ALA outline: 1) Torts A) Selecting Ps best cause of action.

Use the following Hierarchy: 1) Intentional Best claim if it can be proven under the facts 2) Strict Liability Nect best if presented by the facts 3) Negligence P must be able to prove the elements. B) Intentional Torts There are 7 intentional torts (4 against the person and 3 against property) 1) Assault 2) Battery 3) False Imprisonment 4) Intentional Infliction of Emotional Distress (the only tort against the person that requires proof of damages, i.e., severe emotional distress) 5) Trespass to Land 6) Trespass to Chattels 7) Conversion C) Defense to above Tort actions: Private Necessirt 1) Private Necessity: one may interfere wit the land or personal property of another when it is reasonably and apparently necessary to avoid injury to your self or damage to your property. 2) Where necessity or the privilege exists, the Defendant will not be liable for a tort, but still must pay for any damage caused. 3) ^^This is the boat case! D) Negligence 1) Five elements to Negligence (a) Duty (b) Breach (c) Actual Causation (d) Proximate Causation (legal cause) (e) Damages (f) [defenses] 2) Establishing a prima facie case for negligence (a) The plaintiff must prove: (i) That the Defendant owed the plaintiff a duty of reasonable care; (ii) That Defendant breached that duty; (iii)That the breach of the duty was the actual and (iv) Proximate cause of the plaintiffs injury; and (v) Damages. 3) Negligence per se

(a) Statute clearly defining conduct, which imposes a criminal penalty; (b) Statute designed to protect a member of the public from a specific or certain type of harm; (c) The P is a member of the class the statute was designed to protect; and (d) The P suffers the kind of harm that the statute was designed to prevent. (e) *note, the violation of the statute must be the actual and proximate cause of the injuries suffered, and P was a member of the class the statute was designed to protect. 4) Doctrine of Respondeat Superior (a) Employer is vicariously liable for torts of an employee committed within the scope of the employees employment (i) The doctrine does not usually apply to intentional torts, unless the intentional conduct is considered part of the employment. (b) Use of force authorized bouncer/security guard; or (c) Employee is furthering the employers business (w/in scope); and (d) Nature of employment is hostile bill collectors! 5) Proximate Cause (legal cause) This is a FORESEEABILITY TEST (a) The result must be a foreseeable consequence of Ds conduct! (b) The plaintiff can recover from the Defendant provided (i) The plaintiff suffered a foreseeable harm; and (ii) The Plaintiff was a foreseeable plaintiff. (c) When evaluating the issue of proximate causation use this tip! (i) Evaluate Ds conduct (ii) Look at the risks created by Ds conduct (iii)Ask whether the injury P suffered was foreseeable (in light of the risks created by Defendants conduct); (iv) In sum, Proximate Cause is usually satisfied where Ps injuries were a foreseeable consequence of the risks Ds conduct created. This is going to be on the MBE. (d) Most commonly tested issue: Whether the original negligent tortfeasor or first negligent defendant is liable for subsequent injuries that P suffers. (i) D will be responsible for all subsequent foreseeable injuries, which arise out of Ds conduct. (i) D will be responsible for all subsequent foreseeable injuries (ii) If the even causing further injury is foreseeable D is usually liable (e) Common foreseeable events almost always (i) Subsequent medical malpractice (ii) Negligence of rescuers (iii)Subsequent diseases caused by a weakened condition (iv) Subsequent accident substantially caused by the original injury (below two less important) (v) Efforts to protect the person or property of oneself or another, (vi) Injuries caused by another reacting to Defendants actions

(f) NOT foreseeable: the following are almost always unforeseeable. But watch out, these events can be made to be foreseeable, watch the facts if D commits a negligent act in a high crime area, then D is usually liable b/c its foreseeable that something will happen (i) Criminal acts of third parties (ii) Intentional torts of third parties (iii) Acts of God 1. Analysis tip: was the act of the third party unforeseeable? Or did the D create the risk or expose the P to a foreseeable risk of harm under the circumstances? 6) Defenses to Negligence (a) Contributory Negligence (b) Assumption of a risk (also a defense to strict liability torts) (i) Known of the risk; and (ii) Voluntarily proceeded (in the face of the risk) anyway. (c) Comparative Negligence (i) Pure Comparative Negligence (default rule) (i) P can recover even if P is more negligent than D. No matter how negligent P is, P can recover! (ii) Partial Comparative Negligence (i) Ps negligence must be less than Ds negligence. The P will recover nothing if he was 50% or more at fault. Plaintiffs fault must be less than 50%. (ii) In some states, Ps fault can be equal to Ds and P can still recover. If P is 50% at fault, then P can still recover (reduced of course by the % of fault). 7) Strict Liability (a) Wild Animals (b) Abnormally Dangerous/Ultra Hazardous Activities (c) Products (i) In SL, the harm suffered must be the type of harm associated w/ the risk of the animal, activity, or product (ii) P must still prove causation and damages 8) Strict Products Liability Restatement (2nd) Torts 402A (this is the default rule applied on the MBE) (a) A Commercial seller or manufacturer, who places into the stream of commerce a defective product, unreasionably dangerous to the user, will be held strictly liable for the harm caused by its use or foreseeable misue. (b) How the defect was created: (i) The defect could be created by negligent design, manufacture, or failure to properly warn. Any one of these could have caused the product to be defected. (c) Defenses to Strict Liability (i) Assumption of the risk

(ii) Adequate warning (iii)Unforeseeable product misuse. (d) **MBE Note On the MBE, in a products case, the 2 most often tested causes of action are: (i) Strict Liability (ii) Negligence (negligent manufacturing or negligence of the commercial seller). (iii)Also breach of K. 9) Negligence products liability (a) The correct cause of action will be negligence when a reasonable inspection could have prevented the harm. On the MBE, use a negligent manufacturing claim to attack the manufacturer where a reasonable inspection could have prevented the harm. (b) On other words, if the manufacturer knew or should have known of the defect, through inspection, testing of the product, or information provided by users, a negligent manufacturing claim will be capable of being proved. E) Defamation 1) Elements (a) A Defamatory Statement (b) About the P or concerning the P (c) Published to a third person that (publication must be made to someone other than the P) (d) Damages the Ps reputation 2) P must prove that D made the statement knowing it was false or with reckless disregard as to its truth or falsity or malice. 3) Public officials: (a) If public official, P must also prove: (i) The statement was false; and (ii) Ault on the part of D. 4) Two types of Defamation: (a) Libel (written) damages to reputation are presumed (b) Slander (spoken) P must prove special (economic loss), unless D made a statement from one of the following slander per se categories: CLUB (i) Crime false statement imputing guilt of a serious crime (felony) or crime involving moral turpitude (ii) Loathsome disease; (iii) Unchaste woman (iv) Statement that aversely affects ones trade, business, or professional reputation. (c) Defenses: (i) Truth; or (ii) P has failed to prove that D acted with malice (if D is a public figure)

(iii)Privilege? F) Privacy Torts 1) Invasion of the right to privacy AFLIP (a) Appropriation of Ps name or likeness w/o permission for commercial gain or advantage (b) False Light (if P is a public official malice must be proved) (c) Intrusion Upon Ones seclusion (d) Public Disclosure of Private Facts 2) REAL ESTATE TRANSACTIONS A) Statute of Frauds: 1) Identify the parties of the contract 2) Sufficiently describe the real property (most commonly tested issue) 3) State the price or the consideration 4) Signed by the party to be charged (against whom enforcement is sought) (a) A deed must be signed by the grantor. Grantees signature is not required. Grantee will be bound by any covenants (promises) stated in a deed, if Grantee accepts delivery. 5) Closing instructions not required but typically included in every real estate contract. B) Description 1) A neutral person reviewing the writing could locate the property by resorting to reasonable means the description must be unambiguous and provide a good lead. 2) If you have a meets and bounds description AND a physical address, and one of them is wrong and nother is rightits OK! Landmark also trumps. C) Oral K 1) Doctrine of Part Performance, oral K for the sale of land are unenforceable if the following can be proved. 2) Majority Rule: Need to prove 2 of the following 3, PIP (a) Payment (b) Improvement (c) Possession (i) Minority rule requires all 3 D) Executory Period 1) What happens after the real estate K is signed and there is a closing date set? The period between the real estate contract signing date and the closing date is called the executory period.

E) Doctrine of Equitable Conversion 1) Majority Rule (a) Under the DEC, the risk of loss is on the buyer during the executory period (i) Seller owes bare legal title in trust for the buyer until closing and buyer has an equitable interest in the property until closing (ii) If the subject matter of the real estate K is destroyed, the seller is entitled to specific performance. (b) Death of the K parties under the DEC (i) If the seller dies prior to the closing, the buyer is entitled to specific performance. (ii) If the buyer dies prior to closing, buyers heirs or estate can force the seller to close. F) Marketable Title 1) **At the closing, the seller must convey good marketable title and a deed. 2) Marketable Title: (a) Title that is free from defect, encumbrance or any cloud on title. A purchaser is not required to bring a law suit. (b) Common encumbrances: (i) Mortgages (ii) Judgments (iii)Liens (iv) Easements (that lower the property value) (v) Restrictive covenants, equitable servitudes (vi) Zoning Violation (vii) Significant encroachments (but not land use or zoning regulations) Seller has up to and through closing to cure any defect in title. Seller can even use the proceeds from the sale to cure any defect or fix the problem! (c) Delivery of a Deed (i) Issue: has titled transferred at closing? (ii) Land can be transferred by gift OR by real estate K, BUT to be valid a transfer of the interest in land must be evidenced by a delivered deed, unless the Doctrine of part Performance applies or there is Adverse Possession. (iii)Gifted (i) To transfer title to an interest in land (by sale or gift) a deed MUST be delivered. Delivery of a deed refers to grantors intent that title to the land transfer immediately. 1. Delivery DOES NOT mean mere physical delivery or physical possession. Delivery is presumed if the deed is (1) handed to the grantee; or (2) acknowledged before a notary and recorded. a. (rebuttable)

2. To determine present intent look at whether the grantor retained control over the deed or the right to revoke. Either indicates a lack of intent to pass title. Where, a grantor executes a deed, keeps control over it, and does not deliver it during his lifetime no title passes. 3) Recording stattues!! Recording statutes are designed to protect bona fide purchasers (BFPs). A BFP is one who gives value, in good faith without notice of any prior deed. Remember that the purchaser must be without notice at the time of conveyance. It does not matter if she learns of an adverse claim after the conveytance but before recording. C RACE H A Recognized R because the statute: contains the word first but NOT the word notice First to record (file) wins RACE-NOTICE Recognized because the statute contains BOTH first AND notice First to record without Notice wins! First BFP wins NOTICE Recognized because the statute contains the word Notice but not the word First Last BFP wins (last BFP to take, wins).

Common law: first deed issued (by date on deed), that is not forged wins. 4) Mortgages A Mortgage is a transfer of interest in land to secure the promise to pay a debt. (a) What is a mortgage. A mortgage is a deed. Real estate transactions have both a mortgage deed and a land deed. The mortgage must also be recorded to be given priority. (b) Mortgagee (i) Bank/Creditor who lends money is a mortgagee. Recording statutes apply. A bank that loans money with notice of a prior mortgage cannot be a BFP. (c) Mortgagor (i) The person who is buying the house! (d) Two theories of Mortgages (i) Lien Theory (majority rule) (i) The bank has a security interest in the house and the mortgagor is deemed the legal owner and is entitled to possession until the foreclosure (ii) Title Theory (minority rule) (i) Legal title is the and until the mortgage is satisfied or foreclosed and mortgagee can demand possession at any time after default.

3) First Amendment A) Religion 1) Freedom to Exercise; or 2) Establishment clause B) Speech 1) Conduct (a) Time, place, manner regulations (i) Public Form (ii) Nonpublic Forum 2) Content (a) Private Speech protected unless unprotected (i) Fighting Words (ii) Fraudulent Advertising (iii)Incitement (iv) Defamation (v) Obscenity 1. FFIDO 3) First Amendment Commonly tested issues: (a) When analyzing speech regulations of private speech first acsk whether the regulation is: (i) Vague (lacks notice); or (ii) Overbroad (reaches more speech than necessary); or (iii)Gives a public official broad discretion in applying the regulation; or if (iv) Regulation seeks to restrain speech, prior restraints on speech are generally unconstitutional (i) Exceptions include: Natl Security, Military, Movies, Fair trial (but only if it is the only way to provide a fair trial). (ii) A prior restraint must provide the following safeguards: 1. The standards must be narrowly drawn, reasonable and definite; 2. Injunction must promptly be soughtl and 3. There must be a prompt and final determination of the validity of the restraint. 4) Government speech (a) The free speech clause forbids government regulation of private speech, but it does not prohibit the government from expressing its own views, or prohibit the government from funding certain speech at the expense of other speech. (b) *** Absent another Constitutional prohibition, actions taken by the government deemed to be government speech will be upheld if the action passes rational basis scrutiny. Rational basis places the burden on the challenger to show that action is not rationally related to a legitimate state interest. First amendment does not apply to government speech.

5) Regulation of Time/Place.Manner (a) Public Forums (streets sidewalks parks). Regulation is permissible if it is: (i) Content neutral (ii) Narrowly tailored to serve an important (significant) gov interest (iii)Leaves open alternate channels of communication 1. Note, the government may designate a nonpublic forum as a public forum a. Where by practice or policy, the govt allows govt facilities to be used for speech activities, the court will consider the forum as a designated public forum apply the public forum test above. (b) Non-Public forums (govt owned facilities) speech regulation must be (i) Viewpoint neutral; and (ii) Reasonably related to a legitimate government interest. 1. Note: the Government may limit the use of a nonpublic forum as a public forum if so, use the non-public forum test above. 2. Viewpoint neutral: If the govt does allow a speaker or a speech activity that advocates a particular viewpoint, the govt must allow someone with an opposing viewpoint to speak. (c) Private Forum govt may adopt reasonable regulations to limit access. 1. Note: even if the regulation meets the conduct test (TMP) the regulation may still be invalid if vauge, overbroad or too discretionary. 6) Defamation (a) On average person (tort) (i) Defamatory statement made by the Defendant (ii) About the Plaintiff (iii)Published to a third person (communicated) (iv) Which cases damage to the Plaintiffs reputation (b) Public Figure (constitutional claim) also requires: (i) Fault (ii) Falsity (i) The statement is false, and the person making the statement knew the statement was false when he made it or the statement was made with a reckless disregard as to is truth or falsity (made with malice). (c) Two types (i) Spoken (slander) (ii) Written (Libel) C) Religion 1) Establishment clause (a) Prohibits laws respecting the establishment of religion

(b) Reglation cannot prefer one-religious sect over another unless it is narrowly tailored to promote a compelling state interest (it is unlikely that such compelling interest would be found). (c) ** Lemon v. Kurtsman (lemon test) (i) If govt reg. contains no sect preference it is valid under establishment clause if: (i) It has no secular (non-religious) purpose; AND (ii) Its primary effect neither advances nor inhibits religion; AND (iii)It does not produce excessive government entanglement w/ religion. NOTE: if the regulation prefers one religious sect over another, then apply strict scrutiny the law is invalid unless it is narrowly tailored to promote a compelling government interest. (ii) In cases involving financial benefits to religious institutions apply 3 part establishment clause test (applied more strictly when religious institutions are involved) (i) If colleges, hospitals this is OK so long as $ used for nonreligious purpose (ii) If grade/high schools often invalid (court applies test more strictly) (iii)If Money (voucher) is given to a select group of persons for education it is valid even if it used for attending a religious school. 2) Free Exercise Clause (a) Rule: (i) A neutral generally applicable law is usually valid even though the law interferes with a persons religious practice. The law is subject to the rational basis test. The burden is on the challenger to show that the law is not rationally related to a legitimate government interest. (ii) If the law was specifically designed to interfere or target religion or a religious practice, then apply strict scrutiny and strike it down! (i) The law will likely be held invalid because the government cannot show that the law was necessary to serve a compelling governmental interest (e.g. a law that prohibits the precise type of animal slaughter used in a ritual by a particular religious sect is unconstitutional). D) Individual rights 1) Strict Scrutiny (a) Burden is on the government to show the law is necessary to achieve or serve a compelling government interest narrowly tailored to achieve that interest. (i) Applies to the Fundamental Rights of: Privacy, Voting, and Interstate Travel, and content based on First amendment regulations.

1. Interstate travel (move to a new state the Court has struck down loas involving a state residency requirement. (ii) Fundamental Right to Privacy: CAMPERS (i) Contraceptives/Abortion (undue burden test) (ii) Marriage (iii)Procreation (iv) Parental Rights (v) Education (private) (vi) Family Relations (right to live with) (vii) Sexual content in a private setting. 2) Intermediate Scrutiny (a) Burden on the government to show the law is substantially related to an important government interest. (i) Gender/illegitimate Children/Children of Undocumented Immigrants. (i) In a gender case, it will be very difficult for the government to prove substantial relationship to an important government interest b/c there needs to be an exceedingly persuasive justification for the discrimination.

[not needed for exam] 3) Rational Basis (a) Burden on the P/Challenger to show the law is not rationally related to a legitimate government interest. (b) Applies to: Age/Wealth/Public Education/Welfare/Economic Regulations

4) CRIMINAL LAW A) Memorize the mensrea

Specific Intent Solicitation Attempt Conspiracy First Degree Murder Assault Larceny Robbery Burglary Forgery False Pretenses Embezzlement

General Intent Rape Battery Kidnapping False Imprisonment Criminal Respass Malice Arson Common Law Murder The 4 most commonly tested Malice/General intent Crimes = C/L Commonlaw-Murder, Rape, Arson, Battery CRAB

Strict Liability Statutory Rape Selling Liquor to a minor

Bigamy (modernly, many jurisdictions may require one to act w/ knowledge that their first marriage is still valid before getting married again.

B) Homicide 1) C/L Defition (a) The unlawful killing of a human being with malice aforethout. (i) To prove malice the prosecution would have to show that D acted with one of the 4 mental states (FIIR) (i) Intended to commit a felony (ii) Intended to Kill (iii)Intended to cause serious bodily harm (iv) Reckless indifference to an unjustifiable high risk to human life or depraved heart murder. C) Murder C/L Murder (FIIR) Intent to Commit a Felony Intent to Kill Intent to Inflict Seriour or Great Bodily Harm Reckless Indifference to an unjustifiable high risk to human life or depraved heart murder 1) Felony Murder (a) A modern crime created by statute (b) In a majority of the states it is called First Degree Felony Murder (i) The killing occurs during the commission of or in furtherance of an inherently dangerous felony Modern Statutes Felony Murder (BARRK) First Degree Murder Second Degree Murder

(i) Burglary (ii) Arson (iii)Robbery (iv) Rape (v) Kidnapping 1. (BARRK) 2) First Degree Murder (a) Premeditation and Deliberation (modern rule) 3) Second Degree Murder (a) All murders are 2nd degree unless the prosecutor can prove that the killing was an intentional premeditated and deliberate killing (hard to show) D) Manslaughter 1) Voluntary legally adequate provocation (a) Provocation that would arouse a sudden and intense passion that could cause an ordinary (reasonable) person to lose control (b) D was in fact provoked (c) Insufficient cooling off time AND Defendant did not cool off. 2) Voluntary Imperfect self-defense rule (a) Where the accused makes an honest but unreasonable belief that he needs to use deadly force to avoid the attack and protect himself. (If the belief is reasonable, D will not be found guilty of manslaughter or murder.) 3) Involuntary (a) Criminal Negligence requires a showing of gross negligence (i) Neglignece which greatly deviates from the reasonable person standard (but not quite reckless required to prove depraved heart reckless disregard murder) (ii) Misdemeanor Manslaughter (D kills during the commission of an unlawful act a misdemeanor or a felony not included within felony murder rule). 4) MPC (a) The MPC abolished the distinction between involuntary and voluntary manslaughter (b) MPC Manslaughter Extreme Emotional Disturbance (EED) or Reckless Conduct. (c) Under the MPC, if one is criminally negligent the crime is called criminally negligent homicide. (i) MPC is the minority position. The Bar Examiners must tell you that you are in a MPC jurisdiction or in a minority jurisdiction, or the answer choices mandate that you select a match to the MPC differences. 5) Felony Murder (a) The death must occur as a natural and probable consequence of committing an inherently dangerous felony

(i) The felony must be independent of the killing (ii) The prosecutor must be able to prove the underlying felony (iii)Once the felons reach a point of safety, the felony is over and a death, which occurs after that is not Felony Murder, but could be another type of murder. (b) Agency Theory: the death of an innocent party must have been caused by the felon or co-felon. If the police or the victim shoots an innocent partyNO FM (c) Proximate Cause Theory: Doesnt matter who killed someone during the felony FM! (d) Red-line view the majority rule (i) For this rule to apply, there must be two felons in the hypo and one of the felons is killed during the felony. (ii) The issue is whether a co-felon can by guilty of FM when his co-felon dies The majority rule says NO. 6) Defense of Self/Defense of Others (a) You must have a reasonable belief that you or another is being or is about to be attacked, reasonable force may be used to prevent harm or protect against injury. (b) You can use no more force than is reasonably necessary to prevent harm or thwart the attack. (c) Deadly Force if you are being attacked with deadly force, you may use deadly force in defense of self/others. (d) Majority Rule: No duty to retreat. (i) REMEMBER you cannot use deadly force to protect property. (e) Self Defense is not available to the initial aggressor (i) However, if you hit someone, and they pull out a gun, and you have a reasonable belief that you are going to be shot/killed, you can use deadly force to defend yourself. (f) Duress: Duress is a defense to a crime when one performs a criminal act because of a reasonable belief that another would imminently inflict dead or great bodily harm upon him or a member of his family if he did not commit the crime. Duress is not a defense to a homicide crime. (g) Entrapment: D must show: (i) That the criminal design originated w/ the police; and (ii) D was not predisposed to commit cime. (iii)If so, the burden switches to the government to prove predisposition.

E) Negating mens rea: remember, anytime you can negate the mens rea, D cannot be guilty of the crime charged. Therefore you must memorize!

Specific Intent Crimes Mistake of Fact Negates Mens Rea Voluntary Intoxication

Any mistake reasonable or unreasonable YesIs a defense to Not a defense a specific intent crime, but it only reduces 1st degree murder to 2nd degree

General Intent/Malice Crimes Reasonable Mistake only

Strict Liability Crimes No Mistake

Not a Defenst

1) Mistake or ignorance of law is not a defense (a) Unless relied on attorneys advice F) CONSPIRACY 1) Elements (a) Agreement between 2 or more persons to commit a crime. A person is guilty of conspiracy with another person if he agrees with such other person to commit an offense (the agreement must be inferred/implied from conduct) (b) Specific intent required: (i) Intent to agree; plus (ii) An intent to achieve the unlawful purpose or objective of the agreement (c) Overt Act (i) Act in furtherance of the conspiracy. An Act of mere preparation is usually sufficient (under modern statutes) 2) Common Law (a) Agreement between 2 parties to commit a crime (to accomplish the same criminal objective) The Conspiracy was Complete upon the agreement no overt act is required under the C/L 3) Liability (a) Each conspirator could be found guilty for all foreseeable crimes committed in furtherance of the conspiracy (pinkerton crimes) unless there has been an effective withdrawal from the Pinkertron crimes. 4) Defense (a) Under most modern statutes, once the conspiracy was complete (agreement + overt act) there was no withdrawal from the conspiracy.

(b) Note: The MPC allows for withdrawal from the conspiracy if D thwarts the success of the conspiracy under circumstances manifesting a complete and voluntary renunciation of your criminal purpose (c) Generally, D can only withdraw from future crimes and not the conspiracy itself. (i) No withdrawal from conspiracy because once the conspiracy was complete, withdrawal from the conspiracy was not possive (modern rule: agreement + overt act completed the crime! C/L conspiracy complete upon the agreement!). 5) Withdrawal (a) To withdraw from cimres committed in furtherance of a conspiracy, the Criminal conspirator must (i) Provide notice to all members of the conspiracy of his withdrawal; (ii) In time for the members to abandon their plans (b) CONSPIRACY DOES NOT MERGE (i) No merger! Can be convicted of both conspiracy to commit a robbery AND robbery G) Property Crimes and Crimes against Habitation 1) Larceny (a) Trespassory (without consent or consent induced by fraud) (b) Taking (D must obtain actual control over the property) (c) Carrying away (asportation slightest movement OK!) (d) Of tangible personal property of another (e) With the specific intent to permanently deprive that person of her interest in the property or seal it (the intent must be concurrent with the taking) 2) Robbery (a) Larceny by force or intimidation from the person or persons presence. 3) Burglary (a) The breaking and entering of the dwelling of another for the purpose of committing a felony or larceny therein at night time. (b) Under C/L no nighttime requirement. (c) Breaking requires slight force 4) Arson (a) The malicious burning of the dwelling of another (C/L) (i) There must be some damage to the wood or structure for the burning element to be satisfied blackening or soot is not enough. (b) Modern statutes: neither burglary or arson requires that the structure be dwelling houses of another any structure can be burned or burglarized.

5) CRIMINAL PROCEDURE A) The 4th amendment 1) The 4th amendmen protects persons from unreasonable searches and seizures. A search or a seizure will be unreasonable where it is executed without a warrant, unless one of the warrantless exceptions applies. (a) Look to see if there is a warrant in the fact pattern: (i) For a warrant to be valid it must be issued by a (i) neutral and detached magistrate; (ii) Describe with particularity the place to be searched and the things or persons to be seized; and (iii)Based on probable cause 1. Trustworthy facts or knowledge that a crime has been or is being committed use a reasonable officer standard under a totality of the circumstances test (within a close time). (ii) *exam note (i) Remember to examine the source of the information being provided to the officer when analyzing probable cause. If the officer received information from an anonymous tip, the officer must corroborate the information. If information is from relaiable informant then it can be used to form the basis for probable cause. Probable causeinformation usually comes from 1. A reliable informant 2. Other police officers 3. Officers own personal knowledge (b) Seizre: evaluate seizure under an objective test whether a reasonable person would feel he is free to leave. An unreasonable seizure invokes 4th amendment protections and occurs where one is not free to leave. (c) Warrantless search exceptions are ASCAPES (i) Automobile search (ii) Stop and frisk searches (iii)Consent search (iv) Administrative searches (road block, border searches, school, and inventory) (v) Plain view (vi) Exigent circumstances/hot pursuit (including evidence capable of disappearing blood tests taken because time will allow the alcohol to dissipate) (vii) Search incifent to lawful arrest (d) Fourth amendment protections are invoked when the following two threshold elements are satisfied. Ask these two questions (i) Government conduct? Y or N (ii) Did Defendant have a reasonable expectation of privacy? Y or N (i) If you answered yes THEN ask (iii)Did Police have a valid warrant Y or N (i) If yes, was warrant valid (ii) If No, does the good faith exception apply?

(iv) If no did police make a valid warrantless search and seizure? (e) Warrantless exceptions to search (details) (i) Automobile search (i) The officers must have probable cause to believe that the car is an instrumentaility of the crime or contains contraband, and if so, then the police can search the entire car (including the trunk) and any locked container large enough to hold the items being searched for. (ii) Stop and Frisk (i) In order to make a valid stop, the officer must have reasonable suspicion that a crime has been committed or is being committed. Reasonable suspicion must be based on articulable (describable) facts of criminal activity 1. The scope and the duration of the stopthe officer can stop a person for only as long as it is necessary to investigate the reason for the stop. (ii) Frisk 1. The officer must have a reasonable belief that the suspect is armed or poses a threat to the officers safety or to the safety of others. 2. Under plain feel exception, officer must immediately know that the item is contraband without having to maneuver the item, and if so then the officer can reach into pocket and seize the contraband. (iii)Plain View (i) Basicitems must be in plain sight. Officer must be lawfully present and it must be immediately apparent that the item(s) is contraband (iv) Search incident to lawful arrest: applies in 2 situations (i) Where an individual is arrested while Not in an automobile 1. An officer can search the area that was or is within the immediate control of the arrestee just prior to the arrest (including the person) (ii) Where the arrestee was just IN AN AUTO 1. Incident to a lawful arrest, an officer can no longer search the passenger section of the auto unless: a. The D is unsecured and may gain access to the vehicle; or b. The officer reasonably believes that evidence of the offense for which the person was arrested may be found. 2) FIFTH AMENDMENT (a) Miranda designed to protect persons against testimonial self incrimination. The 5th amendment is applied to the states through the 14th (b) 5th amendment protections are invoked when a person is in custody and is being interrogated (custodial interrogation). A person in police custody and accused of a crime must be given Miranda warnings prior to police interrogation.

(i) Custody a reasonable person would not believe that he or she is free to leave (ii) Interrogation questioning or conduct on the part of a government officer that the officer knew or should have known would elicit an incriminating response. (iii)Waiver a sispect can waive his Miranda rights but the GOVERNMENT must prove by a preponderance of the evidence that the waiver was knowing and voluntary. (c) Remember 5th amendment is not offense specific. (i) 5th amendment right to counsel must be invoked 3) SIXTH AMENDMENT RIGHT TO COUNSEL (a) Accused D is entitled to an attorney at all critical stages of the proceeding (post charge/indictment). The right to counsel attaches after the accused has been charged and continues through all critical stages of a proceeding. (b) IS offense specific! (i) Attaches to all felonies, all mandatory appeals, a misdemeanor where jail time is imposed or could be imposed even if D was given a suspended sentence. 6) Evidence! POOP! A) Rule 403 1) Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, or (a) Confusion of the issues; (b) Misleading the jury (c) Undue delay; waste of time; or (d) Needless presentation of cumulative evidence B) Rule 408 Compromise and offers to Compromise 1) Statements made in connection with an offer to settle a claim, which is disputed as to liability or as to the amount are inadmissible. 2) Exceptions: Statements can be used to show bias, prejudice of witness, negating charge of unde delay, proving obstruction of a criminal investigation or prosecution. C) Rule 409 Payment of medical bills and similar expenses 1) An offer to pay medical bills is inadmissible to prove liability for an injury. 2) However! Statements of liability made in connection with offers to pay medical bills may be severed and admitted, while the offer to pay the medical bills is executed. D) Why does a judge admit evidence? 1) Substantive evidence (to prove or disprove a case) 2) To impeach a witness (make the W unbelievable) attack a Ws credibility for purposes of impeachment.

E) Commonly tested issues/Rules 1) Best Evidence Rule! (a) The BER applies when a party seeks to prove the contents of a writing, recording or photograph (b) To prove the contents thereof, the original must be produced unless it is showing the original is unavailable. Rule 1002. (c) Where testimony of witness is reliant only on the writing and NOT personal knowledge, the BER applies. F) HEARSAY 1) What is hearsay (a) An out of court (b) Statement (verbal or non-verbal assertive conduct) (c) By declarent (d) Asserted for its truth (the purpose offered must be for its truth; if not offered for its truth its nonhearsay. Eg impeachment is never hearsay) 2) Ask these questions (a) What kind of statement is it? (b) Who made the statement? (c) Determine the purpose for which the statement is being offered (i) Truth=hearsay (ii) Not for its truth = nonhearsay (iii)Is it an admission or a prior statement of a W (i) If Y not hearsay. (d) Do one of the hearsay exceptions apply? (e) SEE FLOW CHART pg 54 3) Hearsay analysis, 7 step approach (i) Ask is the statement Hrsy? If no, stop analysis. (ii) Ask is the statement not hearsay under rule 801(d) (8 exclusions) (iii) If the statement does not fit one of these 801(d) exclusions ask if the statement is admissible under an exception 803 or 804 (iv) For the exceptions under 804 (SFFFD) to be admissible, the declatant must be unavailable (PRIMA). (v) Evaluate whether the Declarants availability matters for purposes of evaluating admissibility under Rule 803 (PPESTRR) (vi) Is the statement testimonial (confrontation clause analysis) (vii) Admissible or Not admissible for some other reason. 4) NOT hearsay (a) Pre-requisite, for the following 3 prior statements of a W to be admissible as not hearsay uner the federal rules of evidence Witness must testify at trial and be subject to cross examination (regardless of whether W was actually crossed). (b) Prior inconsistent Statement (i) This comes in substantively and to impeach where the prior inconsistent statement was a sworn statement made by the W at a prior

proceeding, deposition, trial, or hearing (sworn = subject to the penalty of perjury). (i) If not made under these conditions, can still come in but for impeachment purposes only. Party opponent admission Can be Admitted Substantively and to impeach No requirement that the prior statement be sworn or made at a proceeding Prior inconsistent statement 801(d) Can be Admitted: substantively and to impeach For the statement to be admitted substantively, the prior statement must be sworn and made at a prior proceeding Extrinsic Evidence is Allowed Prior inconsistent statement 613 Can be admitted onto to impeach The prior statement is not sworn or made at a prior proceeding

Extrinsic Evidence is allowed

Extrinsic Evidence can ONLY be used if the W is given an opportunity to explain or deny the inconsistency But compare Rule 806

(c) Prior consistent statement (i) Used to rebut a recent charge of fabrication (not telling the truth). For the statement to be admissible, the statement must have been made before the motive to lie arose. (d) Admissions the following statements of a party opponent are not hearsay. (i) Party Admission in his individual or representative capacity. (ii) Adoptive Admission A party manifests an adoption or belief in the statements truth. This may be by acknowledgement or silence (i) Silence: If the party was silent, use a reasonable person test to determine whether a reasonable person would have spoken-up to deny the statement. (iii)Agent/Employee Statement must have been made by an employee during the existence of the employment relationship, concerning a matter within the scope of the employees employment. 5) Hearsay exceptions (all exceptions may be used substantively. (a) Two types (i) Declarant Unavailable Rule 804 (ii) Declarants Availability to testify is irrelevant to the admissibility of the evidence under the exception Rule 803

(b) Rule 8-4(a) A declarant will be deemed unavailable to testify if one of the following rules apply to show unavailability (PRIMA) (i) P Privilege. A privilege is invoked to make Declarant unavailable (ii) R Refusal Declarant refuses to testify (e.g. invokes the 5th amendment) (iii) I Incapable death illness or mental incapacity (iv) M memory lack of memory (v) A absent Declarant is absent from the hearing. The proponent of a statement has tried but has been unable to procure declarants attendance by service of process or other reasonable means. (c) Rule 804(b) (i) Statements against interest (ii) Former Testimony (iii)Family/Personal history (iv) Forfeiture by wrongdoing (v) **Dying declaration the statement was made while the declarant believed that he was dying. (i) The statement must concern the cause or circumstances of death (ii) The statement can only be used in the prosecution of a homicide case or in a civil case (iii) The declarant does not have to die, but still must be unavailable (this will apply only in a civil case). a. *Note, for one of the above SFFFD to be correct, the declarant must be unavailable. (d) 803 exceptions availability immaterial (PPESTRR) (i) Public Record: records of public offices or agencies (i) Concerning the offices activities; or (ii) Matters observed by public officials. Except that police reports cannot be used in a criminal case (confrontation clause). (ii) Present Sense Impression: A statement describing or explaining an event or condition made while the Declarant was perceiving the event or immediately thereafter (iii) Excited Utterance: A statement concerning a startling event or condition, made while the Declarant was under the stress of excitement (caused by the event). (iv) Statement Made for Purposes of Medical Diagnosis or Treatment (v) Then Existing Mental, Emotional or Physical Conditions (i) I plan on going to the beach on July 31 after the bar exam! (ii) The statement must be a statement made by declarant about a present state of mind or a future plan, not about the past. 1. Exception a Past statement that relates to the validity or terms of a declarants will. (vi) Recorded Recollection (i) Memo or record (ii) Made or adopted by the witness

(iii)About something which the witness once know (iv) But now, the witness has insufficient recollection to accurately testify about the matter (v) If the above elements can be shown, then the memo can be read into evidence, but not received as an exhibit unless offered by the adverse party. (e) In sum, there are 12 big hearsay exceptions (i) Present sense impression (ii) Excited utterance (iii)Then existing mental emotional or physical condition (iv) Statements for purposes of medical diagnosis or treatment (v) Recorded recolletions (vi) Records of regularly conducted activity (business records) (vii) Public records/vital stats (viii) Leanrned treatise (ix) Real estate/prop records (x) Ancient docs (20 year rule) (xi) Religious records (xii) Family records 6) Character Evidence: (a) First start with the premise that no character evidence is allowed. Evidence of your past conduct cannot be used to show that you acted now like you did in the past. If admitted, character evidence comes in as substantive evidence. (b) General Rule character evidence is inadmissible to prove content. (i) Four Major Exceptions! (i) In a Criminal Case A defendant can first offer evidence of his own good character (open door) by reputation or opinion (R/O) evidence to negate or rebut an element of the crime charged. 1. This R/O evidence is always brought in by another witness (an extrinsic witness) 2. Once open, the Prosecutor can rebut 3. [this stuff less important 4. Example 1 (opening the door) a. The Defendant has been charged with a violent crime Murder b. The Defense calls witness to testify: Ive known the D for 10 years and he is very peaceful c. Once the foor is open, Prosecution can rebut the Defense Ws testimony by calling his own W to say the opposite. 5. Example 2 Assault a. Defense Witness (open Door) Ive known the D for 10 years, peaceful

b. Prosecutor on Cross Isnt it true that the D was arrested last week for fighting at the bar c. If W says no, prosecutor is stuck with answer. d. Prosecutor on rebuttal can bring in another witness to testify that he has known D for 10 years and he is violent (ii) Victim Rule (not needed for exam) (iii)Civil Case where Character is at issue 1. Character evidence is usually not allowed in a civil case unless character is at issue. If character is at issue, evidence of specific instances of conduct is also allowed. a. Types of Cases: i. Defamation (libel, Slander) ii. Negligent Entrustment iii. Child Custody (iv) Prior Specific Instance of Conduct to show MIAMI KOPP IN LA 1. Motive 2. Intent 3. Absence of 4. Mistake Identity 5. Knowledge 6. Opportunity 7. Preparation 8. Plan 9. Lack of Accident i. Prior bad acts used to show one of the above, if admitted, the evidence comes in substantively 7) Impeachment (a) Any W can be impeached for truthfulness (b) Impeachment for truthfulness (i) Impeaching a W, calls into the Q the believability of W. (ii) *Rule: Reputation or Opinion evidence about the first witnesss propensity to tell the truth can be introduced to attack the credibility of that witness (iii) Specific instances (i) General Rule: Specific instances of conduct can be inquired into on cross-examination but you are stuck with the answer (ii) Extrinsic Evidence: may not be introduced in court to show that the witness is lying. (c) Impeachment with a prior conviction Rule 609 (i) A felony (punishable by death or imprisonment in excess of one year) (i) Subject to 403 (ii) If the D takes the stand a Prior conviction can be used to impeach if the Court determines that the probative value of admitting this evidence outweighs its prejudicial effect (almost impossible to get in). (iii)*Any crime of false statement or dishonesty

(iv) All prior convictions, felony or crimes or false statement or dishonesty are subject to the ten year rule (v) The crime must be less than ten years old from date of conviction or date of release, whichever is later. (i) Older crimes shall not be admitted unless the Court determines that the probative value of admitting the conviction substantially outweighs the prejudicial effect. (d) Look at impeachment chart, p67 7) Bar Exam Coverage MBE Criminal Law and Procedure 33Qs (1/2 each) Constitutional Law 33Qs Evidence (FRE) 33 Qs Property 33Qs Contracts including Article 2 34Qs Torts 34Qs ______________________________________ 200Qs The MBE consists of 100 mixed Qs in the morning and 100 mixed Qs in the afternoon, tested on the last Wednesday in July and February every year. Non MBE Eassay Topics commonly tested everywhere Business Associations Agency, Partnerships/Corp/LLC Family Law Civ Pro Wills/Trusts Commercial Paper (Neg. instruments Secured Transactions MBE subjects are also tested on the essay exam Con Law Contracts Criminal Law Crim Pro Torts Evidence Property