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									Con Law JUDICIAL POWER Standing 1 2 3 3rd Party Standing 1 2 3 a. b. c. Taxpayer Standing Ripeness 1 2 Mootness 1 2 3 Political Questions 1 2 3 4 Supreme Court Review 1 a. b. c. 2 Requirements: Injury, (usually economic) Causation Redressability Rule - No 3rd party standing UNLESS: Close relationship between plaintiff and injured 3rd party (doctor/patient) 3rd party unable to assert his own rights An organization may sue on behalf of its members IF: the members would have standing to sue, the interests are germane to the organization's purpose, and the claim does not require participation of individual members No generalized grievances - P must not be suing SOLELY as a citizen or as a taxpayer interested in having the gov't follow the law Exception - No taxpayer standing UNLESS the taxpayer is challenging gov't expenditures as violating the establishment clause Rule - in order for a case to be ripe, there must be a genuine and immediate threat of harm (when you see declaratory J, look for ripeness) The hardship that will be suffered without preenforcement review The fitness of the issues and the record for judicial review Rule - if a matter has already been resolved, the case will be dismissed as moot, UNLESS: Capable of repetition, but evading review Voluntary cessation (but defendant free to resume practice at any time) Class action suits Political questions will NOT be decided…these include: The republican form of government clause President's conduct regarding foreign policy Impeachment and removal process Partisan gerrymandering Cases come before the Supreme Court in 2 ways: Writ of Certiorari (Court has discretion whether to hear case) All cases from state courts come this way All cases from US Ct/App come this way The Sup Ct has ORIGINAL and EXCLUSIVE jurisdiction for suits b/t state governments Appeal (Court MUST hear case…includes all cases from 3 judge federal district court)

1 2 3 4

Appeals to Sup Ct from states if: Final Judgment From the highest state court with jurisdiction to hear the case (of a US Ct/App or of a 3 judge district court) Presents a substantial federal question Decision by state court does NOT rest on independent state grounds --> if USSCt reverses state on federal question, will the result change or stay the same The 11th Amendment bars suits against states in federal courts and sovereign immunity bars them in state courts, UNLESS: Waiver (must be explicit…NOT implied) Pursuant to federal laws adopted under Sec. 5 of the 14th Amendment The federal government may sue a state Note: suits against state officers are allowed if: Sued for injunctive relief Money damages to be paid out of state officer's own pocket…NOT the state treasury Page 1 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Sovereign Immunity 1 2 3 1 2

Congress' Authority to Act

Federal Police Power

Taxing / Spending Power

Commerce Power

10th Amendment

Congress Power under Section 5 of the 14th Delegation of Powers

Hierarchy of Laws

Presidential Powers

Con Law LEGISLATIVE POWER - Must be express or implied Congressional power - there is no general federal police power - The necessary and proper clause - Congress can choose any means not prohibited by the © for carrying out its authority ONLY applies to: 1 Military 2 Indian reservations 3 Federal lands and territories 4 District of Columbia Congress may tax and spend for the general welfare Very broad power - use a rational basis test - can attach strings or conditions on spending Note: "general welfare" is ONLY a correct answer if dealing with Congress' taxing/spending or police powers Congress may regulate: 1 The C hannels of interstate commerce 2 The I nstrumentalities of and persons or things in interstate commerce 3 A ctivities having a substantial effect on interstate commerce --> cumulative impact test (i.e. - wheat grown for home use case) - any regulation by the states placing undue burdens on interstate commerce are un©al UNLESS authorized by Congress 1 All powers not reserved to the US are reserved to the states 2 Congress cannot compel state regulatory or legislative action - Congress CAN, however, induce state action by attaching "strings" on grants - Congress may prohibit harmful commercial activity by state governments May not create new rights or expand the scope of rights. May only act to prevent or remedy violations of rights recognized by the courts and such laws must be proportionate and congruent to remedying ©al violations General Rule - Congress CAN give, but CAN'T take - Congress can hand off any legislative power to an agency, executive branch or judiciary - Legislative and line item vetos are un©al - For Congress to act there must be bicameralism and presentment - Congress may NOT delegate any executive power to itself or its officers (i.e. veto power) 1 US Constitution 2 Federal Statute or Treaty (last in time prevails…whichever is most recent) 3 Executive Agreement (foreign) / Executive Order (domestic) 4 State Law EXECUTIVE POWER 1 Foreign Policy a. Treaties (must be ratified by Senate) - prevail over conflicting state laws - if in conflict with a federal statute, the one adopted last in time prevails - if a treaty conflicts with the US © it is invalid b. Executive Agreements (do NOT require Senate approval) - can be used for any purpose - signed by Pres. and foreign head of nation - prevail over conflicting state laws, but NEVER over conflicting federal laws c. Commander-in-Chief (command American troops in foreign countries) - NEVER un©al - nonjusticiable 2 Domestic Affairs a. Appointment Power - ambassadors, federal judges & officers of US (Congress may appoint inferior positions (heads of departments) Page 2 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls


c. d. e. Impeachment and Removal


1 2 a. b. c.

Con Law Removal Power - may fire any executive branch officer; Congress may limit to where there: - is an officer where independence from the President is desirable AND - cannot prohibit removal, only limit it to where there is good cause Pardon Power - only those accused or convicted of federal crimes…NOT civil (does NOT apply to events which led to an impeachment) Absolute Immunity - from civil suits for $ damages for any action while in office Executive Privilege - applies to papers and conversations, but must yield to other important governmental interests The President, VP, federal judges and officers of the US can be impeached and removed for treason, bribery, or for high crimes and misdemeanors Impreachment does NOT remove a preson from office - House has the SOLE power to impeach - Impeachment by the House requires a majority vote - Conviction by the Senate requires a 2/3 vote FEDERALISM Express - Congress declares that federal law is exclusive in an area, then it is Implied - If federal and state law are mutually exclusive (not possible to comply with both simultaneously), federal law preempts state law State law CAN be more strict (offer more protection) than federal law If state law impedes the achievement of a federal objective, federal law trumps If Congress evidences a clear intent to preempt state law, federal law trumps Factors: How comprehensive is the state law Subject matter traditionally reserved to Congress Impossible to obey both laws Overlap of state and federal law Purposes served by the laws Note: States may NOT tax or regulate federal government activity Any form of legislative punishment of a named group or individual without judicial trial. (Ex: revoking the state insurance license of P is sufficient legislative punishment, provision making it a crime for a Commie to act as an officer or EE of a labor union) - criminal punishment for a crime that was lawful when done, or an increase in punishment after it was committed Congress has the power to exercise EXCLUSIVE legislation over DC Rule - State or local law is unconstitutional of it places an undue burden on interstate commerce Rule - No state may fail to afford citizens of another state the privileges and immunities afforded its own citizens Hint - always the wrong answer UNLESS it deals with the right to travel

a. b. c. d. e. Bill of Attainder

District of Columbia Dormant Commerce Clause Privileges & Immunities Clause of Article 4 Privileges & Immunities Clause of 14th Amendment Dormant Commerce Clause & P & I Clause 1 Analysis

Ask - does the state law discriminate against out-of-staters? YES If the law burdens interstate commerce, it violates the dormant commerce clause, UNLESS: a. It is necessary to achieve an important government purpose b. Congressional approval c. Market participant

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Con Law If the law discriminates against out-of-staters with regard to their ability to earn a living, it violates the P & I clause of Article 4, UNLESS it is necessary to achieve an important government purpose Note: Corporations and aliens CANNOT use the P & I clause - discrimination must be w/ regard to civil liberties or important economic activities 2 NO a. P & I clause does NOT apply b. If the law burdens interstate commerce, it violates the dormant commerce clause (apply a balancing test) State Taxation of States may not use their tax systems to help in state businesses - may only tax Interstate Commerce activities if there is a substantial nexus to the state and it must be fairly apportioned Full Faith and Credit Clause Courts in one state must give full faith and credit to judgments of courts in another state, so long as: 1 The court that rendered the judgment had jurisdiction 2 The judgment was on the merits 3 The judgment is final Necessary & Proper ALWAYS wrong, unless attached to another power Constitution's Protection of Individual Liberties Levels of Scrutiny 1 Strict Scrutiny - necessary to achieve a compelling gov't purpose a. Must be the least restrictive means b. Burden on gov't 2 Intermediate Scrutiny - substantially related to an important gov't purpose a. Must be narrowly tailored…NOT least restrictive b. Burden on gov't 3 Rational Basis - rationally related to a legitimate gov't purpose a. Burden on challenger b. Gov't usually wins General Rule - private conduct need NOT comply with the Constitution Exceptions: 1 By statute, Congress may apply ©al norms to private conduct a 13th can be used to prohibit race discrimination - private race discrimination does not violate the 13th, but a statute could prohibit it b. the commerce power can be used to apply ©al norms to private conduct - substantial economic effect c. Congress canNOT use section 5 of the 14th to regulate private behavior 2 Public Function - private entity performing a task traditionally and exclusively done by the gov't (i.e. "company town" or holding an election) 3 Entanglement - the Constitution applies if the gov't affirmatively authorizes, encourages, or facilitates unconstitutional activity a. Courts cannot enforce racially restrictive covenants b. State action when gov't leases a restaurant that racially discriminates c. State action when provides free books to schools that racially discriminate d. State action when private entity regulates interscholastic sports w/in a state e. NO state action when private school 99% funded by state fires a teacher b/c of her speech f. NO state action when NCAA orders suspension of a coach at a state university g. NO state action when a private club with liquor license from state racially discriminates The Bill of Rights applies ONLY to the federal gov't directly Bill of Rights is applied to state and local gov't through incorporation through the 14th, EXCEPT: 1 2nd Amendment - right to bear arms Page 4 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Constitution's Protection of Individual Liberties



2 3 4 5 Procedural Due Process Liberty Interests

Con Law 3rd Amedment - right to not have a soldier quartered in a home 5th right to grand jury indictment in criminal cases 7th right to jury trial in civil cases 8th right against excessive fines DUE PROCESS Issue - has there been a deprivation of life, liberty or property? Def - a deprivation of liberty occurs if there is loss of a significant freedom provided by the Constitution or a statute Notes: Before an adult may be institutionalized, there must notice and a hearing (unless an emergency) If a parent is going to institutionalize a child, there must only be a screening by a neutral 3rd party Harm to reputation is NOT a deprivation of liberty Prisoners rarely have liberty interests Def - a deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled Entitlement - a reasonable expectation to continued receipt of a benefit Examples: Gov't terminates a job at 6 months after promising 1 year of employment…this IS a deprivation of property b/c there was entitlement Job is terminated after 1 year on a year-to-year employment K…NO entitlement Interest affected Risk of error with no more procedures Administrative cost on gov't of additional procedures Gov't negligence is NOT sufficient for deprivation of due process…must be intentional or at least reckless…UNLESS an emergency and then the gov't is liable only if its conduct "shocks the conscience" Note: generally the government's failure to protect people from privately inflicted harm (i.e. child abuse) does NOT deny due process UNLESS the government created the danger Before welfare benefits terminated - notice and hearing Social security benefit terminated - need only post-termination hearing Student disciplined by public school - notice of charges and opportunity to explain Before child custody terminated - notice and hearing American citizen held by gov't as enemy combatant - must be afforded due process Punitive damages awards require instructions to jury and judicial review Except in exigent circumstances, prejudgment attachment or gov't seizure of assets must be preceded by notice and hearing Note: due process does NOT require an innocent owner defense to gov't seizure Substantive Due Process Def - whether the gov't has an adequate reason for taking away a person's life, liberty or property Only a rational basis test is used for laws affecting economic rights (i.e. minimum wage laws, consumer protection laws, etc…) Rule - the gov't may take private property for public use IF it provides just compensation There are 2 types of takings: Possesory Taking - gov't confiscation or physical occupation of property Regulatory taking - gov't regulation that leaves no reasonable economically viable use of the property (mere decrease in property value is NOT enough)

1 2 3 4 Property Interests

1 2 I R A

Balancing Test for Procedural DP Standard

What procedures are 1 Required? 2 3 4 5 6 7

Substantive Due Process Economic Rights Takings Clause

1 2

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Con Law Public Use - gov't must have a reasonable belief that its action will benefit the public Just Compensation - gov't must pay economic value of property in the hands of the owner (gain to the taker is irrelevant…ONLY concerned with loss to the owner) Notes: Gov't conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed A property owner may bring a takings challenge to regulations that existed at the time the property was acquired Temporarily denying an owner use of property is NOT a taking so long as the governments action is reasonable Rule - no state shall impair the obligations of contracts (never applies to federal gov't) Applies ONLY to state or local interference with existing contracts State or local interference with private contracts OR with gov't contracts must meet strict scrutiny Right to marry Right to procreate The right to custody of one's children (but state may create an irrebutable presumption that married woman's husband is father) The right to keep the family together The right to control the upbringing of one's children (violates DP for a court to order grandparent visitation over parent objection) The right to purchase and use contraceptives The right to abortion. Prior to viability states may not prohibit abortions BUT may regulate abortions so long as they do not create an undue burden on the ability to obtain abortions. After viability, states may prohibit abortions UNLESS necessary to protect the woman's life or health. Gov't doesn't have to subsidize or provide in public hospitals. Spousal consent/notification laws are un(c). Parental notice and consent laws are okay for an unmarried minor's abortion SO LONG AS it creates an alternative procedure where a minor can get an abortion by going to a judge Right to engage in private consensual homosexual activity - no articulated level of scrutiny Right to refuse medical treatment. A state may require c/c evidence that a person wanted treatment terminated. A state may prevent family members from terminating treatment for another. Equal Protection What is the classification? What level of scrutiny should be applied? Does this law meet the level of scrutiny? Applies ONLY to state and local government Applies to federal gov't Strict scrutiny Race classification can (1) exist on the face of the law or, (2) if facially neutral, proving a racial classification requires demonstrating both discriminatory impact AND discriminatory intent Racial classifications benefiting minorities - numerical set-asides require clear proof of past discrimination Educational institutions may use race as a factor in admissions Seniority systems may NOT be disrupted for affirmative action Intermediate scrutiny Page 6 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

1 2 3 Contracts Clause

Privacy is a fundamental right protected under SDP (use strict scrutiny unless otherwise noted)

1 2 3 4 5 6 7

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1 2 3

14th Amendment DP of 5th Amendment Race and National Origin


Gender Classifications

Gender Classifications -

Alienage Classifications (non- US citizens) Discrimination against non-marital children All other types of 1 discrim are reviewed 2 under rational basis 3 4 5 Fundamental rights protected under EP -

Con Law Gender classification can (1) exist on the face of the law or, (2) if facially neutral, proving a racial classification requires demonstrating both discriminatory impact AND discriminatory intent Gender classifications benefiting women that are based on role stereotypes will NOT be allowed Gender classifications that are designed to remedy past discrimination and differences in opportunity WILL be allowed Generally, strict scrutiny is used (i.e. usually gov't will lose) Only rational basis is used for alienage classifications that concern self-gov't and the democratic process (voting, serving on jury, being a police officer, teacher, or probation officer) Only rational basis is used for Congressional discrimination against aliens (regulating immigration) Intermediate scrutiny is used for discrimination against undocumented alien children Intermediate scrutiny Laws that deny a benefit to ALL non-marital children, but grant to ALL marital children are un© Age discrim Disability discrim Wealth discrim Economic regulations Sexual orientation discrim The right to travel - laws that prevent people from moving into a state or durational residency requirements must meet strict scrutiny. Restrictions on foreign travel need only meet rational basis. The right to vote - laws that deny some citizens the right to vote must meet strict scrutiny. One person-one vote must be met for all state and local elections. At large elections are constitutional UNLESS there is proof of a discriminatory purpose. The use of race in drawing election district lines must meet strict scrutiny.

Content Based Restrictions Content Neutral Prior restraints


Vagueness Overbreadth -

The First Amendment Must meet strict scrutiny Either subject matter restrictions or viewpoint restrictions Need only meet intermediate scrutiny Court orders suppressing speech must meet strict scrutiny. The gov't can require a license for speech ONLY if there is an imp reason for licensing and clear criteria leaving almost no discretion to licensing authority. A law is un© vague if a rzbl person cannot tell what speech is prohibited and what is allowed A law is un© overbroad if it regulates substantially more speech than the © allows to be regulated Fighting words are un© vague and overbroad UNPROTECTED SPEECH OR LESS PROTECTED SPEECH The gov't can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the gov't purpose The gov't may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality The material must appeal to the prurient interest The material must be patently offensive under the law prohibiting obscenity Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value Gov't may punish private possession of child porn Page 7 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Symbolic Speech

Incitement of Illegal Activity Obscenity & Sexually 1 Oriented Speech 2 3

Oriented Speech

Con Law The gov't may seize the assets of businesses convicted of violating obscenity laws Commercial Speech Defamation Advertising for illegal activity, and false and deceptive ads are NOT protected by the First Amendment The gov't may prevent professionals from advertising or practicing under a trade name The gov't MAY prohibit attorney, in-person solicitation of clients for profit The gov't may NOT prohibit accountants from in-person solicitation of clients for profit Other commercial speech can be regulated if intermediate scrutiny is met Gov't regulation of commercial speech must be narrowly tailored, but does NOT need to be the least restrictive alternative If the P is a public official or running for public office, the P must prove falsity of the stmt and actual malice If the P is a "public figure" the P must prove falsity of the stmt and actual malice

If the P is a private figure and the matter is of public concern - the P must prove falsity and negligence by the D. The P may recover presumed or punitive damages only by showing actual malice - If the P is a "private figure" and the matter is NOT of "public concern" - the P can recover presumed or punitive damages WITHOUT showing actual malice Privacy - The gov't may NOT create liability for the truthful reporting of information that was lawfully obtained from the gov't - Liability is NOT allowed if the media broadcasts a tape of an illegally intercepted call, if the media did not participate in the illegality and it involves a matter of public importance - The gov't may limit its dissemination of information to protect privacy PLACES AVAILABLE FOR SPEECH Public forums - Gov't properties that the gov't is © required to make available for speech - Regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny must be met - Regulations must be a time, place, or manner regulation that serves an important gov't purpose and leaves open adequate alternative channels of communication Limited Public Forums Non Public Forums Freedom of Association Regulations need NOT use the least restrictive alternative Gov't properties that the gov't could close to speech, but chooses to open to speech Must follow rules for public forums Gov't properties that the gov't constitutionally CAN and DOES close to speech. The gov't can regulate speech so long as the regulation is rzbl and VP neutral Laws that prohibit or punish group membership must meet strict scrutiny Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny Laws that prohibit a group from discriminating are © unless they interfere with intimate association (small dinner party) or expressive activity (Nazi party can exclude Jews) Actively affiliated with the group Knowing of its illegal activities, and With the specific intent of furthering those illegal activities Cannot be used to challenge a neutral law of general applicability The gov't may NOT deny benefits to individuals who quit their jobs for religious reasons there must be a Secular purpose for the law the Effect must be neither to advance nor inhibit religion there must not be eXcessive entanglement with religion Page 8 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

To punish membership in a group - it must be Freedom of Religion The Free Exercise Clause Freedom of Religion The Establishment Clause

1 2 3 S E X

Freedom of Religion Rules

Con Law The gov't cannot discriminate against religious speech unless strict scrutiny is met Gov't sponsored religious activity in public schools is un©. BUT religious student and community groups must have the same access to school facilities as non-religious groups The gov't MAY give assistance to parochial schools so long as it is not used for religious instruction. The gov't may provide parent parents vouchers which they use in parochial schools

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Contracts Analysis 1 2 3 4 5 6 7 Applicable Law Formation SOF Terms Performance Excuse Remedies 3d Party Problems Sale of goods - moveable, personal property (price is irrelevant, don't have to be merchants) --> TX tests only on Art 2 and Art 2A (lease of goods) CONTRACT CREATION Express - created by the parties' words (oral or written) Implied - created by the parties' conduct Elements: Plaintiff has conferred a benefit on Defendant, and Plaintiff reasonably expected to be paid, and Defendant will be unjustly enriched if Plaintiff is not compensated Measure of Recovery - Reasonable value of benefit conferred…NOT the K price The parties swap promises A bilateral contract can be accepted in any reasonable manner Note: All Ks are bilateral unless the offer says it can be accepted only by performance The offer can be accepted only by performance An agmt that an existing claim shall be disregarded in the future by the rendition of a substituted performance. Note: Once the agreement is carried out - there is accord and satisfaction. Usually deals with a liquidated and undisputed situation OFFER General Rule - advertisements are usually NOT offers If an advertisement is to qualify as an offer, it must include a quantity term and who may accept the offer Lapse of Time Revocation by Offeror Rejection by Offeree Death of any party before Acceptance An offer lapses after a reasonable time Direct - statement of offeror to offeree and that is inconsistent with the offer Indirect - offeror conduct inconsistent with offer and offeree is aware of that conduct Revocation of an offer only effective if it is received before acceptance Option K - consideration must be paid to keep offer open Detrimental reliance - must be reasonable and foreseeable Part Performance under a Unilateral K - mere preparation not enough Firm Offer under Article 2 - there must be a signed, written promise to keep an offer open by a merchant (may be kept open for up to 3 months) Counter Offer - operates as a rejection, but bargaining does NOT (a question is considered bargaining…"will you take $100?") Conditional Acceptance - operates as a rejection and terminates an offer Acceptance Containing Additional or Different Terms: Common Law - rejection (Mirror Image Rule) Article 2 - additional terms do NOT prevent agreement as long as price and quantity are unchanged An offeree's additional terms are included ONLY if: Both parties are merchants The term is NOT a material change, and The offeror does NOT object within a reasonable time Page 10 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Art. 2 Applies

Creation of a Contract 1 2 Quasi-K 1 2 3 Bilateral K

Unilateral K Bilateral Executory K


Termination of an Offer

1 2 3 4 1 2

Lapse of Time Revocation

4 Situations where an 1 Offer may NOT be 2 Revoked 3 4 Rejection

1 2 Article 2 Rejection 1 2 3

Article 2 Rejection Contracts Note: An offeree's terms are almost never included…a term is material if it substantially effects the economics or remedies under the K An offer is terminated if one of the parties to the K dies before acceptance Note: Knowledge of the parties death is irrelevant Exceptions: Option K Part performance under a unilateral K ACCEPTANCE Bilateral K - start of performance IS acceptance Unilateral K - start of performance is NOT acceptance (must be full performance to constitute acceptance) Bilateral K - a return promise IS acceptance Unilateral K - a return promise is NOT acceptance Note: Article 2 is extremely flexible…generally an offeree can accept in any reasonable manner General Rule - If Buyer orders X and Seller ships Y, there is a simultaneous acceptance and breach Accommodation Exception - If Buyer orders X and Seller ships Y, but Seller explains why the shipment is nonconforming, there is a counter offer and NO breach General Rule - Acceptance is effective when mailed It does not matter if acceptance letter never arrives Exceptions: If the offer provides otherwise (offeror can override the mailbox rule) Irrevocable Offers Acceptance, then Rejection - whichever arrives first is effective Rejection, then Acceptance - whichever arrives first is effective DEFENSES TO CONTRACT FORMATION Lack of Capacity to K Ambiguity of Term Mistake of Fact lack of Consideration Applies to: Minors (under 18) Intoxicated persons Mentally Incompetent persons Note: Person must lack capacity at the time of agreement An incapacitated person is liable for necessaries, but only on a quasi-K basis An incapacitated DEFENDANT has the right to disaffirm (avoid) the K A Plaintiff may enforce a K with an incapacitated Defendant if: Defendant lacks capacity at the time of agreement Defendant later gains the capacity to K, and Defendant impliedly reaffirms the K without complaint Occurs when the parties attach different meaning to a term in the K Result - there is NO contract Exception: One party has reason to know of such ambiguity Result under exception: innocent party's meaning prevails Mutual Mistake - both parties are mistaken as to a material fact Result - Buyer NOT bound Note: mistake as to market value is NOT considered material Unilateral Mistake - one party's mistake is NOT a fatal flaw in the agreement process UNLESS the other party knows of the mistake NOT consideration: Past consideration Page 11 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Death of a Party

1 2

Start of Performance as Acceptance Promise as Acceptance

Sending the Wrong Goods as Acceptance

Mailbox Rule

1 2 3 4

Defenses to Formation

1 2 3 4 1 2 3

Lack of Capacity to K

1 2 3 Ambiguity of Term

Mistake of Fact

Lack of Consideration 1

Lack of Consideration 2 1 2 Modification and Consideration Statute of Frauds 1 2 3 4 Satisfying the Statute of Frauds with a 1 Writing 2 1 2 Satisfying the Statute of Frauds without a 1 Writing 2

Contracts Partial payment of a due and undisputed debt IS consideration: Forbearance Promissory estoppel Common Law - must have additional consideration to modify (Pre-Existing Duty) Article 2 - do NOT need consideration to modify…must have good faith Statute of frauds applies and, therefore, a writing is required for: Transfer of interest in real property Service K incapable of being performed within 1 year from date of agreement Promise to answer for the debt of another (Exception - purpose of guarantee is to benefit guarantor…this will be on the MBE) Sale of goods for $500 or more Contracts other than the sale of goods must contain: All material terms Signed by the party to be charged Contract for the sale of goods must contain: Quantity term Signed by the party to be charged The SOF is satisfied without a writing where there is: Full performance of a service K Part performance for the transfer of interest in real property (part performance means (1) moving onto the property with consent, and (2) making permanent improvements thereon) Sales of goods where: Part performance for goods delivered by seller or paid for by buyer Custom made goods (once work has begun) Judicial admissions Merchant's confirmatory memo of prior oral agreement A party may use a memo they have signed to satisfy the SOF against the other party if: Both parties are merchants, The writing claims there was a prior oral agreement, and Recipient does NOT object in writing within 10 days General Rule - reliance has NO effect on a SOF defense Exception: the other party orally agreed to reduce the terms of the agreement to writing Parol Evidence Rule - Keeps out evidence of what the parties said and did before they reduced the terms of their agreement to writing Exceptions: To correct a clerical error To establish a defense to the enforceability of an agreement To explain or interpret the written contract To supplement a partially-integrated writing Hierarchy: Course of Performance - what the parties have done under this contract Course of Dealing - what the parties have done under their earlier contracts Usage of Trade - what others in the trade do under similar circumstances Apply to conditions that arise AFTER the K was formed If the condition is already in existence at the time of formation, then defenses are assumption of the risk and mistake TERMS OF THE CONTRACT - Keeps out evidence of what the parties said and did BEFORE they reduced the terms of the agmt to writing - PER problem requires a writing Page 12 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

3 a b c d Merchant's Confirmatory Memo 1 2 3 Statute of Frauds & Estoppel Words of the Parties

1 2 3 4 Conduct of the Parties 1 2 3 -

Impossibility / Impracticability

Parol Evidence Rule

Parol Evidence Rule Contracts 1 2 3 4 Exceptions: To correct a clerical error To establish a defense to the enforceability of an agmt To explain or interpret the written K To supplement a partially integrated writing YOU CAN CHANGE AN AGMT AFTER IT HAS BEEN REDUCED TO WRITING Express Warranties Implied Warranty of Merchantability Implied Warranty of Fitness for a particular purpose Fact, Promise or description - NOT opinion Use of a sample or model gives rise to an express warranty Def - goods are fit for their ordinary purpose AND merchant must deal in goods of the kind (REGULARLY sell out of inventory) Def - goods are fit for the buyer's particular purpose (look for why the buyer wants the goods Buyer has a special purpose Buyer is relying on seller to select suitable goods Seller knows it Express warranties cannot be disclaimed Implied warranties can be disclaimed - "as is" or "with all faults" disclaims all warranties, To disclaim merchantability you must say merchantability and if in writing must be conspicuous, and To disclaim fitness, must be in writing and conspicuous Limits recovery for breach, not warranties; Can limit even breaches of express warranties Test - Unconscionability - with consumer goods limiting remedies for personal injury it is presumed unconscionable TX Law - court decides on a case by case basis if the warranty extends to a 3rd party Shipment K - Seller must get the goods to the common carrier; make rznble delivery arrangements AND notify the buyer (completes delivery) (FOB city where seller is) Destination K - seller must actually get the goods to where the buyer is located (FOB any city not where the seller is) Agreement of the parties Breaching party is liable, even if loss is unrelated Delivery by common carrier - risk shifts to the buyer when the seller has completed its delivery obligations If seller - provide new goods at no additional cost or BoK damages If buyer - pay full K price Ask - is the seller a merchant Yes - risk shifts when the buyer takes possession of goods No - risk shifts when seller tenders (makes available) the goods Such clauses will be given effect IF: Not boilerplate in the K, There is a valid reason for inclusion, and One party is not materially benefited while the other royally hosed PERFORMANCE Perfect tender rule - seller must deliver perfect goods in the right place at the right time or the buyer may reject the non-conforming goods Cure - seller has an option to cure IF the time for performance has not expired or the buyer has accepted non-conforming goods in the past Page 13 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Seller's Warranties of 1 Quality in a Sale of 2 Goods (Art. 2) 3 Express Warranties Implied Warranty of merchantability Implied Warranty of Fitness for a Particular Purpose 1 2 3 Disclaiming a Warranties in a Sale b of Goods (Art. 2) c d Limiting Remedies in a Sale of Goods (Art. 2) Privity of K and warranty liability Seller's Delivery a Obligations in a Sale of Goods using a Common Carrier b Who bears Risk of 1 Loss in Sale of Goods 2 K - Hierarchy 3 What loss is borne Who bears ROL when there is not a common carrier Time is of the Essence Clauses a b c 1 2 3

Performance of Ks for a Sale of Goods b

Contracts Installment Sales Ks a and Performance b Def - K language that requires or authorizes seller to deliver in separate installments Perfect tender rule does not apply - buyer has a right to reject an installment when there is a substantial impairment that can't be cured. Buyer has the right to reject the entire K if the installment substantially impairs the value of the whole K Merely paying is not enough, must have a rznble chance to inspect the goods Implied acceptance occurs when I have the goods in my possession with an opportunity to inspect and I make no complaint Once you accept goods it is too late to reject them, but you can still get damages Once accepted you cannot revoke acceptance Exception - ONLY if the non-conformity substantially impairs the value AND it was difficult to discover Checks are fine, but the seller can demand cash - the buyer then has a rznble amt of time to get the cash After there has been a rightful rejection of goods, the B is under a duty to (a) follow rzbl instructions received from the S with respect to the goods and in the absence of such instructions, (b) make rzbl efforts to sell them for the seller's account. When the B sells the goods - he is entitled to reimbursement out of the proceeds for rzbl expenses of caring for and selling them - not to exceed 10% of gross proceeds Substantial performance - don't need perfection Only a material breach excuses performance, but you can still sue for BoK Def - pmt on a per unit basis - use substantial performance on a case by case basis get K price on the partial performance, but liable for breach

Acceptance of Goods a (Art. 2) b

Revoking acceptance a of Goods (Art. 2) b Paying Ks under Art. 2 Merchant buyer's duties as to rightfully rejected goods

Performance of Common Law Ks Divisible Ks Common Law

a b

EXCUSES FOR NON-PERFORMANCE BASED ON LATER EVENTS Excuses Based on a Sale of goods - need perfect tender - if not can reject all, some or accept all Other party's breach b Common law - substantial performance required - must have less for this excuse Excuse based on a Def - repudiate before performance is due - excuses your performance Other party's - You can retract an anticipatory repudiation as long as there has been NO reliance by Anticipatory the other party Repudiation - Can only sue on an anticipatory repudiation if there is material prejudice - Expression of mere doubt cannot support an anticipatory breach Excuse Based on 1 Modification - takes effect immediately and discharges existing obligations Later Agmt 2 Accord and Satisfaction - has no long term effect, wipes out the original obligation ONLY when it is satisfied. Can sue either on the accord or on the original debt 3 4 Excuse Based on 1 Unforeseen Event making Performance Impossible (seller) 2 3 Excuse Based on Frustration of Purpose (buyer) Excuse Based on Failure of an Express Condition Mutual Rescission Agmt - Each party must have some performance remaining or there is no consideration. Novation - substitute a new party for an existing on - ALL parties must agree or it is a mere delegation of duties Destruction of something Necessary for the performance. Common Law - makes performance impossible. Art 2 - same but the destroyed goods MUST be the subject matter of the K (particularly identified) or if the buyer bore the risk of loss there is no need for excuse of performance Death or incapacity of a person ESSENTIAL for performance (anyone can pay money) Government regulation or order Buyer had a primary purpose, but something happens (gov't regulation)

Def - limits obligations by K language ("if", "so long as", "provided", "on condition that", "unless", "when"). Must have STRICT compliance Page 14 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Excuse Based on Failure of an Express Condition 1 2

Contracts Satisfaction Clauses - Means rznble satisfaction (OBJECTIVE std), but if it is art or matters of personal taste then use a Subjective std Condition precedent/concurrent/subsequent ** When the parties have an express condition but do not include it in the writing of the K - the PER does not apply and evidence of the condition (or non-occurrence of the condition) IS admissible to show the condition did not occur - to show that there is no agmt at all. Failure to cooperate - If the party protected by the condition fails to cooperate the condition is excused Estoppel - Later stmt by protected party AND Reliance Performance is excused by illness of the party to perform the personal service…UNLESS the K otherwise provides REMEDIES FOR BREACH OF CONTRACT Specific Performance Right to Request Adequate Assurances of Future Performance Unpaid Seller's Right of Reclamation Entrustment Def - compelling a party to do what he agreed to do Parties are rarely entitled to specific performance Only available when money damages are inadequate Always available in real estate deals (property is unique) Always available if goods are unique (art, antiques, custom-made goods) Does NOT apply to service contracts (indentured servitude)…but courts can issue injunction to keep employee from working for a competitor A party may request adequate assurances from the other party if they have reasonable insecurity as to whether the other party will perform under the k Request must be in writing Cannot use this remedy to rewrite a k or to demand a particular kind of assurance General Rule - an unpaid seller has no rights in goods it has delivered Exception: Seller has the right to reclaim if Buyer: Was insolvent when it received the goods, and Seller demands return of the goods within 10 days of buyer receiving the goods Rule - An owner who entrusts her property to another has no right to reclaim her belongings if the other sells her property to a bona fide purchaser Note: Make sure the other is in the business of selling those types of goods (if not, there is probably NOT a bona fide purchaser) Liquidated Damages Expectation Damages Incidental Damages Consequential Damages Mitigation Punitive Damages are NOT available Permissible if damages were: Difficult to estimate, and a reasonable forecast of probable damages Fixed sums are generally invalid Liquidated damages are common in the construction industry Designed to put the plaintiff in as good a position as full performance Lost Volume Seller can recover lost profit if the breach concerned a good that was part of the seller's regular inventory Def - costs reasonably incurred in arranging a replacement deal (advertising, phone calls, etc…) Def - special damages that were reasonably foreseeable at the time of contract Page 15 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Excusing Conditions a b Personal Services K

Non-Monetary Remedies

1 2 3 4

Specific Performance

Adequate Assurances

Right of Reclamation 1 2 Entrustment (Article 2)

Monetary Remedies 1 2 3 4 5 6 Liquidated Damages 1 2

Expectation Damages

Incidental Damages Consequential Damages

Contracts Mitigation 1 2 3 A party may NOT recover damages they could have avoided with rzbl effort When dealing with a terminated employee: Employer has burden of proof to show employee could have mitigated damages Other employment must be the same type of work in the same city Employee does NOT have to take new job THIRD PARTY PROBLEMS TPB - a person who did not make a contract, but has rights under it because the contract was intended to benefit him Promisor - person who promises to do something for the 3rd party Promisee - the other contracting party Intended Beneficiary - if the 3rd party is named in the contract, she is a intended beneficiary Incidental beneficiary - if a 3rd party is NOT named in the contract, she is an incidental beneficiary Creditor Beneficiary - if a 3rd party is a creditor of the promisee, she is a creditor beneficiary Donee Beneficiary - if a 3rd party is NOT a creditor of the promisee, she is a donee beneficiary Rule - a promisor and promisee may NOT rescind or modify a K after the 3rd parties rights have vested Vesting occurs when: 3rd party required to or asked to consent to the K and she does so, 3rd party learns of the K and detrimentally relies on it, 3rd party files a lawsuit to enforce the K Intended beneficiary can sue the breaching promisor (no privity required) A promisor, however, can raise any defense he may have against the promisee when sued by the TPB Intended beneficiary can sue the promisor only if he is a creditor beneficiary of the promisor Delegating Party - person who delegates the duty to perform Delegate - person to whom the duty is delegated Obligee - person to whom performance is owed General Rule - contractual duties may be delegated WITHOUT the obligee's consent Exceptions: The contract prohibits delegation (contract language controls) The contract requires (1) special skill, or (2) a person with special skills There are NO requirements for effective delegation (i.e. no consideration required) Delegating party remains liable Delegate liable to obligee ONLY if delegate received consideration from delegating party Assignor - person who transfers rights under a K Assignee - person to whom the rights are transferred Obligor - person who owes the performance Consideration is NOT required A writing is required ONLY if the amount assigned is more than $5000 Must use words of present assignment (not "I will" or "I promise to") Common Law - the assignment cannot substantially change the duties of the obligor Requirements Contract - assignable as long as the assignee's requirements are in line with the assignor's

3rd Party Beneficiary 1 Law (Vocabulary) 2 3 4 5 6 7 Rescission or Modification of K 1 2 3 Rights of 3rd Party Beneficiary

Delegation of Duties 1 (Vocabulary) 2 3 Delegation of Duties

1 2 Requirements for Effective Delegation Consequences of 1 Delegation 2 Assignment of Rights 1 (Vocabulary) 2 3 Requirements for 1 Making an 2 Assignment 3 Limitations on 1 Assignment 2

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Limitations on Assignment Contracts 3 Contract clauses - rights may NOT be assigned if the clause invalidates an assignment (i.e. "all assignment hereunder are void")…rights CAN be assigned if the clause merely prohibits assignment (i.e. "rights under this contract are not assignable") Assignee can sue the obligor Obligor has the same defenses against assignee as it would against assignor Note: Obligor payment to assignor is effective unless obligor knows of the assignment Rule - the last gratuitous assignee in time wins General Rule - first assignee for consideration wins Exception: later assignee for consideration takes precedence over earlier assignees if: He does not know of the prior assignments, and Is the first to obtain payment or a judgment An express promise to pay all or part of an indebtedness of the POR, discharged in a BK proceeding begun before the promise is made, is binding EVEN WITHOUT CONSIDERATION

Rights of an Assignee 1 2

Multiple Gratuitous Assignments Multiple Assignments for Consideration 1 2 Bankruptcy

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Criminal Law Larceny 1 2 3 4 5 6 a b Larceny: Intent to permanently deprive Larceny Exception PROPERTY CRIMES Taking (exercise of actual control) Asportation (some movement) Corporal personal property of another From the possession of another Wrongfully - without permission OR with permission obtain by deception With intent to permanently deprive Asportation only requires SOME movement and a taking does not require the removal from the premises, but there needs to be control Only have to take the property from one with a greater right of possession Must @ the time of taking, INTEND to permanently keep the property OR do something creating a high risk that the owner will never get the property back, Intention is KEY. When act and intent is required, the D must have the required intent when he does the act constituting the crime, except in some larceny cases where there is a "Continuing Trespass" - must have wrongfully taken the thing in the first place (w/o intent to deprive) then form the intent Have possession of property under trust arrangement Conversion of that property (use it contrary to the terms of the trust) Intent to Defraud Intent to return or replace converted property does NOT show the lack of intent required for embezzlement Custody of the property = larceny. An employee usually only has custody of an employer's property With possession can commit embezzlement, but not larceny - possession requires extensive and discretionary control Obtaining title to property from another By means of a misrepresentation of past OR present fact With intent to defraud Unkept promises or misrepresentations of Future fact are NOT sufficient Your state of mind can be a misrepresented present fact Failure to correct a misunderstanding is sufficient if D created the misunderstanding Receiving (taking possession) Of property acquired by larceny or other property crime - KEY: property must actually be STOLEN Knowing that the property is stolen With the intent to permanently deprive the owner Def - Unlawfully exercises control over the property of another without effective permission and with the intent to deprive the other of that property Requires intent to permanently deprive - and covers all crimes above Larceny in which property is taken either by: Force - force to obtain property or prevent victim from immediately regaining it OR Threats (intimidate) - must be of immediate physical harm; put the victim in fear of harm; AND must cause apprehension in a rznble person When D lifts item from P's pocket OR slips item from P's hand without resistance One for EACH person, but not for each item Obtaining property by means of other threats, such as: To do something other than physical harm OR Do physical harm, but not imminent

Larceny: taking and asporting

1 2 3 Embezzlement: rules a b c False Pretenses 1 2 3 a b c 1 2 3 4 Theft


False Pretenses: Rules

Receiving Stolen Property

Robbery 1 2 Robbery: No force Number of Robberies Extortion 1 2

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Criminal Law CRIMES AGAINST THE HABITATION Entry - any part of the body or instrument if the instrument is to be used to commit the crime inside By breaking Of the dwelling (actually used as a sleeping place) of someone else During the nighttime With the intent to commit a felony inside the structure Intent and entry must be at the same time Breaking only requires SOME force No need to carry out the intent Can be committed by entering a party of a dwelling, once inside No need to carry out the intent May: expand places covered; eliminate the need for breaking; eliminate the requirement that entry be in nighttime; expand intend Prosecution must prove: D entered with intent to commit certain acts AND Those acts if committed by D would be a felony Mistaken belief that one's conduct is a felony is NOT the requisite intent Malicious - can be an awareness of high risk Burning Of Another's dwelling Must have some damage (can be minimal) Must be by fire - the flame, not smoke or heat To a part of the structure itself CRIMINAL HOMICIDE Did D cause the death of the victim Did D act with malice aforethought (if yes - murder unless 3) If yes - was there adequate provocation (voluntary manslaughter) If no - did D either (a) act with criminal negligence or (b) cause death while committing a misdemeanor (involuntary manslaughter) Factual causation - "but for" D's acts, the victim would not have died AS and WHEN he did Year and one day rule - victim must die w/in 1 year and 1 day from the infliction of the injury Proximate cause Seen when there is intent to cause the death, but it occurs in an unexpected way PC exists if the victim's death naturally results from the D's actions, even if this occurs in an unexpected manner, unless the events are extremely unusual No PC if a factor is interjected into the chain of causation that is: Independent of the D's actions Unforeseeable AND The SOLE immediate cause of the victim's death Speeding up death = causing it An intervening event cannot break the chain of PC if it only becomes a contributing cause of death Def - Killing with malice aforethought - which requires: Intent to kill OR Intent to cause serious bodily injury OR Awareness of extremely high risk that death will result OR Intent to commit a felony Rule - Accidental deaths caused during a felony are murder IF the death was objectively foreseeable OR the felony was dangerous as committed Co felons are guilty of felony murder if the death was foreseeable to them Felony murder cannot be based on felony assault or battery causing death of victim (merges into death of victim) Page 26 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls


1 2 3 4 5 a b c d e

Burglary: Rules

Burglary: Modern Statutes Burglary: Intent 1 2 Arson 1 2 3 1 2 3 1 2 3 4 1 2 3 Proximate Cause

Arson: Burning


Causation with Homicides

Superseding Cause 1 2 3 Proximate Cause: Rules Murder 1 2 3 4 a b Felony Murder: Merger Rule

Felony Murder

Criminal Law Felony Murder: Bystanders a b Degrees of Murder Many courts don't apply felony murder if the fatal shot was not fired by one of the felons Courts are most reluctant to apply felony murder when the person killed is one of the felons Most killings with malice aforethought are 2nd degree murders Some STATUTES label as 1st degree: certain felony murders and premeditated killings Some conscious deliberation over whether or not to kill - a provoking incident usually shows absence of premeditation Intentional killing that would otherwise be murder is reduced to voluntary manslaughter if 3 things are shown: Objectively rznble provocation (mere words are insufficient) D acted on that before an objectively sufficient cooling period elapsed AND Actually cause the D to kill the victim Killed in the course of committing a misdemeanor OR Killed with criminal negligence D had a legal duty to act - arises from: criminal law; tort law; K law; or any other body of law D was aware of the facts giving rise to a duty to act Performing the duty was possible D has necessary intent OTHER CRIMES AGAINST THE PERSON Rape - sexual intercourse by a male with a woman not his spouse w/o the woman's effective consent Fraud renders the woman's consent ineffective only if the fraud goes to the nature of the act (whether is sex or not) Confining or restraining a person OR moving a person Without authority of law Where the victim of a crime such as robbery or rape is confined or moved during the crime, many courts hold that kidnapping does not occur unless the confinement or movement increases the risk of harm to the victim and is not merely incidental to the other crime. PARTIES TO A CRIME Commit the act constituting the crime Participate in either before or during is commission Use an innocent agent to commit it Note: Assistance after the crime does not create liability for the crime Participation in the offense - encouraging or assisting but NOT mere presence With the required intent Know the primary actor is going to commit the offense AND Intent (want/desire) to encourage or assist him in doing so - look for a motive for wanting the primary actor to successfully commit the crime Presence pursuant to an agreement to aid is sufficient to show participation An aider and abettor can be convicted even if the primary actor is acquitted The participant is a member of the class of persons protected by the crime (ex: buyer in a drug sale case) OR The crime inherently involves several types of participants and only some are made liable THE PREPARATION CRIMES Go far enough - i.e. - do something constituting a substantial step towards commission of the crime With intent to commit the crime NO defense

Premeditation Voluntary Manslaughter 1 2 3 Involuntary a Manslaughter b Liability for Omissions 1 2 3 4 Rape or Sexual Assault a b Kidnapping Kidnapping: Rule 1 2

When you can be guilty of a crime

1 2 3 1 2 1 2

Aiding and Abetting Elements Aiding and Abetting: Intent

Aiding and Abetting: a Rules b Aiding and Abetting: a Exceptions to liability b


1 2

Abandonment of Attempt

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Criminal Law Impossibility defense a for Attempt b c Impossibility: Mistake about one's ability 1 2 3 Impossibility: Mistake about criminal law Impossibility: Mistake about circumstances LEGAL impossibility is a defense FACTUAL impossibility is NOT a defense Impossibility is ONLY a defense in an attempt case - these involve mistaken beliefs by the Ds that the attempts will be successful NO defense b/c this is factual impossibility Impossible for D to perform the conduct he set out to perform OR Cause the result he set out to cause BUT mistakenly believes he will be successful D thinks his conduct would constitute a crime, but he is mistaken about the criminal law

This is LEGAL impossibility NO defense - this is factual impossibility D's intended conduct if completed would not constitute a crime b/c one of the circumstances is not what is required for the crime -- If the circumstances were as D believed, his intended conduct would constitute a crime Solicitation 1 Requesting someone to commit an offense (even if it is rejected immediately) 2 With the intent they commit it Conspiracy 1 Entering into an agreement to commit a crime 2 The intent that the crime be committed 3 An overt act in furtherance by ONE member of the group Co-Conspirator Rule All members of a criminal conspiracy are guilty of crimes committed by other members of that conspiracy if those crimes are both: 1 Committed in furtherance of the scheme AND 2 A foreseeable result of the scheme Conspiracy: - NOT a defense to conspiracy, but is a defense under the co-conspirator rule Withdrawal - Effective withdrawal as a defense to the co-conspirator rule: 1 Fully communicated to all other members of the agreement 2 Before the crime is committed Conspiracy: Defense R: If ALL other members of the alleged conspiracy have been acquitted (or the equivalent) of No Meeting of then D must be acquitted Guilty Minds Equivalents of Acquittal = a Not guilty by reason of insanity b Person did not intend to go through with the crime DEFENSES Ignorance or Mistake 1 Effects criminal liability ONLY is it shows D lacked the intent required for the crime of Fact AND 2 The mistake was objectively reasonable - If the mistake shows an absence of a necessary specific intent, it need not be reasonable Specific Intent Crimes Larceny, other property crimes Burglary Attempt and conspiracy Any offense defined as doing something "with intent to . . ." Arson and Rape are NOT specific intent crimes Criminal Intent 1 D must have been aware of the facts that constitute the crime 2 D need not have known anything about the law Modern Mens Rea a Purpose - conscious desire Definitions b Knowledge - awareness of a practical certainty c Recklessness - awareness of a substantial risk d Negligence - Reasonable person would have been aware of a substantial risk Strict Liability = NO Exception to mens rea requirement: mistake of fact a Statutory rape - no need to know the victim's age defense b Bigamy - don't need to know you are still married c Regulatory crime - low penalty enforcement device Page 28 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Criminal Law Transferred Intent If D intends to injure one person and accidentally inflicts a similar injury upon another person, he will be treated as if he intended to injure the person actually harmed NOT a defense to say you were ignorant of the law, UNLESS A D's affirmative (but mistaken) belief that the criminal law did not prohibit her conduct is a defense if: That belief was objectively reasonable The D relied on either: a statute later held invalid; a judicial decision later overruled; OR an official interpretation of the law by a public official NOT a defense unless there is a specific knowledge mens rea that the law is being violated.

Ignorance or Mistake of Law 1 2 3 Mistake of Law: Advice of counsel Insanity Defense (M'Naghten) 1 2 3 a b 1 2

Facts show that D had a serious mental illness OR defect this caused a defect in his reasoning abilities As a result he did not either: understand the nature of the act he was doing OR understand that his act was wrong Insanity: Analysis Assume the situation as the D perceived it Under those circumstances, would D have been legally entitled to do what he did - if yes, acquit (VERY rare) Loss of Control and - Under M'Naghten it is NOT a defense Insanity - May be a defense under statutory versions of insanity based on the Model Penal Code OR the irresistible impulse version of insanity Unconsciousness If the D was unconscious, his behavior cannot constitute the necessary VOLUNTARY Defense act Intoxication Defense Is involuntary only if: 1 D did not know the substance was intoxicating OR 2 D consumed substance under duress Note: If involuntary, we treat as a mental illness and apply the insanity test Voluntary Intoxication - Will acquit ONLY if the crime requires proof of specific intent (higher than recklessness Defense under modern statutes) and the intoxication shows he lacked that intent Entrapment Defense 1 2 Necessity or Choice of 1 Evils Defense 2 3 1 2 1 2 3 Self-Defense 1 2 3 1 2 This can disprove premeditation but NOT malice aforethought Courts can find that voluntary intoxication is irrelevant to criminal liability The D was not predisposed to commit crimes like this AND Police officers created the intent to commit the offense in her mind Minority rule - objective test - police activity would cause a rznble person and unpredisposed person to form the intent to commit the crime D believed that committing the crime would prevent an imminently threatened harm D believed this threatened harm would be greater than the harm that would result from commission of the crime These beliefs were objectively rznble D wrongfully created the situation making the choice necessary OR The D killed another to avoid his own life D was compelled to commit the crime by a threat that if he did not do so, the threatening person would do: Immediate and physical harm To D or a third person Exception - Not a defense to a crime that consists of an intentional killing D believed he was in imminent danger of being harmed by another The force he used was necessary to prevent the threatened harm These beliefs were objectively rznble D rznbly believed she was threatened with imminent death or serious bodily injury AND Deadly force used was necessary to prevent the harm to her. Page 29 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Necessity is NOT a defense Duress or coercion Defense

Self Defense with Deadly Force

Criminal Law Deadly Force: Retreat a b 1 2 a b General rule - opportunity to retreat is a factor to consider reasonableness Minority rule - any opportunity to retreat must be taken before using deadly force ONLY if retreat is possible with complete safety No duty to retreat when attacked in one's own home A person who starts a fight cannot use force in self defense during the fight An aggressor regains the right to use force in self-defense during a fight by either: Withdrawal from the fight OR Giving notice of desire to do so A D charged with murder who actually but unrznbly believed killing was necessary in self defense is NOT entitled to acquittal, but should be convicted of manslaughter instead of murder. The D believed that another person was threatened with imminent unlawful harm by a third person The D believed that the force she used was necessary to prevent the harm These beliefs were objectively rznble -->did it rznbly appear to D that the person she aided was in the right General rule - it is a defense that force was used in the rznble belief that it was necessary to prevent unlawful interference with real or personal property Limits: Only NON_DEADLY force can be used Force can only be used to prevent the interference, and NOT to LATER regain the property, except in immediate pursuit

Self Defense: Aggressor

Deadly force in Homicide Cases Defense of Other Persons Defense 1 2 3 Defense of Property Defense a b

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TX Crim Pro INTRODUCTION Steps in a Felony Prosecution 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 1 2 3

District court Jurisdiction Justice Court Jurisdiction Municipal Court Jurisdiction County Court Jurisdiction

1 2

PRETRIAL PROCEEDINGS Initial Appearance before Magistrate 1 2 3 4 a. b. c. d. e. 5 Consequences of Not 1 Going before the a. Magistrate b. 2 Bail: When can it be denied 1 2 a. b.

Process to Deny Bail in a Noncapital Case Page 31 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Process to Deny Bail TX Crim Case in a Noncapital Pro -

Process to Deny Bail in a Capital Case a. b. c. -

Factors in Setting Bail L & decide whether excessive A S S O

Procedures to reduce 1 bail that is set 2 a. b. c. 3 4 Personal Bond v. Bail Bond Examining Trial

a. b. c. d. e. -


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TX Crim Pro Information

Complaint Grand Jury Rights


2 3 4 a. b.

5 Grand Jury Subpoena

1 2 3 4 a. b. c. d. e. f. 5 6 Challenges to Indictments based on Grand Jury Proceedings LIMITATIONS Limitations Periods 1

2 a. b. General periods of Limitations 1 2 3 a. b. c. PLEADINGS Page 33 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro Charging Instruments in general

Formal Requirements 1 of Indictment or 2 Information 3 4 5 6 7 8 Significance of Indictment for Trial

UNCHARGED AND LESSER INCLUDED OFFE One offense is a 1 lesser included offense of another 2 (and more serious) if: 3 4 A jury should be 1 instructed on an 2 uncharged offense if: a b NAME OF THE ACCUSED If the D believes the 1 name on the 2 indictment is not his 3 "true name" RAISING INDICTMENT DEFECTS General rule Exception Timeliness If TC quashes indictment, State may How does D challenge 1 the indictment 2 What if the D does NOT assert a timely challenge to indictment 1 2 On appeal, a 1 conviction will be Page 34 reversed for error in da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls overruling a MTQ for:

TX Crim a On appeal, Pro conviction will be 2 reversed for error in overruling a MTQ for: Distinctions Btw Form and Substance CURING DEFECTS BY AMENDMENT When amendment is sought BEFORE the day of trial -


On day of trial To get indictment amended, Prosecution must Prejudice to D

PRETRIAL PROCEDURE IN TRIAL COUR ARRAIGNMENT Summary PLEAS BY THE ACCUSED Pleas available to D 1 2 3 No contest v. guilty Evidence of insanity What must judge tell D before accepting a felony plea of guilty or no contest Pretrial hearing and conference 1 2 3 4 5 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

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TX Crim Pro 6 7



Motion to Suppress v. Motion in Limine -


Inspection (Real Discovery)


Witness left off an ordered witness list

1 2 Can the court compel discovery? Authorities must 1 preserve DNA if: 2 Informant Disclosure

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TX Crim Pro

CONSTITUTIONAL DUTY TO DISCLOSE EXCULPATO A D's Due Process 1 Rights are violated if 2 With regard to 1 exculpatory evidence: 2 3 a b c 4 Competency to Stand 1 Trial a. b.

2 a. b.

1 2 3


Venue and Change of Venue 1 2

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TX Crim Pro 1 2 -

1 2 a. b.

Disqualification of the Judge 1 2 3 4 Presence of the Accused -

1 2


Joinder and Severance of Charges -

1 2 3 -


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TX Crim Pro Joiner and Severance of Defendants 1 2 -


Continuances and Postponements

1 2 3

1 2 3

1 2 3 Right to Counsel and Self-Representation a. b.


Right to Effective Representation

1 2

1 2 Dismissal by the State 1 2 Page 39 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Dismissal by the State

TX Crim Pro TRIAL: GUILT-INNOCENCE Jury Trial on GuiltInnocence (Basic Structure) -

a. b.

a. b.





Qualifications of Jurors & Challenges for Cause 1 2 3

1 2 3 4 5 6 7 8 Page 40 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro 9 10

1 2 -


Peremptory Challenges a. b. c. d.

1 2 3


1 2

Trial Procedure 1 2 3 4 5 6 7 8 9 10 Page 41 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro Directed Verdict 1 2

1 2 EVIDENCE Hearsay 1 2 a. b. c.

3 -

a. b. -

Character Evidence

a. b. 1 2 -

a. b.

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TX Crim Pro a. b. c. 1 2 Extraneous Offense Evidence a. b. -

1 2 3 4 5 a. b. a. b. c. d.

Writings and recorded Statements 1 2

Rule of Optional Completeness Page 43 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro Physician-Patient Privilege Attorney-Client Privilege 1 2

Privilege of the Defendant's Spouse

1 a. b. c. 2

Marital Communications Privilege -

1 2

1 2 a. b. c. Statements Made in Plea Bargaining 1 Discussions 2 a. b. Subpoenas 1 2 -

Bolstering a Witness 1 Page 44 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Bolstering a Witness TX Crim Pro 2

1 a. b. c. 2 Competency of a Witness

1 2 -

Jurors Asking Questions Methods of Impeachment

1 2 3 4

Impeachment with Character Evidence

Impeachment with Bad Conduct 1 2 3

Impeachment by Contradiction

4 1

2 Impeachment with Bias Trial Ruling No Nos by the Judge 1 2 "The Rule" a. b. Page 45 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro 1 2 The Rule: Exclusions 1 2 3 4

Expert Testimony


Determining Admissibility of Expert Testimony/Scientific Evidence

Disclosure During Trial

1 2

3 4

a. b. Photographs as Evidence

a. b. Texas Exclusionary Rule with Illegally Obtained Evidence

1 2 3 4

a. b. Evidence Requiring Corroboration Page 46 1 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Evidence Requiring TX Crim Pro Corroboration



a. b. c. d. 4

JURY CHARGE Jury Charge 1 2 1 2 3

Objecting/Requesting to the Charge Orally 1 2 3 Failure to Object to the Charge

Omissions from the Charge

1 2

Pleadings, 1 Instructions & Burden of Proof 2 3 4

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TX Crim Pro Jury Instruction Example:

ARGUMENTS OF COUNSEL Limitations on Jury Argument 1 2 3 4

1 2 3 4 -

Order of Jury Argument

Commenting on D's silence 1 2 3 4 Texas Confession Statute: Art. 38.22 Generally

TEXAS CONFESSION STATUTE (p. 123 lecture 1 2


1 2 Written Stmt Requirements 1 2 a. b. c. d. e. 3 a. b. 4 Oral Stmt Requirements J Page 48 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls


TX Crim Pro R R a. b. c. d. e.


Stmts obtained Out of 1 State or by Federal Officers 2 Texas Procedure for Litigating Confession 1 Issues 2 3

TRIAL ON PUNISHMENT AND SENTENCIN Jury Trial Evidence of Ds previous bad acts/crimes Good time/Parole

Self Incrimination Ds character Judicial confession Factors in Assessing 1 Death Penalty 2 3

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TX Crim Pro Eligibility Statutory Considerations Jury consideration -


1 2 Procedure: TC must 1 2 3 4 D violates CS D completes CS Deferred adjudication v. Probation -


Reasons Why 1 Sentence should not 2 be pronounced 3


Grounds for granting a new trial Can be made on the 1 grounds that 2 3 Page 50 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro APPEAL What court? 1


2 3 4 Denial of Bail 1 2

Guilty plea and error Guilty plea pursuant to plea bargain 1 2 Certification D Escapes What if App Ct affirms Ds conviction Discretionary Review 1 by Ct of Crim Appeals 2 can occur 3

Pre trial: State may appeal if TC

1 2 a b c

3 Post trial: State may 1 appeal if TC 2 3 Cross appeal DNA testing If State takes an 1 appeal from a pretrial Page 51 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls order favoring D

TX takes an If State Crim Pro appeal from a pretrial 2 order favoring D

1 2 3 To preserve error in 1 EXCLUDING 2 evidence To preserve error in 1 ADMITTING evidence 2 3 To preserve error in 1 improper arg 2 3 4

Appellant has a responsibility to

Unnecessary allegation Ps failure to prove an 1 unnecessarily included allegation 2

Legal sufficiency

1 2

Factual sufficiency

1 2

Summary Non© Error Constitutional error

1 2

POST CONVICTION ATTACK How to bring it D must show


D already appealed once but now wants to appeal on DIFF ground Page 52 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

D already appealed once but now wants to TX on DIFF appeal Crim Pro ground How can D get DNA 1 testing 2 3 4 5

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TX Crim Pro

3) Can be compelled to testify Transaction Immunity1) Immunity from Prosecution for any offense arising ou 2) Cannot be compelled to testify

SEARCH & SEIZURE Search- any official action that intrudes upon a person' NOT Search 1) aerial surveillance of fenced yard 2) trash in yard 3) numbers dialed from home 4) beeper to follow car public streets 5) dog sniff luggage in airport 6) Plain view 7) Open Fields Search 1) rigorous squeezing luggage in bus overhead rack 2) thermal imaging scan residence REASONABLENESS OF SEARCHES 1) Pursuant to a valid Search Warrant

Items Subject to Seizure: 1. Contraband 2. Fruits 3. Instruments 4. Evidence

Peace officer may NOT engage in it TEXAS SEARCH WARRANT

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TX Crim Pro

Evidentiary Search Warrant: may seize 1) items described by warrant & 2) items in plain view for which regular SW could issue NOT items of mere evidence that are not described in w Arrest Warrant- Requirements: 1) Name or physical description 2) offense 3) signature of issuing magistrate 4) Judicial office of issuing mag Permitted to break down door of residence to arrest: 1) PC to believe person committed felony 2) Gives notice of authority & purpose 3) Refused admission

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TX Crim Pro INTRODUCTION Arrest Presentment before magistrate Examining trial Consideration by grand jury Presentiment of indictment (from here on, must be in district court) Arraignment Pretrial hearing Trial- guilt/innocence Trial- penalty Pronouncement of sentence Motion for new trial Motion to arrest judgment Notice of appeal Appeal to the court of Appeals (this is a RIGHT) Review by Court of Criminal Appeals Felonies Misdemeanors involving official misconduct Transferred county court prosecutions for misdemeanors punishable by jail time Offenses punishable ONLY by a fine - this court has exclusive jurisdiction over NOTHING Exclusive jurisdiction over offenses created by city ordinance AND punishable ONLY by fine Concurrent jurisdiction over offenses created by state law AND punishable ONLY by fine Misdemeanors PRETRIAL PROCEEDINGS Must present the arrested without undue delay , and NEVER more than 48 hours after arrest At such hearing the magistrate's duties include: Inform arrested of the charges Inform arrested of his right to counsel Inform arrested of his right to examining trial Miranda type rights: Remain silent Have an attny present during questioning Any stmt may be used against him Request an appointed attny At any time he can terminate an interview with the police Set bail If there has been NO probable cause determination (no warrant or initial appearance): In felonies - release within 48 hours of arrest on bond In misdemeanors - release within 24 hours of arrest on bond Magistrate can NOT delay release for more than a total of 72 hours ONLY in the following cases: Capital murder prosecutions Noncapital felonies if: Substantial evidence of D's guilt of that crime AND One of the following: 2 prior felony convictions OR Present offense committed while out on bail for a felony OR One prior felony conviction AND present offense involved use of a deadly weapon OR Present offense was a violent or sexual offense committed while on felony probation or parole To deny bail the prosecutor must file a motion for denial of bail in District Court w/in 7 days of the D's apprehension Page 56 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro If bail is denied that order is appealable to the Court of Criminal Appeals A denial of bail in a noncapital case lasts ONLY 60 days as long as the defense does not move for a continuance - D should file a motion to set bail Ask the MAGISTRATE to whom the D is presented Prosecution must show: The D is charged with capital murder Likelihood that he will be convicted of that crime AND Likelihood that death will be imposed A denial of bail is challenged by writ of habeas corpus in District Court - a hearing is held and if the judge holds bail to have been proper there is a right of immediate appeal to the Court of Appeals L ikelihood of D appearing for trial (amt necessary to give rzbl assurance D will appear for trial) MUST CONSIDER A bility of the defendant to make bail MUST CONSIDER S eriousnes s of the crime charged Future S afety of the victim and the community MUST CONSIDER Required bail is not to be an instrument of O ppression ** In determining whether D is indigent, Court may NOT consider whether D has posted or is capable of posting bail; exception permits this to be consdiered insofar as it reflects D's financial circs as measured by other considerations, such as income, property owned, dependents, etc. This is confusing. So, can't consider it in deciding whether he is indigent, but can consider it when? why? what? wtf? File application for writ of habeas corpus in District Court At hearing introduce evidence showing: Bail was excessive D cannot meet bail set Amt of bail that D could meet The District judge may order bail reduced If not, D can appeal to the Court of Appeals BEFORE trial Personal bond is the D's promise to pay the amt if the bond is forfeited Bail bond requires a surety or cash deposit Purpose - pretrial hearing before a magistrate requiring the prosecution to produce evidence showing probable cause of the D's guilt & therefore should be held to bail pending trial. **Any magistrate (all judges are magistrates) in Any court** - if no PC is found, D gets to go free, but the State can come back and seek a conviction later Rights of the D at the examining trial: Be present Be represented by counsel Have the rules of evidence applied Cross examine the State's witnesses Subpoena and present defense witnesses **NO RIGHT to examing trial if already been indicted. D has an absolute RIGHT to an examining trial if charged with a felony, UNLESS there has been an indictment *** D MAY make an unsworn, voluntary stmt, but this must be done before any W's are examined. D MAY alternatively take the stand after state has presented its E & testify under oath. To get one a grand jury must vote (by at least 9 out of 12) to return a "true bill" against the D - to do this the grand jury must find that probable cause exists to find D guilty Right to a grand jury MAY be waived in all cases except Capital murder by doing the following: D must be represented by counsel Waiver must be by written instrument or in open court AND Waiver must be voluntary Page 57 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro Def - a pleading filed by the state charging a person with a criminal offense Used to charge a D when the indictment has been waived Different from an indictment in that it need 1) only be approved and signed by the prosecutor, where an indictment must be approved by a grand jury and signed by the foreman - an information must be supported by a 2) valid and sworn complaint, which must be 3) filed Can be used when the D is charged only with a misdemeanor in municipal or JP courts D has NO right to participate or appear - D may appear as a witness or with the grand jury's permission he may be allowed to address the grand jury ONLY the prosecutor and grand jury may question the witnesses D's Lawyer may appear before a grand jury ONLY if the grand jury permits it AND the prosecutor approves D may be subpoenaed, and if he is: he has the right to refuse to answer incriminating questions he has the right to the following warnings: - the offense of which he is suspected - the county in which it was committed - the time of its occurrence The questions asked and D's testimony MUST be recorded The witness is called the "suspect" witness - he can be compelled to appear but can invoke his privilege against self incrimination Has the following rights: Have his lawyer OUTSIDE the grand jury room Consult with the lawyer before answering questions Have a lawyer appointed, if he is indigent Must be orally warned that:\ The testimony will be recorded A false answer subjects him to perjury He can refuse to answer the incriminating question He has a right to counsel He has a right to consult with his lawyer outside the room His testimony can be used against him He must be given a written copy of the warnings He must have a rznble opportunity before appearing to obtain and consult with counsel An indictment may NOT be challenged for insufficiency of evidence An indictment may NOT be overturned for unauthorized people being present during the hearing An indictment MUST be reversed in there is someone other than grand jurors in the deliberation room LIMITATIONS Limitations period starts to run from the COMMISSION of the offense and stops on the date of presentment - Date of presentment is determined from the date of file stamp on the indictment Tolling occurs when: The accused leaves the state - don't count the time they are absent A charging instrument is pending and later dismissed Misdemeanors - 2 years Felonies - 3 years NO limitations period for: Murder and manslaughter Offense involving leaving the scene of an accident Sexual assault, where DNA testing indicates the perpetrator is not a person whose identity is readily ascertained PLEADINGS Page 58 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro An indictment or information alleges ONLY facts - it does not identify the charged crime by name Substantive requirements - must 1) charge the offense AND provide the accused with 2) trial preparation notice - to charge the offense you need facts constituting 1) all elements (statutory language is usually sufficient) and any 2) victim must be named Commence: "In the name and by authority of the State of Texas" Name the accused or describe him Set forth all elements of the offense Specify enough detail to give the accused notice Allege the crime was committed on a date that is within the period of limitations AND before presentment of indictment Allege commission of the crime in a county within the court's jurisdiction Conclude - "Against the peace and dignity of the State" Signed - indictment by the foreperson of the grand jury; information by the prosecutor Determines those offenses for which the accused can be convicted Jury can convict D ONLY of an offense charged in the indictment, UNLESS there is a lesser included offense UNCHARGED AND LESSER INCLUDED OFFENSES It is proved by some but not all of the same facts required to prove the more serious offense; or It requires only a less serious injury to the same person, ppty, or interest as the more serious; or It requires only a less culpable mental state than the more serious offense; or It consists of an attempt to commit the more serious offense The other offense is a 1) lesser included offense of the crime charged; and The evidence before the jury is such that the 2) jury could find both that: D is NOT guilty of the charged offense; and D IS guilty of the lesser included offense NAME OF THE ACCUSED The D must raise this at the arraignment The D must specify his true name and The judge is then to correct the indictment so it accuses the D by his own true name When does P need to raise it? Can P raise at any time? RAISING INDICTMENT DEFECTS All defects must be raised BEFORE trial Defects that prevent instrument from being an indictment or information can be raised at ANY time Motion must be filed before the day trial BEGINS Take an appeal Obtain a new indictment or Amend the indictment Except to the FORM of the indictment Except to the SUBSTANCE of the indictment Note: These motions are informally called "motions to quash" (MTQ) the indictment Note: These motions must be filled before the day on which trial begins If it was not fundamental error - then the defect is waived If the error is fundamental and renders the instrument not an "indictment" - then it need not be raised in the TC: As a result of the error, the instrument fails to specify any person as charged with the offense; or The error makes the instrument so unclear that the accused cannot determine what crime the State claims he committed A defect of form ONLY if the D shows HARM Page 59 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro A defect of substance WITHOUT inquiry into harm

Defects of SUBSTANCE consist primarily of failures to allege ALL elements of the crimes Defects of FORM consist of most other defects \ CURING DEFECTS BY AMENDMENT General rule: Any amendment is permitted whether it is of FORM or SUBSTANCE Limits - An amendment is not permitted over the Ds objection if the amendment would (1) cause the indictment to allege a different or additional offense or (2) prejudice the substantial rights of the D Protection for D: (1) Advance notice of proposed amendment; (2) Trial judge must authorize an amendment; and (3) If the indictment is amended and D so requests , D must have not less than 10 days to prepare for trial on the amended indictment, and to delay in trial if necessary to provide this - if less than 10 days remain, then the D must REQUES T a continuance NO amendments are permitted on day of trial BEFORE trial begins File a 1) motion for leave to amend D must be given 2) adequate notice Trial judge holds a 3) hearing and decides whether to amend If authorized, the amendment must be 4) made on the actual indictment An amendment to an indictment prejudices the Ds "substantial right" to be tried only on a grand jury indictment if the amendment so changes the allegations that the D can be convicted on the basis of a different indictment than that considered by the grand jury

PRETRIAL PROCEDURE IN TRIAL COURT ARRAIGNMENT Takes place in TC Accused enters a plea This is the point for fixing the accused's identity, and Judge appoints counsel PLEAS BY THE ACCUSED Guilty Not guilty Nolo contendere There is no difference in a criminal case. BUT in a civil case - a plea of GUILTY could be used against the D - but a plea of NO CONTEST could not. Notice of the defense intent to introduce such evidence must be filed 10 days before trial Inform D of the 1) range of punishment Inform D that 2) recommendations by State as to punishment are not binding Inform D of the limited right, after a guilty plea, to 3) appeal (i.e. if Plea is pursuant to a plea bargain, he can only appeal on ground of rulings on pretrial written motions, OR if trial court gives permission) Inform D that plea may result in 4)deportation, exclusion from US to denial of naturalization Inquire as to whether there is a 5)plea bargain Note: The D has the (right to withdraw) the plea if he wants PRETRIAL MATTERS A trial judge MAY set a case for a pretrial hearing and conference If one IS set - the parties must do the following 7 days BEFORE enter any special pleas Make challenges to the indictment Make motions for continuance Make motions for change of venue Make motions to suppress Page 60 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro Make discovery requests Raise claims of entrapment Note: D can testify but ONLY on an issue related to that hearing **State is limited to scope of supression hearing; cannot cross examine D regarding commission of charged crime; limit questions to hearing (i.e. circs under which stmt was made if hearing to suppress stmt bc unvoluntary). *D NOT waive his right to remain silent at trial. But, if testifies at trial & his testimony is inconsistent w/ hearing testimony, can use hearing test to impeach D If there IS a pretrial hearing set - the defense counsel has to file the motion to quash BEFORE the hearing A pretrial ruling on MTS DOES preserve the issue for appeal A pretrial ruling on a MIL does NOT preserve a matter for appeal (must make objectionat time of the action) Ex: don't want P to mention extraneous offense during voir dire of jurors, so I 1) file motion in limine asking court to consider pretrial the admissibility of this E, find it inadmissible & order P not to refer to it during VD. Regardless of ruling on motion, I should object immediately and on the record if P mentions it. PRETRIAL DISCOVERY & EVIDENCE PRESERVATION - TEXAS Generally: Trial judge has discretion to order the State to provide the defense with a list of witnesses the State intends to call Expert Witness List: Trial judge has discretion to order either/both sides to provide the other with list of expert witnesses it may call at trial (at least 20 days before trial date) A D may be permitted to depose a witness: The trial judge must issue an 1)order authorizing the depo if the D shows 2)"good reason" for the depo Depo may be used 1. For discovery - obtaining info to prepare for trial OR 2. To preserve testimony for later use at trial Inspection MAY be ordered if (1) the thing is tangible; (2) constitutes or contains material evidence; (3) is in the possession of the State; (4) is not "work product" of the State [ex: a report by the State Crime Law, police reports of the investigating officers, written stmt given by State witnesses to the police] Inspection MUST be ordered if the item is evidence ESSENTIAL to the State's case (D's confession, samples of physical evidence to enable the D to est the material before trial) Inspection, if ordered, cannot require the State to give up possession of the time The inspection must be sufficient to give the accused the information necessary to prepare for trial The trial judge has discretion to exclude or admit based on : Whether omission was intentional and Whether the defense received actual notice that witness would testify Names/address of experts - YES Summary of expert testimony - NO ANY info of fact witnesses - NO, except can compel State to give D list of fact W? The evidence contains biological material that if subjected to scientific testing would establish the perpetrator's identity or exclude someone from those who could have committed the crime; and The authorities KNOW this Rule: The identity of an informer is generally privileged and CAN be withheld by the State Exception: If the informant provided information by which the State obtained evidence in a way the D claims was illegal - the court has discretion to require disclosure if necessary to establish the informer's reliability Exception: Upon a showing the informant can provide testimony necessary to a fair determination of guilt/innocence , the court must order disclosure

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TX Crim Pro **PRETRIAL DISCLOSURE OF GRAND JURY TRANSCRIPT- of any transcription of testimony given before the grand jury that considered the case. D is entitled to this transcription ONLY upon a showing of "particularized need." Showing should involve any reason D has to believe that one or more W's who testified before GJ will also testify at trial , & that their trial testimony may differ from that given before the GJ CONSTITUTIONAL DUTY TO DISCLOSE EXCULPATORY EVIDENCE The prosecution fails to disclose exculpatory information that is in its possession AND This information is "material" which means that if it had been disclosed, there is a rzbl probability that the outcome of the case would have been different Prosecution has a due process duty to disclose such evidence Evidence that impeaches a prosecution witness is exculpatory Evidence must be disclosed if it is in the possession of The trial prosecutor Another prosecutor; or The police A conviction is invalid for nondisclosure only if the nondisclosed exculpatory evidence is material A defendant is incompetent to stand trial if either: She lacks the ability to consult with counsel with a rzbl degree of rational understanding , or She lacks a rational and factual understanding of the charges ** To rebut legal presumption that D is competent, must show 1 of 2 things by POE: 1)D lack a rational & factual understanding of charges, OR 2)D lack sufficient present ability to consult with Lawyer with rzbl understanding*** ***Insanity - looks to the accused's condition at time of the offense; depends on whether accused knew conduct was wrong; if found insane, he's acquitted & cannot again be prosecuted. ***Competency focuses on the accused's condition at the time of trial; depends on whether the accused understands the charges & can consult w/ defense counsel. if found incompetent, proceedings are only suspended & can be continued if D regains competency. If after being found incompetent to stand trial the accused's condition improves: The defendant can be determined to be competent, and The prosecution can proceed How is the issue of competency raised? The defense may, by motion, suggest the defendant may be incompetent, or The State may, by motion, suggest the defendant may be incompetent, or The trial court may, on its own, suggest the defendant may be incompetent Note: If evidence comes to the trial court's attention that the defendant may be incompetent, the trial court must, on its own motion, suggest the defendant may be incompetent

How is the issue of competency resolved? Trial judge must make a preliminary inquiry. If this shows significant evidence of incompetency, the judge must hold a full hearing. If either party or the judge requests, the determination must be made by a jury. There is a legal presumption that the defendant IS competent To rebut the presumption, the defense must show by a preponderance of the evidence that defendant is incompetent General Rule: venue lies in the county where the crime was committed A Defendant may seek a change of venue because: prejudice in county would prevent a fair trial , or Dangerous combination of influential persons against the defendant would prevent fair trial

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TX Crim Pro The State may seek a transfer of venue because: Combinations or influences in favor of defendant would prevent fair trial , or Life of defendant or a witness would be jeopardized by local trial The Trial Court may change venue on its own motion because it not possible to conduct a trial that is fair and impartial to both the state and the accused To Obtain a change of venue, the defense counsel must file: A Written motion for change of venue, Affidavits that a fair trial cannot be held in the county signed by: The defendant, and 2 credible residents of the county Note: At the Hearing, defendant must present evidence showing there is sufficient prejudice in the particular county to prevent a fair trial A judge may be disqualified on the following grounds: Judge was the victim of the crime Judge was counsel for either side (in this case) Judge is related w/in 3 degrees (by blood or marriage) to either the defendant or the victim Bias Judge presiding at trial cannot testify in trial as trial witness In a Felony case or a prosecution for a misdemeanor punishable by jail time, the defendant must be present at the beginning of trial Beginning of trial means: In a Jury case - through selection of the jury In a Non-jury case - through D's plea to the indictment AND the D must be present at the end of the trial for formal sentencing BUT, if D is voluntarily absent in the middle, the trial may nevertheless proceed in the D's absence In prosecution for a fine-only misdemeanor, the D can be absent b/c she may appear by counsel IF the prosecution consents An indictment may allege only one offense. If an indictment alleges more than that, it is to be quashed A D may be tried on only one indictment per trial. If a D is scheduled for trial on several indictments. The D is entitled to have the trials severed The state may JOIN in one indictment all offenses arising out of one "Criminal Episode" If a D is charged in different indictments with offenses arising out of one criminal episode, the State may have those indictments CONSOLIDATED for trial together Crimes are a part of the same criminal episode if they are: Part of the same transaction, or Part of a common plan or scheme, or The same or similar offenses The State is NOT required to seek trial together of offenses arising out of one criminal episode; State's Discretion to join/consolidate A D who is scheduled for trial together on multiple charges because those charges arose from the same criminal episode has the absolute right to have the charges severed for separate trial BUT a D who invokes the right to severance incurs a potential disadvantage…the trial judge has the discretion to make the prison terms Consecutive Note: If the charges were tried together…the prison terms must run Concurrently Page 63 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro Several defendants may be charged in one indictment if they are all charged with the same offense Several defendant's may be joined for trial if: They are charged with the same offense, or They are charged with different offenses arising out of the same transaction Mandatory Severance - A D who moves for severance and shows her codefendant has a prior conviction admissible against that codefendant at trial MUST be granted a severance

Discretionary Severance - In other situations, a trial judge has discretion to grant a motion for severance of trials, and should gran t such a motion if a joint trial would be prejudicial to the D who has moved for severance Generally, a motion for continuance must be: In writing, and Supported by a showing of good cause, and Sworn **ALL motions for continuance are at trial judge's Discretion, NOT Matter of Right!!* A motion made after trial has begun, must also be: Based on an occurrence that happened after trial began, and And that occurrence could not have been anticipated, and Surprise must be such as to prevent a fair trial Defendant's motion for continuance to obtain a missing witness must contain: Name and residence of missing witness, and Efforts made to secure witness's presence, and Material facts defense expects to prove by witness An indigent D sometimes has a right to an appointed attorney A D charged with a felony always has such a right A D charged with a misdemeanor need NOT be provided an attorney if no jail time is imposed upon conviction A D has a 6th Amendment right to represent himself A judge MUST make sufficient inquiries of the D to assure he is competent to engage in selfrepresentation Competency to engage in self-representation requires only that the D understand the disadvantages and risks of that course If the D satisfies the competency standard, the judge may NOT require the D to accept an appointed attorney Confused about this: "Judge may NOT consider whether D has posted or is capable of posting bail. Exception--> this may be considered as it reflects D's Financial circumstances as measured by proper considerations, such as income, property owned, dependants, etc. A D has a 6th Amendment right to effective representation that is violated if: The lawyer's actions were beyond the bounds of professional competence (and not simply tactical decisions), and There is a rzbl probability that had counsel been effective, the results of the proceeding would have been different Representation is NOT effective where counsel: Fails to conduct adequate investigation, or Fails to convey to the client an offer of a plea bargain The State may dismiss some or all of the charges brought provided it: Files a written statement of the reasons, and The trial judge approves Page 64 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro No further prosecution may occur if a dismissal occurs after jeopardy has attached TRIAL: GUILT-INNOCENCE Criminal D MUST be tried to a jury unless D waives his right to a jury trial Jury Size District Court - 12 County, Municipal, Justice Court - 6 Verdict is usually "general" (guilty/not guilty) except: Special plea is submitted to the jury (found true or not true) Jury finds D "not guilty by reason of insanity" Communications during trial between judge and jury Jury must communicate with the judge in writing Judge's response must be (1) in writing and (2) read to the jury in open court Jury Shuffle Either the D or the State can demand that the members of the panel from which the jury will be selected be re-seated in a random manner. *Can only happen ONCE A request for a jury shuffle must be made before voir dire of the jury panel begins Burden of Proof and Verdicts The State must prove guilt beyond a rzbl doubt The verdict must be unanimous If the jurors cannot agree on a unanimous verdict, the judge must declare a mistrial. **Judge can declare mistrial w/o agreement of the parties if he finds the jury has been kept together long enough to be improbable that it will be able to reach the required unanimous verdict**

WAIVER of a Jury Trial Whether to have a case tried by a jury or not is a decision to be made by the D If the D wants to have the case tried to the judge, the D must waive jury trial…this must be done before trial The D's choice need NOT be the same as to both phases…whether or not the D waives jury trial on guilt, he can elect jury assessment of punishment or let the judge assess punishment In a capital murder where the State seeks the death penalty, the D may NOT waive jury trial as to guilt Waiver of a jury trial on guilt requires consent of (1) the judge and (2) the prosecutor When the members of the jury panel have been sworn, and before voir dire begins, the judge asks and determines: Are you a qualified voter in this county and state? Have you ever been convicted of theft or any felony? Are you under indictment or accusation of theft or any felony? Challenges for cause that may be made by the State or the Defendant: UNLIMITED # ALLOWED Prior conviction for theft or a felony (absolute disqualification) Under formal charge for theft or felony (absolute disqualification) Insane (absolute disqualification) Not qualified to be a voter Is a witness in the case Served on a jury in prior trial of the case Served on indicting grand jury Cannot read and write Page 65 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro Biased or prejudiced for or against the accused Bias or prejudice against any law applicable to the case on which the defense or the State is entitled to rely If a juror absolutely disqualified sat on the jury, the conviction must be set aside if the D either: Raised this before the verdict was entered, or Shows significant harm as a result of the juror's service A juror who state he has formed an opinion that would influence his verdict MUST be discharged for cause A juror who states he can render a verdict on the law and evidence despite his opinion need not be discharged if the court satisfied the juror can be impartial To est basis for challenge for cause can do 1 of 2 things: 1)Elicit from juror that he will be unable to put his view aside & properly determine punishment according to judge's instructions/decide case on merits, or 2) if juror says he can put them aside, persuade judge that despite what juror says, he will not put his view aside & thus will not objectively apply the law to the case Each side in a criminal trial gets a limited number of peremptory challenges which can be exercised with no explanation : Capital murder death penalty cases: 15 Other felony cases: 10 Misdemeanors in county, municipal or justice court: 3 Misdemeanors tried in district court: 5 Neither side may exercise peremptory challenges on the basis of race or gender If making a Batson Challenge , counsel should: State the grounds of the challenge (racial, gender) Move to dismiss the array of prospective jurors The motion should be made after each side submits its lists of challenged jurors and before the trial court empanels the jury Challenger has BOP racial discrimination. If the party making the challenge demonstrates a prima facie case of discrimination, the burden then shifts to the other side to explain their challenge on neutral grounds If the party succeeds in its Batson challenge, the trial judge MUST do one of the following: Dismiss the array and start jury selection over, or Reinstate those jurors struck for discriminatory reasons Note: The party making the Batson challenge need NOT be a member of the same class of persons as those jurors being challenged A trial proceeds as follows: Judge calls for and parties give announcements of readiness Prosecutor reads the indictment Defense counsel enters a plea for the D Prosecutor makes State's opening statement Prosecution presents State's case-in-chief Defense counsel makes defense's opening statement Defense present's its evidence Rebuttal evidence is presented The judge reads the charge to the jury Counsel makes final arguments to the jury (State argues last ) Note: Upon request, defense counsel may make the defense opening statement immediately after the State's opening statement Page 66 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro If defense counsel believes that the State has failed to show the D's guilt beyond a rzbl doubt , he should make a motion for a directed verdict of not guilty at: The end of the State's case-in-chief, AND The close of all the evidence Note: Because this motion presents an issue for the judge, NOT the jury, the motion should NOT be made within the hearing of the jury If after resting, defense counsel believes that the State has failed to prove that the crime occurred in the specified county, defense counsel should move for a directed verdict of not guilty, specifying that the evidence is insufficient b/c it fails to prove venue by the required preponderance of the evidence . This motion should be made: At the close of the State's case-in-chief, and (if judge not grant motion) At the close of all the evidence EVIDENCE Admissions of a Party Opponent are admissible Statements Against Penal Interest are admissible if: The statement is shown to be 1)incriminating regarding the declarant, A 2)rzbl person would not have made it unless she believed it to be true, and There are 3)corroborating circumstances that clearly indicate the trustworthiness of the statement (CRIMINAL) Records of Regularly Conducted Activity (business records) are admissible in criminal litigation as they would be in other litigation MUST lay the proper business records predicate : 1) Records kept in regular course of biz; 2) rcbiz for person w/ Knowledge of matter to make/transfer info; 3) entries made at or near time of events; and 4) W is the custodian. If a party lacks the extrinsic evidence necessary to admit the evidence, that party may still have the records admitted at trial if: They file an affidavit with the records attached with the court at least 14 days before trial starts, and They give the other party notice of the filing at least 14 days before trial General Rule: the State cannot introduce evidence that the D has a bad character to prove D's guilt The State can prove the D's bad character: If the accused puts his character in issue by exercising his right to introduce evidence of good character at the punishment stage of the trial Character witness may give two kinds of testimony Personal opinion as to the person's character, or The person's reputation for the character trait Character evidence CANNOT be proved by evidence of specific instances of conduct (except on Cross) Reputation testimony is NOT hearsay Foundation for character testimony Opinion testimony: personal familiarity with the person Reputation testimony: witness participated in discussions with others of person's reputation, or overheard others discussing that reputation Cross-examination of character witnesses Page 67 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro Inquiry into specific instances of conduct is allowed "Have you heard" questions are okay if reputation witness "Did you know" questions are okay if opinion witness At the guilt stage of a criminal trial, a character witness is Qualified to testify as to the D's character only if: On reputation, the witness was substantially familiar with the D's reputation prior to the day of the offense, or On personal opinion, the witness was substantially familiar with the facts on which that opinion is based prior to the day of the offense General Rule: evidence of an extraneous offense is INADMISSIBLE Extraneous offense = crime of which the accused cannot be convicted at this trial Neither a charged offense, or A lesser included offense If evidence showing an extraneous offense is relevant to some issue other than the accused's character , it is admissible UNLESS the trial judge is convinced that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice

Extraneous offense evidence may be admissible as relevant to (MIMIC): Motive Intent (or knowledge) Mistake or accident (to rebut) Identity (when D has put that in issue) Common scheme or plan A defendant puts his identity into issue by either: Introducing evidence that he was not the perpetrato r, such as alibi testimony, or Impeaching all the State's eyewitnesses Upon timely request by D, the State must give pretrial notice of: Intent to introduce evidence of other crimes, wrongs or bad acts not arising in same transaction as charged crime to be introduced in the State's case-in-chief given in advance of trial ***To keep testimony about extraneous offense out of court: 1)ask court to send jury out; 2)ask court rule in advance that any E of D's extraneous offense would be inadmissible E of an that's relevant only to D's character; 3) ask court to rule that E, if relevant to some issue other than character, is inadmissible b/c its probative value is outweighed by risk of undue prejudice; 4) ask court to direct P to ask no questions that would elicit testimony about the handgun, & 5) ask court to instruct witness not to volunteer any testiomny about D's possession of the handgun. If court refuses to rule in advance on this, Ask court to instruct P to approach bench & alert court & D counsel that P intends to elicit testimony about ext. offense. If one party introduces all or part of a writing or recorded statement, the other party is entitled to introduce: any other part of the writing or recorded statement, or any other writing or recorded statement , that in fairness should be considered by the jury at the same time The other party is entitled to introduce this immediately If one party introduces part of an act, conversation, or statement , the other party is entitled to prove the rest of the subject. **i.e. W asked about dislike of Party; other counsel can question into basis for that dislike (you dislike him b/c he beat your wife...) Page 68 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro Does NOT apply in criminal litigation In criminal litigation, the client of an attorney is entitled to have kept confidential both: A private communication to the attorney, and Any fact coming to the attorney's attention because of the attorney-client relationship (criminal trials only) **Clergy Privilegecommunications made to clergy 1) privately in member's 2) professional character as spiritual advisor General Rule: the spouse of a defendant has a privilege not to be called as a witness to testify against the defendant Exceptions: the defendant's spouse may be called if either: The prosecution is for an offense committed against any minor child a household member of either spouse, the spouse, or The spouse is called by the State to testify only about matters that occurred prior to the spouse's marriage to the defendant The privilege belongs to the SPOUSE…NOT the defendant Whether the spousal privilege is available turns on whether the witness is married to the D at the time of trial Any person (including a criminal D) has a privilege to refuse to disclose and to prevent others from disclosing a confidential communication made by the person to their spouse during marriage Communication is confidential only if it was both: Made privately, and Not intended for disclosure to any other person Exceptions: NO privilege exists if: The communication was made to commit a crime or fraud, or The prosecution is for a crime committed against the person of: any minor child, a household member of either spouse the spouse A statement made by the D is INADMISSIBLE if: It was made in the course of plea discussions with a prosecutor, and Those discussions either: did not result in a plea of guilty or nolo contendere, or resulted in such a plea that was later withdrawn Both sides on application to the clerk are entitled to have subpoenas issued for witnesses Either side is entitled to have an attachment issued for a witness if both: The witness has been properly subpoenaed, and The witness fails to appear In a criminal case, a subpoena is good state-wide (No 150 mile rule) If a witness actually fails to appear at the time specified in the subpoena, the defense may seek an attachment for the witness. This is directed to a peace officer and directs the officer to find the witness and bring the witness before the court. General Rule: a party may not bolster the testimony of the party's own witness by: Proving prior out-of-court statements by the witness consistent with the witness's testimony Page 69 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro Introducing evidence that the witness is a truthful person Exceptions: Bolstering a witness with prior consistent statements is permitted if the other party has made either an express or implied charge of: Recent fabrication by the witness, or Improper influence on the witness, or Improper motive on the part of the witness Bolstering by testimony of a witness's truthful character is permitted only if the witness's character has been attacked by evidence of untruthfulness All persons are competent to be witnesses except: Certain insane persons, and Children The child witness should be examined by the judge to determine whether the witness has sufficient intellect to relate transactions regarding which he will be asked to testify A judge may NOT allow jurors to question a witness as it creates too high a risk that they will too quickly arrive at a decision and thus will not objectively evaluate all the evidence Contradiction Prior convictions Showing character for untruthfulness Showing bias or interest A witness may be impeached by character evidence, in the form of opinion or reputation, of untruthfulness A witness' credibility may NOT be attacked by inquiry into specific instances of conduct, EXCEPT convictions Witness may be impeached by showing prior bad or criminal conduct ONLY if it is established that: The conduct resulted in a FINAL criminal conviction The conviction is not STALE - more than 10 years from later of conviction or release The conviction was for a misdemeanor that involved moral turpitude OR a felony - MORAL turpitude - theft; perjury; forgery; making false report to police; aggravated assault on a female; prostitution - NOT moral turpitude - DWI; drunkenness; assault; possession of dope; liquor law violations; unlawfully carrying a weapon The prejudicial value of the inquiry is substantially outweighed by its probative value A party can impeach a witness for the other sided by introducing extrinsic evidence that contradicts what the witness said UNLESS - the witness' assertion is on a collateral matter - a matter is collateral if the impeaching party would not be able to prove it as a part of its own case Other matters may be explored on cross in order to correct a misleading impression left by the witness (generally will be when the witness is non-responsive ) Can always impeach with bias - i.e. - the witness made a deal with the prosecution for its own crimes Judge MUST NOT: Comment on the weight of the evidence OR Convey to the jury the judge's opinion on the merits Upon request of EITHER party witnesses must be excluded from the courtroom except during their own testimony When invoked the judge must give the following admonishments at the BEGINNING of trial Those persons that the witness may talk to about the case during trial Those persons that the witness may NOT talk to If a witness is found to have violated the rule, the court may: Page 70 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro Hold the witness in contempt and/or Exclude the testimony of that witness Exclusion of the following is NOT permitted: The D If the D is a corporation, an officer or employee of the D Any person whose presence is shown to be ESSENTIAL to the presentation of a party's case The victim, the victim's guardian, or a close relative of a deceased victim, UNLESS the court finds that the testimony would be materially affected by hearing other testimony - the spouse of the D is NOT exempt Generally, an expert may testify to an opinion without first disclosing the facts or data on which that opinion is based IN criminal cases, a party against whom expert testimony is offered has a RIGHT upon request, to voir dire the expert on the facts of data BEFORE the witness testifies to the opinion **In Civil Case it's discretionary. An expert MAY testify as to an ultimate issue to be decided by the fact finder Should Consider: 1)Whether it's a Legitimate Area of Expertise, 2) whether testimony is w/in scope of that expertise; 3) whether expert will property apply the principles of the field of expertise; 4) Whether the expert took into account enough of the facts of this situation, & 5) Whether the jury will be confused or misled by the testimony ***AKE Motion- 1)Due process entitles an indigent D to the 2)appointment of an expert to assist in his defense when he makes a 3)preliminary showing that the issue for which expert assistance is sought is likely to be a significant factor at trial. Must show that expert has 4)expertise regarding the issues. A party is entitled to a WRITING if witness for the other side used it: to refresh her memory before or during her testimony A party is entitled to the prior written or recorded stmt of a witness for the other side (or a stmt of the witness made to the grand jury) after the witness has finished DIRECT examination - does NOT apply to D "Use Before the Jury Rule" - a party is entitled to an item if it is used by opposing counsel in front of the jury in such a way that its contents become an issue Work product doctrine does NOT apply here as it does pretrial Sanctions for refusal to produce a stmt MUST strike the testimony from the record MAY dismiss the prosecution if the interests of justice requires General rule - photos are admissible if a witness would be permitted to give a verbal description of what the photo shows - still subject to a 403 prejudice objection Authentication requires a sponsoring witness to testify that: The witness saw the matter shown in the photo AND The photo accurately depicts what the witness knows the matter looked like Evidence may NOT be admitted against the D at trial if it was obtained by an officer or other person in violation of: The © of the US The © of Texas The Laws of the US The Laws of Texas Good Faith Exception: Illegally obtained evidence is admissible if it was obtained by an officer: acting in good faith reliance upon a warrant AND this was issued by a disinterested magistrate based on probable cause Accomplice testimony (Accomplice Witness Rule) An accomplice witness is one who could be convicted of the crime charged Page 71 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro Rule - a D cannot be convicted on the testimony of an accomplice UNLESS there is corroborating evidence that tends to connect the D to the crime D's out of court confession (Corpus Delicti Rule) Rule - A D cannot be convicted on an out of court confession UNLESS there is corroborating evidence of the "corpus delicti", that is, evidence tending to show that a crime was in fact committed Sexual assault victim's testimony Rule - a D cannot be convicted on the testimony of a sexual assault victim without corroborating evidence connecting the D to the offense , UNLESS: the victim told someone other than the D about the offense within 1 year of its commission the victim was under 18 years of age at the time of the crime the victim was impaired - unable to satisfy her need for food, shelter, care and protection OR the victim was 65 years of age or older Some testimony by an undercover informer Rule - in a prosecution for a drug offense, conviction cannot rest on the uncorroborated testimony of a person NOT a law enforcement officer, who acted covertly for or under the color of law enforcement JURY CHARGE The judge is NOT to: Summarize the evidence Comment on the weight of the evidence Charging the jury must: The judge must read the charge to the jury in court BEFORE the lawyers make final arguments The jury is given a written copy of the charge Abstract - general portions that don't refer to the specifics of the case Application - where the law and the facts are applied Objections and requests MUST be in writing, Unless An oral objection or request is sufficient if: it is dictated to the court reporter in the presence of the judge and the prosecutor AND done before the final charge is read to the jury Error in the charge is subject to special harmless error criteria, under which a conviction may be reversed for "fundamental" error despite the lack of a trial objection: Preserved error requires reversal if it results in SOME error Unpreserved error requires reversal, ONLY if it results in EGREGIOUS harm and thus prevents a fair trial Error in the jury charge can be preserved either by: Objection OR Request for a special charge The charge must require proof of all elements of the crime, even if doing so requires expanding beyond the indictment's allegations - a D's failure to object to the indictment's failure to allege all elements of the crime does NOT waive the right to have the jury charge require the State to prove ALL elements of the charged crime Elements of the crime - must be pled; jury is always instructed; State must prove it beyond a rznble doubt Exceptions - must be negated in the pleadings; jury is always instructed; State must prove it beyond a rznble doubt Defenses - need NOT be pled; jury is instructed if evidence is produced; State must prove it beyond a rznble doubt Affirmative defenses - need NOT be pled; jury is instructed if evidence is produced; D must prove it by a preponderance Page 72 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro Insanity is an affirmative defense. The burden of proof is on the defendant to prove this defense by a preponderance of the evidence. Therefore, if you find that the State has proven all elements of the crime beyond a rznble doubt and the defendant has proved insanity by a preponderance of the evidence, you will find the D not guilty. ARGUMENTS OF COUNSEL Generally limited to the following: Summation of the evidence Making rznble deduction from the evidence Answering arguments of opposing counsel Making pleas for law enforcement NOT permitted to: Comment on the D's invocation of self-incrimination rights Express personal opinions Argue what the community demands - but you can make a plea for law enforcement Strike at D over the shoulder of defense counsel Judge regulates the order, but the state MUST have the right to argue last In a felony case, the arguments may never be restricted to a number of addresses less that 2 on each side - really only applies when there are 2 Ds The prosecution cannot prove or comment on: The D's failure to testify at trial The D's silence after arrest and Miranda warnings OR IN TEXAS - The D's silence after arrest But - can comment on silence BEFORE arrest TEXAS CONFESSION STATUTE (p. 123 lecture notes) Applies Only to stmts: Made while in custody AND Resulting from official interrogation - different requirements for written and oral stmts Impeachment exception: stmt inadmissible to prove guilt can be used to impeach testifying D if it is voluntary Determining voluntaries of challenged confession: Initial determination must be made by a)judge at b)hearing c)out of presence of the jury If this is resolved for the State, D sometimes has the right to have the issue submitted to the jury Must be SIGNED by D, unless it is in his own handwriting Must show on their face that the D was warned of: Right to remain silent Any stmt may be used against that person at trial (NEVER say "for or against") Right to an attny present prior to and during questioning If unable to employ a lawyer, the right to have one appointed Right to terminate the interview at any time Must show on their face that the above warnings were given by either: Magistrate OR The person to whom the stmt was made Must show on their face that prior to and during the making of the stmt, the person intelligently and voluntarily waived the rights Generally, Miranda determines whether warnings are required General rule - Oral statements are inadmissible b/c they are oral and thus unreliable Exceptions: admissible if - JRRC The stmt was J udicial - made in open court or before grand jury Page 73 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro The stmt was R es gestae of either the offense OR arrest - res gestae --> D's spontaneous and impulsive reaction to the excitement The stmt was electronically R ecorded, only if it is shown: recording is accurate recording reflects that accused was warned of the rights during the recording the accused knowingly and voluntarily waived those rights all voices recorded are identified defense counsel was provided copies of ALL recordings made of D under the statute, at least 20 days before trial - Need NOT be told the stmt will be recorded The stmt was C orroborated - contained at least one assertion of fact or circumstances, which was incriminating and found to be true by reliable information developed after the stmt was given Stmt obtained in another state is admissible in TX prosecution if it was obtained in compliance with the laws of that state Stmt obtained by a federal officer is admissible if obtained in compliance with the laws of the US Where it is alleged that the stmt is NOT voluntary: D should file a motion to suppress on the ground that it is NOT a voluntary stmts T/ct must hold a hearing, take evidence and determine whether the stmts was voluntary Judge must make findings of fact The actions of the officers constitute interrogation ONLY if a rznble person would have recognized that they were likely to stimulate an incriminating stmt May have issue of voluntariness submitted to the jury if the evidence before the jury raises a factual issue regarding the voluntariness of the stmt - counsel must introduce evidence before the jury that the confession was not voluntary - prosecution has the BOP beyond a rznble doubt that the stmt was voluntary TRIAL ON PUNISHMENT AND SENTENCING Sentencing: Assessment of Punishment Ds have a right to have the trial jury that determined guilt also assess the punishment D can invoke jury sentencing by a 1)timely election (before voir dire begins ) OR a 2)timely motion for probation -I don't get #2 If the D doesn't request a jury sentencing - the State can NOT have the jury assess punishment D who waived jury trial on guilt/innocence CAN elect jury sentencing. After a finding of guilt - a D MAY change his election regarding assessment of punishment IF the prosecution consents State can introduce if it provides proper notice (date on which act occurred, county, name of victim) D can tell the jury to consider the "existence" of good conduct time and parole law but can NOT tell them to consider the extent to which good time may be awarded to this D or how parole law will be applied in this case Rule against self incrim applies at sentencing stage too At penalty stage of the trial - the Ds character is AUTOMATICALLY at issue A judicial confession at punishment does NOT automatically waive any error committed during the guilt stage of the trial Is there a probability that the D will commit criminal acts of violence constituting a continuing threat (always submitted) Did the D 1)actually case the death of the victim or 2)intend to kill the victim or 3)anticipate that a human life would be taken Are there sufficient mitigating circumstances to warrant life in prison rather than death (always submitted) Page 74 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro Sentencing: Community Supervision or Probation D is eligible for community supervision (CS) if punishment assessed does not exceed 10 years in prison Available only if: 1)D is charged w/ an offense other than DWI or various other intoxication related offenses; 2) D offers plea of guilty or nolo contendere, & 3) Judge finds the best interests of society & D will be served by placing D on deferred adjudication The jury CAN consider recommending CS if D filed PRETRIAL APPLICATION FOR PROBATION that was (1) in writing; (2) sworn to; and (3) states that the D has not been convicted of a felony. (NO PROBATION IF PREVIOUSLY CONVICTED OF FELONY) If the jury recommends it and D is eligible --> judge MUST place him on community supervision If jury is asked and refuses to recommend - judge has discretion to disregard jury's position and place D on CS anyways Note: Judge can also offer D "shock" CS where D goes to jail for a little bit and then his sentence is suspended and he is placed on CS Sentencing: Deferred Adjudication The charge is an offense other than: DWI, FWI, BWI Intoxicated assault Intoxication manslaughter D enters a plead of guilty or no contest Receive Ds plea of guilty or no contest Hear evidence Find that the evidence substantiates Ds guilty and Inform D of the consequences of violating CS: No appeal from decision to proceed to adjudication AND D could get ANY sentence in these statutory range If D is proved to have violated conditions of CS - the TC can proceed to adjudication and find D guilty If D successfully completes CS, the charges are dismissed DA involves no finding of guilt If DA probation is "revoked" - D can be given ANY sentence in statutory range Formal Sentencing or Pronouncement of Sentence D has received a pardon D has becomes incompetent to continue trial D is not the person convicted of the crime * Judge must ask D whether he has any reasons why sentence shouldn't be pronounced. **Victim has right to make "victim's stmt" after sentence been pronounced.** POST-TRIAL PROCEDURE IN TRIAL COURT Motion for New Trial MNT must be filed within 30 days of pronouncement of the sentence and must be presented to the court within 10 days of filing (but court can permit presentation within 75 days from sentencing) Continuing trial when D required to be present and was not Verdict decided by lot/luck (flip coins, etc.) Ds right to counsel was violated The jurors received evidence after retiring to deliberate A juror conversed about the case with someone NOT on the jury New evidence has been discovered Motion in Arrest of Judgment The indictment has a defect of substance The verdict varies from the indictment OR The judgment is invalid Page 75 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro APPEAL General Framework for Appeals By Defendants D convicted of capital murder and sentenced to death in dist ct: appeal is mandatory and to Ct of Crime Appeals D convicted in dist ct or county ct appeal as a right to Ct of Appeals and seek review from Ct of Crime App D convicted in justice or municipal ct: appeal to county cour t An appeal is perfected by filing notice of appeal, which must be - in writing - filed with the TC and - generally filed within 30 days of formal sentencing If MNT filed, notice of appeal must be filed within 90 days of formal sentencing Notice of appeal is required in all cases except those in which the death penalty was imposed The trial judge must in all cases include in the record a certificate of the Ds right to appeal A convicted D is NOT eligible for bail pending appeal if the punishment assessed is 10 years imprisonment or more Bail may be denied to a D eligible for bail pending appeal if the TC finds either that the D: - Will not appear if the conviction is affirmed; or - Is likely to commit an additional offense while on bail Rule: A D who pleads guilty can appeal and can raise any error (dependent on the plea) not independent of the plea A D who pleads guilty pursuant to a plea bargain and receives a sentence within that bargain can appeal only if: The trial judge grants permission OR The appeal is based on matters 1)raised by pretrial written motion and 2)ruled on pre-trial In all appeals by Ds, the record must contain a certification of the Ds right to appeal If the D escapes while appeal is pending - the prosecutor should move to dismiss the appeal and the court of appeals SHOULD dismiss it D can file a Petition for Discretionary Review by the Court of Crim Appeals . But he has NO right to review by that court of the decision of the Court of Appeals. The PDR should be filed in the Ct of Appeals. On PDR by D On PDR by State On Ct of Crim Appeals motion

Appeals by the State Dismisses the indictment Grants a defense motion to suppress evidence before jeopardy attaches. State must: Show jeopardy has not yet attached when order entered The appeal must be taken within 15 days of the order and The State must certify that the evidence is of substantial importance in the case and the appeal isn't taken for purposes of delay Sustains a Ds claim of double jeopardy Grants a defense motion for a new trial Grants a defense motion to arrest judgment Imposes an "illegal" sentence If convicted D appeals - the State may cross appeal on a Q of law decided against the State State can appeal in a proceeding for post - conviction DNA testing D in custody is entitled to release on rzbl bail Page 76 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro If the order is one that ends the prosecution (that is, a dismissal) D is entitled to personal bond

Preserving Error Assure record shows that error occurred; and Properly preserve error; and Assure record shows HOW error caused harm Make an offer of proof by either an oral summary of the excluded evidence or a Q and A form (informal bill of exceptions Let record reflect trial judge rejected the offer and excluded evidence Make a timely objection State SPECIFICALLY the ground to be relied upon on appeal and Secure a ruling Object immediately Seek an instruction to disregard Move for mistrial Get a ruling Resolving Appeals: Evidence Sufficiency and Variances An unnecessary allegation describing something necessary to the indictment is not longer ALWAYS required to be proved in order to avoid a factual "variance" btw the pleadings and the proof This confuses me. Question is whether that allegation must be included in hypothetically correct jury charge used to determine sufficiency of the evidence The allegation is to be so included only if the variance btw the allegation and the proof was "material," that is, whether under the circumstances of the case it rendered the indictment insufficient to enable D to prepare a defense If evidence supporting a conviction is legally insufficient, the accused MUST be acquitted In determining whether evidence is legally insufficient, the 1)court views it in the light most favorable to the State and asks 2)whether a rational jury could have found all elements of the crime proved beyond a rzbl doubt If evidence supporting a conviction is factually insufficient, the accused is to be granted a new trial In determining whether evidence is factually insufficient, the 1)court views all the evidence NOT in a light most favorable to the State and asks 2)whether the verdict of guilty is so contrary to that evidence as to be clearly wrong and unjust Resolving Appeals: Harmless Error A conviction can be affirmed on appeal despite error if the error is harmless Whether error in the jury charge is harmless or not is determined by special rules Harmless if it does not affect the appellant's "substantial rights." This means error will be harmless if the error did not affect the outcom e of the case Harmless only if the appellate court is convinced beyond a rzbl doubt that the error did not contribute to the conviction or punishment POST CONVICTION ATTACK Post-Conviction Attacks on Convictions Habeas corpus An error rendering the conviction void A jurisdictional error Violation of a constitutional right Actual innocence (new evidence showing innocence that is now available AND CCE that no rzbl jury hearing this evidence would convict D ) File an application for writ of habeas in the convicting district court If there are factual matters that need to be established - counsel should seek a hearing in that court and, at that hearing, be prepared to prove the facts are necessary to get relief Page 77 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro The dist judge will then compile a record The record will be transmitted to the Ct of Crim Appeals Show the chain of custody regarding the evidence establishes it was not altered Either It was justifiably not tested before OR The techniques used for prior testing have been superceded by more accurate techniques Identity was at issue Rzbl probability he would not have been convicted if DNA testing had given exculpatory results

DOUBLE JEOPARDY No 2nd Trial Allowed: 1) Acquittals always final a. "evidence is insufficient" made by trial or appellate court is acquittal b. Conviction of lesser included offense is an implied acquittal of charged crime Exceptions: a. 1st Proceeding ended in mistrial declared for "Manifest Necessity" (hung jury) b. 1st Proceeding ended in mistrail declared on Motion of Defendant c. 1st trial ended in conviction reversed on appeal b/c of verdict was "against weight of evidence" d. 2nd prosecution is by a different sovereign jx SUCCESSIVE PROSECUTIONS/DIFFERENT OFFENSES "Lesser included Offense"--> offense contains all elements in other offense; bars prosecution "Collateral Estoppel"--> Acquittal of one offense bars 2nd prosecution for different but related offense if D shows both: 1) precise factual basis for acquittal of 1st proceeding, & 2) fact also controls in 2nd prosecution ONE PROCEEDING/CONVICTIONS FOR SEVERAL OFFENSES 1) Convictions for several related offenses in one proceeding are barred only if the legislature did not intend to authorize convictions for all. 2) If one offense is a lesser included offense of another, it is presumed (rebuttably) that the legislature did not intend conviction for both. **REBUTTED by showing actual legislative intent confusing…what is this saying? Multiple prosecutions and/or convictions permitted if done by separate sovereign governments.

TEXAS DOUBLE JEOPARDY 1) File pretrial application for Writ of Habeus Corpus a. Judge decide b. resolved before trial c. if she loses, can immediately appeal 2) File a Special Plea of Former Jeopardy a. Jury resolve contested issues of fact b. Raise during trial c. If convicted, appeal at that time 5TH- PRIVILEGE AGAINST SELF INCRIMINATION Use Immunity1) no protection from prosecution Page 78 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro 2) Govt cannot use against her E of testimony; anything obtained from it 3) Can be compelled to testify Transaction Immunity1) Immunity from Prosecution for any offense arising out of transaction she test'd 2) Cannot be compelled to testify SEARCH & SEIZURE Search- any official action that intrudes upon a person's REP NOT Search 1) aerial surveillance of fenced yard 2) trash in yard 3) numbers dialed from home 4) beeper to follow car public streets 5) dog sniff luggage in airport 6) Plain view 7) Open Fields Search 1) rigorous squeezing luggage in bus overhead rack 2) thermal imaging scan residence REASONABLENESS OF SEARCHES 1) Pursuant to a valid Search Warrant 2) Based on Probable Cause--> facts from which a rzbl person would conclude that there is a fair probability that seizable items will be found on the premises Items Subject to Seizure: 1. Contraband 2. Fruits 3. Instruments 4. Evidence Racial Profiling (TEXAS)--action based on indi's race, ethnicity or national origin rather than indi's behavior or on info identifying indi as having engaged in criminal activity Peace officer may NOT engage in it TEXAS SEARCH WARRANT Must Contain 5 things: 1) runs in the name of "The State of Texas" 2) specification of person, place or thing to be searched 3) specification of items to be seized 4) endorsement of date & hour issued 5) signature of issuing magistrate FEDERAL only requires specifically: 1) Place to be searched, 2) Items search for & seized

What JUDGE CAN ISSUE WARRANTS? Regular Search Warrant may be issued by an Magistrate (justice of peace, municipal court judge, etc.) Evidentiary Search Warrant --> for item that is seizable only b/c it is evidence that crime was committed or particular person committed it: a) District Judge b) Judge of Statutory County Court c) Judge of Court of Criminal Appeals d) Justice of Supreme Court e) Municipal Court or County Judge who is a licensed Attorney Subsequent Evidentiary Search Warrant- issued for same p/p/thing previously searched for under an evidentiary search warrant only by Appellate Judge Page 79 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

TX Crim Pro Evidentiary Search Warrant: may seize 1) items described by warrant & 2) items in plain view for which regular SW could issue NOT items of mere evidence that are not described in warrant Arrest Warrant- Requirements: 1) Name or physical description 2) offense 3) signature of issuing magistrate 4) Judicial office of issuing mag Permitted to break down door of residence to arrest: 1) PC to believe person committed felony 2) Gives notice of authority & purpose 3) Refused admission

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Fed Crim Pro DOUBLE JEOPARDY General Rules Once D placed in jeopardy for an offense, D can never again be tried for that same offense Second trial not barred if 1st ended BEFORE jeopardy attached Acquittals are always final - no 2nd trial allowed - a finding of insufficiency of evidence by the t/ct or app/ct is an acquittal - convinction of a lesser included offense is an implied acquittal of the charged crime The first proceeding ended in a mistrial declared for manifest necessity (ex: hung jury) The first proceeding ended in mistrial declared on motion of D First trial ended in conviction reversed on appeal b/c of procedural error First trial ended in conviction rev'd on appeal b/c verdict was "against weight of evidence" 2nd prosecution is by a different sovereign jurisdiction Jury trial: when jury is sworn Bench trial: when first witness is sworn Jury trial: when jury is sworn Bench trial: when both (1) the parties have announced ready AND (2) the D pleads to the indictment Successive Prosecutions/Different Offenses Successive Prosecutions for different offenses are barred ONLY if one offense is a lesser included offense of the other, b/c only then are the 2 offenses the "same" If each offense contains at least 1 element not contained in the other, then neither is a lesser included offense of the other and successive prosecutions are permitted Otherwise one is a lesser included offense of the other and successive prosecutions are barred Acquittal of 1 offense bars second prosecution for different but related offense if D shows both The precise factual basis for acquittal in first proceeding; and That fact also controls in second prosecution One Proceeding/Conviction for Several Offenses Conviction for several related offenses in 1 proceeding are barred ONLY if the legislature did not intend to authorize convictions for all If one offense if a lesser included offense of another, it is a rebuttable presumption that the legislature did not intend conviction for both Separate Sovereignties Multiple prosecutions and/or convictions permitted if done by separate sovereign gov'ts state and federal different states Texas Double Jeopardy Law File a pretrial application for the writ of habeas corpus - this would permit D to raise the issue without going to trial and D would get a pretrial ruling on her claim from the judge. Also, if the judge rejects her claim - she can immediately and before trial appeal that ruling File a special plea of former jeopardy - this would permit D to go to the trial jury on any contested issue of fact raised by her claim. Page 81 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Basic Rules


Exceptions - 2nd trial 1 IS allowed 2 3 4 5 Federal attachment of jeopardy Texas attachment of jeopardy


Blockburger Test for determining "lesser included"

Collateral Estoppel 1 2


1 2

General rule


Examples of separate gov'ts -

What options does D 1 have to raise a claim of double jeopardy 2

Fed Crim Pro General rule Privilege Against Self Incrimination Authorities cannot compel a person to engage in self-incrimination "testimonial" behavior Grant of Immunity Removes Protection If a person is granted effective immunity, the privilege no longer applies and the person can be compelled to answer Gives the person no protection from prosecution. BUT if D is prosecuted, the gov't cannot use against her as evidence her testimony or any evidence that the gov't obtained by using that or information in that Gives the person immunity from prosecution for any offense arising out of the transaction about which she testifies under the grant of immunity Protection Limited To TESTIMONIAL Behavior An intentional communication of one's thoughts State calls D as a witness and compels D to answer when prosecutors ask "did you do it?" Before trial, a police officer compels a suspect to tell the officer where the suspect hid the murder weapon Before trial, a police officer compels a suspect to tell the officer the date of suspect's 4th B'day to determine if intoxicated In a civil trial, a witness is asked whether he helped the D kill the victim and when the witness refuses to answer, the judge holds him in contempt Before trial blood and breath samples are taken to determine intoxication Walking along a line to see if intoxicated Standing in a lineup Speaking in a lineup At trial, standing and walking to be observed Search and Seizure What Constitutes a Search A "search" is any official action that intrudes upon a person's rzbl expectation of privacy aerial surveillance of fenced yard examination of trash left in yard determining #s dialed using a "beeper" to follow a car on public road dog sniff rigorous squeezing of luggage in bus overhead rack thermal image scan of residence Officers merely exercise their right to engage in "plain view" and do NOT search if they reach a location without violating the 4th A and simply look at something in open view This rule does NOT apply if when officers come upon an item in plain view, they are searching improperly Officers who go upon any unoccupied or underdeveloped area of land not part of the curtilage of a dwelling do NOT search Rzblness of Search Must be pursuant to a valid search warrant Must be based on probable cause (facts from which a rzbl person would conclude that there is a "fair probability" that seizable items will be found Contraband - something illegal to possess Fruits of crime - stolen property Instruments of crime Evidence that a crime was committed or that a particular person committed it Page 82 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

General rule Use immunity

Transactional immunity

Testimonial Examples of testimonial

1 2 3 4

Examples of Nontestimonial

1 2 3 4 5

Definition NOT a search 1 2 3 4 5 1 2 -

YES a search Plain view

Open fields

2 Elements

1 2 1 2 3 4

Items subject to seizure

Fed Crim Pro Racial profiling (TEXAS law) A peace officer may NOT engage in racial profiling - def - action based on an individual's race, ethnicity, or national origin rather than the individual's behavior or on information identifying the individual as having engaged in criminal activity 4th A Search Warrant Law Warrant must describe specifically both (1) place to be searched and (2) items to be searched for and seized Must be issued on information constituting "probable cause": affidavit must set out facts from which issuing magistrate can make independent judgment that probable cause exists General rule: Before entering premises, officers must "knock and announce" and give occupants opportunity to admit the officers Exception: No knock entry permitted if officers have rzbl suspicion that occupants would (1) resist officers by force or (2) destroy or remove items for which warrant issued Place described AND Within that place, those locations where described items might rznbly be expected to be located Items rzbly believed to be those described Other items found in plain view during search if probable cause exists to believe they are seizable - plain view doctrine does NOT apply if when the officers come upon an item in plain view, they are searching improperly Warrant affidavit relying on informant's tip helped by specific facts indicating: Informant was in general sense reliable and Informant had reliable source for this specific info Texas Search Warrant Law Texas statutes impose requirements for search warrants beyond what the 4th requires A stmt that it runs in the name of "The State of Texas" A specification of the person, place, or thing to be searched Specification of the items to be seized An endorsement of the date and hour it was issued The signature of the issuing magistrate A regular search warrant may be issued by any magistrate (includes ALL judges) In deciding whether a warrant was validly issued, a court may consider only the information within the "four corners" of the written affidavit Warrant that issues for an item that is seizable only b/c it is evidence that a crime was committed or a particular person committed it May be issued only by Dist judge Judge of statutory county court Judge of Court of Crim Appeals Justice of SC Municipal court or county judge who is a licensed attorney NOT A JP Note: No evidentiary warrant may be issued for a personal writing of D The items described in the warrant and Items come upon in plain view for which a "regular" search warrant could issue They may NOT seize items of "mere evidence" that are not described in the warrant



Knock and Announce

Limits of search

1 2 1 2

What can officers seize

Informant analysis 1 2

Generally Search warrant must 1 contain 2 3 4 5 Who may issue a search warrant 4 Corners Rule Evidentiary Search Warrant 1 2 3 4 5

While executing an 1 evidentiary search 2 warrant - officers MAY seize

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Fed Crim Pro Subsequent evidentiary warrant An additional evidentiary search warrant may be issued for the same person, place, or thing previously searched under an evidentiary search warrant only by a dist or appellate judge Warrantless Searches Consent searches do NOT require a warrant or probable cause Effectiveness of Consent Consent must be voluntary Consent must be from either: someone with a general right of access to premises (actual authority to give consent), or someone rznbly believed by officers to have such access (apparent authority) Joint Occupation Situation Officers need consent from only one of several joint occupants

Consent Searches


1 2


Scope of consent Consent covers what a rzbl person in the situation would understand the words used to mean Automobile Searches Vehicle Exception to Warrant Requirement - moving vehicles and those parked in public places can be searched without a warrant a. BUT probable cause is necessary b. Search can extend to any place where the items might be found Search Incident to Arrest - custodial arrest of a person in a vehicle (or immediately after getting out) permits as an incident of that arrest: a. Search of the passenger compartment (including the glove compartment) b. But NOT the trunk Inventory Inspection - properly seized or impounded vehicle may be administratively inventoried pursuant to standardized procedure Exigent Circumstances Searches 1 Contents of Containers in Car - CAN be examined IF car can be searched A warrantless search is permitted if officers have both: Reason to believe delaying the search to get a warrant would result in removal or destruction of the items, and Probable cause to believe seizable items will be found Invalid arrest has no effect upon trial court's jurisdiction If valid custodial arrest made, automatic right to search 2 places: The person of the arrestee, which includes pockets and items found on the person of the arrestee, and Area of possible reach If arrest is made inside premises: Officers can automatically look in immediately adjoining places where persons might be concealed Protective sweep of entire premises can be made only if officers have rznbl suspicion that dangerous persons are present Reasonable arrest requires to believe person committed offense Warrant is required only if premises are entered to search for suspect Suspect's own premises - arrest warrant is sufficient Other premises - search warrant is needed Page 84 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

2 Arrests & Incidental Searches under Federal Constitutional Law 1 2 1 2

1 2

Fed Crim Pro Texas Arrest Law 1 2 3 4 5 6 7 8 Rule: If valid arrest is made, officers can automatically search General Rule: An arrest must be made pursuant to a valid arrest warrant Exceptions: Arrests without warrants are permissible if: Offense committed in officer's presence or view Probable cause to believe suspect committed a felony and reason to believe suspect is about to escape Suspect is found in a suspicious place and has committed a felony or breach of peace Suspect committed violation of protective order Suspect injured another and danger of further injury to victim Suspect found with stolen property Suspect injured member of family or household Probable cause to believe suspect committed a felony is based on admissible statement to officer Items which are required to be present in arrest warrants include: The name of the person to be arrested or a physical description The name of the offense the person is accused of committing The signature of the issuing magistrate, and The judicial office of the issuing magistrate An officer is permitted to break down the door of a residence to arrest someone when: 1 2 3 Non-Arrest Detentions and Citizen-Officer Contacts The officer has probable cause to believe the person committed a felony, and The officer gives notice of the officer's authority and purpose, and The officer is refused entrance Detention not a valid arrest can often be justified as a Terry Stop Terry stop for investigation may be made on rznbl suspicion: some objective basis for officer's suspicion that suspect has committed, is committing, or is about to commit a crime…BUT an anonymous tip is not enough if not adequately corroborated

1 2 3 4

1 2 3 1 2 1 2

Limit on Field Stops Cannot be too lengthy Suspect cannot be extensively moved (not to station house) No automatic right to search If probable cause develops during field stop, detention becomes valid arrest Weapons search can be made if officer has rzbl fear for safety Must initially be limited to pat down Permissible only to determine if suspect has a weapon A traffic stop does NOT permit a full search as does an arrest Rule: A suspect is seized only if either: The officer physically restrains him, or The officer makes a show of authority AND the suspect submits LINEUP LAW D has 6th Amendment right to lawyer present at lineup or show up IF it is conducted after judicial proceedings have begun NOT triggered by D's arrest No right to lawyer at showing of photographs Can be waived by D Page 85 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Federal Constitutional Limits a. b. c.


Fed Crim Pro - D has due process right not to have procedure be extremely suggestive a. Applies even where right to counsel does not b. Standard: Was procedure so suggestive that it creates high likelihood that witness will erroneously identify D as perpetrator? - If witness identifies D at procedure conducted in violation of either rule: a. Prosecution cannot prove that identification b. Witness can still make in-court identification of D if prosecution establishes that this would have an independent source (e.g. a source independent of the procedure) CONFESSIONS Confession may be inadmissible on any of numerous grounds, including: Involuntary Product of delay in bringing arrested D before magistrate Miranda violation 6th Amendment right to counsel violation Product of an unlawful arrest Texas Confession Statute Confession involuntary (and constitutionally inadmissible) if: Result of coercion or threats, or On totality of circumstances, officer's misconduct overcame D's will D's undisclosed mental impairment alone will NOT create involuntariness Some matters are only factors, including: Deception of the suspect by officers Improper delay in presenting the suspect before a magistrate Promise of a specific benefit made by a person in authority Texas Rules promise will render confession involuntary and inadmissible if: Given by someone in authority, Definite, and Likely to cause innocent suspect to make a false confession Confession given during improper delay in bringing D before magistrate inadmissible if D shows a causal connection between delay and making of confession Miranda 5th Amendment rights apply only if both of the following are satisfied: Suspect is in custody: arrested or its equivalent Suspect must perceive himself as not free to leave Miranda NOT applicable during traffic stop or non-arrest field stop Suspect is subjected to interrogation Miranda requires the following: Right to have counsel present during questioning Suspect must be given warnings: There is a right to remain silent Anything said may be used against the suspect The suspect has the right to have an attorney present The suspect has a right to an appointed attorney if unable to provide own Interrogation can begin in absence of attorney only if suspect first waives right to counsel No interrogation must occur if suspect indicates a desire to remain silent Page 86 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Confessions Law: In General 1 2 3 4 5 6 Voluntariness 1 2 1 2 3

1 a. b. c. 2


1 a. b. 2 1 2 a. b. c. d. 3 4

Fed Crim Pro 1 2 a. b. Confession to which Miranda applies admissible only if prosecution proves: Warnings were given Suspect made voluntary and knowing waiver of rights Right to attorney during questioning (unless one was present) Right to remain silent Remember: Under Miranda, no warnings or counsel are required if the confession is volunteered by the defendant without interrogation Under Miranda, a person is not in custody just because the person is detained Rules: If a suspect invokes the right to counsel, officers may NOT reapproach the suspect unless and attorney is present If a suspect who has invoked the right to counsel spontaneously seeks to discuss the crime with officers, officers may seek a waiver of counsel and interrogate the suspect


1 2

If a suspect invokes the right to remain silent, the suspect may be reapproached if this is done very carefully 4 Any action which an officer should rznbly know is likely to result in an incriminating response is the equivalent of interrogation 5 Questioning after right to counsel was waived must cease only if suspect makes an unambiguous request for counsel 6th Amendment Right In interrogation situations, the accused has a 6th Amendment right to counsel IF to Counsel judicial proceedings have begun 6th Becomes applicable: 1 D has a right to counsel at questioning by undercover officer 2 D has a right to counsel at questioning even if not in custody 3 Police violate the right to counsel if they interfere with counsel contacting a client undergoing questioning - does not invalidate Miranda waiver, but it renders invalid a waiver of 6th right to counsel EXCLUSIONARY RULE Scope of Fed and TX D must have standing : rule a. D's objection must be based upon a violation of his underlying rights b. Search situations: means that the search must have intruded on the D's own privacy c. Vehicles: person only a passenger in a vehicle when it is searched does not have standing to challenge the search Fruit of the Poisonous Tree - if a search is unrznble, all fruit must be excluded - exceptions to exclusion in fed: a) attenuation of the taint - the taint b/t the police illegality and discovery of the evidence is attenuated (TX as well) b) good faith - a rznble officer would believe that the actions taken were rznble, b/c of a warrant OR a statute later held invalid - does NOT apply to most police actions taken without a warrant - in TX this exception requires that the search warrant have been issued on ACTUAL probable cause c) inevitable discovery - the evidence would inevitably have been obtained legally - this does NOT apply in TX A D who takes the witness stand can be impeach by some otherwise inadmissible evidence - evidence obtained in violation of Miranda or in an unrznble search can be used to impeach - involuntary confession cannot be used to impeach Page 87 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls


Fruit of Poisonous Tree

Impeachment exception to the federal rule

Fed Crim Pro Unrznble Searches Standing with residences 1 2 3 No probable cause - ex: drugs in the trunk in an amber alert stop Mere authorized presence in the premises is NOT enough Presence pursuant to a short and commercial stay is NOT enough Presence as part of overnight personal visit IS enough

Page 88


General Principles

Evidence RELEVANCE 1 Evidence is relevant if it has any tendancy to make a material fact more probable or less probable than would be the case without the evidence 2 All relevant evidence is admissible…UNLESS: a. some exclusionary rule is applicable, or b. the court makes a discretionary determination that the probative value of the evidence is outweighed by its prejudicial effect Prejudicial effect considerations: Danger of unfair prejudice Confusion of the issues Misleading the jury Undue delay Waste of time Unduly cumulative General Rule - If evidence concerns some time, event or person other than that involved in the case at hand…the evidence is INADMISSIBLE Exceptions to the general rule: Plaintiff's accident history Similar accidents caused by same event or condition Intent in issue Comparable sales on issue of value Habit Industrial custom as standard of care General Rule - plaintiff's accident history is INADMISSIBLE because it shows nothing more than the fact that the plaintiff is accident-prone and has a general propensity for carelessness Exception: Plaintiff's prior accidents are admissible if the CAUSE of plaintiff's damages are at issue (Defendant could use prior accidents to show that plaintiff's injuries were caused by a previous accident) General Rule - other accident's involving defendant are INADMISSIBLE because they suggest nothing more than general character for carelessness Exception: other accidents involving the same instrumentality or condition, and occurring under substantially similar circumstances, may be admitted for 3 potential purposes: Existence of a dangerous condition Causation Prior notice to defendant Note: Substantial similarity is also the rule governing the admissibility of experiments and tests Person's prior conduct may provide inference of intent on later occasion (e.g. discrimination in hiring practices) Selling price of other property of similar type, in same general location, and close in time to period at issue, is some evidence of value of property at issue Habit of a person (or routine of a business organization) is ADMISSIBLE as circumstantial evidence of how the person (or business) acted on the occasion at issue 2 defining characteristics of habit: Frequency of the conduct Particularity of the conduct

1 2 3 4 5 6 Similar Occurrences -

1 2 3 4 5 6 Plaintiff's Accident History

Similar Accidents Caused by Same Event or Condition

1 2 3

Intent in Issue


Comparable Sales on Issue of Value Habit -

1 2

Page 89


Industrial Custom as Standard of Care


Policy Based Exclusions

1 2 3 4

Liability Insurance

1 2

Evidence Key words that suggest habit: "always," "automatically," "invariably," "instinctively," and "habitually" Evidence as to how others in the same trade or industry have acted in the recent past may be admitted as some evidence as to how a party in the instant litigation should have acted This evidence is admissible…but is NOT conclusive Liability Insurance Subsequent Remedial Measures Settlements Offer to Pay Hospital or Medical Expenses General Rule - evidence that a person has, or does not have, liability insurance is INADMISSIBLE to prove the person's fault or absence of fault Exception: evidence of insurance may be admissible to establish: Proof of ownership/control of instrumentality or location IF controverted, or For purposes of impeachment of a witness Note: A limiting instructions should be given to the jury when the evidence is admissible for one purpose but not another General Rule - INADMISSIBLE for the purpose of proving negligence, culpable conduct, product defect, or need for warning Exception: such evidence may be admissible to establish: Ownership/Control IF controverted, or Feasibility of safer condition IF controverted Examples: post-accident repairs, design changes, policy changes Texas Rule: same as federal rule with 1 exception: product liability actions In a products liability action, evidence of written notification of a product defect sent by a manufacturer to a purchaser is ADMISSIBLE to prove existence of the defect Civil Actions Evidence of a settlement or offer to settle a disputed claim is INADMISSIBLE to prove liability or weakness of a party's case Also, statements of fact made in the course of settlement discussions are INADMISSIBLE But, evidence of a settlement may be admissible for purposes of impeachment of a witness on the ground of bias Note: The exclusionary rule ONLY applies if there is a claim that is disputed (at time of settlement discussion) either as to validity of the claim or amount of damages

Subsequent Remedial Measures 1 2



1 -

2 1 2 3 4 Offer to Pay Hospital or Medical Expenses

Criminal Actions The following are INADMISSIBLE: Offer to plead guilty Withdrawn guilty plea Plea of nolo contendere Statements of fact made during any of the above plea discussions Note: a plea of guilty (not withdrawn) is ADMISSIBLE Evidence that a party has paid or offered to pay an accident victim's hospital or medical expenses is INADMISSIBLE to prove liability Note: Statements of fact made in connection with an offer to pay hospital or medical expenses is ADMISSIBLE Example: Donna's car hit pedestrian Pablo. Donna immediately ran to Pablo and said (a) "Don’t worry, I'll pay your hospital bills. (b) I'm sorry I ran the red light." Page 90 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls


Evidence Statement (a) would NOT be admissible, but statement (b) WOULD be admissible CHARACTER EVIDENCE Def - a person's general propensity or disposition Potential purposes: Person's character is a material element in the case Character evidence to prove conduct in conformity with character at the time of the litigated event Witness's bad character for truthfulness to impeach credibility P can NOT introduce evidence of Ds bad character to show conformity in committing THIS crime D IS allowed to present evidence of relevant GOOD character traits to show conformtiy with his good character - opinion or rep only Once D presents evidence of good character - P can present character evidence to show bad character (rep, opinion, specific acts EXCEPT prior crimes) Prior crimes or prior bad acts can't be used to show conformity BUT can be used for MIMIC purposes. (can be excluded under 403) If D testifies - he automatically places his character for truthfulness at issue No evidence of conformity Some other purpose may allow character evidence (negligent entrustment, defamation) If a party testifies - they automatically place their character for TRUTH at issue NOT admissible during the prosecution's case in chief to prove conduct in conformity with A D, during the defense, may introduce evidence of a relevant character trait to prove conduct in conformity therewith - if a D does this he opens the door to rebuttal by the prosecution A D's character trait is NEVER an element of a crime, so it is NOT admissible as a material element in the case Reputation Opinion May NOT use specific acts even if they illustrate the trait Watch out for the WRONG character trait, must be testifying on a relevant character trait - that relevant trait may be that the D is "law abiding" Can only do this when the D opens thd door, and in the following ways: Cross examine the D's character witnesses with Have You Heard and Did You Know questions about specific acts of the D that reflect adversely on the particular character trait that the D has introduced - must have a good faith basis for the question - must take the answer you get - NO extrinsic evidence to prove the bad acts Call its own reputation or opinion witnesses to contradict the D's witnesses The D testifying for himself does NOT open the door to this kind of testimony Generally this is irrelevant Exceptions: Criminal D may introduce evidence of victim's violent character to prove victim's conduct in conformity - i.e. - the victim was the first aggressor Separate rule of relevance - if the D, at the time of the alleged self-defense was AWARE of the victim's violent reputation or prior specific acts of violence, such awareness may be proven to show the D's state of mind Proper methods --> reputation and opinion - once again NO specific acts Rebuttal: Page 91 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Character Evidence Purposes 1 2 3 Character Evidence 1 Rules - Criminal Case 2 3 4 5 Character Evidence 1 Rules - Civil Cases 2 3 Defendant's character in a criminal case Methods a Defendant can use to introduce evidence of his good character 1 2 -

Prosecutions Rebuttal to D's introduction of 1 character evidence


Victim's character in self defense criminal case 1 2


1 2 Victim's character in sexual assault criminal case 1 2

Evidence Prosecution can give evidence of victim's good character <-- only can do this one in Texas In FEDERAL court, prosecution can rebut by showing D's character for violence Rape shield law (in criminal and civil in fed court and ONLY civil in Texas) Where D is alleged to have engaged in sexual misconduct, the following evidence about the victim is ordinarily Inadmissible Opinion or reputation evidence about the victim's sexual propensity OR Evidence of specific sexual behavior of the victim Exceptions: Specific sexual behavior of the victim to prove that someone other than the D was the source of semen or injury to the victim Victim's sexual activity with the D if the defense of consent is asserted Generally NOT admissible to prove conduct in conformity - D can't even bring it in himself Exceptions Where such character is an essential element of a claim or defense, in which case it is provable by reputation, opinion and specific acts - 2 situations where we see this - negligent hiring/entrustment OR defamation Civil actions where the underlying conduct is criminal Federal - not allowed in ANY civil action Texas - civil D accused of conduct involving moral turpitude may introduce evidence of his good character using opinion or reputation testimony Texas - civil D accused of assaultive conduct may prove victim's violent character to suggest victim was first aggressor using opinion or reputation testimony General rule - other crimes or specific bad acts of D are NOT admissible during the prosecution's case in chief if the only purpose is to suggest that b/c of D's bad character he is more likely to have committed the crime currently charged BUT, if the D's other crimes or bad acts show something specific about the crime charged (more than mere bad character) such evidence may be admissible as evidence bearing on guilt, but ONLY if the D is actually contesting the issue Most common non-character purposes: (MIMIC) Motive Intent Mistake or accident, absence of Identity - for modus operandi it must be UNIQUE on prior occassions and this crime was carried out in the same unique way Common scheme or plan - seemingly unrelated crimes which are related By conviction OR Evidence that proves the crime occurred - need only produce sufficient evidence that a rznble juror could conclude the D committed the other crime Upon D's request, the prosecution MUST give notice of intent to use MIMIC evidence Can introduce this evidence during the prosecutions case in chief, the door need NOT be opened Court will always weigh the probative value vs. prejudice and give limiting instructions when such evidence is admitted MIMIC evidence may be admissible in civil cases as well FEDERAL only - in a case alleging sexual assault or child molestation, PRIOR specific sexual misconduct of the D is ADMISSIBLE as part of the prosecution's of plaintiff's case in chief of for any relevant purpose, including D's propensity for sex crimes AUTHENTICATION OF WRITINGS Page 92 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

1 2 Character evidence in Civil cases 1

2 a b c Using Defendant's crimes for Noncharacter purposes


C Method of Proving MIMIC crimes 1 2 Sexual Misconduct to show Propensity

Authenticity in General

Methods of Authentication

1 2


4 -

Evidence If the relevance of a writing depends upon its source or authorship, a showing must be made that the writing is authentic - in the absence of a stipulation as to authenticiy, a foundation must be made in order for the document to be admissible Witness' personal knowledge Proof of handwriting by: (a) lay opinion - must be on the basis of familiarity as a result of experience in normal course of affairs (b) expert comparison opinion (c) jury comparison Ancient Document Rule - authenticity may be inferred if the document is: (a) at least 20 years old (b) facially free of suspicion AND (c) found in a place of natural custody Solicited Reply Doctrine - evidence it was received in response to a prior communication Conditional relevancy std - document is admissible if court determines there is sufficient evidence from which a rznble juror could conclude the document is genuine Official publications Certified copies of public or private records on file in public office Newspapers or periodicals Trade inscriptions and labels Acknowledged document Commercial paper Was the record made by or from information transmitted by a person with knowledge of the events or conditions recorded Was it made at or near the time of the event or condition recorded Was it in the regular course of your business to make such records Was it in the regular course of your business to make keep records For self authentication - affidavit by custodian or other person capable of testifying to the above - original or exact duplicate of the business record is attached to the affidavit - notice to the other parties at least 14 days prior to trial by filing with court and prompt notice to the other parties Witness may testify on the basis of personal knowledge that the photograph is a fair and accurate representation of the people or objects portrayed - don't have to be photographer, just have personal knowledge of what is in the photo BEST EVIDENCE RULE A party who seeks to prove the CONTENT of a writing (sound recording, photo, x-ray, film) must either produce the original writing or provide an acceptable excuse for its absence The writing is a legally operative document - the writing ITSELF creates the rights and obligations (deed, patent, mortgage, written K) Witness is testifying as to facts that she learned SOLELY from reading about them in a writing When a witness with PERSONAL KNOWLEDGE testifies to a fact that exists INDEPENDENTLY of a writing which records the facts Ex) transcript from a testimony The writing itself, any counterpart intended to have the same effect; any negative of a film or print from the negative; computer printout Duplicate - any counterpart produced by any mechanical means that accurately reproduced the original. A duplicate is admissible to the same extent as original UNLESS it would be unfair or genuine question is raised as to authenticity of original Page 93 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Self Authenticating Documents

Texas - Business Records

1 2 3 4 5 6 1 2 3 4

Authentication of Photos


When does it apply? 1 2 When does it NOT apply? What qualifies as the 1 "original writing"? 2

3 Excuses for Non1 Production of Original 2 3

Evidence Handwritten copy is NEITHER an original nor duplicate Lost or can't be found with due diligence Destroyed without bad faith Cannot be occupied with legal processes Note: Courts must be persuaded by preponderance of the evidence that excuse has been established. If the court IS persuaded - secondary evidence is then admissible Voluminous records can be presented through a summary or chart, provided the original records would be admissible and they are available for inspection Certified copies of public records Collateral documents - if court, in its discretion, determines writing is collateral, contents may be proven by secondary evidence WITNESSES Personal knowledge Oath or affirmation Note: In TEXAS, in addition to personal knowledge and oath/affirmation, witness is NOT competent to testify if court finds: Insane at time of events witnessed or at trial OR Child or other person lacks sufficient intellect to relate events witnessed MULTISTATE --> Witness is not ordinarily incompetent merely b/c she has an interest in the outcome of the litigation. BUT, under a Dead Man's Statute - in a civil action, an interested party is INCOMPETENT to testify in support of her own interest against the estate of a decedent concerning communications or transactions btw the interested party and the decedent. The facts must specifically tell you that the J has a Dead Man's Statute TEXAS --> Interested witness incompetent if (a) civil action by or against decedent's estate, or by or against decedent's heirs or legal representatives or (b) either party to action seeks to testify to oral statement made by decedent. BUT party may testify to decedent's oral stmt IF (a) corroborated or (b) incompetent person is called by adverse party to testify re: stmt Rule: On direct --> get serious Exceptions - you CAN lead on direct if: Introductory matters Witness is youthful or forgetful Hostile witness Adverse party or someone under their control Rule: On cross --> leading is generally allowed Witness may not READ from prepared memo; must testify on basis of current recollection BUT can show witness a writing to jog his memory. The writing need not be admissible b/c its not being offered into evidence Safeguards for adversary: inspect memory refresher use it on cross introduce it into evidence Elements: Showing writing to witness fails to jog memory Witness had personal knowledge at former time Witness was either MADE by witness or ADOPTED by witness Making or adopting occurred when event was fresh in witness' memory Witness can vouch for accuracy of writing when made or adopted Memo can not be read into evidence by party using it as a substitute for testimony. BUT opposing party may introduce it. Rationally based on witness' perception (personal knowledge) AND Helpful to jury in deciding a fact Qualifications: Education and/or experience Page 94 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls


1 2 3

Testimonial Qualifications

1 2

Dead Man's Statute



Leading 1 2 3 4 Refreshing Recollection -

1 2 3 Past Recollection Recorded (HS Exception) 1 2 3 4 5 1 2 -

Lay Opinion Admissible If: Expert Opinion

Expert Opinion


Evidence TEXAS rule on expert qualifications in med mal --> expert must be actually practicing same type of health care as that of D, either at time of testimony or at time claim arose Proper subject matter - scientific, technical, or specialized knowledge that will be HELPFUL to the jury in deciding a fact Basis of Opinion - rzbl degree of probability or rzbl certainty Permissible Data Sources - personal knowledge; other evidence in the trial record made known to expert thru hypo, facts ouside the record IF of a type rzbly relied upon by experts in the particular field forming the opinion. Note: if expert is testifying based on hearsay or other inadmissible info - the expert may only state in GENERAL terms what he relied upon - can't disclose inadmissible evidence to jury Reliability - Expert opinion must be sufficinetly reliable Testing of principles or methodology Rate of error Acceptanc by other experts in same discipline Peer review and publications If expert opinion is based on scientific methodology - TRAP ON - TRAP + Objective v. subjective interpretation of the data Nonjudicial use of principle or methodology If expert opinion is based on non-scientific methodology (expert relies on personal skill or experience) test for reliability is that the court will ensure there are no analytical gaps btw methodology and facts of case On direct of a party's OWN expert - may be READ into evidence to prove the TMA (as substantive evidence0 On cross of opponent's expert - read in to evidence to impeach and contradict. Comes in as substantive evidence (for TMA) Note: Can NOT be introduced as an exhibit - ONLY read into evidence Opinion testimony (lay or expert) IS permissible even if it addresses an ultimate issue in the case BUT we're not going to let a witness just quote from a staute b/c that's not helpful to the jury - they don't understand legal jargon Texas: Expert witness may testify in terms as to legal terms SO LONG AS you DEFINE what the legal meaning is CRIMINAL Cases in FRE Only --> Ultimate issue IS still a proper objection IF expert seeks to give direct opinion that D did or did NOT have relevant mental state Rule: Party has a RIGHT to CX any opposing witness who testifies at the trial Scope - FRE - direct Scope - TRE - wide open Bolstering Own Witness - can't do until AFTER witness' credibility has been attacked. The exception is a prior identification of a person - this is a HS exception. Impeachment of own witness - permitted WITHOUT limitation Prior inconsistent stmt - oral and written if there is a clear inconsistency Exception - Prior inconsistent stmt may be admitted both for impeachment and substantive evidence if it was a prior inconsistent stmt given orally under oath AND as part of a formal hearing, proceeding, trial, or depo FRE Confrontation - Confrontation timing is flexible - must be given an opportunity at some point to return to the stand and explain or deny prior inconsistent stmt TRE Confrontation - Confrontation on stand usually required - contents, time, place, person, and IMMEDIATE opportunity to explain or deny Exception - Party opponent need NOT be confronted Bias, Interest, or Motive TRE Confrontation - Confrontation on stand usually required - contents, time, place, person, and IMMEDIATE opportunity to explain or deny Page 95 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Daubert Factors

Texas Factors (Robinson/Kelly)

T R A P 1 O N 2

Ways to Use Learned 1 Treatise in Aid of Expert Testimony 2

Ultimate Issue



Cross Examination

Credibility and Impeachment


Impeachment 1 methods (Note: These DO NOT come in for the TMA - only for the limited purpose of impeachment) 2 -

3 4 5 -


6 -

Evidence FRE Confrontation - in court's discretion TRE Extrinsic evidence - If witness denies bias or fails to admit bias UNEQUIVOCALLY - then bias MAY be proven with extrinsic evidence FRE Extrinsic evidence - Court has discretion to permit extrinsic evidence even if witness admits bias Sensory deficiencies Confrontation required? NOPE Extrinsic evidence allowed? NOPE Bad reputation or opinion about witness' character for truthfulness Confrontation required? NOPE Extrinsic evidence allowed? YES Reputation or opinion ONLY Criminal Convictions FRE: 1. Conviction of any crime involving dishonesty or false stmt may be used to impeach any witness (must involve the uttering of false words) 2. If conviction does NOT involve dishonesty or false stmt - it must be a felony , and the court may exclude in its discretion, if probative value on issues of witness credibility is outweighed by danger of unfair prejudice to a party 3. Conviction, or release from prison, whichever is later, generally must be within 10 years of trial 4. You can ask witness to admit or introduce record of conviction WITHOUT prior confrontation TRE - Same as Federal with 3 distinctions: 1. Types of conviction that can be used to impeach: (1) felonies of any type and (2) misdemeanor involving moral turpitude 2. Balancing of impeachment value against potential for prejudice applies to ALL convictions 3. Can NOT use conviction to impeach if an appeal of the conviction pending Bad acts (without conviction) that reflect adversely on witness' character for truthfulness Confrontation on CX is ONLY permissible means No extrinsic evidence Cross examiner must have a GF basis and ability to inquire lies in court's discretion If no charges were ever brought --> the bad act may be allowed in Fed Court but can NOT come in Tex Court TRE and FRE --> If the witness is testifying for prosecution and is himself awaiting his OWN trial - the D may ask about the witness' arrest b/c arrest is relevant to show bias. The W is testifying for prosecution to curry favor to get a good deal for himself. If witness denies - you can prove with extrinsic evidence (TRE and FRE) Contradiction Extrinsic evidence is NOT allowed for the purpose of contradiction IF the fact at issue is COLLATERAL. A fact is collateral if it has no significant relevance to the case or to the witness's credibility. Showing witness' good character for truthfulness can ONLY come in when impeachment CLEARLY suggested witness was lying. Reputation or opinion only Prior consistent stmt to rebut a charge of recent fabrication may be admissible to rebut the charge IF the stmt was MADE BEFORE the motive to fabricate arose. Requires more than a general bad character attack. This comes in as substantive evidence for the TMA. PRIVILEGES If federal action based on FEDERAL QUESTION jurisidiction…privileges are governed by the common law as they might be interpreted by the federal courts Page 96 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

7 -






Introduction Evidence 2 Attorney-Client Privilege If federal action based on DIVERSITY jurisidiction where state substantive law applies to the parties' claims…privileges are governed by STATE law Note: In diversity actions, federal courts will also apply state law on (1) competency, (2) burdens of proof, and (3) presumptions A/C privilege applies to: Confidential communications Between attorney and client (or representative of either) Made during professional, legal consultation Unless privilege is waived by the client Or an exception is applicable Exceptions Future crime or fraud Client puts legal advice in issue Attorney-client dispute Definitions Confidential communications - client must intend confidentiality…NO privilege if client knows that 3rd party is listening in or if client asks attorney to disclose the communication to a 3rd party Joint Client Rule - If 2 or more clients with a common interest consult the same attorney, their communications with counsel concerning the common interest IS privileged as 3rd parties…but is NOT privileged between the clients Attorney - member of the bar or person that client rzbly believes is a member of the bar Representative of the attorney - any agent rzbly necessary to facilitate the provision of legal services (e.g. accountant working with attorney) Client - includes person seeking to become a client Representative of client - any agent rzbly necessary to facilitate the provision of legal services (e.g. for corporate client, any employee who communicates with corporation's attorney to enable attorney to rpovide legal services to the corporation) Professional legal consultation - primary purpose of communication must be to obtain or render legal services, NOT business or social advice Waiver - Client is holder of privilege, so client alone has power to waive by disclosure of communication to 3rd party…privilege continues after A/C relationship ends and even after death of client…client's estate has the power to waive the privilege after client's death Note - privilege does NOT apply to underlying information, pre-existing documents, or physical evidence Doctor-patient privilege applies to: Confidential communication or information acquired by physician from patient For purposes of diagnosis or treatment of a medical condition Note: privilege also applies to psychotherapists (MDs who treat mental/emotional ilnnesses) Federal distinction: in federal actions based on FEDERAL QUESTION jurisdiction, privilege exists for psychotherapists, but NOT for usual doctor-patient confidences (e.g. gall bladder treatment) Federal Exception: Privilege does NOT apply if patient expressly or impliedly puts condition in issue Texas Exceptions: Page 97 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

1 2 3 4 5

1 2 3





Physician-Patient Privilege

1 2 -




1 2

Evidence Does NOT apply in criminal cases Does NOT apply if either party relies on patient's condition as part of their claim or defense Note: on the MBE…the doctor/patient privilege usually does NOT apply Spousal Immunity - in criminal cases only, a spouse cannot be compelled to testify against the defendant spouse Witness-spouse...NOT the defendant-spouse...holds the privilege Witness-spouse may voluntarily testify against the defendant-spouse in he/she so chooses Confidential Communications Between Spouses - in ANY type of case, a spouse is NOT required, and is not allowed in the absence of consent by the other spouse, to disclose a confidential communication made by one to the other during the marriage BOTH spouses hold this privilege Exceptions applicable to both privileges: Communications or acts in furtherance of future crime or fraud Communications or acts destructive of family unit (e.g. spousal/child abuse) Additional Texas civil exceptions: All types of disputes between spouses (e.g. breach of K) Incompetency / commitment proceedings HEARSAY Out of court statement of a person (oral or written) AND Offered to prove the truth of the matter asserted in the statement General Rule - hearsay is INADMISSIBLE unless an exception or exclusion applies

Husband-Wife Privilege

1 -



1 2

1 2


1 2

Non-Hearsay Statements

1 -

Principal Categories of non-hearsay statements: Verbal Act (legally operative words) Situation where the substantive law attaches legal significance to certain words just because they were spoken Examples: contract offer or cancellation, making a gift, perjury, bribe, fraud, defamation, words accompanying ambiguous acts To show effect on person who heard or read the statement Circumstantial evidence of speaker's (declarant's) state of mind - out of court stmt of intention for FUTURE are admissible as state of mind to show person engaged in planned behavior (can be any amount of time) --> Hillmon Doctrine Prior inconsistent stmt used to impeach General Rule - A witness's own prior statement, if offered for the truth of the matter, is hearsay and is INADMISSIBLE unless an exception or exclusion applies Witness statement exclusions from hearsay: Witness's prior statement of identification IF person making prior ID is on witness stand Witness's prior inconsistent statement IF prior statement was under oath and made during formal trial, hearing, proceeding or deposition Prior consistent statement used to rebut charge of recent fabrication or improper motice or influence Statement of co-conspirator made in furtherance of conspiracy Rule - any statement made by a party (plaintiff or defendant) is admissible against the party Page 98 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

2 3

4 Prior Statements of Trial Witness 1 2 3 4 Party Admissions - There will be at least SIX questions on this

Party Admissions There will be at least SIX questions on this 1 2 -

Evidence Statement does NOT have to be against declarant's interest when made Declarant need not have personal knowledge Vicarious Admissions - statement by agent/employee is admissible against principal/employer if: The statement concerns a matter within the scope of agency/employment, and statement must relate to speaker's job duties The statement is made during agency/employment Does NOT mean on the job…but during employment HEARSAY EXCEPTIONS Former Testimony (need unavailability) Statement Against Interest (need unavailability) Dying Declaration (need unavailability) Excited Utterance Present Sense Impression Present State of Mind Declaration of Intent Present Physical Condition Statement Made for Purpose of Medical Diagnosis or Treatment Business Records Public Records Regardless of whether a hearsay exception is satisfied, testimonial statements against a defendant are prohibited if: The declarant is unavailable, and The defendant has had no opportunity for cross-examination Testimonial statements include sworn testimony: At a grand jury At a prior trial At a preliminary hearing, and Made in response to police questioning (whether sworn or unsworn) Exception: Does NOT apply if declarant is unavailable due to defendant's wrongdoing


1 2 3 4 5 6 7 8 9 10 11

Criminal Defendant's Right of Confrontation (6th Amendment) 1 2 1 2 3 4

Grounds of Unavailability

Former Testimony Exception

Statement Against Interest Exception

1 Death or illness 2 Absence from the jurisdiction 3 Privilege 4 Refusal to testify 5 Lack of memory Texas - in CIVIL action, depositions of a witness taken in the same proceeding is admissible w/out the need to show that the witness has become unavailable Elements: 1 Former testimony given at a former proceeding or in a deposition 2 Of a now unavailable witness 3 Is admissible against a party who, on the prior occasion, had an opportunity AND motive to cross or develop the testimony of the witness 4 Issue in both proceedings must be essentially the same - there is NO opportunity to cross in a grand jury proceeding Rationale - reliability assured by cross on prior occassions Elements: 1 An unavailable declarant's (NOT required in Texas) 2 Statement against his or her: a Pecuniary b Proprietary OR Page 99 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Interest Exception

Evidence c d Penal interest Social interest in TEXAS only Rationale - not likely to lie when making a personally damagins statement Must be against interest WHEN made Any person, not just a party, can make a stmt against interest Must have personal knowledge that it is against interest Criminal cases - stmt against penal interest, when offered to exculpate D, must be corroborated Elements: Statement made under a belief of impending and certain death (don't have to actually die) - need to have given up all hope of survival By a now unavailable declarant Concerning the cause or surrounding circumstances of the declarant's death In federal court this exception applies ONLY to homicides in criminal cases and to ALL civil cases In Texas this exception always is applicable Elements: Statement concerning a startling event Made while the declarant is still under the stress of excitement caused by the event


Dying Declaration Exception


2 3 Excited Utterance Exception 1 2

a b c Present Sense Impression Exception 1 2

Rationale - excitement suspends one's capacity to fabricate Factors to consider to see if the declarant is still under the stress: Passage of time Nature of the events Visual clues - exclamatory phrases; excitement oriented verbs; exclamation point Elements: Description of an event Made WHILE the event is occurring OR immediately thereafter Rationale - declarant has no time to fabricate Def - Contemporaneous statement concerning declarant's present state of mind, feelings or emotions Rationale - contemporaneous stms about matter as to which declarant has unique knowledge Statement of declarant's intent to do something in the future - including the intent to engage in conduct with another person Statement made to anyone about declarant's CURRENT physical condition - cannot be a stmt about what you felt in the past Elements: Statement made to anyone concerning Past or present symptoms or general cause of condition Made for the purpose of treatement or diagnosis Stmt about the general cause of the injury is permissible, but the specific cause will be redacted out - it makes NO difference that the stmt is made to a physician retained solely for the purpose of testifying as an expert Elements: Page 100 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Present State of Mind Exception

Declaration of Intent Exception Present Physical Condition Exception Statement for Purpose of Medical 1 Treatment or 2 Diagnosis Exception 3

Business Records Exception

Business Records Exception

1 2 3 4

Evidence Was the record made by or from information transmitted by a person with knowledge of the events or conditions recorded Was it made at or near the time of the event or condition recorded Was it in the regular course of your business to make such records Was it in the regular course of your business to make keep records - stmt is not admissible if information came from another party, not employed by you unless it falls under another hearsay exception Records of a public office or agency setting forth: The activities of the office or agency OR Matters observed pursuant to a duty imposed by law OR Findings of fact or opinion resulting from an investigation authorized by law Exception - police reports and investigatory findings are NOT admissible against the D in a criminal case. - Can't use the business records to get in a police report either Opponent may use any of the impeachment methods to attack the credibility of a hearsay declarant

Public Records Exception

a b c

Impeachment of Hearsay Declarants Exception

When is it appropriate? Effect on case

1 2 -

Judicial Notice Matters of common knowledge in the community Capable of certain verification through easily accessible, well-established sources In criminal cases - the jury MAY accept the fact noticed; thus, its effect is only to relieve the P of burden of producing evidence on that fact In civil cases - the fact judicially noticed is conclusively established

Page 101


Real Property KEY w/ Estates Fee Simple Absolute ESTATES RIGHT of Possession - an estate always has one PRESENT FREEHOLD ESTATES a Runs forever and is fully alienable b Courts presume a fee simple unless language shows a CLEAR intent otherwise c ALL restraints on alienation are void (ignore them), however a condition on the exercise of a fee simple is fine - Ex: O to A, but if A tries to sell it to B (void); but, O to A, but if A allows B on it to C (fine) d A right of first refusal is OKAY NEVER measured by time , but always by life - Could be created by implication, don't need any "magic" words Forfeiture restrictions are OKAY - does not violate the rule against alienation - Measuring life is someone other than the life estate holder - If the life tenant dies before the measuring life dies, the life estate passes to the estate of the life tenant until the measuring life dies General rule - all life tenant CAN do is maintain the estate - means continuing the normal use of the land in its present condition If they do MORE or LESS than maintain they are guilty of waste: voluntary; permissive; ameliorative a Def - Any affirmative action beyond the right of maintenance causing HARM to the premises (i.e. - cutting down shade trees; selling oil) b Can only continue the normal use, any change of use is voluntary waste and the life tenant is liable to the holder of the future interest c Sale of crops is NOT waste Open Mines Doctrine Depletion of natural resources is waste unless the normal use of the land was to deplete them Def - failing to maintain (really talking about inaction) Must do 3 things to avoid permissive waste: 1 Repair - life tenant must keep the property in repair w/ ORDINARY repairs, and NOT replacement 2 Taxes - life tenant pays ALL the taxes - still the future interest must make sure they are paid or he loses his interest at a tax sale 3 Interest - life tenant is only responsible for the interest on a mortgage (future interest is responsible for the principal) a Obligation is limited to the amt of income received from the land OR if the life tenant is personally using the property, the reasonable rental value of the land b No need to insure the property - Def - type of voluntary waste that occurs when the affirmative act alters the property substantially, but INCREASES the value of it - Rule - if changed conditions have made the property relatively worthless in its current use, the life tenant can tear it down w/o liability to the holder of the future interest Def - gifts to a class of UNNAMED persons Rules: Members of the class who predecease the testator are eliminated and do not recover; their gift LAPSES Once the class is established, when the will is executed, the class stays open to accommodate those who later meet the definition of a class member Rule of Convenience - class closes when any one of the class is entitled to a DISTRIBUTION - This rule does not apply if the grantor specifies otherwise

Life Estate

Life Estate pur autre vie Rights and Duties of the Life Tenant

Voluntary Waste

Permissive Waste

Permissive Waste: Liability of Life tenant Ameliorative Waste

Class Gifts 1 2 3

FUTURE INTERESTS Page 102 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Real Property Future interests Future Interests Retained by GRANTOR This means future possession. The interest exists NOW, but possession will not come until later, if at all Def - grantor gives LESS than the full interest he held --> these are NEVER subject to RAP Reversion Possibility of Reverter Right of Entry Remainder Executory interest Def - the interest kept by the grantor when he gives LESS than the durational estate the grantor had There is a reversion as long as there is a chance it will return to the grantor - it is not certain to send it back to the grantor NEVER subject to RAP Can be transferred freely Def - whenever grantor gives a fee simple determinable he keeps this NEVER subject to RAP Can be transferred freely Def - ends automatically when the condition happens Language to look for: For so long as Until While During Def - whenever grantor gives a fee simple on a condition subsequent he keeps this Grantor MUST EXPRESSLY reserve a right of entry NOT subject to RAP CanNOT be transferred inter vivos in a conveyance - but a transfer by will or by intestacy is okay Def - title does not automatically go back to the grantor if the condition is violated, he must exercise the right of entry Language to look for: Provided however (and gives a right to reenter and retake) But if (and gives a right to reenter and retake) On condition that (and gives a right to reenter and retake) "for the purpose of" - NO effect on title <-- not sufficient CATEGORY 2: FUTURE INTERESTS GIVEN A GRANTEE Vested remainder - nothing stands in the way of its becoming possessory on the expiration of the estate that comes before it (we know who will take and there are no conditions to taking) Vested remainder subject to open - remainder interest is to a class whose members are not yet fully known - the class remains open to allow for future persons to qualify (aka vested remainder subject to partial divestment) Contingent remainder - something has to happen before the remainder can become possessory: (1) a condition; (2) grantee is not in existence; (3) identity of exact taker is unknown (A's widow) Operates to cut short the estate the comes before it; it does NOT come into possession at the natural expiration of the earlier estate If a future interest in a grantee is not a remainder - it MUST be an EI If a future interest in a grantee CUTS SHORT an earlier estate, it MUST be an EI Holder of EI can NOT sue life tenant for waste

1 2 3 Future Interests Given 1 a Grantee 2 Reversion a b c Possibility of Reverter a b Fee Simple Determinable 1 2 3 4 Right of Entry (Power of Termination) a b c Fee Simple on a Condition Subsequent 1 2 3 + Remainder -



Executory Interest


RULE AGAINST PERPETUITIES Page 103 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Real Property What estates does it 1 apply to? 2 3 Rule Timing Perpetuity Saving Clause Options and Rights of First Refusal Charity to Charity Exception Class Gifts The Unborn Spouse Contingent remainders Executory interests Vested remainders subject to open If there is ANY chance than an interest might vest outside of a life-in-being + 21 years -> that interest is void The validity of the grant is determined at the time of creation and it doesn't matter if the interest actually DOES vest within the time period for RAP Saves a grant from being voided by RAP by making sure vesting MUST occur within the time period of the rule DO violate RAP - if they could be exercised outside the time period RAP never violated if the gift over is from one charity to another charity Watch for facts where the class is open and the gift is contingent on a class member reaching a certain age ANYONE, regardless of age, can get knocked up and have a kid If RAP voids the gift to ANY member of the class then ALL members of the class lose EVEN THOSE who have already satisfied the condition Watch for a gift following a widow or widower's LE, where the gift cannot vest until the widow/widower dies Ex) O to A for life, then to A's widow for life, then to A's children who are then living. At the time of A's grant - the woman who will turn out to be A's widow may not be born yet, so the vesting to A's descendents COULD come outside the time period. Does not make any difference whether A is married at the time of the grant. Remember - the grant must be written in such a way so that the vesting cannot occur until the widow/widower dies If the transfer is by WILL - look at the situation as of the time of T's death. If by DEED look at situation at time of DEED. Concurrent Ownership There are 2 types of concurrent ownership: Joint Tenancies Tenancies in Common Two characteristics: Right of Survivorship If there are four joint tenants, each tenant owns an undivided 1/4 interest in the property. If one of the tenants dies, then the other three tenants then own an undivided 1/3 interest…and so on. The surviving tenants take automatically…NOT by inheritance. Right to Partition Any party can ask for a partition, but in so doing, lines are drawn and the tenant requesting the partition is no longer a tenant Requires the 4 unities of (TTIP): Time (all interests must vest at the same time) Title (the grant to all JTs must be by the same instrument) Interest (all JTs must take the same kind and same amount) Possession (all JTs must have identical rights of possession) Language needed to create a JT: Must clearly make intention known (in not clear, court will deem TIC) Necessary language for exam: "as joint tenants with right of survivorship" or "in joint tenancy with right of survivorship" NOT "To Michael and Persis jointly" or "To Michael and Persis as joint owners" 2 ways to destroy a JT: Page 104 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Introduction 1 2 Joint Tenancy 1 -

2 Creating a Joint Tenancy

1 2 3 4


Destruction of a Joint Tenancy

Destruction of a Joint Tenancy 1 2 Severance 1 -

Real Property Partition (a voluntary destruction), Severance (an involuntary destruction) 4 ways to sever a JT: A conveyance by one of the JTs One JT's transfer of his interest creates a severance that severs just the sellers JT, turning it into a TIC in the buyer, with the other JTs continuing to hold their interests in the JT - Does NOT destroy it when the JTs act in concurrence A mortgage in a title theory state Lien theory state - NO severance Title theory state - there IS severance Note: If no indication…assume lien theory state A contract of sale Doctrine of Equitable Conversion means severance occurs when a K of sale is signed

2 -

3 -

4 Tenancies-inCommon 1 2

A creditor's sale of the interest in the JT A creditor's judgment lien is NOT enough…there must be an actual judicial sale Two characteristics: Right to Partition NO right of Survivorship Notes: All tenants in common must have equal rights of possession TIC is the default tenancy Possession - each co-tenant has the right to possess all the property consistent with the other co-tenants' right to also possess it all Accountability - requirements that one co-tenant may have to account to another for a share of the profits the co-tenant received Getting an accounting means getting a share of the profits from a co-tenant

Allocating Rights & Duties Between CoTenants




General Rule - One co-tenant does NOT have to account to another co-tenant for a share of the profits Exceptions to the general rule: Ouster of one co-tenant Agreement to share Lease of the property by co-tenant to a 3rd party Contribution (a co-tenant MUST contribute $ to pay for necessary repairs, mortgage payments, and taxes…NOT improvements) Non-Freehold (Landlord / Tenant) Estates Tenancy for Years Periodic Tenancy Tenancy at Will Tenancy at Sufferance ANY estate measured by a fixed or specific period of time…no matter how short (does NOT have to be for years) Any tenancy for over one year must be in writing Key word is repeating - an ongoing, continuing, repetitive estate, until one party gives valid notice (e.g. month-to-month, week-to-week, year-to-year) Page 105 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

1 2 3 4

4 types of NonFreehold Estates

Tenancy for Years

1 2 3 4 -

Periodic Tenancy

Periodic Tenancy

Real Property Three ways to create: Express agreement Implication (where lease is silent as to duration) Note: if lease does not specify how long it is to last, then it is presumed to be a periodic tenancy measured by the rent payment

1 2

Operation of Law 2 situations: a. Oral lease violating the statute of frauds - acceptance of rent by LL creates a periodic tenancy by operation of law, even though the lease itself violates the SOF b. Hold-Over Tenant - if the tenant send the LL a check for another period's rent, and the LL accepts it, there is a new periodic tenancy by operation of law - Occurs by giving proper notice 2 requirements for proper notice: Time (equal to the period UNLESS year-to-year…then 6 months notice required) The right effective day of termination (must be the last day of the period) Either party can terminate at any time…without notice 5 ways to terminate: Death of either party Waste by the tenant Assignment by the tenant Transfer of title by landlord Lease by landlord to someone else At the LL's option, he can either Hold tenant as a wrongdoing trespasser and sue to throw tenant off the property and recover damages, OR Impose a new periodic tenancy on tenant


Termination of a Periodic Tenancy

Tenancy at Will

1 2 -

1 2 3 4 5 Tenancy at Sufferance 1 2

If the LL elects to impose a new periodic tenancy on tenant: 1 If residential - the new period will always be month-to-month 2 If commercial - the new period is determined as follows: a. if the old expired tenancy was for less than a year, new tenancy is the same as the old tenancy b. if the old tenancy was for a year or more, the new tenancy is year-to-year LL cannot impose a new tenancy on a holdover tenant if it is not reasonable Raised Rent Situation - if LL tells tenant before expiration of lease, and tenant holds over after expiration, LL can impose the new periodic tenancy on the tenant at the higher rent Duties of LL and Tenant If lease is SILENT, T must (1) pay rent and (2) not commit waste If lease says T must repair and maintain - T is liable for ALL damage to the ppty, regardless of cause ( except where the LL caused damage). This includes ordinary wear and tear unless specifically excluded. So if the house is burned down by arson or lightening --> T must repair TEXAS ONLY - T can terminate the lease if premises are rendered totally untenable

Tenant's Duties



LL's Remedies


If T fails to pay rent - LL can sue BOTH for damages and to throw T off ppty If T unjustifiably abandons ppty - LL has 2 choices: Page 106 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

LL's Remedies 1 2 1 2

Real Property Treat abandonment as an offer of surrender of leasehold and accept the offer by retaking the premises; thus ending Ts liability as of that date Re-rent the premises on T's account and hold T liable for any deficiency To give T possession of the premises when lease begins To deliver residential premises in a habitable condition. There is an implied warranty of habitability in RESIDENTIAL ppty. If LL breaches this warranty - T can (1) move out and end the lease or (2) stay and sue for damages TEXAS ONLY - NO implied warranty of habitability in Texas. There is a statutory rqmt that LLs repair conditions that materially affect the physical health or safety of an ordinary T. T can move out, stay and repair and deduct the cost, or sue LL. For commercial leases - there is an implied warranty of suitability covering latent defects Implied covenant of quiet enjoyment - the LL can breach this by: (1) Total eviction (which ends the terminates the lease); (2) By partial eviction (which does not terminate the lease but DOES stop the T's obligation to pay rent. If partial eviction is by person NOT LL - T's rent is apportioned); or (3) by constructive eviction (this is where the LL fails to provide a service it is supposed to provide that is a substantial interference with the covenant of quiet enjoyment and the T abandons the ppty within a rzbl time)

LL's Duties




Sublease Texas Non-Assignment and Non-Sublease Clauses

ASSIGNMENTS AND SUBLEASES Definition - Where T transfers EVERYTHING LL sues T: To determine if successive Ts on a lease are liable to LL you have to see whether there is privity of estate (POE) or privity of K (POK) T is liable to LL if there is either POE or POK POE = exists btw present LL and present T POK = exists where there is an agmt btw the parties or where the assignee "expressly assumes" the obligations under the lease In addition to rent - other covenants will run with the land IF they touch and concern the land --> if the performance of covenant makes the land more valuable or more useful - then it runs with the land T sues LL: Can T sue the original LL when the LL sells to a successor? Rule - Original LL continues to be liable to T b/c of POK Rule - Successor LL is also liable, provided lease covenant runs with the land AND there is either POK or POE Definition - Where T transfers a PORTION of the lease Rule - Sublessee is NOT liable to LL b/c no POE and no POK TEXAS ONLY - There is NO right to assign or sublet UNLESS the LL gives PERMISSION Valid and enforceable? YES, violation of such a clause makes the attempted transfer VOIDABLE at the option of the LL. If LL does nothing - nothing happens What is the effect of LL's giving permission for an assignment? The clause is WAIVED for ALL TIME, unless L states otherwise at the time of giving permission. Acceptance of rent by LL gives permission for a transfer. CONDEMNATION Does not release T from obligation to pay full rent - BUT T gets an amount = to the rent that will have to be paid over the remainder of the lease for the ppty taken Extinguishes the lease and T is excused from paying rent. T shares in the condemnation award ONLY to the extent that the fair rental value of the lease exceeds the rent due under the lease

Partial taking

Full taking

LL's TORT LIABILITY Page 107 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Real Property General rule Exceptions 1 NO duty of LL to T or to T's invitees for injuries on the premises during the life of lease Latent defects - L is under a duty to disclose latent defects (defect which T does not know of and a rzbl person in Ts position would not discover) which L either knows or hrtk of Short term lease of a furnished dwelling - L is liable for defects even if L neither knows nor has reason to know of them (3 months or less) Common areas under LL's control - If injury is in an area subject to LL's control then L is liable if L failed to use rzbl care Negligent repairs - LL is liable for injury resulting from LL's repair of a defect in the premises, even if LL used all due care in making the repair TEXAS ONLY - b/c the LL has a statutory duty to repair - the LL can be liable in tort if the injured person is in the class of persons protected by the statute Public use exception - L is liable for injury from defects in the premises if (1) LL must know or should know of major defects; (2) LL must know or should know that T will not fix the defect; and (3) LL must know or should know the public will be using the premises TENTANT'S TORT LIABILITY T is ALWAYS liable to 3d party invitees for negligent failure to correct dangerous conditions on the premises, regardless of whether LL may be contractually liable or not FIXTURES If the attached item became a fixture - chattel CAN NOT be removed either by seller or tenant Look at whether the one doing the installing INTENDED that the item stay with the real ppty as a fixture? Degree of attachment General custom with this item - is it the type of thing that sellers or tenants normally take when they leave? Degree of harm to the premises on removal Trade fixtures, which are chattels used in trade or business, are NOT fixtures (always remove) NEVER fixtures If T can remove the chattel - it must be removed BEFORE the end of the lease If Owner removes chattel - it must be removed BEFORE CLOSING EASEMENTS A non-possessory interest in land involving a right of USE <-- use is the key

2 3 4


General rule

Rule To determine fixture If no agmt - look at 1 2 3 4 Washer/dryer When can you remove chattel? Definition of Easement Types of Easements 1

Ways to create an easement Express easement

Easement appurtenant - when the easement directly benefits the use and enjoyment of a SPECIFIC piece of land - Will be 2 pieces of property: (1) servient estate, the burdened property; and (2) dominant estate, the benefited property 2 Easement in gross - There is no dominant estate (ex: utility easement) There is no implied easement for light or air 1 Express easement 2 Easement by Implication 3 Easement by prescription a Either the express grant or a reservation of an easement when land is sold to another b - MUST comply with the statutes of frauds** and with all deed formalities - MUST be in writing, signed by the holder of the servient estate and executed like a deed (UNLESS the easement is for 1 year or less) Previous use by a common owner, and that use is: Page 108 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Easement by implication


Easement by implication

Real Property a b c 2 Continuous Apparent Reasonably necessary Absolute right of access - the property is landlocked --> No other way off the property - Owner of the servient estate can choose the location of the easement, so long as it is a rznble one Similar to adverse possession, requirements: Use must be adverse to the owner (NO right to use) --> an oral grant of permission will destroy this type of easement Use must be continuous and uninterrupted for the statutory period - Seasonal use may be okay if appropriate circumstances - Time is 20 years, but in TEXAS it is 10 years Use must be either visible and notorious, or with the owner's knowledge Use must be w/out permission Easement appurtenant - goes automatically with the dominant estate, whether mentioned or not in the conveyance, and cannot be transferred separately from the dominant estate Easement in gross - if commercial, can always be transferred; if personal, can NOT be transferred - TEXAS --> cannot transfer an easement in gross, unless the language of the easement says so, except for conservation easements ALWAYS binding on the subsequent holders of servient estates, even if the easement is not in the deed, providing the subsequent holder had NOTICE of the easement Terms of the easement control, but if the easement is silent: It is presumed that the easement is PERPETUAL The use presumed is that of rznble development of the dominant estate --> the kind of use that would have been contemplated by the parties WHEN the easement was created Use to benefit property not the dominant estate is excessive use Holder MUST keep the easement in repair and can always go to the servient estate to repair it, even if that right is not specifically provided Holder must make rznble restoration of servient estate after repairs Servient estate has NO obligation to make repairs Unity of ownership or merger --> when both the dominant and servient estate come together in the same owner - NEVER revives Valid release - must comply with SoF and all deed formalities Abandonment - INTENT to abandon must be manifested by taking some PHYSICAL ACT on the property itself that show the intent to abandon - Mere non-use is NOT abandonment, must take action to abandon Estoppel - 2 elements: a) a representation of relinquishment by the holder of the dominant estate b) change of position in RELIANCE by the holder of the servient estate Prescription - owner of the servient estate must stop the use and keep it stopped for the statutory period End of Necessity - once the necessity that created the easement by necessity ends, so does the easement Def - limited privilege of use and NOT a property interest - it is only a K right and is revocable at the will of the licensor - The licensor may have to pay K damages for wrongful revocation, but there are no property rights

Easement by Prescription

1 2

Transfer of the Easement Benefit

3 4 1


Transfer of the Easement Burden Use of Easements 1 2

Repair of Easements**

a b c 1 2 3

Termination of Easement


5 6 License*



Tickets are always licenses Page 109 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Tickets -

Real Property

They give no in rem rights, ONLY K rights Can always be revoked, but K damages may be imposed Irrevocable License Def - License plus money spent on property furthering the license 1 Anytime an easement is attempted but fails due to the SoF, there is a license 2 If money is spent on the property in furtherance of that oral license, the license becomes irrevocable and is just as good as an easement, and can be enforced under principles of estoppel Profits Def - gives the right to go onto land and take a natural resource away - Along with a profit goes an implied easement to go on to the land to get the resource and take it away - Use easement rules RESTRICTIVE COVENANTS Restrictive Covenants Def - gives the right to restrict someone else's use of their land, 2 types 1 Covenants running with the land at law - if P wants money damages 2 Equitable servitude - if P wants an injunction Covenant at law: 1 Intent that it run with the land Requirements 2 Notice to the person against whom enforcement is sought 3 The covenant must touch and concern the land (must make it more valuable or useful) i.e. - covenant not to compete touches and concerns the land 4 Privity - conveyance of the property from one party to another --> See below to figure out what privity is required Covenant at law: 1 Horizontal privity - ALWAYS refers to the original parties to the covenant Types of Privity - For horizontal privity you must have a conveyance of the property between the original parties 2 Vertical privity - refers to those who subsequently obtain the property subject to the covenant (called the successor in interest) and the original party from whom they got the property - The successor in interest MUST take the FULL estate of the one up the line Covenant at law: 1 Find the successor in interest Process for privity 2a If the successor in interest is the D, then someone is trying to have the BURDEN of the covenant run to that successor 2b If the successor in interest is the P, then that person is trying to have the BENEFIT of the covenant run to them Covenant at law: MUST have BOTH horizontal and vertical privity Burden running to a Ex: A owns 2 lots, sells 1 to B. B then sells to C <-- there is both kinds of privity here successor? Covenant at law: Need ONLY vertical privity Benefit running to a successor? Covenant at law: both Will need both horizontal and vertical, but you CANNOT have that, so they are parties are unenforceable at law successors? Equitable Servitude: 1 Intent that the restriction be enforceable by successors in interest Requirements 2 Notice to the subsequent purchaser 3 The restriction must touch and concern the land - Do NOT need privity Equitable Servitude in Also called Reciprocal Negative Servitudes, Need: subdivisions 1 Intent to create a servitude on ALL the land in the subdivision (may be found in the common building plan) 2 Notice a Actual notice b Record notice where the restriction is in the DIRECT chain of title c Inquiry notice - held to know anything a rznble inquiry might have revealed Likely Follow up If a recorded subdivision plan has land marked as city parkland and if that can be Question - City Park construed as a dedication of the land to the city for a park, then the city can enforce it Page 110 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Real Property Equitable Servitude: 1 Defenses to 2 Enforcement 3 4 Termination of Restrictive Covenants Unclean hands defense - P did the same thing Acquiescence - let someone else do the same thing Laches - too late Estoppel - P said earlier that he did not mind Can always be done by release or unity of ownership, but look for termination by changed conditions All or nothing - cannot void a restriction based on changed conditions in the area, UNLESS ALL lots in the subdivision are affected ADVERSE POSSESSION Question - when does X's being on the land constitute adverse possession, so that title is obtained, and when it is merely a trespass? Hostility - being on the property with no right to be there Exclusivity - X must be excluding others from possessing the property Lasting - 20 years, unless told otherwise Uninterrupted - the kind of continuous use an owner would make Visible - out in the open Actual - must actually possess, unless you have constructive adverse possession or lease the land you don't own Owner does not have to know that X is on the land X does not need to think he owns (has a claim of right) the property Possessor is under a color of title and has only narrow specified defects in title = 3 years (very hard to satisfy) Possessor is there under a color of title and pays all taxes = 5 years Possessor is just in bare possession of property with no color of title = 10 years, but possession is limited to 160 acres, unless fenced Possessor paid the taxes for the entire period, was on the property under a color of title, and true owner was under a disability = 25 years If X goes on property under a color of title (bad title) to a larger tract, but only actually possesses a PART of the larger unit, constructive AP can give title to the rest of the property if: The amt actually possessed bears a rznble relation to the whole AND The property must be UNITARY - a seamless whole Leasing qualifies as possessing it for AP purposes When you lease land you don't own you are running the period for AP Can occur only when the possessor EXCLUDES the other co-tenants from possession and the statute runs Exclusion is what starts the clock, not the absence of the other co-tenant Life estate plus future interest - clock does not start to run against the holder of a future interest, until the interest becomes posessory (life tenant dies) - Adverse possessor can only possess what the owner had Fee simple determinable - the happening of the condition starts the clock running Fee simple on a condition subsequent - clock won't start until the grantor exercises the right of entry Can tack periods of adverse possession, but they must pass DIRECTLY from one adverse possessor to another (NO GAPS) Can also tack periods of true ownership

Elements for Adverse Possession H E L U V A 2 things NOT required 1 2 AP: Lasting in Texas 1 2 3 4 Constructive Adverse Possession 1 2 Leasing and Adverse Possession Adverse Possession a against Concurrent Owners b Future Interests and 1 AP 2 3 AP: Tacking -

AP: Disability a

Being a minor, being insane or being in jail if the owner is under a disability AT the TIME the AP begins, the AP clock does not start ticking until O is free of that disability Page 111 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

AP: Disability Real Property b c If the disability arises after the AP begins, it's an intervening disability, and is ignored

AP: Other


Contract of Sale

NO tacking of disabilities TEXAS - maximum tolling is 25 years for a disability NO AP against governmental land Titles acquired by AP are NOT marketable - title may be good, but you have to have the court declare that it is marketable CONVEYANCING Conveyancing is a two-step process: 1 Contract of sale, 2 Deed (at closing) Contract is governed by all regular contract rules, plus these 4: 1 Statute of Frauds - Any signed writing will do, provided it includes: a. A description of the property, b. The names of the parties, c. The price Exception to SOF: Part Performance - An oral contract will suffice IF: a. The oral contract is certain and clear, and b. The acts of part performance must clearly prove up a contract Note: Look for a claimant with possession AND (1) paying full purchase price (or close to it), OR (2) erecting improvements 2 Legal Effect of the Contract Between Time of Signing K and Closing Four issues: a. Risk of loss - after signing the K of sale, risk of loss is on the buyer UNLESS the seller is at fault Note: Texas rule - risk of loss is on the person with possession at the time of loss

b. Death of a Party Before Closing - does NOT effect the terms of the K c. i ii iii Marketable Title - every land sale K has implied warranty of marketable title (this is not perfect title) Seller must give the buyer 3 things: Proof of title Title free of encumbrances Valid legal title on the day of closing Notes: The existence of a valid option to purchase is an encumbrance making it unmarketable Zoning is NOT an encumbrance UNLESS the property is in violation of the ordinance Violation of a housing or building code is NOT an encumbrance A mortgage on the property is NOT an encumbrance if the mortgage is to be satisfied out of the proceeds of the sale Remedies of buyer if seller's title is unmarketable: Buyer must first give notice to seller and a rzble time to cure…if seller does not cure, then buyer has the following 3 remedies: Rescission Damages Specific performance Page 112 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls


i ii iii

Real Property Note: If Buyer goes to closing and accepts the deed without the problems being cured, then no recourse against the seller based on the K d. Time of Performance - Presumption - time is NOT of the essence and the closing may be extended for a rzbl time (2 months is rzbl) - Note: If the K provides that time is of the essence, then the party who fails to perform on time may not enforce the K Remedies for Breach 1 Damages of Sales Contract - measure is the difference between K price and value of the land at time of breach - Buyer's deposit can be forfeited as liquidated damages as long as it is not more than 10% of sales price 2 Defects on the Property 1 2 Deed Specific Performance always available to both seller and buyer General Rule - buyer cannot recover 2 exceptions: Seller must disclose serious defects that seller knows of and are not obvious to buyer There is an implied warranty of fitness or merchantability for new homes sold by a builder-seller Rule - once the deed is accepted, the contract for sale merges into the deed and is destroyed 2 requirements for passage of legal title from seller to buyer: Execution Delivery Deed MUST be signed by the seller Description of the land need NOT be very specific (must be able to identify the property) (a minor discrepancy is okay if land can still be identified) A land description by metes and bounds ALWAYS controls over any other form of description Does NOT always mean physical transfer…intent is what matters Recording of the deed raises a presumption of delivery Once delivery occurs, title passes, and later returning deed to grantor or destroying deed has NO effect Any evidence may be used to show seller's intent to deliver deed If grantor dies and still has possession of deed, there is a presumption of NO delivery

Execution of Deed

1 2 -

Delivery of Deed


1 -

Conditional Delivery Condition is in Deed If deed says it will not become effective until death of grantor, this is a valid delivery of a future interest Oral Condition If the condition is made orally at the time of delivery of the deed, disregard the oral condition Making delivery conditional on grantee paying purchase price This is valid IF grantor makes delivery to a 3rd party in escrow with instructions to deliver deed to grantee when condition is satisfied (oral instructions okay) Once deed is given to escrow agent, grantor cannot get the deed back Acceptance of deed by grantee is presumed (unless grantee rejects) No consideration is needed for a deed (unlike the K of sale) Page 113 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

2 -

3 -

Real Property Covenants for Title Quitclaim deed - seller makes no promises regarding title and buyer gets whatever seller owns There are six types of covenants a seller may make and the deeds that go with these covenants are called general warranty deeds The 6 covenants are placed into two categories: Present covenants Covenant of seisin (seller has title and possession and can convey both) Covenant of right to convey (seller has title and possession and can convey both) Covenant against encumbrances (no easements, restrictive covenants, liens, etc) Note: buyer can sue immediately on these covenants, but they do NOT run with the land 2 Future Covenants a. Covenant for quiet enjoyment (seller will protect buyer from anyone who later claims title) b. Covenant of warranty (seller will protect buyer from anyone who later claims title) c. Covenant of further assurance (seller promises to do whatever necessary to pass valid title) Note: Not breached immediately, but DOES run with the land and can be enforced by any subsequent purchaser Rule - if there is a breach of warranty, damages are limited to purchase price received by warrantor, plus incidental damages Don't fall for an answer that would give plaintiff full recovery If A deeds property to B that A does not own, and then A does later acquire title, then B will get title because A gave an implied covenant that title would be transferred to B BUT, if A transfers to a BFP after getting title, then the original grantee loses and cannot rely on estoppel by deed Texas - estoppel by deed is called "after-acquired title" Rule - a deed to a dead person is invalid, although enforcement of the contract of sale can still be had by either the seller or the buyer's estate, and a new deed is made to the buyer's estate RECORDING OF INTERESTS At common law, first in time, first in right Recording acts also protect subsequent mortgages Recording acts do NOT protect judgment creditors Recording a deed is not necessary to make it valid, it is only done to give notice In Texas, a deed can be recorded if: The signature is notarized, or the deed is signed by the grantor and at least 2 witnesses Notice acts Race-Notice acts Pure Race acts Protect subsequent purchasers who are BFPs…those who give value without notice of the earlier transaction Recording is irrelevant Texas follows this Act If the words "without notice" or "in good faith appear without the words "first recorded" or "recorded first," then it is a notice act Protect subsequent purchasers who are BFPs AND are first to record Page 114 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

1 a. b. c.

Damages for Breach of Covenant Estoppel by Deed -

Deed to a Dead Person


Types of Recording Acts Notice Acts

1 2 1 2 3 -

Race-Notice Acts


Race-Notice Acts Pure Race Acts -

Real Property If the words "first recorded" or "recorded first" appear along with "without notice" or "in good faith," then it is a race-notice act Whoever records first wins Notice is irrelevant If the words "without notice" or "in good faith do not appear, then it is a pure race act 2 situations Bargain Basement Sale - where a subsequent purchaser pays an absurdly low price Anything paid out-of-pocket is enough to be considered value Exception - $1.00 is NOT enough An heir, donee or devisee - these persons are not BFP's b/c they give no value Exception: Shelter Rule - anyone (even heirs, donees, and devisees) can shelter under the rights of a BFP Three types of notice: Actual Notice - if subsequent purchaser actually knew about prior unrecorded conveyance, that person loses Record Notice - constructive notice that arises from the record…must be recorded in the chain of title searcher of records NOT responsible for locating anything recorded before getting title or after transferring title (wild deeds)

"for value" 1 2

"Without Notice" 1

2 -

3 Inquiry Notice - two situations: a. If a reading of the deeds discloses an unrecorded transaction, the subsequent purchaser must check it out b. Where subsequent purchaser fails to go out and examine the land and an examination would have shown someone on the land under a prior unrecorded right Definition 3 Kinds of SI Subsequent purchaser must make inquiry of unexplained possessions or uses SECURITY INTERESTS = #1 TOPIC ON BAR A device used to secure a loan on real ppty Mortgage - given by a debtor (mortgagor) to a creditor (mortgagee). Sheriff sells the land at a court-ordered foreclosure sale if mortgage isn't paid There are 2 situations where we treat the instrument as a mortgage Absolute deed - with a separate promise of reconveyance situation Sale/leaseback with option to re-purchase Deed of Trust - given by debtor to a 3d party trustee who holds it until the loan is paid off If the loan isn't paid - then trustee may EITHER get the court to order a sale OR the trustee may sell ppty on trustee's own at a public auction Installment Land K - debtor signs a K promising to make pmt and seller keeps title until loan is paid off (called a K for Deed in Texas)

1 a b 2 3

Consequences of having a mortgage OR deed of trust


Equity of redemption - at any time up to the fc sale - debtor can redeem the ppty.

Page 115


Consequences of having a mortgage OR deed of trust

Real Property Normally all debtor has to pay is the amount in arrears, BUT if a mortgage has an acceleration clause - debtor has to pay off ENTIRE balance Right of redemption can't be waived in the mortgage or DOT - BUT it can be done later if separate consideration given . (An attempt to waive the right of redemption in the SI is known as "clogging the equity of redemption" and is prohibited Foreclosure must be by public auction sale If there are multiple mortgages, priorities are first in time, first in right Mortgage priorities may be changed by K Purchase money mortgages are given priority over other mortgages executed at the same time, even if the other mortgage recorded first Sellers with PMM win over Banks with PMM If the owner does anything to increase a senior mortgage - then that mortgage LOSES its priority over junior ones BUT only to the extent of the change Foreclosure wipes out all junior interests (including easements or leases) but does NOT wipe out senior interests. Protections to holders of junior interests - they have the right to pay off any mortgage being foreclosed in order to keep their junior interests from being wiped out, and thus they are necessary parties to any fc, and if they are NOT made a party to a fc - then their interests are NOT wiped out by it Senior interests do NOT get paid off when a later mortgage is fc; they keep right on going. Purchaser at fc sale takes ppty subject to senior interests Use proceeds of fc sale in this order Pay the cost of the fc, including expenses and attorney fees Pay the mortgage that was fc, including accrued interest Pay off junior interests, in order Anything left goes to mortgagor If mortgage is fc and there is not enough money to pay off the mortgage - let mortgagee SUE debtor for balance due TEXAS ONLY --> deficiency jmts are ltd to the difference btw the debt and the FMV of the ppty. On MBE - deficiency jmt are limited to the difference btw the debt and sales price . Look for a forfeiture clause --> if debtor misses a pmt, seller can cancel the K, keep all the money paid to date, and get the ppty back TEXAS ONLY --> In 2001, several statutory protections were added for buyers Sellers have to give buyers detailed notice of a prospective forfeiture Buyers have a statutory 60 day period to cure the default Mortgagor can transfer TITLE to ppty and mortgage just tags along and transferee takes SUBJECT to the mortgage Mortgagor continues to be personally liable on the note Unless grantee specifically assumes mortgage, grantee is NOT personally liable on it BUT mortgage still has to be paid or mortgagee will foreclose After mortgagor transfers title to one who "assumes" the mortgage - mortgagor continues to be personally liable on the note as a surety. Mortgagee can freely transfer the note and the mortgage tags along with the note HDC - A holder in due course is NOT bound by pmts to an old mortgage, not even if the mortgagor knew NOTHING of the transfer Due on sale clauses (if mortgagor transfers without the mortgagee's consent, the FULL AMOUNT of the loan is immediately due and payable) ARE enforceable If a fixture filing is NOT made within 20 days of attachment - then the SI in the chattel is subordinate to the earlier mortgage on the real ppty

2 3 4 -

5 a b c d 6

Consequences of having an Installment Land K 1 2 Transfers of SI 1 2 Fixture Filing

SPECIAL RIGHTS Page 116 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Real Property Right of Support 1 Lateral support - support from the sides. A landowner has the right to land supported by the adjoining landowners, and strict liability results if land is not supported. Adjacent landowner is strictly liable for support of adjacent LAND and IMPROVEMENTS if land would have collapsed anyways - even WITHOUT those buildings on it Subjacent support - support of the surface from the bottom. Strict liability results if surface is not supported. Situation arises when holder of mineral rights removes the minerals and the surface collapses Rule: Holder of mineral right is strictly liable for failure to support the surface of the land Watch out: Buildings built AFTER mineral rights were severed from surface rights get NO strict liability protection Watch out: If excavator was negligent --> P can sue under ordinary tort principles Rivers and Lakes Riparian rights - Refers to those whose property borders on a lake or stream. The owner can use all the water needed for DOMESTIC purposes. If NON-DOMESTIC, the owner is limited to rzbl use. Prior appropriation - first in time takes - ANYONE who makes beneficial use of water has the right to continue to use it, and that right is protected from those who come later, as long as use continues Water Under the Ground A landowner is entitled to rzbl use. Landowner must use it on the ppty and not export it elsewhere. TEXAS - you can take all the water you want from a well on your ppty, even if you wind up taking all the water from your neighbor's well at the same time (just can't do it maliciously and can't waste the water) Surface Water Natural Flow Approach - courts allow rzbl steps to deal with flood water. Drainage pipes or ditches to divert the flood water are okay. (TX follows this) Common Enemy Approach - you can do anything with floodwater, rzbl or not TEXAS HOMESTEAD RULES Any family Any single adult Intend to have it your HS and Actually occupy it OR take such acts of preparation that the court can conclude you were about to occupy it 200 acres --> family 100 acres --> single person Acres do NOT have to be contiguous, but ALL have to be used as HS Residential OR business Can be a single lot or lots adding up to no more than 10 acres If more than one lot --> MUST be contiguous Taxes Loan tied to ppty - those having to do with buying, financing, or improving the ppty, or with equity in the ppty

2 Water Rights -




Who can get one? How? 1 2

Urban HS Debts that can force a 1 sale of HS ppty 2

Rural HS

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Torts 4 Major Testing Areas 1 2 3 4 1 2 3 Introduction Intentional Torts (assault, battery, conversion, false imprisonment, IIED, trespass to land, trespass to chattel) Strict Liability (products, abnormally dangerous activity, wild animals) Negligence Nuisance/Privacy/Defamation/Misrepresentation Do the facts support an intentional tort Can D sue in strict liability -PAW (Product; Abnormally Dangerous Activity; Wild Animal) Then the theory is negligence Intentional Torts Desire, purpose, substantial certainty There is no such thing as an attempted intentional tort Actual intent is required for all intentional torts EXCEPT IIED D must have made a voluntary act D must have intended the consequences - act with an actual desire or substantial certainty (negligence is NEVER enough) - Intent can be proven by transferred intent from tort to tort (Ex: you intend to commit one tort but you actually commit another - then you are liable for the tort actually committed) OR person to person Motive is not relevant Mentally incompetent adults and children can be held liable for intentional torts Causation - D's act must have caused OR been a substantial factor in causing the result - need factual and legal causation - an answer that just says "but for" is probably wrong Actual damages are NOT needed - punitive damages may be available D is liable for ALL harm caused - even if not foreseeable P's rzbl apprehension - "expectation of" - must be AWARE as the P - a rznble person must have been placed in apprehension - unless D is aware of P's extra sensitivity - a 3rd party has NO CoA here Of imminent harmful or offensive conduct to himself - includes being punched, shot, improper sexual touching, or spitting . . . - words alone are NOT enough - can't be the fear of a future contact Ds intent (to cause the apprehension) - there is NO need for actual contact - D must have actual or apparent ability to cause the harmful or offensive contact Causation - Ds act caused or was a substantial factor in causing result Ds harmful or offensive contact - P does NOT need to be aware that contact was made with him With P (Ps body or something attached to it) - also counts if you set in motion something that causes contact (i.e. - poison) Ds intent - intent to commit assault will satisfy intent to commit battery when the contact is made accidentally Causation - Ds act caused or was a substantial factor in causing result Ds act Confined or restrained P - P must be aware of the confinement, unless P is incapable of awareness and is actually harmed To a bounded area Page 118 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls



General rules

a b

c d e

f g 1





4 1 2 3

4 False Imprisonment - 1 THIS WILL BE ON 2 EXAM 3

THIS WILL BE ON EXAM Torts 4 5 Using physical barriers, physical force, or threats of immediate physical force D's act was voluntary and with the intent to confine or restrain - Motive does NOT matter Shopkeeper's privilege - Rzbly believes theft occurred - may make rzbl detention in a rzbl manner for a rzbl period of time Length of imprisonment is NOT relevant to prove false imprisonment Humiliation and mental suffering are actionable for false imprisonment If P has a rznble means of escape and knows it this is a good defense Nominal and punitive damages may be available Note: Keeping someone OUT of a place is NOT false imprisonment nor is a future threat of false imprisonment Ds intentional or reckless or substantial certainty Extremely outrageous behavior - words alone or a threate of future outrageous conduct may prove the tort Causes P severe emotional distress (actual damages) - means nominal damages are NOT enough - P's special sensitivity is NOT considered UNLESS D knows of it Note: The identity of the P and D are relevant in determining outrageous conduct. Transferred intent does NOT apply. Physical injury is NOT required for IIED. This is the difference btw IIED and NIED. Ds voluntary and intentional Physical invasion - just the intent to go on the land, not to actually trespess Of owner or tenant's land (including airspace) Nominal damages are okay Note: Don't have to prove D intended to trespass - just intended to invade land. D's GF belief that the land belongs to D is NOT a defense. Note: If D enters Ps land negligently or recklessly - D is not liable for the trespass unless they caused damage to Ps land. If D entered Ps land accidentally - there is no liability for trespass if non-negligent and unintentional Note: If D enters Ps land intentionally - no damage is required and D is still liable. Thus, nominal damages are available Note: Trespass requires entry of something TANGIBLE (light, noise, vibration are NOT trespass BUT particles ARE trespass) **ON MBE - IF FACTS ARE AMBIGUOUS, ASSUME INTENTIONAL Conversion - intentional destruction or wrongful possession for a sig period of time of another's personal property. Remedies include damages (FMV at the time of the conversion) or replevin Trespass to chattel - less harm or short wrongful possession of another's personal property. Requires actual damages, usually DMV or COR - usually reduction in value of loss of use Note: D's GF belief that the chattel belongs to D is NOT a defense Defenses Defense to all torts Consent based on duress is invalid Can be express or implied - implied consent includes participating in activities known to include physical contact and in emergency situations Consent based on Ps mistake is invalid if D was aware of Ps mistake If express consent was based on a misrep going to the essence of the touching, consent is not a valid defense - most misreps will go to collateral matters on the bar Consent is valid if D was rzbl in believing P consented - even if D was wrong Even if consent is balid, if D acts beyond the scope of consent, it becomes invalid Can't consent to DEADLY force Page 119 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls


1 2 3

Trespass to Land

1 2 3 -


Trespass to Chattel





Torts Self Defense a P must have the capacity to understand the consequences of the consent --> children, mentally incompetent and drunks lack capacity to consent Must be rzbl (even if D was wrong about the need for self defense) - D is entitled to use rznble force to prevent an intentional tort that D rznbly believes is about to be committed against D No duty to retreat generally Does not include retaliation If a bystander is injured during valid, rzbl self defense - D is NOT liable Rzbl force may be used to protect a 3d person - even a stranger Even if D was mistaken as to right of self defense of 3d person - defense is valid as long as there was a rznble belief that the 3d person had the right of self defense Rzbl non-deadly force may be used - no retaliation Rzbl non-deadly force to regain possession of chattel is allowed if: original taking was illegal in fresh pursuit and request for return is useless or dangerous When chattel is located on land of wrongdoer - owner of chattel is privileged to enter wrongdoer's land and reclaim the chattel in a rzbl manner Defense to trespass to land, trespass to chattel, and conversion Public necessity - if Ds acts, although a tort, avoided greater injury to the public there is no liability Private necessity - if Ds acts, although a tort, avoided a greater injury to a small # of persons - D is only liable for the actual damages caused Persons in charge of children are permitted to use rzbl discipline

b c d Defense of Others

Defense of Land or Chattels 1 2 3



Defamation - Slander - purely spoken defamation - Libel - written - stmts on TV, oral repititions of libel and written repitition of a spoken stmts are all viewed as libel Rule Must have a stmt of fact which is defamatory, i.e. lowers Ps reputation in the community (respectable society) The stmt must CONCERN the P --> rznble reader or listener must understand the stmt to concern the P -Colloquium - The pleading of extrinsic facts to prove the stmt concerns P - a stmt of opinion just is NOT enough - whether a stmt is defamatory is based on whether a rznble person would find the stmt defamatory, NOT P's subjective reaction Defamatory Stmts 1 Facially defamatory - on its face it is defamatory 2 Not facially defamatory - need to use inducement and innuendo to prove the defamatory nature of the stmt a Inducement - The pleading of additional facts to prove defamatory nature b Innuendo - Plea of defamatory meaning of the statement Publication The defamatory stmt must be communicated to a 3d party - if D only tells P, there is NO publication Note: A person who repeats a defamatory stmt is also liable for defamation --> this could increase the liability of the original defamer if republication was intended or rznbly foreseeable Group defamation If the group is defamed - an individual member of the group can only bring an individual defamation action if the group is small Presumed damages At c/l - if the stmt was defamatory, damages were presumed. P did not have to prove actual damages Exception - Special damages (economic damages) are needed for slander. BUT if slander concerns a crime of moral turpitude, business misconduct, sexual misconduct, or loathsome disease - special damages are NOT needed Slander vs. Libel Page 120 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Torts Defenses 1 2 3 NEVER a right answer that a writing requires special damages Under c/l - truth is an affirmative defense - and an ABSOLUTE defense Can't defame a dead person Consent is a defense to defamation CONSTITUTIONAL RULES When (1) the P is a public person or (2) when the matter involves an issue of public concern - we DON'T use c/l rules Include gov't officials and celebrities Must prove by c/c evidence that the stmt was false, and that the D acted with malice (knew the stmt was false or acted with reckless disregard of its truth) Must prove c/c evidence of falsity and malice in only those defamation cases involving the particular public controversy in which they have voluntarily assumed a public role Must prove falsity and that D acted at least negligently. Must prove malice to collect punitive damages In a matter not of public concern, need NOT prove falsity, malice or negligence PRIVILEGES There is NO defamation liability for stmts made by: 1 spouse to another; stmts made in a judicial proceeding; stmt made by executive branch officials; and stmts made by legislators in hearings or floor debates Employers and professors giving recommendations Persons reporting crimes Credit bureau reports D acted with malice OR Engaged in excessive publication If the stmt is unrelated to the policy of the qualified privilege Invasion of Privacy Misappropriation of Ps pic or name for commercial advantage Unrzbl intrusion into Ps affairs or seclusion - intrusion must be into something privat and be objectionable to a rznble person - no communication to a 3rd person is needed Public disclosure of TRUE private facts about P that are not of legitimate public interest - must be facts that a rznble person would not want to be made public False Light: False attribution of a belief or action which a rzbl person would find objectionable that is publicized in a public way. Malice needs to be proven. Only actual consent - not rzbl belief of consent Misrepresentation A misrepresentation of material fact Opinions and silence can't be the basis of deceit UNLESS they are by an expert, there is a fiduciary duty, or a duty to correct earlier misinformation D must have the intent to deceive OR reckless disregard of the truth P must prove rznble reliance and ACTUAL damages Generally, NO transferred intent - only proper P's are those D intends to deceive or could rznbly foresee would rely on the stmt Misrepresentation of fact Made by D As part of Ds business or profession As a result of Ds negligence Note: Only persons D knew would rely on Ds stmt are proper Ps. P must prove rzbl reliance and actual damages Page 121 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Constitutional Limits Public Ps

Limited purpose public Ps Private Person/Public Controversy P Private Person Absolute privilege 1 2 3 4 Qualified privilege 1 2 3 If D has a qualified 1 privilege - D is liable if 2 3

Four Branches

1 2


4 Defense

Fraudulent Misrepresentation


Negligent Misrepresentation

1 2 3 4

Torts Tortious Interference With Contract P had a valid K With 3d party D knew about the K D intentionally interfered with the K Actual damages Note: Interference with a K at will or a prospective K is only actionable if D used wrongful tactics (violence) NEGLIGENCE Everyone has a duty not to affirmatively act in a manner to create an unrzbl risk of harm to others There is NO duty to take precautions against events that are NOT rzbly f/s A duty is only owed to f/s Ps Rescuers are f/s as long as the rescue is rzbl (can't break the law while you're trying to rescue someone) There is NO duty to aid someone in need of help Exceptions - a special relationship or if someone causes another's injury or places another in peril A good Samaritan to begins to help must complete the help with rzbl care - a doctor has NO duty to come to the aid of an injured person There is no duty to control a 3d person (except: parents, ER/EE, statute) General rule - objective standard of rznble care - ordinary prudent person Consider greater knowledge, experience, and physical disabilities, but NOT those with less experience or knowledge Children --> what is rzbl for someone of like age, knowledge, education, intelligence, and experience. If engaged in an adult activity - use adult standard Professionals --> what is rzbl for avg member of the profession in same/similar community Specialist --> extra knowledge is considered, national standard Guest statutes - driver is liable to a nonpaying rider for gross negligence or reckless conduct (must be told there is a guest statute and make sure it is the guest suing the driver) LAND OWNER LIABILITY Trespasser - someone on Ds land without permission (undiscovered, discovered, anticipated) Licensee - social guest or a person on Ds ppty for her own economic benefit (police and firefighters too) Business Invitee - on Ds ppty for economic benefit to D (customer, repair person) Public Invitee - on Ds ppty for public purpose (airport, church, museum) Was P injured while ON D's land or OFF D's land? Was P injured by an artificial condition, a natural condition, OR an activity? By NATURAL condition --> NO duty owed except if P was injured by a decaying tree next to sidewalk in a city By an ARTIFICIAL condition --> NO duty owed except if P injured by dangerous condition on EDGE of ppty By an ACTIVITY --> duty of rzbl care owed to P Undiscovered trespasser - NO duty owed to P Discovered or anticipated trespasser - No duty if P was injured by natural condition or non-dangerous artificial condition. Duty to warn or make safe if injured by highly dangerous artificial condition. Duty of rzbl care if injured by activity Licensee - if injured by activity -duty of rzbl care. If injured by condition - duty to warn or make safe non obvious dangerous conditions of which D knows. NO DUTY TO INSPECT. Page 122 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls


1 2 3 4 5

General Rules

1 2 3 4 5

6 7 Standard of Care


2 step Approach P injured OFF Ds land

P injured ON Ds land

Torts Invitees - if injured by an activity - duty of rzbl care. If injured by condition - duty to warn or make safe non obvious dangerous conditions of which D knows AND duty to INSPECT. A landowner only owes invitee a duty only in those areas where entry was authorized. Dangerous artificial condition - the artificial condition does NOT need to be the motive for the child's trespass D knew or should have known that children are likely to come by the artificial condition P was incapable of appreciating the danger The expense of making the condition safe is slight compared to the danger Owner is required to use rzbl care and will be held liable for unrzbl risk to those on highway Negligence - Breach of Duty P must show what happened ordinarily only occurs if someone was negligent, and that more probable than not, it was this D who committed the negligent act b/c of this Ds exclusive control of the injury producing instrumentality Note: P will avoid a directed verdict ONLY (no presumptions, no shifting of risk) Evidence of custom is admissible as evidence of breach. - will NOT lead to a directed verdict b/c the jury could find that the custom itself is unrznble Need expert testimony --> what is the custom and whether the D violated it in the expert's opinion Violation of statute was unexcused (balance harm of complying vs. harm if violated) - D's compliance with the statue is relevant, but not conclusive, Rznble person may have to go beyond the statute's requirements Type of harm must be same type of harm statute was aimed at preventing - excuse - more harm by not violating the statute P must be a member of class of persons the statute intended to protect Negligence - Causation Use but for test when there is ONE tortfeasor Use substantial factor test when there is MORE than one tortfeasor If 2 Ds are acting jointly - all D are actual cause of entire injury If 2 Ds are NOT acting jointly, if negligence of either would have caused entire injury each is actual cause of entire injury If 2 Ds are NOT acting jointly, and the negligence of both combines to cause greater injury than what would have resulted from the separate negligence of each - D is actual cause of entire injury If 2 Ds are NOT acting jointly, and P is injured by negligence on 1 of them and it is impossible to determine which one - BOTH are viewed as actual cause unless 1 D can prove otherwise (burden on D) The harm must have been rznbly f/s to D at time of negligent act - the TYPE of harm must be f/s, not the extend of the harm --> "egg shell P" Proximate cause does NOT extend to economic harm suffered by 3d parties Third person conduct or event which occurs subsequent to Ds tort and which causes additional harm to P. If f/s (med mal, negligence of rescuers, negligent acts of 3d persons, weather changes) --> D is liable. If NOT f/s (crimes (may be f/s), intentional torts) --> D is NOT liable Negligence - Damages Actual damages are required Pain and suffering (past and future) --> need an expert for future P&S Diminished earning capacity Medical expenses (past and future) --> need an expert Loss of consortium (married people only) Majority - P MUST HAVE some physical injury and P must have been within zone of danger Page 123 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Attractive Nuisance

1 2 3 4

Adjacent Public Highway Res Ipsa


Negligence Per Se


2 3 Actual Causation -


Proximate Cause

Intervening Cause

Rule Types of Damages

1 2 3 4

Emotional distress

Emotional distress

Torts Modern approach - covers P who was present at scene who views close family member being impacted Negligence - Defenses P must subjectively actually know and understand risk AND voluntarily accept it - if this is true the P gets NOTHING Where P's unrzbl conduct is actual and prox cause of Ps actual damages. In contrib negligence J --> P collects NOTHING Last clear chance doctrine - trumps contrib negligent - if D had not acted subsequent to Ps contrib negligent - P would not have been injured and P CAN collect (will be the WRONG answer) Majority view today Ps recovery is reduced by % of fault attributed to P - this means the assumption of risk just reduces the recover and does NOT bar it ** ON MBE USE PURE COMPARATIVE FAULT UNLESS Q SAYS OTHERWISE - Partial comparative negligence - if P is > 50% negligent he gets nothing No last clear chance doctrine Strict Liability Abnormally dangerous activities (crop dusting, pesticides, nuclear power, blasting) Factors to look at: (1) high risk of death or serious injury; (2) activity cannot be made completely safe; (3) not a common activity; (4) degree of danger> benefit to community Wild animals (can NEVER be domesticated) Assumption of risk Products Liability Same law as negligence but concerns a product - negligent failure to discover a defect is NOT a superseding cause - privity is NOT required, but P must be rznbly f/x Defect (design, mfg, warning, instruction) Unrzbly dangerous (beyond what an ordinary consumer would contemplate or a less dangerous alternative is economically feasible) Causation (look for a substantial change since time product left D) D is a commercial seller of product - includes the component part make; the manufacutre; the seller but NOT the garage sale or loan from a neighbor P is foreseeable (includes purchasers and bystanders) - foreseeable unintended us is NOT a defense Physical damage to a person or ppty (other than the product) - more than economic loss Defenses - Assumption of risk - no S/L if there are adequate warnings and instructions no need for privity Does NOT apply to services No strict liability for unavoidably unsafe products (knives, chemo drugs) A seller is NOT required to warn about risk which is only dangerous when consumed in excessive quantity or over a long period of time IF risk is generally known to the public (alcohol) Nuisance Ds substantial and unrzbl interference - balance harm against social utility - interference must be substantial to the average person Page 124 da264a71-21d1-102b-bf79-a5b8aa2bd7b5.xls

Assumption of Risk

Contributory negligence (minority view)


Comparative negligent -



1 a


2 -


Strict Liability

1 2 3 4

5 6 -

Private Nuisance


Private Nuisance Torts 2 3 4 W Ps use and enjoyment Of ppty Actual harm - must be substantial MAJOR interfence with use and enjoyment - tangible harm; decline in mkt value; personal discomfort -defense is that P is hypersensitive Equitable + Damages (DMV) Dust, smoke, odor, noise, light, brothel If P comes to the nuisance - he can still sue. When health, safety, or property rights of general public are effected Private P must prove unique injury apart from that of the public to prevail Fears and feelings common to members of the community ARE to be considered in determining nuisance - Fear of contagion MAY make it a nuisance even if there is no basis in science Vicarious Liability ER/EE relationship (not independent contractor - use right to control test) Course and scope - What, when, where and why --> doing what he is supposed to; at the proper time; in the proper place; b/c he was told to - commuting is NOT w/in course and scope Negligent hiring does NOT fall under here No VL for indep K'or UNLESS inherently dangerous activity or non delegable duty Servant - right to control; paid salaries; not highly skilled; don't have own business; use boss' tools; are long term workers I/C - no right to control; have own businesses; more skill; get paid by the job; have own tools; short term workers Multiple Tortfeasor J/S liability If D1 paid more than her pro rata share to P - D1 is entitled to contribution from D2 to equalize pmt based on # of tortfeasors When D seeks total reimbursement from another Deceased Tort Victim Damages for loss of support, services, companionship, and consortium. Damages are paid to surviving family Damages suffered btw time of tort and death. Damages paid to estate Immunities none none none FTCA waives for negligence can waive (TTCA) Immune while engaged in gov't functions but NOT proprietary ones (trash collection, parking lots)

Remedies Examples Note Public nuisance



1 2

Servant vs. Independent Contractor

General rule Contribution Indemnification

Wrongful death Survival action

Spouse Parent/child Charity Federal gov't State gov't Municipal gov't

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