Study

Question 1

What is non-hearsay?

Answer 1

W-ICId
O-PAE

Declarant-witness:

• Prior inconsistent statement
• Prior consistent statement for rehabilitation
• Prior identification

Party-opponent:

• Made or adopted by party (anything they say)
• Adoptive admission
• Made by agent, employee, coconspirator, or authorized person

Question 2

What are the hearsay exceptions with an unavailable declarant?

Answer 2

DAFTC

• Former testimony
• Dying declaration
• Statement against interest
• Personal/family history
• Against party that wrongly caused declarant’s absence

Question 3

What are the hearsay exceptions regardless of declarant availability?

Answer 3

REC MedIUM
LT PR BR J

1. Present sense impression
2. Excited Utterance
3. Then-existing state of mind
4. Statement made for medical diagnosis/treatment
5. Recorded recollection (no longer able to testify)
6. Business records
7. Public records
8. Learned treatises
9. Judgment of previous conviction

Question 4

What are the grounds for a voidable marriage?

Answer 4

I FAIL (Impotence, Fraud, Age, Intoxication, Lackofintent)

1. Age
2. Impotence
3. Intoxication
4. Fraud, misrepresentation, duress, coercion, or force
5. Lack of intent

Question 5

What are the fault grounds for divorce?

Answer 5

AID, BIICH (Adultery, Indignity, Desertion; Bigamy, Institutionalization, Imprisonment, Cruelty, Habitualdrunkenness)

1. Adultery
2. Cruelty
3. Desertion
4. Habitual Drunkenness
5. Bigamy
6. Imprisonment
7. Indignity
8. Institutionalization

Question 6

What factors are typically considered when awarding spousal maintenance?

Answer 6

CSTL FAM (Contributions, Standard of living, Time to find employment, Length of marriage, Finances, Age, Misconduct)

1. Financial resource
2. Standard of living
3. Time for spouse to find employment or training
4. Length of marriage
5. Contributions to marriage
6. Age and health of parties
7. Marital misconduct

Question 7

When is a marital agreement enforceable?

Answer 7

FF VI’S

1. Full disclosure
2. Fair and reasonable
3. Voluntary
4. In writing
5. Signed

Question 8

When can a state enact legislation discriminating against out-of-state commerce?

Answer 8

PANTS (Participant, Approval, Necessary, Traditional, Subsidy)

1. Necessary to important state interest, no other nondiscriminatory means available
2. State as Market Participant
3. Traditional gov’t function exception
4. Subsidies
5. Federal/Congressional Approval

Question 9

When is the government permitted to restrict speech on the basis of content?

Answer 9

OI, FDC

1. Obscenity
2. Incitement to violence
3. Fighting Words
4. Defamation
5. Commercial speech

Question 10

What is strict scrutiny?

Answer 10

The law must be the least restrictive means to achieve a compelling governmental interest.

Question 11

Define intermediate scrutiny

Answer 11

The law must be substantially related to an important governmental interest.

Question 12

Define strict scrutiny, intermediate scrutiny, rational basis

Answer 12

Strict Scrutiny: the law must be the least restrictive means of achieving a compelling gov’t interest

Intermediate Scrutiny: Substantially related to an important gov’t interest

Rational basis: Rationally related to a legitimate gov’t interest

Question 13

What are the formal execution requirements for a valid will?

Answer 13

WSJ, I U2

Writing
Signed
Intent
Joint presence of two witnesses
Witnesses understand significance of the testator’s act
Witnesses understand the will has no legal effect until after the testator’s death

Question 14

When may a defendant be liable to a third-party victim for intentional infliction of emotional distress?

Answer 14

1. the ∆ intentionally or recklessly causes severe emotional distress to
   2a. a member of the victim’s immediate family who contemporaneously perceives the ∆’s conduct, whether or not it results in bodily injury
   2b. any other bystander who contemporaneously perceives the conduct, if the distress results in bodily injury.

If ∆’s design or purpose was to cause sever distress to 3P victim, victim need not have contemporaneously perceived conduct.

Question 15

What are the elements of Intentional Inflection of Emotional Distress?

Answer 15

IOCD

1. Defendant’s intentional or reckless
2. Extreme and outrageous conduct
3. That causes
4. Severe emotional distress

Question 16

When is the search of an automobile permitted as an exception to the search warrant requirement?

Answer 16

When police have probable cause, they may search anywhere in a car that they believe there to be contraband, including trunk and locked containers. Only applies to compartments/containers that could reasonably hold the evidence they are searching for.

Question 17

What is curtilage?

Answer 17

The area immediately surrounding the home, known as “curtilage”, may be covered by the “umbrella” of the 4A protection.

1. Proximity of area to home
2. Is area included within an enclosure surrounding the home
3. Nature of the uses to which the area is put
4. Steps taken to protect area from observation from passersby

Question 18

What are the 7 exceptions to the search warrant requirement?

Answer 18

T EX, C A V IL Administrator

1. Searches incident to lawful arrest
2. Exigent circumstances
3. Stop and frisk (Terry stops)
4. Automobiles
5. “Plain-view” doctrine
6. Consent searches
7. Administrative, special needs, inventory searches

Question 19

What is a protective sweep, and when is it permitted?

Answer 19

A protective sweep is a quick and limited visual inspection of places immediately adjacent to the place of arrest in which a person might be hiding. It is permitted as a search incident to a lawful arrest that occurs in a home, even without probable cause or reasonable suspicion.

Question 20

What are the three types of mandatory disclosures?

Answer 20

1. Initial disclosures
2. Disclosure of expert testimony 90 days before trial
3. Pretrial disclosures 30 days before trial

Question 21

What are the four requirements to admit a record under the recorded recollection hearsay exception?

Answer 21

1. Record is on a matter the witness once knew about
2. Witness made/adopted the record when fresh in memory
3. Accurately reflects witness’s knowledge
4. Witness cannot recall event well enough to testify fully and accurately, even after consulting the record on the stand.

Question 22

What are the business records hearsay exception requirement?

Answer 22

1. Record kept in the course of a regularly conducted activity of a business, organization, occupation, or calling
2. Making of record was a regular practice of that activity
3. Record made at or near the time by someone with knowledge.

Question 23

What is the best evidence rule, and what are its exceptions?

Answer 23

If contents of a document are at issue, or a witness is relying on the contents of that document, the best evidence rule requires that the original document be produced to prove its contents, unless:

1. All originals are lost or destroyed, and not by proponent acting in bad faith
2. Original cannot be obtained by any available judicial process
3. Party against whom original would be offered (a) had control of original, (b) was on notice that it would be the subject of proof, and (c) failed to produce it at trial or hearing, or
4. Document is not closely related to a controlling issue.

Question 24

When is character evidence admissible in civil cases, and in what forms?

Answer 24

When character evidence is an essential element of a claim or defense.

When admissible in a civil case, character may be proved by reputation, opinion, and specific instances of a person’s conduct.

Question 25

What are 3 instances in which specific acts are admissible in criminal cases?

Answer 25

1. When character is an essential element of a charged crime, and a ∆ offers specific acts inconsistent with the crime 2. For non-propensity purposes (MIMIC: Motive, Intent, absence of Mistake, Identity or Common plan) 3. When character witness is asked on cross-examination about specific acts committed by the person about whom the witness is testifying.

Question 26

When does a statement by an unavailable declarant qualify as a "statement against interest" hearsay exception?

Answer 26

1. Was against declarant's interest at the time it was made | 2. Would not have been made by a reasonable person unless he believed it to be true

Question 27

What are the two spousal privileges?

Answer 27

Spousal Immunity: For the duration of the marriage, a married person cannot be compelled to testify against their spouse in any criminal proceeding. ONLY CLAIMED BY SPOUSE CALLED TO TESTIFY Confidential Marital Communications: Communication made between spouses while they were married is privileged if the communication was made in reliance on the sanctity of marriage. CLAIMED BY EITHER

Question 28

What is involuntary manslaughter?

Answer 28

Unintentional homicide committed 1. With criminal negligence (or recklessness under MPC), or 2. During an unlawful act

Question 29

What is voluntary manslaughter?

Answer 29

Homicide committed with malice aforethought, but also with mitigating circumstances ("heat of passion" or imperfect defense)

Question 30

What are the three elements of common-law solicitation?

Answer 30

1. Enticing, encouraging, requesting, or commanding of another person 2. To commit a crime 3. With the intent that the other person commits the crime.

Question 31

What are the seven elements that identify someone as an independent contractor rather than employee?

Answer 31

1. Bears risk and benefits from good management 2. Maintains high level of independence 3. Is free to work for others 4. Agrees to be paid a fixed fee 5. Receives payment based on results 6. Is liable for work performed 7. Accepts responsibility to remedy defects at her own expense

Question 32

What four elements are required to create an agency relationship?

Answer 32

1. Principal manifests assent to an agent 2. Agent acts on principal's behalf 3. Agent's actions are subject to principal's control 4. Agent manifests assent or otherwise consents

Question 33

What does a partner's duty of care entail?

Answer 33

Refrain from engaging in: 1. Grossly negligent or reckless conduct 2. Intentional misconduct 3. Knowingly violating the law

Question 34

How many a person become a limited partner after the limited partnership is formed?

Answer 34

A person may become a limited partner upon written consent of all partners, unless the partnership agreement provides otherwise.