MOST IMPORTANT BAR

Abstention Doctrine

A federal court may abstain from deciding a claim only when strong state interests are at stake. A court may abstain:

Pullman: The case involves unsettled state law

Younger: Pending state criminal cases in the absence of bad faith, harassment, or invalid state statute

Buford: Parties seeking injunctive relief that would interfere with complex state regulatory scheme

Colorado River: Case is substantially similar to another case being heard in the state.

Congress’ regulation of states through conditional funding

Congress can regulate states through conditional funding if the condition:

• Is for the general welfare

• Is unambiguous

• Relates to a federal interest in particular national projects or programs

• Does not induce states to act unconstitutionally AND

• Does not exceed the point at which “pressure turns into into compulsion”

Powers of Congress

The powers of Congress are limited to those enumerated by the Constitution; powers not granted to the federal government nor prohibited to the states are reversed to the states (Tenth Amendment)

Commerce Power (Commerce Clause)

• Generally: Congress can regulate channels, instrumentalities, and any activity that substantially affects interstate commerce, provided that the regulation does not infringe upon any other constitutional right

• Substantial economic effect: Congress can regulate any activity (intra- or interstate) that has a substantial economic effect on interstate commerce, measured by whether there is a rational basis for concluding the activity in aggregate would affect interstate commerce (presumed economic activity).

• Noneconomic activity: Substantial economic effect not presumed and must be established

Taxing and Spending Power

• Taxing: Congress has the power to tax if it is reasonably related to raising revenue

• Spending: Congress has the power to spend for the general welfare and can use its spending power to regulate activity by conditioning federal funding on such activity

Necessary and Proper Clause: enables Congress to legislate to execute its powers

Other Powers: War, property, elections, noncitizens and naturalization, investigatory

Enforcement Powers: Congress is empowered to enact legislation to enforce the civil rights guarantees of the 13th, 14th, and 15th Amendments.

Dormant Commerce Clause

The Dormant Commerce Clause limits the power of states to legislate in ways that impact interstate commerce. States can regulate interstate commerce so long as the regulation does not:

• Discriminate against out-of state commerce

  • unless the regulation is necessary to an important state interest AND

  • NO nondiscriminatory means are available to achieve that purpose.

• Unduly burden interstate commerce OR

  • Balance the purpose of the state law against the burden on interstate commerce AND

  • Evaluate whether there is a less restrictive alternative.

• Purposefully regulate wholly out of state activity.

EXCEPTIONS:

• Market Participant: A state can favor local commerce or discriminate against nonresident commerce if the state is acting as a buyer or seller and not as a market regulator.

• Traditional government function exception: State and local regulations can favor state and local government (not private) entities if the entities are performing a traditional government function.

• Congressionally permitted discrimination: An otherwise impermissible state regulation is valid if it is unmistakably clear that Congress intended to permit it.

State Taxation of Commerce

A state tax on interstate commerce is valid if:

• There is a substantial nexus between the activity being taxed and the taxing state

• The tax is fairly apportioned pursuant to a rational formula such that interstate commerce does not pay total taxes greater than local commerce by having tp pay tax in multiple states

• The tax does not discriminate (either on its face or in effect) so there is no direct commercial advantage to local businesses over interstate competitors AND

• The tax is fairly related to the services provided by the taxing state.

How will a court determine the amount of process due under the Procedural Due Process Clauses?

The court will weigh the individual interest affected

The risk of erroneous deprivation and value of additional safeguards AND
The government’s interest, including the burden/cost of additional process.

Fundamental Rights for Substantive Due Process

• Travel

• Voting

  • Rational-basis (Ordinary):

    • voter registration

    • short-term residency requirements

    • Photo-ID required

    • Disallowing write-in voting

    • Prohibiting persons with felony convictions

  • Strict Scrutiny (Severe):

    • Poll tax

    • Property-ownership requirement

    • Disallowing third-party candidacies

• Privacy

  • Marry

  • Contraception

  • Sexual behavior

  • Parents control over kids

  • Families to live together

  • Obscene material

  • Refuse med treatment

  • Avoid disclosure of med information

Types of Discrimination for Equal Protection (Strict or Intermediate Scrutiny)

• Facially discriminatory: The language of a law distinguishes between different classes of persons. Discriminatory intent is presumed.

• Discriminatory application: A facially neutral law is applied differently to different classes of persons. Purposeful discrimination.

• Discriminatory impact: A law that is neutral on its face and in its application disproportionately impacts a particular class. Purposeful discrimination.

Takings

Physical: Seizure of property, can be from damage or destruction. Primary challenge is whether the owner has received just compensation.

Recharacterization: Government recharacterizes private property as public property.

Regulatory: Permanent physical occupation of the property by the government or a third party or a permanent total loss of the property’s economic value.

Exaction: No essential nexus between legitimate state interests and the conditions imposed on the property owner and not roughly proportionate between the burden imposed on the property owner and the impact of the proposed development.

Ex Post Facto

• Criminalizes an act that was NOT a crime when it was committed

• Authorizes a more severe penalty after an act was committed

• Deprives a defendant of a defense available when the act was committed

• Decreases the prosecution’s burden of proof below that required when the act was committed

Expressive Conduct

Subject to a lesser degree of protection than traditional speech. A regulation of expressive conduct will be upheld if:

• The regulation is within the government’s power to enact

• It furthers an important governmental interest

• The interest is unrelated to the suppression of ideas AND

• The burden on speech is no greater than necessary.

Overbreadth v. Vagueness

A law is void for overbreadth if it burdens a substantial amount of speech or other conduct protected by the First Amendment

• Does not apply to commercial speech

• May be challenged as “facially invalid” to prevent a chilling effect on protected speech.

A statue is void for vagueness if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited.

Prior Restraints

Generally not allowed unless:

• There is a particular harm to be avoided

• Certain procedural safeguards are provided to the speaker

  • standards are narrowly drawn, reasonable and definitive

  • censoring body must seek injunction

  • prompt and final judicial determination of the validity of the restraint

Regulation of Speech on Government Property

Content Based Restrictions:

• Strict Scrutiny — invalid statute unless it is necessary and narrowly tailored to a compelling government interest. Applies to:

  • traditional public forum

  • designated public forum used for a designated purpose

• Rational Basis — valid so long as reasonably related to a legitimate government interest and is viewpoint neutral. Applies to

  • designated public forum used for unintended purpose

  • Nonpublic forum

Content Neutral Restrictions:

• Intermediate Scrutiny — impermissible unless it is narrowly tailored to a substantial government interest and leaves open alternative channels of communication. Applies to:

  • traditional public forum

  • designated public forum

• Rational Basis — valid so long as it is reasonably related to a legitimate government interest. Applies to:

  • Nonpublic forum.

Test to determine obscenity

• Appeals to the prurient interest (community standard)

• Depicts s**ual content in patently offensive way (community standard) AND

• Lack serious literary, artistic, political, or scientific value (national standard — determined by the judge not the jury).

Four part test to restrict commercial speech

• The commercial speech must concern lawful activity and be neither false nor misleading

• The asserted governmental interest must be substantial

• The asserted regulation must directly advance the asserted interest

• The regulation must be narrowly tailored to serve that interest (meaning a reasonable fit between the government’s ends and the means chosen to accomplish those ends).

Types of Agency Authority

A principal is bound to a contract entered into by an agent when the agent had actual or apparent authority or the principal is estopped from denying the agent’s authority.

Actual:

• Express: express manifestation of a principal’s intent that causes the agent to reasonably believe that the agent is doing what the principal wants

  • can be created by (1) oral or written words, (2) clear, direct, and definite language, or (3) specific detailed terms and instructions. Must give clear notice is the principal disagrees

• Implied: What an agent reasonably believes to be necessary, usual, and proper to achieve the principal’s objectives

  • Custom: absent contrary instructions, an agent has implied authority to act within accepted business customs or general trade usage with an industry

  • Position: Placing an agent in a position of of authority may manifest assent to the agent’s actions

  • Acquiescence: Implied authority results from:

    • The principal’s acceptance of the agent’s acts OR

    • The principal’s failure to object to the unauthorized actions of the agent that:

      • Affirm the agent’s belief about the principal’s objectives AND

      • Support the agent’s perceived authority to act in the future

Apparent: Words or conduct that cause a third party to reasonably believe that the agent has authority to act on the principal’s behalf.

• Reasonableness: Words or conduct that can cause a third party to reasonably believe that the agent has the authority to act on the principal’s behalf include:

  • Past dealings between the principal and agent

  • Trade customs for similar transactions

  • Relevant industry standards

  • The principal’s written statements of authority.

Termination of Agent Authority

• Revocation/ renunciation: Effective as soon as either party gives notice to the other. Authority cannot be revoked if the agent’s power is coupled with an interest in the subject matter of the power

• Agency agreement: The principal and agent mutually agree to terminate the agent’s authority or specified circumstances in the agreement occurred

• Changed circumstances: The change causes the agent to reasonably believe that the principal no longer consents to the agent acting for the principal

• Death of the principal: Agent’s authority terminates upon notice

• Death of the agent: Automatically terminated

Ratification by Principal

A principal can ratify an act performed by another person, regardless of if they are an agent, by affirming that the act was done on the principal’s behalf. Requirements:

• Principal must ratify the entire act or transaction

• The principal must have the legal capacity to ratify the transaction and the third party must have the capacity to engage in the transaction

• The principal’s ratification must be timely

• The principal must have knowledge of the material facts involved in the original act

Respondeat Superior

A principal is vicariously liable to a third party harmed by an agent who is an employee and was acting within the scope of employment (while performing assigned work or engaging in a course of conduct subject to the employer’s control).

• Scope of employment:

  • Conduct is within the space and time limits of the employment

  • The employee was motivated to act for the employer’s benefit

  • The act was the kind that the employee was hired to perform.

Principal’s are liable for independent contractors when any of the following apply:

• The principal retained control over the source of the tortious conduct

• The principal hired the independent contractor to perform nondelegable duties

• The independent contractor had apparent authority

• The principal was negligent in selecting, training, or supervising the independent contractor.

Direct liability to third parties if

• The principal’s authorized the agent’s conduct (or its intended consequences) or ratified prior acts done on the principal’s behalf

• The principal was negligent in selecting, training, or controlling the agent or

• The principal delegated to the agent the performance of a nondelegable duty (inherently dangerous activity).

Agent’s Liability

For CONTRACTS determined by whether the principal is disclosed.

• Disclosed principal: NOT liable for contract. Third party has notice of the principal’s existence AND identity

• Partially disclosed principal: LIABLE. Notice of the principal’s existence but not identity

• Undisclosed principal: LIABLE. NO notice of the principal’s existence.

For TORTS agent is liable to third party for their own actions. NOT liable for principal’s actions

Rights and Duties of Principal

Rights:

• Control the agent

• Notice and accounting

Duties:

• Duty to deal fairly and in good faith

• Duty to compennsate

• Duty not to interfere

• Duty to indemnify

Remedies for Breach:

• Injunction

• Contractual damages

• Tort damages

• Recission

• Restitution

• Accounting

• Termination of agency relationship

• Forfeiture of compensation

• Disgorgement of profits

Rights and Duties of Agents

Rights:

• Compensation

• Work without interference

• Indemnification

• Reimbursement

• Safe work environment

Duties:

• Duty of care

• Duty of obedience

• Duty to provide information

• Duty to keep and render accounts

• Duty of loyalty

Agent’s Remedies for Breach

• Contract damages

• Tort damages

Formation of a Partnership

Two or more persons (or entities) to carry on a for-profit business as co-owners.

If there is profit sharing, it is presumed to be a partnership. NOT a partnership if:

• Debt payments

• Rent

• Annuities or other retirement/health benefits

• Wages or other compensation

• Interest or loan charges

• Goodwill payments from sale of business.

Purported Partner/ Partner by Estoppel

• There is a representation that the person is a partner

• The purported partner makes or consents to the representation

• A third party reasonably relies on the representation

• The third part suffers damages because of that reliance.

Partner’s Duties

Duty of loyalty— Partner must not:

• Compete with partnership business

• Advance an interest adverse to the partnership OR

• Usurp a partnership opportunity

Duty of care— A partner must refrain from:

• Grossly negligent or reckless conduct

• Intentional misconduct

• Knowingly violating the law

Partner Approval Requirements

Partner can act on own (unless they know other partners would disagree):

• Usual and customary matters

Majority of partners need to approve:

• Ordinary partnership decisions

ALL partners need to approve:

• Matters outside the ordinary course of the partnership’s business

• Amendments to the partnership agreement

• Admission of a new partner

Parter Disassociation

• Partner gives notice of withdrawal

• The partner’s expulsion due to partnership agreement, unanimous vote of the other partners, or the partner’s bankruptcy

• The partner’s death

• Appointment of a guardian for the partner

• A judicial determination of the partner’s incapacity to perform their duties under the partnership agreement OR

• Termination of an entity partner

Disassociation is wrongful when:

• Dissociation breaches an express provision of the partnership agreement. This will trigger dissolution

• Before the term or undertaking of the agreement ends the partner (1) withdraws, (2) is expelled by court order, (3) is a debtor in bankruptcy, or (4) is not an individual, trust, or estate and is willfully dissolved or terminated. Triggers dissolution if a majority of the remaining partners agree to wind up the partnership within 90 days of dissociation

Conversion of Partnership

Conversion is the legal process by which a partnership can change into a limited partnership, or vice versa. Conversion typically must approved by all the partners, and the partnership must file articles of conversion with the state. If a limited partnership is converted to a partnership, then the limited partners continue to have limited liability for pre-conversion obligations.

Other Partnerships

Limited Liability:

• A partner in an LLP is not personally liable for LLP obligations but is personally liable for their own misconduct. Name must have RLLP or LLP in it.

Limited Partnership:

• A limited partner is an investor who contributes capital to the LP in exchange for a proportionate share of its profits. A limited partner is generally not personally liable for LP obligations unless the LP is also a general partner or participates in the control of the business.

• A general partner has the same rights and powers as a partner in a simple partnership and may contribute to the LP, share in its profits and losses, and receive distributions.

Requirements for Corporation

De Jure Corporation

• Articles of incorporation must be filed with the state

• Must include the corporation’s name and address

• The name and address of its registered agent

• Name and address of each incorporator

De Facto Corporation

• Owner must have made good-faith effort to comply with the incorporation requirements and operated the corporation without actual knowledge of the defect.

Corporation by estoppel

• A person who dealt with an entity as though it was a corporation will estopped from denying its existence and seeking personal liability.

Types of Stock

• Common stock: Stock that grants voting rights on matters of corporate governance AND represents an ownership interest in the corporation

• Preferred stock: Stock that grants preference over the stock with respects to distributions

Federal Causes of Action (Corporations)

Rule 10b-5:

• Plaintiff purchased or sold a security

• The transaction involved the use of interstate commerce

• The defendant engaged in fraudulent or deceptive conduct

• The conduct related to material information

• The defendant acted with scienter (intent or recklessness)

• The plaintiff justifiably relied on the defendant’s fraudulent conduct AND

• the plaintiff suffered harm because of that conduct.

Section 16(b):

Force a corporate insider to return short-swing profits to applicable corporations

• Corporate insiders: Directors, officers, shareholders with > 10% of the corporation’s stock

• Short-swing profits: Profits made when stock is bought and sold within a SIX MONTH period.

Shareholders Requirements

Meeting Requirements:

• MUST hold annual meeting

• MAY hold special meeting

  • Called by the board of directors or by shareholders who own at least 10% of the voting shares.

• Must be notified of the time, date, and place of a meeting in a timely manner. 10-60 days before.

• Shareholders may waive notice of meeting in writing or by attending meeting

Voting Requirements:

• Only owners of stock by the record date can vote.

• Proxy vote allowed if executed in a signed writing and delivered to the corporation or its agent.

• Quorum = majority of votes

• Special Voting for Directors

  • Can be cumulative (shares x open seats = votes).

Suits by Shareholders

• Direct action: (1) an action to enforce shareholder rights or (2) a non-shareholder action, the recovery from which benefits the indirect shareholder

• Derivative action: an action in which the shareholder sues on behalf of the corporation for harm suffered by the corporation.

To have standing to bring a derivative action, the shareholder must:

• Have been a shareholder at the time of the wrong, be a shareholder when the action is filed, and remain a shareholder during the litigation

• Fairly and adequately represent the interests of the corporation AND

• File a written demand on the board of directors at least 90 days before the action commences.

Piercing the Veil

Courts consider the totality of the circumstances when determining whether the corporation is being used as the shareholder’s alter ego or facade for a dominant shareholder’s personal dealings. Factors cutting in favor of piercing the corporate veil include:

• Undercapitalization of the corporation at the time of formation

• Disregard of corporate formalities

• Intermingling of corporate and personal assets

• Self-dealing with the corporation

• Siphoning of corporate funds or stripping corporate assets

• Use of the corporate form to avoid existing statutory requirements or other legal obligations

• Misleading, fraudulent, or otherwise wrongful dealings with a corporate creditor

Duties of Controlling Shareholder

A controlling shareholder is a shareholder (or group acting in concert) who holds 50% or more of the shares. They have a fiduciary duty to minority shareholders if they are:

• selling an interest to an outsider

• eliminating other shareholders from the corporation

• receiving a distribution denied to other shareholders

Duty includes the duty to disclose information that a reasonable person would consider important in deciding how to vote on a transaction AND the duty of fair dealing when purchasing a minority shareholder’s interest.

Business Judgment Rule

Provides a rebuttable presumption that a director reasonably believed that their actions were in the best interest of the corporation. To overcome the rule, it must be established that the director:

• Did not act in good faith

• Was not informed to the extent they reasonably believed was necessary

• Had a material interest in the challenged conduct and was not objective

• Failed to devote attention to the corporation’s affairs

• Failed to timely investigate matters of material concerns OR

• Received a financial benefit to which he was not entitled.

Duty of Loyalty for Director of Corporation

Breached when:

• director engages in conflict-of-interest transaction with the corporation

  • Would normally require approval of the board of directors AND

  • is of such financial significance to the director that it would be reasonably be expected to influence their vote on the transaction

    • SAFE HARBOR

      • Disclosure of all material facts to, and approval by a majority of, the directors who do not have a conflicting interest

      • Disclosure of all material facts to, and approval by a majority of, the votes entitled to be cast by the shareholders who do not have a conflicting interest

      • Fairness of the transaction to the corporation at the time the transaction commences

• usurps a corporate opportunity

  • INTEREST OR EXPECTANCY TEST: Whether the corporation has an existing interest, or an expectancy arising from an existing right in the opportunity

  • LINE OF BUSINESS TEST: Whether the opportunity is within the corporation’s current or prospective line of business.

• competes with the corporation

Involuntary Dissolution

By shareholder:

• Corporate assets are being misapplied or wasted

• The directors are acting illegally, oppressively, or fraudulently

• The directors are deadlocked, the shareholders are unable to break the deadlock, and irreparable injury is being threatened or suffered

• The shareholders are deadlocked and fail to elect successors to the directors whose terms have expired

Special Types of Corporations

Close corporation:

• Has only a few shareholders

• Stock is not publicly traded

• Has a more relaxed style of governance

Foreign corporation:

• Incorporated in another state

• Must register and seek a certificate of authority from the current state

Professional corporation: Purpose is statutorily limited ro the rendering of a professional service

S Corporation:

• Avoids double taxation by passing income and expenses to shareholders

• Shareholders are taxed directly

Benefit corporation:

• Is a for-profit entity

• Corporate purpose is to create a social or environmental benefit.

Management for LLC

The management of an LLC can either be direct (by members) or centralized (by one or more managers who need not be members). In a member-managed LLC, members have broad authority to bind the LLC. In contrast, in a manager-managed LLC< the managers have the authority to bind the LLC.

Liabilities
A manager is not personally liable for obligations incurred on behalf of the LLC, and a member is generally not liable for an LLCs obligations. However, members may be liable if the veil is pierced due to undercapitalization of the LLC, commingling of assets, confusion of the business affairs, or deception of creditors.

Duties

Members of a member-managed LLC and managers of a manager-managed LLC owes duties of loyalty and care to the LLC and its members.

• Duty of loyalty: This includes the duty to account to the LLC for any benefit derived by the member related to the LLC’s business, avoid dealing with the LLC on behalf of one having an adverse interest, and avoid competing with the LLC.

• Duty of care: This duty is subject to the business judgement rule; there is no liability for simple negligence

• Fiduciary waiver: These waivers are recognized in LLCs. Members can agree to specific types of activities that do not violate the duty of loyalty, if the agreement is not manifestly unreasonable.

Exclusion of Relevant Evidence

Relevant evidence may be excluded if its probative value is substantially outweighed by:

• Unfair prejudice

• Confusing the issues

• Misleading the jury

• Undue delay

• Waste of time

• Needlessly cumulative

Specific Acts during Cross-examination

When a character witness is being cross-examined, the court may allow a party to inquire into relevant specific acts committed by the person about whom the witness is testifying. But if the character witness denies the specific act, then extrinsic evidence is NOT admissible to prove the specific act. The party is stuck with that answer.

Character for Truthfulness

Evidence of a witness’s truthful character CANNOT be used to bolster the witness’s credibility. It is only admissible AFTER a direct attack on the witness’s truthful character through reputation or opinion testimony.

A specific act is generally NOT admissible to attack or support a witness’s character for truthfulness. However, on cross-examination, a witness may be asked about specific instances of conduct if they are probative of (un)truthfulness of the witness OR another witness about whose character the witness being cross-examined has testified.

Although an arrest cannot be used to impeach a witness’s character for truthfulness, a criminal conviction can be used, subject to certain limitations:

Conviction OR release more than 10 years ago?

• YES: Felony or dishonesty — NOT admissible unless probative value substantially outweighs prejudicial effect. Reasonable with written notice.

• NO:

  • Crime of dishonesty — ADMISSIBLE

  • Felony

    • Is the witness a criminal defendant?

      • YES — NOT admissible unless probative value outweighs prejudicial effect

      • NO — ADMISSIBLE unless prejudicial effect substantially outweighs probative value

Prior Inconsistent Statements

A prior statement can be used to impeach a witness if it is inconsistent with the witness’s present testimony. However, unless otherwise ordered by the court, extrinsic evidence of the prior inconsistent statement CANNOT be admitted until:

• The witness was given the opportunity to explain or deny the statement AND

• The opposing party can examine the witness about it.

The opportunity to explain or deny does not apply when the statement impeaches a hearsay declarant or qualifies as an opposing party’s statement.

Rehabilitation of a Witness

An impeached witness may be rehabilitated by:

• Providing an explanation or clarification on redirect examination

• Offering opinion or reputation evidence of the witness’s character for truthfulness, if character was attacked on that ground OR

• Offering a prior consistent statement to rebut an express or implied charged that the witness lied due to improper motive or influence.

Present Recollection Refreshed

Admissibility:

Item may be used to refresh a witness’s memory before or during testimony if:

• The witness once knew but can no longer recall a fact

• The item will help the witness remember AND
  The witness’s testimony is based on the refreshed recollection—not the item itself

Use by opponent

• Inspect the item

• Compel production

• Use on cross-examination

• Introduce into evidence

Past Recollection Recorded

Admissibility

A record may be used as a substantive proof and read into evidence if:

• The witness once knew but can no longer recall a fact

• The witness made or adopted the record when the fact was fresh in their mind AND

• The record accurately reflects the witness’s knowledge

Use by opponent

• Offer record as exhibit

Lay Witness Opinion Testimony

A lay witness’s opinion testimony is admissible if it is:

• Rationally based on the witness’s perception (e.g., appearance, emotion, intoxication, vehicle speed)

• Helpful to clearly understand a witness’s testimony or to determine a fact in issue AND

• NOT based on scientific, technical, or specialized knowledge.

Expert Witness Testimony

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion if the proponent demonstrates that:

• The expert has scientific, technical or other specialized knowledge

• The expert’s knowledge will help the trier of fact understand the evidence to determine a fact in issue

• The expert’s testimony is the product of reliable principles and methods AND

• The expert’s opinion reflects reliable application of those principles and methods to the facts of the case.

When an expert’s opinion is based on inadmissible facts or data, the opinion is ADMISSIBLE if experts in that particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject. The proponent may disclose the otherwise inadmissible facts to the jury if their probative value substantially outweighs their prejudicial effect. The opposing party can then challenge the adequacy of the expert’s knowledge on cross examination.

Additionally, an expert must have a reasonable degree of certainty in their opinion. And though an expert CAN express an opinion on an ultimate issue in most cases, an expert CANNOT state an opinion about whether a criminal defendant had the requisite mental state for a crime.

Authentication of Documentary Evidence

• Most documents: Stipulation, eyewitness testimony, or handwriting verification

• Ancient documents and data compilations: Proof that the document (including electronically-stored data) is at least 20 years old when offered, its condition creates no suspicion about its authenticity, AND it was found in a place it would likely be it it were authentic.

• Public records: The record was recorded or filed in a public office as authorized by law or in an office where that type of item is kept.

• Reply letter: The document was written in response to a communication, and the contents make it unlikely that the document was written by someone other than the recipient of the first communication

• Handwriting: Comparison by an expert or testimony by a non-expert with personal knowledge that was NOT acquired for litigation purposes

• Self-authenticating: Certain documents (e.g., public documents bearing a governmental seal, certified copies of public records, newspapers and periodicals, notarized documents, commercial paper) do not require extrinsic evidence for authentication

Best Evidence Rule

An original document or reliable duplicate must be produced to prove the contents of a writing when:

• The contents are at issue (e.g., contents prove an event, have a legal effect, provided facts learned by witness) OR

• The witness is relying on the contents when testifying (was not an eyewitness)

A duplicate is admissible unless the original’s authenticity is questioned or it would be unfair to admit the duplicate

EXCEPTIONS

• Original unavailable: Other evidence can be used to prove the contents of a writing if:

  • The originals are lost or destroyed (not by proponent’s bad faith)

  • The original is not attainable by judicial process

  • The opponent had the original, knew that it was required, but failed to produce it OR

  • The writing is not closely related to a controlling issue

• Public records: Contents of public records can be proved by a certified copy (most common), a copy of the record PLUS comparison testimony, or other evidence (if the aforementioned proof is not reasonably obtainable

• Summaries: The contents of voluminous documents may be presented in the form of a chart, summary, or calculation when the documents cannot be conveniently examined in court. The proponent must make the original or duplicate available for examination, and the court may order the proponent to produce them

• Admission by party: Contents of a document can be proved by the opposing party’s testimony, deposition, or written statement.

NON-Hearsay Declarant-Witness’s Prior Statement

When the declarant (1) testifies at the present trial or hearing AND (2) is subject to cross-examination the following testimony is qualifies as non-hearsay:

• Prior statement of identification of a person after perceiving that person is admissible as non-hearsay substantive evidence even if the witness has no memory of the identification

• Prior consistent statement is admissible to rebut an express or implied charge that the declarant recently fabricated the statement or acted with an improper motive. However, the prior statement MUST have been made before the declarant had reason to fabricate it.

• Prior inconsistent statement made under penalty of perjury is admissible to impeach the declarant’s credibility AND as substantive evidence.

ANY prior inconsistent statement can be used for impeachment because impeachment is a non-hearsay purpose

NON-hearsay Opposing Party Statements

A statement made by a party to the current litigation is non-hearsay when it is offered by an opposing party. This exclusion include statements made without personal knowledge, opinions, and statements that are not against the party’s interest. It also includes:

• Adoptive admissions: statements made by another person that a party expressly or impliedly adopts as the party’s own.

  • Silence in response is considered an adoptive admission if:

    • the party understood the statement

    • the party had the ability and opportunity to deny the statement AND

    • a reasonable person similarly situated would have denied the statement.

• Vicarious statements: Statements made by a person (e.g., employee, agent, authorized speaker) that are imputed to an opposing party based on the relationship between them.

• Statements made by conspirators during and in furtherance of a conspiracy that are offered against co-conspirators

• Judicial admissions: Conclusive evidence when the admission is made in a pleading, during the discovery process, or during a proceeding. However, withdrawn guilty pleas are generally NOT admissible in subsequent proceedings.

Declarant Unavailable as Witness

Unavailability arises when the declarant:

• Is exempt from testifying on the grounds of privilege

• Refuses to testify despite a court order to do so

• Lacks memory of the subject matter of the statement

• Is unable to testify due to death, infirmity or physical or mental disability

• Is absent and cannot be subpoenaed or otherwise made to be present

However, if the unavailability is due to the procurement or wrongdoing of the procurement to prevent the declarant from testifying at or attending the trial, the the declarant is not “unavailable as a witness”

Exceptions for Unavailable Declarants:

• Former Testimony: Prior witness testimony is excepted if the party against whom the testimony is offered had an opportunity and similar motive to develop the testimony.

• Dying declaration: In homicide and civil cases, a statement is excepted if:

  • The declarant believed death was imminent AND

  • the statement pertained to the cause or circumstances of death

• Statement against interest: A statement is excepted if:

  • It was against the declarant’s proprietary or pecuniary interest at the time it was made

  • A reasonable person would NOT have made the statement unless it was true AND

  • For statements that would subject the declarant to criminal liability, corroborating circumstances clearly indicate its trustworthiness

• Statement of personal or family history: A statement about birth, adoption, marriage, divorce, or a similar fact of personal or family history is excepted.

• Statement against party that caused unavailability: A statement is offered against a party that wrongfully cause the declarant’s unavailability is excepted

Present Sense Impression

Statement explaining or describing an event or condition that is made while the declarant perceives it OR immediately after.

Excited Utterance

A statement about a startling event or condition that is made while the declarant is under the stress of the excitement it caused

Then-Existing Mental or Physical Condition

A statement of a then-existing state of mind (present intent, motive, or plan) or an emotional, sensory, or physical condition is excepted from hearsay.

Medical Diagnosis or Treatment

A statement describing a patient’s medical history or past/present symptoms is excepted from hearsay if it is made for the purpose of medical diagnosis or treatment. The statement need not be made by the patient, and this exception extends to statements made to a physician, other medical personnel, and family members.

Recorded Recollection

If a witness is unable to testify on a matter for which a record exists, the record is excepted from hearsay if:

• The records concerns a matter the witness once knew about

• The record was made when the matter was fresh in the witness’s memory

• The records accurately reflects the witness’s knowledge AND

• The witness testifies that they cannot recall the matter well enough to testify about it even after consulting the record on the stand.

The witness may READ the record to the jury, but the record may be received as an exhibit ONLY if offered by an adverse party.

Business Records

A record of an act, event, condition, opinion, or diagnosis is excepted from hearsay if:

• The record was kept in the course of regular business activity

• Making the record was a regular practice AND

• The record was made at or near the time by someone with knowledge

Exception extends to records of any organization, including nonprofits. However, records made in anticipation of litigation are NOT admissible as business records. Courts may exclude business records if the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

Public Records

A record of public office or agency is excepted from hearsay if it sets out:

• The activities of the office

• An observation by a person under a duty to report it (except observations by police in criminal cases, which are admissible only through testimony of the officer available for cross-examination) OR

• Factual findings of a legal investigation

Learned Treatises

A statement in a treatise, periodical, or pamphlet is excepted from hearsay if:

• An expert witness relied on the statement during direct examination or cross-examination AND

• the publication is a reliable authority.

Judgement of Previous Conviction

A final judgement of conviction is excepted from hearsay when:

• The judgment was entered after a trial or guilty plea

• The conviction was for a crime punishable by death or imprisonment for more than ONE year AND

• The evidence is offered to prove any fact essential to sustain the judgment

Residual Exception

The statement must be:

• Supported by sufficient guarantees of trustworthiness AND

• More probative than any other evidence that the proponent can obtain through reasonable efforts.

Sixth Amendement Confrontation Clause

In a criminal trial, the Confrontation Clause precludes the admission of testimonial hearsay evidence against a defendant UNLESS:

• the hearsay declarant is unavailable AND (2) the defendant had a prior opportunity to cross-examine the declarant.

A statement is testimonial if it was made under circumstances that would cause an objective witness to reasonably conclude that the statement would be available for use at a later trial.

The Confrontation Clause also limits the hearsay exception to statements against a party that wrongfully cause the declarant’s unavailability to cases where the defendant acted with the particular purpose of making the witness unavailable

Malice Crimes

Malice crimes (e.g., common law murder, arson) require reckless disregard of a high risk of harm. Malice does not require thta a defendant act with ill will toward the victim. The defendant need only commit the criminal act without excuse, justification, or mitigation.

Model Penal Code Mens Rea

Crimes defined by statute generally state the mens rea requirement. The four levels of culpability according to the MPC are:

• Purposely: Defendant’s conscious objective is to engage in the conduct or to cause a certain result

• Knowingly/Willfully: Defendant is aware or knows that the result is practically certain to occur based on the conduct

• Recklessly: Defendant acts with a conscious disregard of a substantial and unjustifiable risk

• Negligently: Defendant should be aware of a substantial and unjustifiable risk that a material element of a crime exists or will result from the conduct (i.e., a gross deviation from the standard of care)

Mistake of Fact

A defendant’s misunderstanding of a material fact

Common Law

• Specific-intent crimes: It is a defense even if the mistake is unreasonable

• General intent or malice crimes: It is a defense only if the mistake is reasonable

MPC

• It is a defense if the mistake prevents the prosecution from establishing the required state of mind for a material element of the crime

Strict Liability

• It is NOT a defense becayse strict liability offenses have no mens rea requirement

Mistake of Law

A defendant’s misunderstanding of the legal effect of a known fact or circumstance

Common Law

• It is generally NO defense even if the mistake is reasonable

MPC

• A defendant’s lack of knowledge of a criminal statute is NO defense

• A defendant’s honest mistake of law may be a defense if it negates the requisite mental state

Accomplice

Principal (2nd degree)

• Person who (with the requisite mens rea aids or abets a principal prior to or during the crime

• Is physically or constructively present during the commission of the crime

• Liable for target and foreseeable crimes

Accessory before the fact

• Person who (with the requisite mens rea) aids or abets a principal prior ro or during the crime

• Is not physically or constructively present during the commission of the crime

• Liable for target and foreseeable crimes

Accomplice Liability and Withdrawal

An accomplice is responsible for the crime and all other crimes that are the natural and probable consequence of the accomplice’s conduct.

To withdraw, an accomplice must:

• Repudiate prior aid

• Do all that is possible to countermand prior assistance AND

• Do so before the chain of events is in motion and unstoppable

Insanity

For insanity to be a defense, the elements of insanity must have been present at the time of the crime. The four legal test for insanity are:

• M’Naghten: The defendant did not know the nature and quality of the act, or the wrongfulness of the act, because of a defect of reason due to mental disease (right from wrong test)

• Irresistible Impulse: The defendant lacked the capacity for self-control and free choice due to a metal disease or defect (unable to conform conduct to the law)

• Durham: The unlawful act was the product of the defendant’s mental disease or defect (“but for” test)

• MPC: At the time of the conduct, the defendant lacked substantial capacity to appreciate the wrongfulness of the act or to conform their conduct to the law because of a mental disease or defect (combines M’Naghten and irresistible impulse)

Common Law Murder

The unlawful killing of another human being with malice aforethought. There must be a causal relationship between the defendant’s actions and the victim’s death. Malice aforethought can be shown by ANY of the following:

• Intent to kill: When accompanied by a defendant’s intent to kill, conduct that is the legal cause of the death constitutes intent-to-kill murder.

• Intent to inflict serious bodily injury: A person who intends to do serious bodily injury is guilty of murder despite the lack of intent to kill.

• Reckless disregard for human life (deprave heart): An unintentional killing that results from reckless indifference to an unjustifiably high risk to human life.

• Intent to commit an inherently dangerous felony: Felony murder is an unintended and foreseeable killing proximately caused by and during the commission (or attempted commission) of an inherently dangerous felony (BARRK crimes)

Felony Murder Theories

If someone else (other than a co-felon) is killed by a police officer or dies as a result of the victim’s resistance to the felony, then the defendant’s liability for that death depends on the theory applied in that jurisdiction.

Agency theory (majority): The defendant is NOT liable for a bystander’s death caused by a felony victim or police officer because neither person is the felon’s agent.

Proximate-cause theory (minority): A bystander’s death falls under the felony-murder rule because the death is a direct consequence of the felony.

Redline doctrine: A defendant is generally not guilty of felony murder when a victim or a police officer kills a co-felon.

Larceny

A trespassory taking and carrying away of another’s personal property with the specific intent to permanently deprive the owner of that property

Larceny by Trick

Larceny accomplished by fraud or deceit that results in the conversion of another’s property.

Forgery

The making of a false writing of apparent legal significance with the intent to defraud.

Embezzlement

Fraudulent conversion of another’s property by someone in lawful possession of that property

False Pretenses

Obtaining title to another’s property through that person’s reliance on a representation of a material past or present fact that was known to be false and made with intent to defraud

Extortion

Common Law: The unlawful taking of money by a government officer

MPC: The taking of money or property from another by threat.

Burglary

Common Law: The breaking and entering of another’s dwelling at night with the specific intent to commit a felony therein.

MPC: The entering of another’s dwelling OR structure with the specific intent to commit a felony therein

Arson

Common law: The malicious burning of another’s dwelling

MPC: Intentionally causing a fire or explosion to destroy a building OR occupied structure (including a vehicle or business) OR destroying or damaging property to collect insurance on the loss

Kidnapping

The unlawful confinement of a person against that person’s will coupled with either the movement or hiding of the person.

Solicitation

Solicitation is (1) enticing, encouraging, requesting, or commanding another person (2) to commit a crime, (3) with the intent that the other person commit the crime.

At common law, renunciation was not a defense to solicitation. But under the MPC, voluntary renunciation may be a defense if the defendant thwarts the commission of the solicited crime.

Conspiracy

An agreement between two or more persons to accomplish an unlawful purpose with the specific intent to accomplish the purpose. Under the Pinkerton rule, a conspirator is liable for (1) the conspiracy and (2) all substantive crimes committed by co-conspirators acting in furtherance of the conspiracy.

• MPC (majority)/ Unilateral approach: At least one person must specifically intend to enter the agreement and (if not a first or second degree felony) at least one conspirator commits an over act in furtherance of the conspiracy

• Common law (minority)/ Bilateral approach: Two or more persons must specifically intend to enter the agreement. Overt act NOT required.

  • If all other conspirators are acquitted at the SAME trial a conspirator cannot be convicted of bilateral conspiracy.

Withdrawal

From Conspiracy

• Common Law: NO defense

• Majority Rule and Fed Law: Withdrawal is permitted BEFORE the overt act, but the defendant must give notice to co-conspirators OR timely notify the police

• MPC: Withdrawal is possible only if the defendant acts voluntarily to thwart the success of the conspiracy.

From Substantive Crimes

Withdrawal is possible if the defendant gives notice to co-conspirators or timely notifies the police

Attempt

An attempt requires a substantial step toward the commission of a crime (beyond mere preparation), coupled with the specific intent to commit the crime. Common law (minority) uses the dangerous-proximity test in lieu of the substantial-step test. Under this test, an attempt does not occur unless the defendant comes dangerously close to completing the crime.

Defenses to Attempt

Impossibility:

• Factual: NO defense when the attempted crime is factually impossible to commit due to circumstances unknown to the defendant.

• Legal: Is a defense if the act intended is NOT a crime.

Abandonment:

• Common Law/ Majority: NO defense once the defendant has completed the criminal act

• MPC/Minority: Voluntary abandonment IS a defense

Duress

Can be claimed when (1) a third party’s unlawful threat causes the defendant to reasonably believe that the only way to avoid death or serious bodily injury to themself or another is to violate the law and (2) the the threat causes the defendant to do so.

Duress is not a defense to an intentional murder. However, a defendant charged with felony murder may claim duress as a defense to the underlying felony and avoid a conviction for felony murder.

Consent to Sexual Intercourse Obtained by Fraud

Fraud in Factum:

• Fraud pertains to nature of the act—e.g., doctor convinces patient that sexual act is part of medical exam

• Victim is unaware that they consented to sexual intercourse.

• Effect: NEGATE’S VICTIMS CONSENT

Fraud in the Inducement:

• Fraud pertains to what the victim knows is an act of sexual intercourse— e.g, defendant promises marriage in exchange for sex

• Victim is aware that they are consenting to sexual intercourse

• Effect: Does NOT negate victim’s consent.

Offer

Objective manifestation of the offeror’s willingness to enter into a contract that creates the power of acceptance in the offeree.

To be an offer, a statement must be reasonably interpretable as an offer and express present intent to be bound.

Irrevocable Offers

UCC: Firm Offer

Common Law:

• Option Contract

• Partial Performance

• Promissory Estoppel/ Detrimental Reliance

Acceptance

Objective manifestation by the offeree to be bound by terms of the offer—but the offeree must know about the offer and have the power to accept it.

Means of Acceptance

The general rule is that an acceptance mailed within the allotted response time is effective when sent— not upon receipt—unless the offer provides otherwise.

• Silence is not acceptance unless the offeree has reason to believe that it should be or previous dealings make it reasonable to believe that the offeree must give notice of an intent not to accept.

• Asking a seller to ship the goods invites acceptance by either promise to ship or by prompt shipment of the goods.

• Shipping nonconforming goods is both an acceptance and a breach unless the seller “seasonably” notifies the buyer that the goods are an accommodation (which operates as a counteroffer). The buyer may then accept or reject the goods.

• Actions or gestures can alone be an acceptance (e.g., sitting in a barber’s chair and receiving a haircut) and create an implied-in-fact contract.

Notice of Acceptance for Unilateral Contracts

The offeree need not give notice after completing performance unless (1) the offeree has reason to know that the offeror would not learn about the performance within a reasonable time or (2) the offer requires notice. If notice is warranted but not given, then the offeror’s duty to perform is discharged unless:

• the offeree exercised reasonable diligence to give notice

• the offeror learned about the performance within a reasonable amount of time or

• the offer specifically stated that notification was not required.

Effect of Additional or Different Terms in Reply to Offer (UCC both parties are merchants)

Offer is accepted unless the reply expressly required assent to new/revised terms.

Additional terms become part of the contract unless:

• The offer expressly required assent to new terms

• The new terms materially alter the contract, or

• The offeror objects within a reasonable time.

Different terms cancel each other out under the knockout rule, and the court patches the holes in the contract.

Inadequate of Consideration

• Settlement of a legal claim: A promise not to assert (or release) a claim or defense that proves to be invalid does not qualify as consideration unless the claim or defense was doubtful (e.g., due to uncertain law or facts) or the promising party believed in good-faith that the claim or defense was valid.

• Pre-existing duty rule (common law): A promise to perform a preexisting duty is not consideration. However, courts often find consideration if the promisor gave something in addition to what was already owed or varied the preexisting duty in some way.

• Past consideration: While historically viewed as inadequate, the modern trend is to enforce certain promises involving past consideration under the material-benefit rule.

• Illusory promise: A promise that essentially pledges nothing—either because it is vague or because the promisor can choose whether to honor it—is not legally binding

Accord and Satisfaction

Accord: An agreement by which a contracting party agrees to accept different performance from another party to satisfy that other party’s existing duty.

Satisfaction: Performance of the accord, which discharges the original contract AND the accord contract.

• The original contract is not discharged until satisfaction is complete,

• An unliquidated or disputed claim may be discharged by a negotiable instrument (e.g., a check with the note “payment in full”)