Virginia Bar Exam Blog
Saturday, July 22, 2006
 

GOOD LUCK!!
You know you know your stuff... Dont stress any more! You know your stuff!!
Don't study after lunch on Monday, get a massage, get your stuff ready to bring to the exam, and TRY to get to bed early... Have your mom call you in the morning, just in case you over sleep... RELAX!! You know that you're smarter than the guys drooling next to you...
Let me know how it goes when you recoup from your hangovers!
 
Friday, July 21, 2006
  Helpful?
Hi there - Please let me know if you look at this blog and if it is helpful... if no one is using this blog, although I would love to help, alas.... I will stop posting outlines and ideas :)
Thanks!
 
  Criminal Law Outline

CRIMINAL LAW & PROCEDURE







FOR ALL CRIMES YOU NEED:
ACTUS REUS
MENS REA
Transferred intent: Homicide, battery, arson
Corporations can’t have mens rea
CONCURRENCE
Actus Reus must occur at same time that D has mens rea.
CAUSATION (sometimes)
For homicide, V must die.

SPECIFIC INTENT CRIMES
Solicitation
Attempt
Conspiracy
First Degree Murder
Assault (Attempted Battery theory)
Larceny
Robbery
Burglary
Forgery
False Pretenses
Embezzlement

MPC INTENT STANDARDS
Purposely: With the conscious object of engaging in certain conduct or causing a certain result
Knowingly: With awareness that the conduct is of a particular nature, or knowing that the conduct will very likely cause a particular result
Recklessly: With knowedge of a substantial and unjustifiable risk that is being consciously disregarded
Criminal Negligence: Failure to be aware of a substantial and unjustifiable risk, where such failure is a substantial deviation from the standard of care.

CRIMES AGAINST THE PERSON
HOMICIDE
MURDER
i. ELEMENTS:
1. The unlawful killing
2. Of a human being
3. With malice aforethought
ii. THE KILLING OF A HUMAN BEING WITH
iii. MALICE AFORETHOUGHT
1. Intent to kill
a. Intentional use of a deadly weapon authorizes an inference of intent to kill.
b. Counts even if mercy killing
2. Intent to commit serious bodily injury
3. Wanton/reckless conduct (depraved heart)
4. During the commission of an inherently dangerous felony (BARRK)
iv. Degrees
1. First degree is usually premeditated.
2. Felony murder will usually be first-degree murder.
FELONY MURDER
i. D must actually be found guilty of the underlying felony.
ii. Felony must be distinct from the killing itself (i.e. not the battery that caused the death).
iii. Death must have been a foreseeable result of the felony.
iv. Death must have been caused before the D’s “immediate flight” ended.
1. Once D reaches a place of safety – no longer felony murder.
v. D usually not liable when a co-felon is killed because of resistance by V or the police.
vi. D not liable for felony murder when an innocent party is killed UNLESS the death is caused by D or his accomplice.
1. Under the “proximate cause” theory, D WILL be liable if the innocent party is killed by V or police.
VOLUNTARY MANSLAUGHTER
i. ELEMENTS:
1. Common-law murder BUT
2. D was provoked.
ii. ADEQUATE PROVOCATION
1. Will be adequate only if:
a. It was a provocation that would arouse sudden and intense passion in the mind of a reasonable person, causing him to lose control AND
b. D was in fact provoked AND
c. There was no cooling off period AND
d. D did not in fact cool off btwn the provocation and the killing.
iii. IMPERFECT SELF-DEFENSE
1. In states recognizing this rule, it will allow murder to be reduced to voluntary manslaughter IF:
a. D killed in self-defense, but HE started the fight, OR
b. D killed in self-defense because he believed it was necessary, but that belief was unreasonable.
INVOLUNTARY MANSLAUGHTER
i. UNINTENTIONAL KILLING
1. V was killed because D was criminally negligent (although he did not intend V’s death).
2. Less “reckless” than required for depraved heart murder.
ii. MISDEMEANOR MANSLAUGHTER
1. Killing happened while D was committing an unlawful act that doesn’t count qualify it for the felony murder rule.
2. Usually must be “malum in se” not just “malum prohibitum”
BATTERY
ELEMENTS:
i. An unlawful application of force
ii. To the person of another
iii. Resulting in either bodily injury OR an offensive touching.
Does not have to actually be skin-to-skin contact – anything connected to D’s person can touch anything connected to V’s person.
i. Example: D causes his dog to attack V)
Aggravated battery (some states):
i. Battery w/ a deadly weapon
ii. Battery resulting in serious bodily harm
iii. Battery of a child, woman, or cop
ASSAULT
ELEMENTS:
i. THEORY 1: An attempted battery.
ii. THEORY 2:
1. The intentional creation of
2. a reasonable apprehension of
3. imminent bodily harm.
Mere words are not enough to be assault.
i. BUT words can negate assault: “(Shaking fist) I’d punch you if you weren’t a girl.”
Aggravated assault:
i. With a deadly weapon
ii. With intent to rape or maim
RAPE
ELEMENTS:
i. Sexual intercourse
ii. By a man
iii. With a woman not his wife
iv. Without her consent
Incapable of consent = no consent
“Slightest penetration is sufficient”
KIDNAPPING
ELEMENTS:
i. Some movement of the victim OR
ii. Concealment of the victim in a “secret” place.
Aggravated kidnapping:
i. For ransom
ii. For the purposes of committing other crimes
iii. Child stealing
MAYHEM
ELEMENTS:
i. Dismemberment or disablement
ii. Of a body part

CRIMES AGAINST PERSONAL PROPERTY
LARCENY
ELEMENTS:
i. A taking
ii. And carrying away
iii. Of tangible personal property
iv. From the possession of another
v. By trespass (includes consent obtained by fraud)
vi. With intent to permanently deprive that person of her interest in the property
vii. At the time of the taking.
Intent
i. The intent to permanently deprive the person of the property must exist when it is taken! Can’t change mind later.
1. BUT “continuing trespass”: If original taking was WRONGFUL but no intent to permanently deprive, and D later changes her mind and decides to keep it, then it’s still larceny.
a. This will not apply if original taking was NOT wrongful (i.e. D thought it was hers).
ii. Intent to put the property at a substantial risk of loss is enough.
Compare embezzlement: No taking from the possession of another, because the person already has possession (bailee).
i. Low-level employee stealing = larceny
ii. Upper management stealing = embezzlement
EMBEZZLEMENT
ELEMENTS:
i. The fraudulent
ii. Conversion
iii. Of personal property
iv. Of another
v. By one in lawful possession of that property.
An intent to defraud is required.
i. Not embezzlement if D believed it was hers.
If D intends to return THAT SAME EXACT property, it’s not embezzlement.
i. BUT intent to return the same or similar property is still embezzlement (even money)
FALSE PRETENSES
ELEMENTS:
i. Obtaining title
ii. To personal property of another
iii. By an intentional false statement
iv. Of a past or existing fact
v. With intent to defraud the other.
Compare: Larceny by trick
i. That’s where mere possession of the property is given up – here, title is actually passed.
V must actually be deceived by the misrepresentation, and must be a major factor in V passing title to D.
RECEIVING STOLEN PROPERTY
ELEMENTS:
i. Receiving possession and control
ii. Of “stolen” personal property
iii. Known to have been obtained in a manner constituting a criminal offense
iv. By another person
v. With the intent to permanently deprive the owner of his interest in it.
Possession
i. Manual possession is not necessary.
ii. If the property is put in a location designated by D while she arranges to fence it, that’s good enough.
“Stolen”
i. Property must actually be stolen when D receives it.
ii. CanNOT be property recovered from a robbery, then the police are using it as part of a sting operation.
1. BUT if D believes it’s stolen and it’s not, can be convicted of attempted stolen property.
ROBBERY
ELEMENTS:
i. A taking
ii. Of personal property
iii. Of another
iv. From the other’s person or presence (including his vicinity)
v. By force or threats
vi. With the intent to permanently deprive V of it.
Force or threats must be of immediate death or physical injury to the victim, a member of his family, or some person in the victim’s immediate presence.
V must actually feel threatened (can’t just give up her property b/c she feels sorry for D).
EXTORTION
Obtaining property by means of threats to do harm or expose information.
Under some statutes, crime is complete when threats are made.

CRIMES AGAINST REAL PROPERTY
ARSON
Elements:
i. The burning
ii. Of a dwelling house
iii. Of another
iv. With malice.
Mere charring is sufficient, but blackening by smoke or water damage is NOT enough.
An explosion is not arson unless it causes a fire.
BURGLARY
Elements:
i. The breaking
ii. And entering
iii. At night
iv. Into the dwelling house
v. Of another
vi. With intent to commit a felony therein.
1. Intent must be present at time of entry.

CRIMES AGAINST THE PUBLIC
FORGERY
ELEMENTS:
i. Making or altering
ii. A writing with apparent legal significance (i.e. a contract, not a painting)
iii. So that it represents something it is not
iv. With intent to defraud
NOTE that it must be something it is not, not merely inaccurate:
i. Warehouse receipt with a wrong amount on it = not forgery
ii. Fake warehouse receipt = forgery
UTTERING A FORGED INSTRUMENT
ELEMENTS:
i. Offering as genuine
ii. An instrument that may be the subject of forgery and is false
iii. With intent to defraud.

“HELPING” CRIMES
ACCOMPLICE LIABILITY
Elements:
i. Give aid, counsel, or encouragement
ii. To the principal
iii. With the intent to encourage the crime.
iv. Mere knowledge that a crime will result is NOT enough.
An accomplice is liable for the crimes he did or counseled AND any other crimes that were foreseeable/probable.
If an accomplice withdraws from the crime BEFORE it becomes unstoppable, he is not liable.
i. Withdrawl = REPUDIATION and ATTEMPT TO NEUTRALIZE any assistance. Telling the cops or taking other action to stop the crime is also sufficient.
Levels
i. Principal = convicted of main crime
ii. Accessory before the fact = convicted of main crime
iii. Accomplice (present at the scene) = convicted of main crime
iv. Accessory after the fact = separate crime of being an accessory after the fact
ATTEMPT
Elements:
i. A substantial step toward an act
ii. Done with intent to commit a crime
iii. That falls short of completing the crime
Must intend to do something that, if completed, would actually be a crime.
Abandonment is NO defense: Crime is complete once D has INTENT and makes a SUBSTANTIAL STEP
Substantial step must be more than mere preparation.
Merges w/completed crime
CONSPIRACY
Elements:
i. An agreement between two or more persons
ii. An intent to enter into the agreement
iii. Intent by at least two persons to achieve the objective of the agreement
iv. Majority of states: Overt act (mere preparation OK)
Conspirators are liable for all crimes committed by co-conspirators so long as they were:
i. Committed in furtherance of the objectives of the conspiracy AND
ii. Were foreseeable
Conspiracy terminates when the wrongful objective is complete.
i. Acts of concealment and other things happening after do not count.
Withdrawl
i. Still liable for conspiracy, but possibly not for subsequent crimes committed in furtherance.
ii. Requirements for withdrawl:
1. Notify all co-conspirators
2. Give notice in time for members to abandon the plan
3. Try to neutralize any assistance given
Separate sub-conspiracies:
i. Chain type: All members liable for all crimes
ii. Hub-and-spoke type: Members only liable for crimes committed in furtherance of their sub-conspiracy
NO conspiracy if person pretended to agree in order to tell the police
Agreement can be inferred from joint activity
A corporation can’t conspire
Traditional view – if all persons D conspired with are acquitted, then D can’t be convicted of conspiracy.
i. BUT if alleged conspirators are never prosecuted because they can’t be found, that’s different.
SOLICITATION
Elements:
i. Inciting, counseling, advising, or commanding another
ii. To commit a crime
iii. With the intent that he commit the crime.
iv. NOTE – if solicitee agrees, it becomes a conspiracy.
Merges w/completed crime

DEFENSES
SELF-DEFENSE
Deadly force is only available IF:
i. She is without fault
ii. She is confronted w/unlawful force
iii. She is threatened w/imminent death or great bodily harm.
If D kills in self-defense but one of these three requirements were not met, some states allow a conviction for manslaughter instead of murder (“imperfect self-defense”).
Requirement of retreat before using deadly force:
i. MINORITY of states say must retreat UNLESS:
1. It’s in V’s house
2. It happens while V is making a lawful arrest
3. Assailant is in the process of robbing V
Right of aggressor to use self-defense:
i. Can use it if the original V suddenly escalates a minor fight into deadly force OR
ii. If the original aggressor withdraws and TELLS V that she is withdrawing.
DEFENSE OF OTHERS
Only requirement is that it REASONABLY APPEARED that the person being attacked would have had a right to use force to defend herself.
DEFENSE OF PROPERTY
Only non-deadly force may be used to prevent the taking.
After the taking is happening, no force is permitted to get it back UNLESS V is in hot pursuit.
INSANITY
M’NAUGHTEN
i. Mental disease or defect caused D EITHER to:
1. Not know what he was doing was wrong OR
2. Not understand the nature and quality of his actions
IRRESISTIBLE IMPULSE
i. Because of a mental illness, D was unable to control his actions or conform his conduct to the law.
MPC SUBSTANTIAL CAPACITY
i. D’s mental disease or defect made him lack the substantial capacity to EITHER:
1. Appreciate the criminality of his conduct OR
2. Conform his conduct to the requirements of law.
DURHAM PRODUCT
i. D’s crime was the product of his mental illness (crime would not have been committed but for the disease)
DIMINISHED CAPACITY (some states)
i. D may assert that as a result of a mental defect short of insanity, he did not have the metnal state required for the crime charged.
ii. Some states allow only for specific intent crimes, others for general intent.
INTOXICATION
VOLUNTARY
i. Defense ONLY to specific intent crimes.
INVOLUNTARY
i. Treated the same way as insanity.
ENTRAPMENT
Only available if:
i. The criminal design ORIGINATED w/the police AND
ii. D was not predisposed to commit the crime before the cops contacted him.
MISTAKE
Even an unreasonable mistake can negate a specific intent crime, if it means D lacked the intent.
Mistake of law no excuse UNLESS:
i. There was reasonable reliance on a statute or judicial decision OR
ii. D’s mistake of law caused him to lack the specific intent necessary.
INFANCY
Under age 7 – no liability
7-14 – rebuttable presumption of no mens rea
Over 14 – treated as adults
NECESSITY
Commission of the crime was necessary to avoid an imminent and greater injury to society, from an OBJECTIVE standpoint.
BUT causing the death of another person is never justified.
NOT a defense if the person created the situation where he had to choose the lesser of two evils.
Necessity must involve pressure from natural or physical forces.
DURESS
D only committed the crime because he reasonably believed that another person would IMMINENTLY inflict death or great bodily harm upon him or a member of his family if he didn’t commit the crime.
NEVER a defense to causing the death of another person.
CRIME PREVENTION
COPS
i. Can use deadly force ONLY if:
1. It is necessary to prevent a felon’s escape AND
2. The felon presents a danger of death or serious bodily harm.
ii. Can use non-deadly force if:
1. It reasonably appears necessary to effect an arrest.
CIVILIANS
i. Can use non-deadly force IF:
1. A crime was in fact committed AND
2. The person has reasonable grounds to believe the person actually committed the crime.
ii. Can use deadly force ONLY if:
1. The person harmed was actually guilty of the crime AND
2. The person threatens human life.

CRIMINAL PROCEDURE

EXCLUSIONARY RULE
Prevents the introduction of evidence obtained in violation of a D’s 4th, 5th, or 6th Amendment rights.
FRUIT OF THE POISONOUS TREE
All evidence obtained as a result of excluded evidence is also excluded, EXCEPT:
i. If it was obtained from an independent source.
ii. There was an intervening act of free will by D.
1. Example: D was illegally interrogated but then comes back to the station after leaving, and confesses.
iii. Inevitable discovery
1. Cops can show they would have found the evidence anyway.
iv. Where it is being used in grand jury or civil proceedings.
v. Where police were acting in good faith on a facially valid search warrant UNLESS:
1. It was so defective they should have realized it,
2. It was so lacking in probable cause it could not reasonably be relied on,
3. The affiant lied to or misled the magistrate,
4. The magistrate has “wholly abandoned his judicial role”
vi. It is being used to impeach D’s credibility when he is taking the stand at trial.
1. This includes:
a. A voluntary confession that violated Miranda
b. Evidence obtained from an illegal search
2. Goes in for impeachment ONLY not as substantive evidence.
NOTE: D cannot have a witness’ in-court identification excluded on the ground that it is fruit of an unlawful detention.
HARMLESS OR REVERSIBLE ERROR
If illegally evidence is admitted, the conviction still won’t be overturned on appeal if the gov’t can show BEYOND a reasonable doubt that the error was harmless.
NOTE denial of a right to counsel at trial is never harmless.


4TH AMENDMENT
UNREASONABLE SEARCH & SEIZURE

PHYSICAL ARRESTS/STOPS
ARREST - PROBABLE CAUSE REQUIRED
i. An arrest must be based on probable cause
ii. Probable cause = Trustworthy facts or knowledge sufficient for a reasonable person to believe D has committed, or is committing, a crime.
iii. A warrant is never required for arresting a person in a public place!
BRIEF DETENTIONS – LOWER STANDARD
i. Stops
1. A stop is permitted w/o a warrant if P has:
a. A reasonable suspicion of criminal activity,
b. Supported by articulable facts (not just a ‘hunch’).
2. The stop can be no longer than necessary to conduct a limited investigation to try and verify the suspicion.
3. May request D give his name, and may arrest him for not complying.
ii. Frisks
1. A frisk is then permitted if P has:
a. A reasonable suspicion
b. That D is armed and dangerous.
iii. Stopping cars on the road
1. P must have a reasonable suspicion to believe the law has been violated OR
2. There are special law enforcement needs involved.
a. These include roadblocks that:
i. Stop cars on the basis of some neutral, articulable standard (every car) AND
ii. Are designed to serve purposes closely related to driving (i.e. testing for drunk drivers, NOT to search for illegal drugs).
3. After lawfully stopping, P may order occupants out, and frisk them if he thinks they have weapons.
4. Cops may stop a car if they really think they committed a traffic violation, even if they secretly just want to check out a suspicious driver!
SEARCH & SEIZURE
GOVERNMENTAL CONDUCT
i. Only acts by the gov’t count here. No problem if private party seizes your stuff.
REASONABLE EXPECTATION OF PRIVACY
i. Unless D has a reasonable expectation of privacy in the property/area searched, then he does not get 4th amendment protection.
ii. Whether someone has an expectation of privacy is based on the totality of the circumstances.
iii. You will ALWAYS Have an EofP if:
1. You owned or had a right to possession of the premises searched,
2. The place searched was in fact your home, even if you did not have the legal right to be there (homeless),
3. You were an overnight guest of the owner of the place searched (incl. Hotel).
iv. There is no ReofP in things held out to the public.
1. This includes account records held by a bank.
WITH A WARRANT
i. WARRANT REQUIREMENTS
1. The warrant must be:
a. Issued by a neutral and detached magistrate
b. On a showing of probable cause
c. Which is reasonably precise with respect to:
i. The place to be searched
ii. The items to be seized
2. A warrant will be held invalid if:
a. A false statement was included in the affidavit by the affiant, AND
b. The affiant intentionally or recklessly lied in the statement, AND
c. The false statement was material to the finding of probable cause.
d. BUT if P relied in good faith on the warrant, the evidence is still admissible!
ii. SCOPE OF WARRANT
1. If it’s not reasonably precise as to place to be searched and stuff to be seized, the warrant is unconstitutional and invalid.
2. Police may NOT search 3d parties found on the premises, not named in the warrant.
3. BUT police can seize any contraband or fruits/instrumentalities of crime they find, even if it’s not in the warrant.
iii. PROPER EXECUTION
1. Only POLICE not private citizens can execute a warrant.
2. upon arrival police must:
a. Knock
b. Announce their purpose
c. Wait a reasonable time for admittance.
d. BUT if Ps believe announcing would be dangerous, futile, or inhibit the investigation, they can just go in.
WITHOUT A WARRANT
i. INCIDENT TO LAWFUL ARREST
1. P may search:
a. The D himself
b. Any areas into which he might reach to obtain weapons or destroy evidence (wingspan).
i. This includes entire passenger compartment of car but not trunk.
2. Search must be contemporaneous in time and place with the arrest.
3. If D is brought into the station, Ps may make an inventory search of his belongings AND his impounded vehicle.
4. If arrest not lawful, search not lawful either.
ii. AUTOMOBILE
1. This is where:
a. P has probable cause
b. To believe the car contains
c. Fruits, instrumentalities, or evidence of a crime.
2. Ps may search the whole vehicle AND any container that might reasonably contain the item for which they had probable cause to search.
a. So if searching for illegal immigrants, can’t look inside small tupperware container.
b. This includes packages belonging to a passenger.
3. If the search is valid, Ps may tow the car to the station and search it later.
iii. PLAIN VIEW
1. Ps may make a warrantless seizure if:
a. They are legitimately on the premises,
b. Discover evidence, fruits or instrumentalities of a crime, or contraband,
c. Which is seen in plain view,
d. And it is immediately apparent that the item is evidence, contraband, or the fruit/instrumentality of a crime.
2. If Ps have a warrant to search for a gun in a home, and open a drawer where a gun could be, and see drugs, that would be a legitimate plain view seizure.
a. Key is they are only entering and looking in places they have a right to look.
iv. CONSENT
1. Consent must be voluntary and intelligent.
2. Knowledge of the right to withhold consent is not required.
3. Person consenting must have a right to enter the premises.
a. Example: Homeowner maybe can’t consent to au pair’s room where it has a separate, locked door.
4. Scope of the search may be limited to to the scope of the consent – but includes all areas where a reasonable person would think it extends.
5. One joint owner can consent, even if property of another joint owner is seized.
v. STOP & FRISK
1. Person stopped on an articulable and reasonable suspicion can be searched via:
a. A patdown of outer clothing
b. UNLESS the P has specific info suggesting a weapon is hidden somewhere else.
2. During frisking P can seize anything that, based on its “plain feel,” could be a weapon or contraband.
vi. EXIGENT CIRCUMSTANCES
1. Ps in “hot pursuit” of a fleeing felon can make a warrantless search and seizure, and may even follow him into a private home.
2. Ps can seize “evanescent evidence” likely to disappear before a warrant is obtained.
3. These things may also justify warrantless searches:
a. Contaminated food or drugs
b. Children in trouble
c. Burning fires
PERSONS OR PLACES SEARCHED
i. PUBLIC SCHOOLS
ii. PROBATIONER
iii. BORDER SEARCHES
1. The 4th Amendment does NOT apply to border searches.
2. Also, aliens searched abroad by U.S. officials have no 4th Amendment rights.
iv. WIRETAPPING
1. Always requires a warrant.
2. Valid wiretapping warrant requires:
a. Probable cause
b. Names of persons to be involved in the conversation
c. A particular description of the conversation to be overheard
d. A time limit that is relatively short
e. A termination of the wiretap once the desired info has been obtained
f. A report to the court afterward showing what conversations were intercepted.
v. BODY SEARCHES

5TH AMENDMENT
COMPULSORY SELF-INCRIMINATION
DOUBLE JEOPARDY
INCRIMINATING STATEMENTS
Privilege against self-incrimination protects compelled testimonial evidence
i. Anytime a person is asked a question where his response might furnish a link in the chain of evidence needed to prosecute him, he can refuse to answer.
ii. MUST be claimed in a civil proceeding to prevent it from being waived in a later criminal proceeding.
iii. Does not apply to physical evidence (i.e. being forced to give a hair sample).
iv. CanNOT claim if there is NO possibility of incrimination (i.e. statute of limitations has run).
MIRANDA
i. Custodial interrogation
1. Triggered when person is:
a. In custody AND
b. Accused of a crime AND
c. Is about to be interrogated.
2. D is in custody when he has a reasonable belief that he could not leave.
3. Interrogation = any words or conduct by Ps that they should know would likely elicit a reasponse from D.
ii. Warning
1. Must be given prior to interrogation, and must tell D:
a. He has the right to remain silent,
b. Anything can and will be used against you in court,
c. He has the right to the presence of an attorney,
d. And if he cannot afford an attorney, one will be provided for him.
2. If D decides to remain silence, police may NOT badger him, and must scrupulously honor the right.
a. BUT the Supreme Court has allowed later questioning on an UNRELATED crime.
3. If D unambiguously asserts that he wants a lawyer, all questioning must cease until the lawyer gets here.
a. Ps can’t wait until lawyer talks to D, leaves, and then start questioning him again.
iii. Waiver
1. Must be knowing, voluntary, and intelligent.
iv. Terminate
1. D can terminate the interrogation at any time by re-invoking his Miranda rights.
Voluntary confessions obtained w/o Miranda warnings CAN be used to impeach D’s testimony if he takes the stand – but do NOT come in as substantive evidence.
At trial, P may NOT comment on D’s decision to remain silent.
DOUBLE JEOPARDY
When it attaches:
i. Jury trial – on the empaneling and swearing of the jury
ii. Bench trial – when the first witness is sworn
Exceptions
i. Hung Jury
ii. Mistrial
iii. When there was manifest necessity to abort the original trial
iv. When the first trial ended at D’s behest, on some ground not constituting acquittal on the merits
v. When the first trial ended b/c D made a plea bargain, then breached it.
Same Offense or lesser included, unless new evidence
i. Does NOT apply if at least one additional element must be proven.
ii. Cannot do a subsequent trial for a lesser included offense.
Does not apply to separate sovereigns
i. One state and another state can both try D for the same crime
ii. State gov’t and fed gov’t can both try D for the same crime
iii. State gov’t and LOCAL gov’t can’t both try D.
Does not bar appeals by P IF an appeal would not require a retrial.

6th AMENDMENT
SPEEDY TRIAL
PUBLIC TRIAL
TRIAL BY JURY
RIGHT TO CONFRONT WITNESSES
ASSISTANCE OF COUNSEL

RIGHT TO COUNSEL
AFTER ARREST
i. The 6th Amend. Only provides a right to counsel once judicial proceedings begin – so there’s no 6th amend. right to counsel when you get arrested. That comes as part of the 5th Amend Miranda rights.
RIGHT AT POST CHARGE-LINEUP OR SHOW-UP
i. If this is violated, the witness can still make an in-court identification if it’s from an independent source (i.e., a chance to see D at the time of the crime).
ii. BUT no right to counsel at photo Ids
iii. Also no right when fingerprints or handwriting samples are taken
CRITICAL STAGES OF A PROSECUTION
i. Right to counsel comes in at all critical stages of prosecution, which include:
1. Preliminary hearings to determine probable cause to prosecute
2. Arraignment
3. Post-charge lineups
4. Guilty plea and sentencing
5. Misdemeanor trials when imprisonment is actually imposed
6. Felony trials
7. Overnight recesses during trial
8. Appeals as a matter of right.
WAIVER & RIGHT TO DEFEND ONESELF
i. Waiver must be knowing and intelligent
ii. Doesn’t matter if he’s incapable of representing himself competently
EFFECTIVE ASSISTANCE OF COUNSEL
i. Effective assistance is generally presumed.
ii. Counsel is ineffective if D can prove:
1. Deficient performance by counsel,
2. Which would have led to a DIFFERENT RESULT in the proceeding if performance was not defficient.
3. D must point out specific deficiencies she is claiming.
iii. If D can show
RIGHT TO A SPEEDY TRIAL
Whether a trial is “speedy” is evaluated by a totality of the circumstances, including:
i. Length of delay
ii. Reason for delay,
iii. Prejudice to D
This right attaches once D has been arrested OR charged.
i. SO if D is walking around free while prosecution gathers evidence to arrest him, that’s not a speedy trial issue.
RIGHT TO A JURY TRIAL
SERIOUS OFFENSES > 6 MOS.
i. Minor offenses with max term of 6 mos. or less don’t require a jury.
ii. For criminal contempt proceedings, cumulative penalties totalling more than 6 months triggers the right to a jury trial.
NUMBER & SELECTION OF JURORS
i. Must be at least 6.
ii. A unanimous verdict isn’t necessarily needed, but if there’s only 6 jurors, they must be unanimous. 9-3 is probably the limit for 12 jurors.
iii. D does not have the right to proportional representation of the community on HIS particular jury.
1. Can only show violation of jury trial right if there is underrepresentation of a distinct and numerical group in the community.
iv. D can challenge peremptory strikes based on race or gender in this way:
1. Show facts or circumstances that raise an inference that exclusion was based on race or gender.
2. Then P must come forward with a race-neutral explanation for the strike.
3. Then judge decides if P is sincere.
v. D is entitled to questioning potential jurors about racism if race is bound up in the case, or he is accused of an interracial CAPITAL crime.
DEATH PENALTY – SELECTING JURORS
i. If the jury is to decide whether D should get a death sentence, D must be allowed to ask whether potential jurors would automatically give the death penalty on a guilty verdict.
1. These jurors would not be able to perform their duty by considering mitigating factors.
RIGHT TO CONFRONT WITNESSES
OBSERVE WITNESS DEMEANOR AND OPPORTUNITY TO CROSS-X
RIGHT NOT ABSOLUTE
i. DISRUPTIVE DEFENDANT
ii. CO-DEFENDANT’S CONFESSION
1. If both are being tried together, and one has given a confession that implicates the other, the right of confrontation prohibits its use at trial UNLESS:
a. All portions relating to the other D can be eliminated AND
b. The confessing D takes the stand and subjects himself to cross-X AND
c. The confession of the non-testifying co-D is being used to rebut the D’s claim that his was obtained coercively.
GUILTY PLEAS
These implicate the 6th Amendment because what they really are are waivers of a jury trial.
At a guilty plea ceremony, the judge must tell D Personally:
i. Of the nature of the charge he is pleading guilty to,
ii. The maximum possible penalty and any mandatory minimum,
iii. That D has a right not to plead guilty,
iv. That by pleading guilt D waives his right to a trial.
A record must be taken of the giving of the guilty plea, and the record must indicate that the plea was voluntary and intelligent.

8TH AMENDMENT
CRUEL & UNUSUAL PUNISHMENT
PUNISHMENT PROPORTIONATE TO OFFENSE
A punishment that is grossly disproportionate to the seriousness of the crime charged violates the 8th Amend.
The death penalty for rape of an adult woman has been found to violate this standard.
DEATH PENALTY
Not inherently violative of 8th Amendment
Jury must be allowed to consider mitigating circumstances
Can be imposed for felony murder IF:
i. D participated in a major way AND
ii. Acted w/reckless indifference
Jury can consider effect on victim’s family
Cannot be imposed on:
i. Retarded
ii. Minors (when crime committed)
STATUS CRIMES
A law that makes it a crime to have a given “status” (i.e. not an act) violates the 8th Amendment.

14TH AMENDMENT
DUE PROCESS
SHOCKS THE CONSCIENCE
A method of obtaining evidence that “shocks the conscience” violates Due Process.
i. Example: Requiring surgery to remove a bullet.
IDENTIFICATIONS
Identifications that are unnecessarily suggestive and where there is a substantial likelihood of misidentification violate due process.

 
  Richmond Bar Review
Has anyone heard of this course? Any comments? Thanks.

http://www.richmondbarreview.com/main.htm
 
Saturday, July 15, 2006
  CONSTITUTIONAL LAW
CONSTITUTIONAL LAW

Strict Scrutiny à Must be necessary to achieve a compelling gov’t purpose
Intermediate Scrutiny à Must be substantially related to an important gov’t purpose
Rational Basis à Must be rationally related to some legitimate gov’t purpose

THE JUDICIAL POWER – HEARING JUSTICIABLE CASES
ADVISORY OPINIONS
A federal court may not render an advisory opinion. There must be specific present harm or threat of specific future harm.
Parties must show:
i. they have engaged in, or wish to engage in, specific conduct,
ii. and that the challenged action poses a real and immediate danger to their interests.
RIPENESS
A case is not yet ripe if there is no immediate threat of harm.
MOOTNESS
A case is moot if there is no longer any immediate threat of harm.
i. Exception:
1. Controversies capable of repetition, yet evading review, are not moot.
2. Class actions – if issue becomes moot as to class representative, the class action can still continue if other members’ claims are still viable.
STANDING
A person must have a concrete stake in the outcome of the case to have standing.
i. Elements:
1. Injury
a. She has been or will be directly and personally injured by the allegedly unlawful gov’t action. Injury need not be economic.
2. Casuation
a. There must be a causal connection between the injury and the conduct complained of.
3. Redressability
a. A decision in the litigant’s favor must be capable of eliminating the harm.
Common standing issues
i. Standing to enforce gov’t statutes
1. Available only if P is within the “zone of interests” Congress meant to protect.
ii. Third-party standing to assert the rights of others
1. Available only when:
a. It is difficult for the third party to assert her own rights OR
b. A special relationship exists (i.e. doctor-patient)
iii. No Taxpayer or Citizen standing
1. A person cannot get standing merely as a taxpayer or citizen of the U.S. à interest too remote.
2. Exception: A taxpayer can challenge taxing and spending measures on First Amendment Establishment Clause grounds (spending to establish religion)
a. SPENDING power must be involved – not giving surplus property to a religious group.
ADEQUATE AND INDEPENDENT STATE GROUNDS
The Supreme Court will not hear an appeal if the decision rested on adequate and independent state law grounds, even if federal issues are involved.
ABSTENTION
Unsettled question of state law
i. A federal court will allow states to interpret their own laws first
Pending state proceedings
i. Federal courts will not enjoin pending state criminal proceedings (and in some cases pending civil proceedings involving an important state interest).
POLITICAL QUESTIONS
Criteria for whether it’s a political question:
i. A “textually demonstrable” constitutional commitment of the issue to the political braches
ii. Lack of manageable standards for judicial resolution
iii. A need for finality in the action of the political branches
iv. Difficulty or impossibility of devising effective judicial remedies
Typical cases that ARE political questions:
i. “Republican Form of Gov’t” clause of Art. IV
ii. Challenges to congressional procedures
iii. President’s conduct of foreign policy
Typically NOT political questions:
i. Legislative apportionment
ii. Arbitrary exclusion of a congressional delegate
iii. Production of presidential papers and communications
ELEVENTH AMENDMENT
Federal courts may not hear a private party’s claims against a state government.
i. Exceptions:
1. D state consents
2. Actions against state officers for injunctions or personal damages, but not damages that will come out of state coffers.
Does not bar suits against county or city gov’ts.
United States gov’t may sue a state w/o its consent – BUT a state may not sue the US gov’t.
State gov’ts may sue each other.

THE LEGISLATIVE POWER
SOURCES OF POWER
COMMERCE CLAUSE
i. Congress has the exclusive power to regulate all foreign and interstate commerce.
ii. Can regulate anything that has a “substantial effect” on interstate commerce.
SPENDING
i. Congress may spend for any public purpose à “for the common defense and general welfare.”
TAXING
i. For tax to be valid, must bear some reasonable relationship to revenue production – can’t be a veiled attempt to regulate.
WAR
i. Power to declare war extends to economic regulations in the postwar period to avoid wartime disruptions.
ii. Can raise armies, create military tribunals
INVESTIGATORY POWER
i. Congress can investigate anything it has power to legislate over.
PROPERTY POWER
i. Congress has power over the properties of the U.S.(including Washington D.C.)
ii. Congress can also take property for public use (eminent domain)
CITIZENSHIP
i. Congress can establish uniform rules of naturalization.
POWER TO OUTLAW BADGES OF SLAVERY
i. 13th Amend – so can outlaw private action discriminating against blacks
NECESSARY AND PROPER CLAUSE
Power to make all laws “necessary and proper” to carrying out its enumerated powers.

THE EXECUTIVE POWER
DOMESTIC POWERS
Appoint all ambassadors, consuls, and Supreme Court justices w/ Senate approval
Right to remove all high-level, purely executive officers
i. BUT Congress may limit President’s power to remove all other appointees (cannot be absolute bar, but can be for cause)
Right to pardon for federal crimes
Veto acts of congress (can be overriden by 2/3 vote of each house)
EXECUTIVE ORDERS
Most likely to be valid if with consent of Congress
If against express will of Congress – may be invalid as violating separation of powers
EXTERNAL AFFAIRS
Pres cannot declare war, but can deploy armies
Pres has supreme power to represent the U.S. in foreign relations.
Power to enter into treaties w/consent of 2/3 of the Senate.
Executive agreements = agreements btwn Pres and a foreign head of state
i. Need not get consent of Senate
ii. Can be used for any purpose that treaties can be used for

STATE v. FEDERAL SYSTEM
1. PREEMPTION
a. If a state law conflicts with a federal law, the state law is invalid.
b. If there is not a federal law on point, but the state law prevents achievement of a federal objective, it will be invalidated.
c. If there is not a federal law on point, but if Congress intended to “occupy the field,” the state law will be invalidated.
i. Factors showing intent to occupy the field:
1. Comprehensive federal scheme
2. Creation of an agency to administer the laws
3. Historically federally-regulated subject matter
4. Need for uniform national regulation
2. INTERSTATE COMPACT CLAUSE
a. If states make an agreement that increases their power at the expense of federal power (banding together) it must get congressional approval.
3. TAXATION/REGULATION ISSUES
a. Federal taxation/regulation of state entities
i. Valid if applies to both public and private sector (i.e. minimum wage laws)
ii. Invalid if applied ONLY to state activity – violates 10th Amendment (i.e. forcing states to take title to nuclear waste)
1. Exception: Civil rights
2. Exception: Conditions on federal grants, if state has option to accept or decline the $$$
iii. States may not commandeer state officials to enforce federal laws (gun law case)
b. State taxation of federal gov’t
i. Nondiscriminatory, indirect taxes are permissible if they do not unreasonably burden the federal gov’t (i.e. state tax on federal workers’ wages)
ii. States may not regulate federal workers while performing their federal functions.
4. PRIVILEGES & IMMUNITIES CLAUSE, ART. IV AND 14TH AMENDMENT
a. Difference:
i. Art IV – prohibits discrimination by a state against non-residents.
ii. 14th Amend – states may not deny their citizens privileges & immunities of national citizenship (i.e. right to travel)
b. Corporations and aliens not protected here
c. Only “fundamental liberties” are protected:
i. Civil liberties
ii. Right to earn a livelihood (commercial activity)
d. A law that discriminates against out of staters may be valid if:
i. The state has a substantial justification for the different treatment, AND
ii. There are no less restrictive means to solve the problem.
iii. NOTE: Protecting in-staters’s interest is not a justifiable reason.
5. DORMANT COMMERCE CLAUSE
a. A state may not discriminate against or unduly burden interstate commerce.
b. To be valid, a state regulation that substantially affects interstate commerce:
i. Must pursue a legitimate end,
ii. Must be rationally related to that legitimate end,
iii. And the regulatory burden imposed by the state on interstate commerce, and any discrimination against interstate commerce, must be outweighed by the state’s interest in enforcing the regulation.
iv. NOTE: If no substantial effect, no need to apply this test à law is valid.
c. For laws that discriminate against out of staters:
i. Law will be invalid UNLESS
ii. It furthers an important, noneconomic state interest AND
iii. There are no reasonable, nondiscriminatory alternatives, OR
iv. The state is a market participant.
d. For laws that treat in-staters and out-of-staters alike, but which burden interstate commerce (truck tires):
i. Will be valid UNLESS
ii. The burden outweighs the promotion of a legitimate state interest, AND
iii. There are no less restrictive alternatives available.
e. A TAX that affects interstate commerce will be valid IF:
i. There is a substantial nexus to the taxing state (significant or substantial activity in the taxing state) AND
ii. The tax is fairly apportioned according to a rational formula, AND
iii. The tax is fairly related to the services or benefits provided by the state.
f. Commodities in interstate transit may NOT be taxed along the way, except for when they start and where they begin.
i. Instrumentalities of interstate commerce (trucks, planes) may be taxed if:
1. They have a taxable situs in the state (like an airline hangar) AND
2. The tax is fairly apportioned (big users pay more than small users).

INDIVIDUAL RIGHTS
1. SOURCES
a. 14th Amendment applies the Bill of Rights to the states
b. The 13th Amendment prevents badges of slavery and involuntary servitude
c. The 14th Amendment prevents states from depriving any person of life, liberty or property without due process of law.
d. 15th Amendment prevents both federal and state gov’ts from denying a citizen the right to vote b/c of race.
e. Sec. 5 of the 14th Amendment gives congress the power to adopt appropriate regislation to enforce rights guaranteed by the Bill of Rights.
f. Under the Commerce Clause, Congress can prohibit private racial discrimination that might have a substantial effect on interstate commerce.
g. Congress also has inherent power to protect the rights of nat’l citizenship.
2. STATE ACTION – ANALYZE FIRST
a. There will be state action if:
i. The entity is performing a traditionally exclusive public function (even if the state itself is not doing it) OR
ii. The state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens.
3. SPEECH
a. PRIOR RESTRAINT ON SPEECH
i. Heavy burden to justify
ii. Must show that some special societal harm will result w/o the prior restraint.
iii. Any system for allowing prior restraints must:
1. Have standards that are narrowly drawn, reasonable, and definite AND
2. Injunction must promptly be sought, AND
3. There must be prompt and final determination of the validity of the restraint.
b. VAGUENESS OR OVERBREADTH
i. If a regulation punishes a substantial amount of protected speech in addition to its plainly legitimate sweep it is invalid as overbroad.
1. If the regulation is not substantially overbroad, it can be enforced against persons engaging in activities that are NOT constitutionally protected.
ii. If a reasonable person could not tell what speech is prohibited and what is not, it is unconstitutionally vague.
1. This is also the case with laws that give unfettered discretion to officials in applying them.
c. CONTENT-NEUTRAL REGULATION
i. Content neutral regulations must:
1. Advance important interests unrelated to the suppression of speech AND
2. must not burden substantially more speech than necessary to further those interests.
d. TIME, PLACE, MANNER RESTRICTIONS
i. For public forums, must be:
1. Content-neutral,
2. Are narrowly-tailored to serve an important gov’t interest, AND
3. Leave open alternative channels of communications.
ii. For non-public, gov’t-owned forums, must be:
1. Viewpoint-neutral AND
2. Reasonably related to a legitimate gov’t purpose.
e. COMMERCIAL SPEECH
i. Commercial speech is covered by the 1st Amend, but may be regulated if the regulation:
1. Directly advances
2. A substantial gov’t interest
3. In a way that is reasonably tailored to achieve that objective.
ii. BUT if it proposes unlawful activity or is fraudulent, no protection
f. SYMBOLIC ACTS AS SPEECH
i. Can be regulated if:
1. Gov’t has an important interest in the regulation independent of the speech aspects AND
2. The incidental burden on speech is no greater than necessary.
g. CAMPAIGN CONTRIBUTIONS AS SPEECH
i. Gov’t can limit election campaign contributions IF:
1. The rules are closely drawn to match a “sufficiently important interest.”
ii. Laws may limit donations to a political candidate BUT not donations to supporting a political issue (i.e. ballot referendum).
iii. Laws may not limit the amount a candidate or group can spend on a campaign.
h. SPEECH THAT DOESN’T GET 1ST AMEND PROTECTION
i. Fraudulent/misrepresentational commercial speech
ii. Commercial speech that proposes an unlawful activity
iii. Speech that creates a clear and present danger of imminent lawless action
1. Must show that imminent illegal conduct is LIKELY and
2. that the speaker INTENDED to cause it.
iv. Fighting words
1. Personally abusive words that are likely to incite imminent physical retaliation in an average person
2. BUT can’t punish only fighting words of a certain viewpoint (i.e. insults on the bases of race)
v. Obscenity
1. Appeals to the prurient interest in sex, using a local standard,
2. Is patently offensive and an affront to contemporary local standards AND
3. Lacks serious artistic, literary, political, or scientific value, using a nat’l reasonable person standard.
vi. Non-obscene, adult material as to children
1. Gov’t can’t completely ban non-obscene material b/c children might get it, BUT can restrict sale to children.
2. Also, can completely ban child porn even though not obscene.
vii. Liquor-related ads
1. Under the 21st Amend, states have broad power to regulate liquor. Regs in this area usually set aside only if irrational.
4. FREEDOM OF ASSOCIATION
a. Infringement of this right is OK if:
i. It is justified by a compelling state interest, unrelated to the suppression of ideas, AND
ii. It’s the least restrictive means of achieving that interest.
b. Loyalty oaths
i. OK if they are not overbroad or vague:
1. Promise not to advocate overthrow of the gov’t is too vague
2. Promise not to advocate UNLAWFUL overthrow of the gov’t is NOT too vague
c. Restrictions on behavior of gov’t employees
i. Can prohibit them from taking an active part in political campaigns
ii. Cannot fire them for belonging to a political party (except where it’s relevant, i.e. working for a political campaign).
d. Disclosure of membership lists
i. Gov’t cannot force disclosure of every member in exchange for a gov’t benefit.
5. RIGHT TO PROPERTY – TAKINGS CLAUSE (5TH AMEND)
a. Allows gov’t to take private property for public use, if just compensation is paid.
i. Public use = rationally related to a legitimate public purpose
b. Taking vs. merely burdening w/ regulation
i. An actual, physical appropriation or physical invasion is almost always a taking.
ii. Use restrictions that deny ALL economic use of the land are a taking.
iii. Regulations that merely decrease the value of property may or may not be a taking, the court will apply a 3-part balancing test:
1. The social goals to be promoted
2. The diminution in value to the owner
3. The owner’s reasonable expectations regarding the property
c. If there is a taking, the gov’t must pay FMV as determined by the loss to the owner, not the gain to the gov’t.
6. RELIGION
a. ESTABLISHMENT CLAUSE
i. Prevents gov’t from preferring one religion over another UNLESS:
1. It is narrowly tailored
2. To promote a compelling interest (interest almost never compelling)
ii. Gov’t religious displays or other endorsements of religion are OK ONLY if it:
1. Has a secular purpose,
2. Has a primary effect that neither advances nor inhibits religion, AND
3. Does not produce excessive gov’t entanglement w/ religion.
iii. Grants to religious schools
1. The Court will apply the 3-part test above more strictly if the school involved is a grade or high school, than colleges etc.
b. FREE EXERCISE CLAUSE
i. This clause prevents the state from punishing someone on the basis of religion.
ii. Cannot deny benefits or impose a burden based on religion absent a compelling interest – BUT the Supreme Court has NEVER found an interest to be compelling enough.
iii. Laws of general application can be applied to religious people UNLESS it was specifically designed to interfere with religion (goat sacrifice v. peyote).
1. No requirement that they be given exemptions.
iv. Gov’t cannot deny unemployment benefits to people who are forced to quit their jobs for religious reasons.
7. RETROACTIVE LEGISLATION
a. IMPAIRMENT OF CONTRACT
i. Only stop states from enacting a law that substantially impairs contracts already in existence – feds aren’t bound by this.
b. EX POST FACTO LAWS
i. A state cannot retroactively change criminal laws if it:
1. Makes criminal an act that was innocent when done
2. Prescribes greater punishment than when the act was done
3. Reduces the evidence required to convict a person from when the act was done
c. BILLS OF ATTAINDER
i. A legislative order to criminally punish someone (without a trial)
8. EQUAL PROTECTION
Remember! Equal Protection only limits STATE action… but grossly unreasonable discrimination by the FEDERAL gov’t may violate Due Process.
a. CLASSIFICATION OR FUNDAMENTAL INTEREST
i. FUNDAMENTAL RIGHT
1. Burdens a fundamental right for some but not others à Strict Scrutiny
a. If it burdens a fundamental right for EVERYONE it’s a substantive due process problem (still strict scrutiny).
2. Fundamental rights:
a. Right to interstate travel
i. Includes right to be treated equally after moving to a new state
b. Right to vote
i. Residency requirements of 30 days of less are OK
ii. Requirement of property ownership usually not OK (except water dist. Etc.)
iii. Restrictions on right to get on ballot à Must be a reasonable, nondiscriminatory means of promoting important state interests.
c. Right to privacy
i. Marriage
ii. Use of contraceptives
iii. Abortion
iv. Sexual relations
v. Right to raise one’s children a certain way
vi. Right to read obscene material in one’s home
3. Special rules for abortion:
a. Pre-viability à No undue burden on right to abortion
b. Post-viability à May prohibit abortion unless woman’s life is threatened
ii. CLASSIFICATION
1. Suspect classà Strict scrutiny
a. Race
b. National Origin
c. Legal aliens
i. EXCEPTION: participation in gov’tal processes/public policy (cops, teachers)
2. Quasi-suspect à Intermediate scrutiny
a. Gender (gov’t must also show an exceedingly persuasive justification for the law)
b. Legitimacy
c. Education for illegal alien children
3. Other classes à rational basis
a. National origin IF issue is participation in gov’tal processes
b. Illegal aliens
c. Age
d. Disability
e. Wealth
b. SCRUTINY
i. Strict scrutiny à necessary for a compelling gov’t interest, least restrictive means
ii. Intermediate Scrutiny à substantially related to an important gov’t purpose
iii. Rational basis à rationally related to some legitimate gov’t purpose
c. To get strict scrutiny based on discrimination based on a suspect class or quasi-suspect class, INTENT to discriminate MUST be shown by:
i. Discriminatory intent on the face of the law OR
ii. Discriminatory application of a law that is facially neutral OR
iii. A discriminatory motive behind the law.
iv. A law that merely happens to have an unintentional, discriminatory effect does NOT count as intent!!
d. Remember – affirmative action gets strict scrutiny BUT the state’s interest in remedying particular, specific instances of past discrimination is “compelling.”
e. Federal alienage classifications are NOT subject to strict scrutiny, need only NOT be arbitrary and unreasonable.
9. PROCEDURAL DUE PROCESS
a. LIFE, LIBERTY OR PROPERTY INTEREST
i. Must be some legitimate claim or “entitlement” to the benefit to make it a property right
b. LEVEL OF PROCESS DUE
i. Three part balancing test:
1. The importance of the interest to the individual,
2. The value of specific procedural safeguards to that interest,
3. The government interest in fiscal and administrative efficiency.
10. SUBSTANTIVE DUE PROCESS
a. Burdens a fundamental right for EVERYONE à substantive due process à strict scrutiny
i. Burdens a fundamental right for some but not others à Equal protection problem à still strict scrutiny.
b. Fundamental rights:
i. Right to interstate travel
1. Includes right to be treated equally after moving to a new state
ii. Right to vote
1. Residency requirements of 30 days of less are OK
2. Requirement of property ownership usually not OK (except water dist. etc.)
3. Restrictions on right to get on ballot à Must be a reasonable, nondiscriminatory means of promoting important state interests.
iii. Right to privacy
1. Marriage
2. Use of contraceptives
3. Abortion
4. Sexual relations
5. Right to raise one’s children a certain way
6. Right to read obscene material in one’s home
c. Special rules for abortion:
i. Pre-viability à No undue burden on right to abortion
ii. Post-viability à May prohibit abortion unless woman’s life is threatened
 
Saturday, July 08, 2006
  Civil Procedure Outline
®CIVIL PROCEDURE

DOES THE COURT HAVE JURISDICTION OVER THE PARTIES?
- Two steps:
o Satisfy long-arm statute if applicable
o Satisfy Due Process
- For Due Process must get ONE of:
o Domicile in state
o Present in state when served
o Consent to jurisdiction
o MAYBE put product into the stream of commerce that caused harm in forum state (Asahi)
§ Split of authority as to whether this is enough
o Approximation of presence in state sufficient for jurisdiction:
§ Contacts factors:
· Minimum contacts with forum state, resulting from purposeful availament
· Foreseeability that D would be haled into court there
§ Weighed against Fairness factors:
· Relatedness between the minimum contacts and the harm done
· Forum not so inconvenient as to put D at a severe disadvantage
· State’s interest in providing a forum for its citizens.
- If Due Process satisfied, the forum need not be convenient.
o Exception: If location puts D at a SEVERE disadvantage in the litigation.
- In rem jurisdiction
o Contact must still meet the Due Process test
o Property at issue is present in the forum state

DOES THE COURT HAVE AUTHORITY OVER THE SUBJECT MATTER?
- Diversity jurisdiction
o Requirements:
§ Amount in controversy EXCEEDS $75K AND
§ Complete diversity
o Domicile for diversity purposes:
§ Individual
· Arrival in state
· With intent to remain indefinitely
§ Corporation
· ALL states where incorporated AND
· The one state where principal place of business is located
o Use “nerve center” (HQ) unless all “muscle” activity all in one state
§ Unincorporated association
· Citizen of every state where a member is a citizen
§ Decedents, minors and incompetents
· Where they are citizens, not executor/guardian/etc.
o Amount exceeding $75K
§ Not counting costs
§ Must be a good faith estimate
§ Not OK unless it is clear to a legal certainty that P could not recover more than $75K.
§ Actual award of less than $75K is irrelevant for subject matter jurisdiction, BUT P may be liable to pay the D’s costs even if she wins.
§ Injunctions – measure value by EITHER:
· Value to P
· Cost to D to comply
§ Aggregation
· One P can aggregate all the claims against one D.
· If suing more than one joint tortfeasor, need not divide number among number of tortfeasors.
· Class actions: Split of authority:
o 9th Circuit: OK if only REPRESENTATIVE’S claim is over $75K
o Other courts: EVERY class member’s claim must be over $75K.
- Federal question jurisdiction
o Well-pleaded complaint must be based on a right or interest grounded in federal law
§ P is enforcing a federal right
o Whether federal DEFENSES will be raised is irrelevant
o No diversity/amount in controversy requirements
- Supplemental Jurisdiction
o When underlying claim is a Federal Question
§ Claims joined by PLAINTIFF
§ That arise from the same “common nucleus of operative fact” as the underlying claim
§ Court has discretion to hear or not hear:
· Was federal question dismissed early in the proceedings?
· Is the state law claim complex?
· Would state law issues predominate?
o When underlying claim can be either FQ or Diversity
§ Claims joined by ANYONE BUT THE PLAINTIFF
§ That arise from the same nucleus of operative fact as the underlying claim
§ Court has discretion to hear or not hear.
- Removal
o Only Ds may remove
o ALL Ds must agree to remove
o Must remove to federal district that embraces state court where it was originally filed
o For diversity cases only: Can’t remove if ANY D is a citizen of the forum state.
o Must remove no later than 30 days after service of the first removable document.

IS THE COURT THE PROPER PLACE TO RESOLVE THIS DISPUTE?
- Venue
o In diversity cases:
§ Where all Ds reside, OR
§ Where a substantial part of the claim arose, OR
§ If no district meets these, where all Ds are subject to personal jurisdiction
o In all other cases:
§ Where all Ds reside, OR
§ Where a substantial part of the claim arose, OR
§ If no district meets these, where any D can be found.
- Residence
o Individuals à residence = domicile
o Corporations reside in EVERY district where they would be subject to personal jurisdiction.
- Improper or inappropriate venue
o Transfer
o Forum Non Conveniens
§ Where transfer is impossible b/c it’s a foreign country or state system
§ Factors court will look at:
· Public factors
o What law applies
o What community should be burdened with jury service
o Need for fact finder to visit site of events
· Private factors
o Where witnesses and evidence are

WHAT LAW GOVERNS THE DISPUTE?
- Erie Doctrine
o Federal courts must apply state substantive law to nonfederal causes of action
o Federal procedural rules can be applied
- Steps of analysis:
o Is there a federal law on point that directly conflicts w/ state law?
§ YES à Apply the federal law as long as it is valid (FRCPs are presumed valid so long as it is arguably procedural)
o If no federal law is on point, but the judge wants to follow federal practice/customs, she can only do so if it is truly procedural and not substantive. If substantive, must apply state law.
§ Steps to analyzing if it’s substantive:
· Would it determine the outcome of the case?
o If yes à probably substantive
· Does either federal or state system have a strong interest in applying its rule?
· Will applying the federal rule cause people to flock to state court (forum-shopping)?
§ Well-established as substantive in these situations:
· Statutes of limitations
· Rules for tolling statutes of limitations
· Choice of law rules

WAS SERVICE PROPER?
- Ways of service:
o Papers given to P personally
o Process left at Ds usual place of abode with a person of suitable age and discretion who resides there
o Service on D’s agent
o Process mailed to D, who returns waiver of formal service form
§ If refuses to waive, may be charged with cost of personal service
o Any way permitted by state law in either:
§ The state where the federal court sits OR
§ The state where service is being made.
o Immunity from service when D in state only to appear in another case.

ARE THE PLEADINGS PROPER?
- Complaint
o Statement of subject matter jurisdiction
o Statement of the claim
o Demand for relief
o Special matters that must be pleaded with particularity:
§ Fraud
§ Mistake
§ Special damages
- Defendant’s response
o Answer
§ Respond to allegations of complaint (admit, deny, or lack sufficient info)
§ Raise affirmative defenses
o Rule 12(b) motion
§ Waived if not raised in first response:
· Lack of personal jurisdiction
· Improper Venue
· Insufficiency of process
· Insufficient service of process
§ Other ones
· Motion for a more definite statement (must be filed before a responsive pleading)
· Motion to strike
· Lack of subject matter jurisdiction
· Failure to state a claim
· Failure to join indispensable parties
- Counterclaim
o Compulsory
§ Arises from the same T/O as P’s claim
o Permissive
§ Against the same P, but from a different T/O
o Supplemental jurisdiction (if needed) for compulsory
- Cross-claims
o Offensive claims against a co-party
o Must arise from the same T/O as original claim
o Not compulsory
o Supplemental jurisdiction (if needed)
- Amendments and supplemental pleadings
o P can amend once before D answers as a matter of right
o D can amend once w/in 20 days of serving his answer
o Further amendments at discretion of court to allow
o Amendments relate back to original filing date
§ BUT if you are changing the D, only relates back if you sued the wrong D but the right D knew about it.
- Rule 11
o Certification
§ Must sign all papers certifying that:
· To the best of her knowledge AND
· After a reasonable inquiry
· The legal contentions are either warranted by law or a nonfrivolous argument for changing the law.
§ Paper is considered re-certified every time it is “presented” to the court
o Sanctions
§ Party alleged to have violated Rule 11 gets a 21-day grace period to fix the problem.

ARE THE PROPER PARTIES AND CLAIMS BEFORE THE COURT?
- Joinder of parties
o Compulsory joinder – necessary parties should be joined if possible
§ Necessary parties:
· W/o them, court can’t grant complete relief
· Absentee’s interest may be harmed if she is not joined
· Absentee claims an interest that could subject a party to multiple obligations.
· Joint tortfeasors are not necessarily necessary parties!
o Permissive joinder – if joinder of necessary party not feasible, court must either proceed without absentee or dismiss.
§ Whether to proceed or dismiss:
· Is there an alternative forum available?
· What is the actual likelihood of prejudice?
· Can the court shape relief to avoid that prejudice?
- Joinder of claims
o Class actions
§ Requirements:
· Class so numerous that joinder is impracticable
· Common questions of law or fact
· The claims of the representative are typical of the class claims
· Representatives will fairly and adequately represent the interests of the class
· If damages class action:
o Common questions must PREDOMINATE
o Class action must be the best way to handle dispute
o Must provide notice to all reasonably identifiable class members, with ability to opt out
§ Types:
· Prejudice – class treatment necessary to avoid harm to other members of class (race to courthouse)
· Injunction/declaratory judgment
· Damages
§ Once certified as a class, court approval required for:
· Settlement
· Dismissal
o Intervention
§ Absentee wants to join as either a P or D.
· Court can realign if it thinks she joined on the “wrong” side.
§ Intervention as of right
· Her interest may be harmed if she can’t intervene, and she’s not adequately represented now
§ Permissive intervention
· Her claim or defense and the pending case have at least one common question.
§ Supplemental jurisdiction (if needed) for intervenor
· Won’t usually get it if intervenor will mess up diversity, even for intervention as of right.
o Impleader
§ Claims involving a third-party defendant brought in by D
§ Must be for indemnity or contribution
§ Other claims
§ Supplemental jurisdiction (if needed) for these
o Interpleader
§ Person with property wants to bring everyone who claims that property into one lawsuit
· Court can enjoin anyone who doesn’t participate from suing elsewhere
§ Rule 22 interpleader
§ Statutory interpleader

HAVE THE PARTIES PROPERLY PROPOUNDED AND REPLIED TO DISCOVERY?
- Types of discovery
o Depositions
o Interrogatories (to parties only)
o Requests to produce
o Physical or mental examinations (requires court order)
o Requests for admission
o Required disclosures
- Scope of discovery
o Anything reasonably calculated to lead to admissible evidence
o Privileged matter not discoverable
o Work product or trial preparation materials not discoverable
§ BUT can discover facts (not mental impressions) if there’s no other way to get the info and there is exceptional need
- Enforcement of discovery rules (sanctions)
o Total or partial failure to provide discovery: Motion to compel plus costs and certify good faith attempt to obtain discovery.
o Sanctions include:
§ Treat matters as admitted
§ Disallow evidence on an issue
§ Establish the issue adverse to the violating party
§ Strike the pleadings
§ Dismiss the cause of action or the entire action (bad faith)
§ Enter a default judgment (bad faith)
§ Hold in contempt
· NOT available for refusal to submit to a physical or mental exam

CAN THE DISPUTE BE RESOLVED WITHOUT A TRIAL?
- 12(b)(6) – failure to state a claim
o Assuming all allegations are true, would P be able to win a judgment? If no, dismiss.
- Dismissal
o Voluntary
§ P can dismiss once without prejudice à second, probably can’t refile even if first filing was in state court.
o Involuntary
- Summary judgment
o The moving party must show:
§ No issues of disputed fact AND
§ Entitled to judgment as a matter of law
o Partial summary judgment may be granted

IF THERE IS A TRIAL, WHO WILL DECIDE THE MATTER?
- 7th amendment right to jury trial for:
o Actions at law
o NOT equitable actions.
o P must demand a jury trial
- Jury selection
o Each side has unlimited strikes for cause
§ Each side gets 3 no-cause strikes
§ Strikes MUST be used in a race and gender-neutral way
- If there is a jury, can its verdict be disregarded?
o Judgment as a matter of law
§ By D à at close of P’s case
§ By P à at close of all evidence
o Renewed motion for judgment as a matter of law
§ Must have moved for JMOL initially
o Motion for new trial
§ Grounds:
· Prejudicial error at trial makes judgment unfair
· New evidence that could not have been obtained by due diligence for the original trial,
· Prejudicial misconduct of party, attorney, third party, or juror
· Judgment is against the weight of evidence

CAN THE DECISION BE APPEALED?
- Final judgment before appeal can be taken
o Nothing left for court to do on the merits
- Exceptions to the final judgment rule
o Pretrial orders involving temporary remedies
o Final judgment on collateral matters
o Interlocutory orders of great importance that may be determinative of the ultimate decision

IS THE DECISION BINDING IN FUTURE CASES?
- Res Judicata
o Claim preclusion
o Already settled by a judgment on the merits
- Collateral estoppel
o Issue preclusion
o Issue must have been actually litigated and essential to the first judgment
- Who is bound by the judgment?
o Can only assert collateral estoppel AGAINST someone who was a party to the original action (required by due process)
o BUT some jurisdictions allow collateral estoppel to be asserted BY someone who was not a party to the original case if the other party had a fair and full opportunity to litigate it in the first trial.
§ When used defensively: A sues B and C, separately, as joint torfeasors. In action Aà B, court finds A was contributorily negligent. In A à C, C wants to collaterally estop on issue that A was contributorily negligent.
§ Can also be used OFFENSIVELY if not UNFAIR. Factors:
· Party had full and fair opportunity to litigate in first case
· Could foreseee multiple suits
· New party could not have joined easily in first suit
· There are no inconsistent judgments on record.
 
Thursday, July 06, 2006
  More Motivation
 
Wednesday, July 05, 2006
  PMBR


OK, now I feel like one of those people sitting at a PMBR desk, but here are my 2 cents on PMBR and the MBE. If you have been reading my blog, you know that I have kinda become a crazy bar exam taker. I have taken 4 bar exams (including some of the what are know as the "toughest" bar exams, Cali and NY). I feel like I have to write this in my blog because I truly believe it to be true - PMBR IS WORTH GOLD! Although Cali and NY dont reveal your MBE score if you pass, the other 2 bar exams I took, I received about 160 raw on the MBE... You must have a high IQ, I was told... but hell no! I was an average law student, and an even more average bar studier... but I will tell you this. If you do well on the MBE you can fail everything else. For exam, one of my fellow Cali study-buddies figured out that with just a 142 raw on the MBE you can litterally fail every essay and every PT with a 60 and still pass.

So this is my 2 cents advice... no matter what you read on other blogs or what your friends think, unless they have more bar exam taking experience than me, listen to what I am about to say...

1. Take the PMBR 6 day and 3 day

2. For the 6 day, dont just do the questions at home and then come in for the lecture (worse yet, do the questions at home and review the answers at home). This is why... the bar exam is not just about answering questions. It's about timing. It's about being able to concentrate 110% while the person next to has whooping caught. It's about being up and functioning at 9AM. Also, the PMBR lecturers dont just read the answers out of the book. They give you advice and mini-pep talks... which is good.

3. For the 3 day, dont just do the simulated exam the 1st day and then review the answers at home the 2nd and 3rd day..

4. Of course, you dont have to take any of this advice, but I promise you that is what got me through 4 bar exams...

If anyone has any thoughts, please post them!!

 
Sunday, July 02, 2006
  HAPPY 4TH OF JULY WEEKEND!!

HAPPY 4TH OF JULY WEEKEND! I remember that this was my last weekend of "freedom". This marked the begining of crunch time... so, I took full advantage of partying my ass off this weekend.

I hope that everyone is having a blast... Dont worry if you start really getting nervous from now forward. It happens to everyone! But look on the bright side. Only about 3 weeks of this my butt is hurting from sitting, my fingers are sore from writing and my brain is about to bust from all this studying! It will all be over soon!

GOOD LUCK WITH CRUNCH TIME!!
 
This is a blog for people serious about taking the Virginia bar exam... Emotional and study support system.

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Location: New York, New York, United States
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