisdiction over all civil actions arising under the Constitution law or treaties of the United States b Federal question jurisdiction requires a federal question or federal law Subject matter jurisdiction SMJ a Diversity jurisdiction 2 basic requirements for DJ 1 Diverse citizenship and 2 Minimum of 75000 in controversy b Diversity is determined when action is commenced Supplemental Jurisdiction SJ a Federal court may exercise SJ over state law claims if SJ is satisfied b Applies where the state federal claims 1 Derive from the same transaction or occurrence and 2 Are the kind of claims that H would be expected to try them all in one proceeding Venue Venue proper where any A resides A must request a change of venue in her answer or it ll be waived a Transfer must be appropriate based on PWJ 1 The convenience of the parties 2 The convenience of the witnesses and 3 Interests of justice b In contract cases venue is proper where 1 Where any A resides at the time the action is commenced 2 Where the H resides if the A can be served there OR 3 Where the contract was to be performed c In tort cases venue is proper 1 Where any A resides at the time the action is commenced 2 Where the H resides if the A can be served there or 3 Where the tort was committed Complaint a Only notice pleading required Specificity required only for certain matters not negligence b Jury Demand Jury demand must be stated expressly in complaint or stated within 10 days afterwards Jury fee is also required c Deadline for Service No requirement for specific time in which A must be served but Delay Reduction Order may impose one Summary judgment legal standard a No genuine issue of material fact or b No genuine factual controversy Court jurisdiction a County Courts have jurisdiction in civil actions in which the amount claimed doesn t exceed 15 000 b District Courts have exclusive jurisdiction over civil actions if amount in controversy exceeds 15000 Discovery a If A fails to respond to interrogatories 1 First option is motion to compel answers 2 2nd option is to move for sanctions such as the striking of defenses and the entry of judgment Where multiple claims or multiple parties are involved in an action court may enter final judgment if a There s an express determination that there s no just reason for delay and b An express direction for entry of judgment Agency amp Partnership AGENCY 1 An agency relationship is created when the parties mutually consent to have the agent act on behalf of the principal 2 An agency relationship may be created by express agreement or by conduct of the parties 3 An agent39s authority may be either actual or apparent 4 Actual authority in an agent is the result of a principal expressly or implied assigning such responsibility to the agent 5 Apparent authority is an agent39s authority which results from a principal manifesting some consent to a third party 6 A principal is bound by acts of its agentsubagent that are within the scope of the agent s authority 7 Agents are liable for contracts entered into on behalf of their principals if they fail to disclose they are acting on behalf of principal 8 Agents are not liable for contracts entered into on behalf of their principal if they disclose they re acting on behalf of a principal PROMOTER 1 A promoter acts in the first steps of the formation of a corporation in procuring commitments for capital and other instrumentalities that will be used by the corporation after formation 2 A person acting on behalf of a corporation before it s incorporated is liable for any obligations incurred 3 A promoter can avoid liability if a The other party to the pre incorporation agreement knew the corporation didn t exist yet and b Expressly agreed to look solely to the corporation for performance 4 A corporation can become bound by adoption of contract 5 Promoter s liability extinguishes only with novation 6 Novation is an agreement among the parties to release the promoter PARTNERSHIP 1 A partnership is an association of 2 or more persons to carry on as co oWners of a business for profit 2 No Writing necessary 3 4 5 6 7 8 9 10 11 Sharing of profits is an indicator of coownership and prima facie evidence of the existence of a partnership If someone contributes capital shares in profits and makes business policy decisions she is a partner If someone merely loans money to the business he is not a partner and has no liability Property acquired in name of individual partner with his own funds presumed to be individual partner s property even if used for partnership purposes Partnership is liable for any torts or breach of contracts committed by any person acting in the ordinary course of partnership business Partnership at will is dissolved if it receives notice of a partner s express intent to withdraw as a partner Oral statement is sufficient notice to dissolve partnership at Will Partnership continues after dissolution for purposes of winding up business A person s interest in distribution of profits may be assigned Commercial Paper 1 2 3 4 5 6 7 8 9 10 A check is a negotiable instrument A negotiable instrument is an unconditional promise or order to pay a fixed amount of money In order to be negotiable the instrument must be payable to order a specific party or bearer A Bank may not ordinarily charge a drawer s account without the drawer s authorization A Bank can rightfully pay a check bearing an unauthorized signature if a The drawer s negligence leaving checkbook on coffee table etc substantially contributes to the making of the unauthorized signature and b The Bank acts in good faith and in accordance with reasonable commercial standards such as careful examination of signatures Upon receipt of bank statement Drawer has one year to review it and notify Bank of irregularities A holder of an instrument is a person in possession of it and entitled to enforce it A holder in due course HDC is someone who takes the instrument VFN Very Fine Nuts a For value b In good faith c Without notice of dishonor or default If Bank pays the instrument amount to a person not entitled to enforce it Bank may be guilty of conversion If Bank pays the check immediately it can t prove that it suffered any loss by Drawer s failure to act immediately Administrative Law 1 Agency actions are presumptively reviewable 2 Agency action must be nal to be reviewable nal order rule 3 Presumption of reviewability defeated only a Where there s congressional intent to preclude review OR b Where agency action is committed to agency discretion by law 4 Judicial review requires SERP a Standing b Exhaustion of administrative remedies c Ripeness d Proper forum of review 5 Scope of judicial review a To determine all relevant questions of law b Interpret the Constitution or federal statutes and c Determine the applicability of an agency action 6 In interpreting an agency s regulation the court will defer to agency s interpretation 7 To reverse the agency there must be a showing that agency action was an arbitrary and capricious abuse of discretion or not in accordance with the law 8 Administrative hearings don t require strict adherence to rules of evidence Admin Law Agency actions are presumptively reviewable Presumption of reviewability defeated only where 1 Congress intends to preclude review or 2 agency action is committed to agency discretion by law Judicial review requires PERFS Agmx An agency relationship is created when the parties mutually consent to have the agent act on behalf of the principal An agency may be created by express agreement or conduct of parties Agent s authority may be either actual or apparent Partnership A partnership is an association of 2 or more persons to operate a business for profit No writing necessary Partnership property is any property acquired by partnership Partners owe partnership duty of loyalty and duty of care Promoter Promoter acts in rst steps of formation of a corporation by procuring commitments for capitals and other instrumentalities to be used by formed corporation A person acting on behalf of a corporation before formation is liable for any obligations incurred Promoter can avoid liability if 1 other party to K knows corporation doesn t exist yet and 2 expressly agrees to look only to corporation for performance Commercial Paper A check is a negotiable instrument A negotiable instrument is an unconditional promise or order to pay a fixed amount of money A holder of an instrument is a person in possession and entitled to enforce it Holder in due course is someone who takes instrument VIN for value in good faith and without notice of default Corporations Shareholder may sue by means of shareholder derivative suit for wrong done to corporation Must have standing Shareholder usually can t bring individual suit direct action unless harm done to corporation is unique to shareholder Shareholder must make demand upon Board of Directors to take action before filing suit Shares may be voted upon in person or by proxy Directors have fiduciary duties of loyalty and care to corporation Sales of Goods Contract for sale of goods is governed by UCC Article 2 Terms of K are agreed upon by parties plus those supplied by UCC Where writing for sale of goods not required takes K out of SoF SWAP Specially made goods written confirmation admission in court and performance Secured Transactions A security interest is not enforceable until it has attached First to perfect has priority To have perfected security interest party must have a security agreement that attaches and is filed with proper of ce Secretary of state for chattels county clerk for land and fixtures Attachment requires 1 written security agreement 2 value given by secured party 3 debtor has rights in collateral 4 description of collateral Wills Trusts and Estzg To be valid will must be 1 in writing 2 testator must be at least 18 3 testator mu st be competent 4 signed by testator and 5 witnessed and signed by at least 2 people To be valid holographic will must have 1 material terms in testator s handwriting 2 will is signed by testators and 3 no witnesses required If will is not valid decedent has died intestate Colorado Civil Pro County courts have jurisdiction in civil actions where amount in controversy doesn t exceed 15000 District courts have exclusive jurisdiction where amount exceeds 15000 County amp district courts have concurrent jurisdiction for matters under 15000 Venue is proper in Ks and torts cases 1 were any A resides at time action is commenced 2 where H resides if A can be served there or 3 where K was to be performed or tort was committed Federal Jurisdiction Federal district courts have original jurisdiction over all civil cases under Constitution law or US treaties Federal question jurisdiction requires federal question or federal law Diversity jurisdiction requires 1 diverse citizenship and 2 at least 75000 amount in controversy Supplemental jurisdiction applies where claims derive from same factstransactionoccurrence and H would be expected to try them all at once Venue is proper where any A resides Summary judgment is proper only where there s no genuine factual controversy Colorado Family Law A divorce action is initiated by filing Verified Petition for Dissolution Only ground for divorce in CO is irretrievable breakdown of marriage MAID Irretrievable breakdown presumed if 1 parties agree or 2 one spouse says so and the other doesn t deny it Otherwise judge must decide after hearing evidence whether there s an irretrievable breakdown Temporary injunctions issuing upon filing DIP Required disclosures ALIE Guidelines for maintenance ESCAPED CS calculation SAGE Determining paternity PATERNITY Voidable marriages FDIC Best interests of child WISH Marital agreements COIFFED CScustody jurisdiction HEDDEC Constitutional Law Strict scrutiny race alienage national origin fundamental rights govemment regulation must be 1 necessary to accomplish 2 compelling government interest and 3 is narrowly tailored 4 are there less burdensome means available Intermediate scrutiny gender legitimacy TPM regulations government regulation must be 1 substantially related to accomplish 2 important government interest Rational basis regulation must be 1 rationally related to accomplish 2 legitimate govemment interest 1S A freedom of speech freedom of association freedom of religion etc applies to the states through l4 hA Time place and manner to be valid regulation must be 1 contentneutral 2 narrowly tailored to serve importantsignificant government interest and 3 leave open alternative channels of communication Constitutional DP depends on whether interest is a property interest State law determines if there s protected property interest Federal law determines what process is due Contracts A contract must consist of offer acceptance consideration and mutual assent meeting of the minds Consideration is an act forbearance or return promise bargained for and given in exchange for a promise Contract may be express implied or quasi Material terms of an offer are 1 parties 2 subject matter 3 time of performance 4 price and 5 quantity if sale of goods Agreements covered by SoF MYLEGS Revocation is not effective until it s been communicated to and received by the offeree Criminal Law Murder Malice aforethought Manslaughter voluntary and involuntary Heat of passion Battery Assault Aggravated assaultbattery False imprisonment Kidnapping Burglary Robbery Larceny Trespass False pretenses Larceny by trick Embezzlement Receipt of stolen property Conversion Arson Attempt Conspiracy Solicitation Accessory beforeafter fact Intentional in iction of emotional distress Specific intent BAFFLE SCARF Burglary assault forgery false pretenses larceny embezzlement Solicitation conspiracy attempt robbery and first degree murder Criminal Procedure Miranda wamings are triggered by custodial interrogation Miranda waiver must be knowing intelligent and voluntary Arrest requires probable cause Stop occurs when one believes he s not free to leave 4thA protects against unreasonable search amp seizures absent warrant or exception Exclusionary rule prohibits admission of evidence seized in violation of 4thA Evidence Evidence must be relevant to be admissible Relevant evidence has tendency to make a fact of consequence to determination of action more or less probable than without evidence Probative value of evidence must outweigh prejudice Hearsay is inadmissible unless exception applies Hearsay is an out of court statement offered for the truth of the matter asserted Habit must tend to show a habit that person would ve acted in conformity therewith Character evidence is generally inadmissible unless refers to pertinent trait of truthfulness or peacefulness Admissible prior bad acts MIMIC Motive intent mistake absence of identity and common planscheme Expert witness is qualified by showing special knowledge skill experience training or education Hearsay exceptions unavailability required I hate duff Statement against interest statements of personalfamily history dying declarations statement against party procuring declarant s unavailability and former testimony Property Adverse possession OCEAN 4 unities for joint tenancy to be established I love Brad PITT Right to Possess whole Identical equal interests at same Time by same Title Severance of joint tenancy SPAM Sale partition and mortgage RAP applies only to contingent remainders executory interests vested remainders subject to open and options to purchase in most states Automatic for so long as while Conditional but if Frank Sinatra didn t prefer Orville Redenbacher A Fee Simple Determinable has an accompanying Possibility Of Reverter as a future interest Sinatra conveyed to Orville so long as popcorn wasn t made on the premises Easement is right to use all part or some of another s property Failure of easement creates license Terminated by WAM written release abandonment or merger License is privilege to go on another s land Terminable at will Covenant is written promise to do or not do something on land Notice recording act BFP protected from minute he receives deed Racenotice recording act BFP not protected until he records 1 The elements of negligence are duty breach causation and damages The elements of intentional torts are voluntary act by A intent and causation No damages required Defenses to negligence contributory negligence comparative negligence and assumption of risk Defenses to intentional torts Surely raging chicks do nick pricks of repulsive dicks Selfdefense defense of others defense of property reentry upon land recapture of chattels privilege of arrest necessity
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