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in time prevails); (3) executive agreements; (4) state law 5. P&I Art. IV does not apply to corporations and aliens (re: civil liberty or important economic activity) 6. Ex post facto v. bill of attainder 7. Justiciability: RAMPSE (ripe (“declaratory judgment”), abstention, moot, political question (“republican form of govt.”), standing, eleventh amendment) 8. Individual rights: SSTRREPS a. State action, b. Speech (PUPS) i. Protected ii. Unprotected (OF AID) (obscenity (LAPS literary, artistic, political, scientific value), Fighting words, advertising false, incitement imminent illegality, defamation) iii. Prior restraint (PIC) (procedural safeguard, important reason, clear criteria/no discretion) iv. Symbolic speech c. Taking, d. Religion, i. EC (SEX)(secular purpose, effect, excessive entanglement) ii. FE (GNC) (generally applicable, neutral) e. Retroactive legislation (ex post facto & bill of attainder) f. Equal protection, suspect class strict scrutiny (RAN) race, alienage, nationality) g. Procedural due process (IRA) h. Substantive due process (privacy rights & travel& vote): these rights can only be interfered with to promote a compelling govt. interest. 9. 1st amendment (RAPS) (religion, association, press, speech) 10. Preemption, where federal state same subject matter but not direct conflict (PUSH) (pervasiveness, uniform federal regulation, similarity between laws, historically left to state) 11. Contracts clause (PruNe) (public interest legitimate/important, reasonable impairment, necessary to accomplish public interest) *applies only to state impairment of existing contract 12. State taxation of out of state individual or business doing business instate (SNARe) (substantial nexus, nondiscriminatory, apportionment fair, related to service provides) 13. Congress: C-WEST (commerce, war, eminent domain, spending, taxing) 14. Aliens: 3 special rules that only apply to aliens • 1) General rule: strict scrutiny o 1st exception use rational basis test for 5 fact patterns: 1) Voting 2) Jury duty 3) Police officer 4) Probation officer 5) Teacher • 2) EP for aliens does NOT apply to the federal government • 3) P&I of Art. IV does NOT apply to aliens 15. Wrong Answers: a. Rights privileges distinctions b. General welfare alone (must be with spending/tax) c. Federal police power (not one, only MILD (military, Indian & federal land, D.C.) d. “Republican form of govt”= always wrong e. P&I of Art. IV= often wrong answer f. Bill of attainder= almost always bill of attainder (punish for no reason) g. Any answer choice that says any branch can do what ever they want to do. h. Necessary and Proper clause alone ALWAYS= wrong answer; if coupled with other legislation could be ok i. PQ almost always wrong answer: issue that can only be done by other branch, UNLESS you say what the heck is this branch involved for
Evidence Strategy: 1. Determine if civil or criminal a. Civil no character evidence unless directly at issue: NEW CDS (Negligent entrustment, Entrapment, Wrongful death, Child Custody, Defamation/Deceit, Self Defense) b. Criminal: MIMIC (motive, identity, modus operandi, intent/absence of mistake, common scheme/plan)
Determine who is trying to get evidence in: P or D ALWAYS WRONG ANSWER inadmissible because it is self serving Even though there are 24 hearsay exceptions the right answer is usually “inadmissible as hearsay not within any recognized exception” Legal relevance policy exclusions: LOSS W (liability insurance, offer to pay med. Expenses, subsequent remedial measure, settlement offer, withdrawn/offer to plea) 6. Non-hearsay: PASS MEN (prior id, admission by party opponent, statement (prior inconsistent @ proceeding under oath), statement (prior consistent to rebut charge of recent fabrication), mind (state of), effect on listener, notice, knowledge & nonassertive conduct) 7. 2 rules you should remember for refreshing rec 1. Any thing can be used to refresh recollection 2. If you use a doc to refresh recollection you must make that doc available to your opponent and she can use it if she wants to and you can NOT object for any reason to the introduction of the evidence 8. Character Evidence: CIVIL (3 rules to remember) 1. Cannot introduce any evidence of a character trait of a party if the purpose of the evidence is to show that that party probably acted in conformity with that trait, during the event that gave rise to this litigation 2. If the party has so other purpose for the introduction of the evidence and it is relevant, it can come in a. 2 favorite question for character in civil case: i. 1) Negligent entrustment: D lends his car to x who has a reputation for drunken reckless driving, and hits P and P sues D not X. AND (2) defamation: if D being sued for calling P a thief, D can introduce evidence that P is a thief (so not defamation) 3. If a party testifies they automatically places there character for truthfulness in issue, and the other side can now introduce evidence that that party is not truth and ought not to be believed 9. Character Evidence: CRIMINAL (5 rules) 1. The prosecutor CANNOT introduce ANY evidence of the D’s bad character if the purpose of the evidence is to show that he probably acted in conformity with his bad character and he probably committed the crime charged. NO evidence of reputation, crimes or bad acts, if this is the purpose. Can’t show propensity to commit the crime 2. D is allowed to prevent evidence of RELEVANT good character traits to show he acted in conformity with is good character and did not commit the crime. However the type of evidence D can use is ONLY reputation or opinion. NO SPECIFC acts are allowed 3. If the D shows evidence for good character, the prosecutor is allowed to use D’s bad character to show he really is the type of person to commit the crime charged. She can ask D’s witness whether they have heard of D’s bad acts but CANNOT use specific independent evidence of D’s prior crimes 4. Evidence of prior crime or bad acts are never allowed to show D probably acted this way again however can be introduced to show MIMIC (if judge determine the probative value outweighs the prejudice) 5. If the D testifies he automatically places his character for TRUTHFULLNESS, and Prosecutor can introduce evidence the D is not a truthful evidence an ought not to be believed 10. Impeachment evidence is evidence offered to show witness may not be telling truth (big 5 tested) 1. Prior inconsistent statements: evidence of prior statements inconsistent with the trial testimony. Can take place through crossexamination or through other evidence (extrinsic evidence-evidence offered to impeach that is nit developed during cross of the witness). a. Witness being impeached w/ extrinsic evidence must have an opportunity to comment. But can be given the opportunity to comment BEFORE or AFTER it prior inconsistent statement is introduced (don’t have to first give W an opportunity to explain). You can hold the witness in the court and then recall. i. 1 exception: if the prior inconsistent statement qualifies as an admission by a party not opportunity to comment is required. ii. IF is prior inconsistent & a hearsay exception (such as an excited utterance) = can come in as substantive and impeachment 2. Bias: evidence that shows witness might be inclined to favor the side the witness has testified for. Through cross OR extrinsic. 3. Prior criminal convictions: evidence W convicted of certain crimes: During cross or extrinsic (such as record of conviction) a. ANY criminal conviction involving dishonesty or false statement can ALWAYS be used to impeach b. Any other FELONY (ex battery) can be used to impeach UNLESS the judgment finds it is too prejudicial 4. Prior bad acts: not a conviction but reflect unfavorably on the TRUTHFULNESS of the W can be used to impeach HOWEVER this evidence can only be elicited on CROSS if the witness. NO EXTRINSIC (even if W denies) a. Ex: evidence of an arrest CANNOT come in because no conviction do you cannot introduce extrinsic 5. A reputation of untruthfulness: evidence W has a bad reputation in the community for dishonesty 11. Hearsay you must determine 3 things 1. Whether the out of court statement is offer for the truth 2. Whether that statement is removed by the 3 that are NON-hearsay 3. Whether the statement qualifies under one of the exceptions to the HS rule 12. Privilege a. There will be 1 question on privilege it will look like atty/client privilege, BUT NOT, (ex: atty has client go to doctor for case). Dr/patient privilege is NOT admissible in federal court o Dr/patient inadmissible o Test on SPOUSAL PRIVILIGE: 2 DIFFERENT ONES (each one has a number of exceptions but they NEVER test you on the exceptions) o 1. SPOUSAL IMMUNITY: in federal court criminal cases a spouse cannot be forced to testify against the spouse. Can if they want Doesn’t matter when they learned of the info (before married, whatever) ONLY 1 spouse holds privilege o 2. MARITAL COMMUNICATIONS: in federal court in IN ANY CASE (civil or criminal) the spouse can refuse to disclose or PREVENT a spouse from disclosing confidential communication obtained during the marriage. EITHER spouse can assert MUST be DURING THE MARRIAGE MUST be CONFIDENTIAL COMMUNICATION Property o o o Strategy: NO TRICK QUESTIONS HERE DO NOT HAVE TO CAREFULLY EXAMINE ALL ANSWER CHOICES Future interest OVER rated ONLY 3 questions
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Write down parties names Look for language in quotations Recording statutes a. Recording statute Race-notice: w/o notice and “first to record” Mortgages/security interests make a timeline a. MORTGAGE • “Subject to”: mortgage stays on property • “Assumes”: the new buyer is personally liable • ORIGINAL OWNER ALWAYS REMAINS LIABLE Shelter Rule (on every MBE exam) SOF RAP When you see long line of conveyances= RAP a. 3 step test i. 1. The last person mentioned by proper name and all prior parties take ii. 2. The next subsequent party NOT mention by prior name takes • 3. All additional parties lose and the property reverts back to the grantor OR the grantor’s heirs RIGHT OF 1st refusal is valid, but also subject to RAP • “Heirs and assigns” you think this could go on forever, but be careful because it SAYS any sale by ME (so when I die, the longest this can go on is 45 days after my death). This right of 1st refusal is valid. • Examine the language and see if the rights of first refusal vest within 21 years of a life in being CLASS GIFTS: 1. The class OPENS when the property is transferred from the grantor a. Deed property immediately transferred b. In WILL not transferred UNTIL SHE DIES 2. The class CLOSES when any member of the class has a present possessory interest in the property a. If still alive when the class closes then they are in and no one else can get in LL/T HOLDOVER*** o ALWAYS 2 dollar amounts in a hold-over question o The owner says if you want t new lease you are going to have to pay more money o 1st issue, if T holdovers does he pay old rent or new rent? o If LL informed T of the NEW RENT BEFORE the old lease ended!!!!! o Then the issue is whether it is a periodic tenancy month to month or year to year o Month to month if residential o If commercial the tenancy is for the ENTIRE length of the commercial lease NOT TO EXCEED 1 year. So if it was a 5 year commercial lease than it is a year to year tenancy Assignment/sublease o If Assignment: The LL can hold the initial tenant liable (the initial tenant ALWAYS remains liable in an assignment), the person it is assigned to is liable during the period they are the assignee, once they transfer to another assignee the second assignee is no longer liable but the original tenant remains jointly and severally liable. WATER RIGHTS (know both doctrines for test) Riparian Doctrine of Use (majority rule use if the fact pattern is SILENT as to what applies) Prior Appropriation (minority rule) Artificial use: to grow cotton and other artificial use Natural use: domestic use=natural use Natural use wins over Up stream can use what they want for natural use before downstream can use for artificial use If it is the same use and the upstream is interfering with the downstream then the downstream will win if they had the prior use Life tenant waste (PURGE)(prior use, reasonable repair/maintenance, granted right to exploit, exploitation, land suitable only for) Adverse Possession (COAH)(continuous, open & notorious, actual &exclusive, hostile/adverse) Easement a. Creation of Negative (LASS) (light, air, support, stream from artificial) b. Creation of Easement (PING) (prescriptive, implication, necessity, grant) c. Termination (END CRAMP) (estoppel, necessity (end of), destruction of servient estate, condemnation of servient estate (eminent domain), release (written), merger of ownership, prescription) Real covenant ($) a. Benefit run (WITV) (writing, intent it run with land (“successors, assigns”), touch & concern, vertical privity) b. Burden run (WITHN) (writing, intent it run with land (“successors, assigns”), touch & concern, horizontal & vertical privity, notice) c. d. Equitable servitude (injunction) (WITNES) (writing, intent it run with land (“successors, assigns”), touch & concern, notice) (for benefit only intent & T &C) Joint tenancy a. Creation (TTIP) (time, title, interest, possess the whole) b. Termination (SPAM) (sale, partition, and mortgage) LL/T a. Leaseholds (WISPY)(will, sufferance, periodic, years) b. Tenants duties (I WIP RR) (interfere, waste, illegal purposes, rent, repairs) c. LL’s duties (MPH Q) (maintain, possession, habitability, quiet enjoyment) d. Constructive eviction (SING) (substantial interference, notice to ll, goodbye) e. LL remedy for abandonment by T (SIR) (surrender, ignore & hold T liable, re-let) f. T remedy for warranty of habitability (MRRR) (move out & terminate lease, repair & deduct, reduce or withhold rent, remain & seek damages) g. LL liability for torts (CLAPS) (common areas, latent defects, assumption of repair, public, short term/furnished) Deeds (LEAD)(lawfully executed and delivered) (PIG ID) (parties, interest conveyed (fee, lease), grantors signature, intent to transfer (“convey, sell give, assign”), description off land (unambiguous & good lead) Covenants for title (type of deed) a. General warranty deed (RESt AGE) (rest today, age tomorrow (future covenants) (right to convey, encumbrances none, seisin, assurances, further; quiet enjoyment, g warranty)
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21. Holder in Due Course (MAD FIFI4) 22. Contingent remainder (DR’S M&W) (destructibility, RAP, Shelley’s case, merger, worthier title) 23. Notice (AIR)(actual, inquiry/constructive, record) Contracts Strategy: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12.
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Look for dates Is it UCC or Common law remember 4 different rules for merchants “Oral”= SOF “Final written”= PER Terms…offer/acceptance mirror image/battle of forms Know 3 types of deeds Executory interests v. vested remainders Don’t forget the mailbox rules Essential contract terms (QTPPS) (quantity, time, parties, price, subject matter) Termination of offer (ReD DIRT) (revocation, death/insanity, destruction of subject matter, illegality, rejection/counter-offer, time lapse) Defenses to Formation (MUFFIN ID) (mistake, unconscionable, fraud (misrep), fraud (Sof) (MYLEGS)(SWAP), incapacity, illegality, duress) Excuse for non-performance of a condition (I SWIM FOR DAVE W) (impracticability, substantial performance, waiver, impossibility, modification, frustration of purpose, occurrence of condition subsequent, rescission, divisibility, anticipatory repudiation, voluntary disablement, estoppel, wrongful prevention) Third Party Bene. (Do Prisoners In Cells Visit Silently?)(define, Privity, intent to benefit, classify intentional/incidental, vested, step into shoes) Assignments (DIVE DP)(define, privity, is right assignable, valid present assignment, effect of assignment. Defenses) Delegations (DIANE) (define, is duty delegable, assumption, novation, effect of delegation) FACT PATTERNS ON EVERY EXAM o No consideration because there was no bargained for exchange P bestowing a benefit on the D (returning a lost cat) and the D then promises to pay, but doesn’t o Requirement K under the code=ok need good faith o Firm offer UCC must be in writing, 3 months o Acceptance of offer through fact pattern o I’ll give you $500 to pay my house, I’ll do it for 600, and the says ok ill do it for 500= no K o Battle of the forms under code (3 rules o Shipment of nonconforming goods under Ucc (accommodation notice) o Loose 4 pounds an I’ll give you $, stop using drugs o SOF main purpose exception (guarantee) o Modification under CL o Modification under UCC o The unilateral mistake= does not negate the K UNLESS other party knew or should have known of the mistake o PER & the exceptions by name o ELEMENTS of promissory estoppel o 3rd party bene modification w/o their consent o Assignments consideration not required (only important when trying to take it back o Anticipatory breach expressions of doubt not enough o Anticipatory breach w/o reliance by non-breaching party breaching party can change mind o Personal services k if too sick to do the job= ok o Volume seller/lost profits
Torts Strategy: 1. ID tort theory 2. Look at P and D is there any special duty/relationship 1. Tips: a. Intent= desire, substantial certainty, purpose b. Most of the intentional torts can be a crime c. No such thing as an attempted tort, it is either completed or it isn’t d. Consent is a good defense to all intentional torts e. Intent is required for all intentional torts, however IIED requires intent or reckless ness f. Provocation is not a defense to assault or battery g. No transferred intent for IIED or conversion 3. Intentional torts (FACT BIT N)(false imprisonment, assault, conversion, trespass to land, battery, IIED (intentional/reckless + damages), trespass to chattel, nuisance) a. Defenses (PLANT SCRAPS)(privilege, land (re-entry), abate nuisance, necessity, third person self defense, self defense, consent, recapture chattel, arrest, property defense, shopkeepers privilege) 4. Misc. Torts a. Misrep (JAM IDS) (justifiable reliance, actual reliance, misrep of material facts, intent to induce reliance, damages, scienter) b. Malicious Prosecution (AID IT) (absence of pc, institution of proceedings, damages, improper purpose, terminate in P’s favor) c. Slander Per se (LUMP) (loathsome disease, unchaste, moral turpitude crime, professional practice) i. Defenses (CQ ACT) (consent, qualified privilege, absolute privilege, constitutional 1st amendment free speech matter of public concern, truth) d. Privacy Torts (CLIP) (commercial appropriation, light, false; intrusion on seclusion, private facts, pubic disclosure) 5. Negligence a. L/o duty to trespassing child (BADD)(balance utility, artificial condition, discovery of, duty to warn) b. Duty to act (SCRAP) c. Defenses (CLARC) (contributory neg., lcc, aor, comparative neg.) 6. Strict Liability a. Abnormally Dangerous Activities (HAND)(high risk, activity cant be made safe, not common in community, degree of danger v. benefit to community) i. Activities that are abnormally dangerous: • Blasting
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Fumigation (deadly pesticides) Crop dusting Storage/transportation of highly toxic chemicals Operation of a nuclear power plant
Crimes Strategy: 1. Remember attempt is a specific intent crime (2 additional defenses available) 2 DEFENSES for specific intent • o Voluntary intoxication o ANY mistake of fact (even if unreasonable) 2. 3. Don’t forget what crimes merge Better answer as to why D not guilty: NEGATING an ELEMENT required for the commission of a crime is always a better answer as to why D NOT guilty, than to say a DEFENSE exists Ex: not guilty because did not intent to kill OR not guilty because he had a mistake of fact, 1st is better Larceny by trick v. false pretenses Larceny vs. embezzlement Depraved heart murder v. involuntary manslaughter o DEPRAVED HEART MURDER UNINTENTIONAL KILLING THAT OCCURS FROM RECKLESS CONDUCT INVOLUNTARY MANSLAUGHTER UNINTENTIONAL KILLING THAT OCCURS FROM NEGLIGENT CONDUCT Ex: shooting in abandoned field, hits a passenger train= MURDER Ex: same hypo, empty cargo train, same homeless person in train died= INVOLUNTARY MANSLAUGHTER Attempt v. conspiracy a. CONSPIRACY & THE WITHDRAWL DEFENSE • If multiple people in question make sure you are straight as to who the call of the question is asking about • General rule (co-conspirator liability): o ALL conspirators are liable for ALL foreseeable crimes hate occur within the SCOPE of the conspiracy • Co-conspirator liability Exception: o IF a co-conspirator withdrawals his intent to go through with the crime, still guilty of conspiracy but may be off the hook for crimes completed after withdrawal • WITHDRAWAL: 2 prong test o (1) Affirmative act notifying ALL members of the conspiracy o (2) It must be done in time for them to have the opportunity for them to abandon there plans Jdx do not require him to go to the police
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Legal impossibility vs. factual impossibility Robbery v. extortion Mistake of fact v. mistake of law Liability of accomplice v. liability of co-conspirator At common law assault & battery were misdemeanors, remember for burglary purposes (i.e. not a felony therein) Robbery (lesser included offenses) a. ROBBERY= LARCENY + ASSAULT (lesser included offenses, if guilty of robbery can’t be guilty of larceny or assault) Request to see probation officer not per se invocation of Miranda rights Omission to Act (SCRAP) (statutory duty ex: file taxes; contract ex: nurse; relationship ex: parent, spouse; assumption of duty voluntarily ex: assume rescue leave in worse condition; peril ex: if you caused it) Specific Intent Crimes (BAM ACTS)(burglary, attempt, murder 1st degree, assault with intent to commit battery, conspiracy, theft (larceny, robbery, embezzlement, fp, extortion), solicitation) General Intent Crimes (BRIM) (battery, rape, involuntary manslaughter, murder (murder & arson= malice) (fm= BARRK) Strict Liability (CABS)(contributing to delinquency of a minor, abnormally dangerous activity (firearms, explosives, food/alch./drugs), bigamy, statutory rape) Defenses (DIE IF MISPIN) a. Duress b. Infancy: under 7 no, under 14 c. Entrapment d. Insanity (MADI) e. Fleeing felon danger f. Mistake g. Intoxication h. Self-defense/imperfect SD (reduce to manslaughter) i. Prevention of crime j. Impossibility k. Necessity Exceptions to Search Warrant (PEACE WISH) a. Plain view b. Evanesce of evidence c. Automobile d. Consent e. Eavesdropping Wiretap f. g. Incident to lawful arrest h. Stop & frisk
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STOP: A police officer can stop a person w/o PC for arrest if he has an articulable and reasonable suspicion of criminal activity. FRISK: If the officer reasonably believes the person is armed and dangerous he may conduct a protective frisk • What is the scope of that frisk? o It is limited to a pat down of the outer clothing for weapons, but the officer may reach into the suspects clothing and may seize ANY item that the officer reasonable believes, based on plain feel is a weapon or contraband.
i. Hot pursuit fleeing felon 21. EXCLUSIONARY RULE does NOT apply to grand jury proceedings o Grand jury may consider ANY evidence (even inadmissible evidence) available to it in determining whether PC exists to return an indictment against a D 22. Miranda MIRANDA: D’s 5th Amendment right to counsel (MIRANDA= CUSTODIAL INTERROGATION) • o NO CUSTODY= NO MIRANDA o IF MERELY DETAINED (e.g. stop & frisk) = NO CUSTODY o Right to remain silent… CONFESSIONS: ask yourself is this confession VOLUNTARY or COERCED o VOLUNTARY= knowing and intelligent waiver of his Miranda rights, and if he has= admissible • Based on totality of the circumstances COERCED= suppressed o Miranda does NOT apply to Spontaneous statements NOT made in response to interrogation • Ex: d blurts out • EX: d is custody been given warnings, and sitting in cell, undercover officer in cell and D says can I talk to you I need to talk I just killed someone= ADMISSIBLE • EX: same scenario but undercover officer initiates conversation and asks D if he did it= COERCED= INADMISSIBLE o If the D REQUESTS COUNSEL IT MUST BE UNAMBIGUOUS & SPECIFIC (EX: “I want my lawyer, get me my lawyer) IF SO ALL QUESTIONING MUST CEASE EVEN IF ON DIFFERENT SUBJECT MATTER o If a D agrees to answer questions orally but he requests presence of counsel before making any written statements-= D’s oral statements ARE ADMISSIBLE= NOT COERCED Ex: I don’t want to sign anything, but I’ll talk. If D’s lawyer calls the station and says she is on her way and not to talk to D until she gets there. And officers interrogate him and do not inform him of call from lawyer= OK NO DUTY TO INFORM D THAT HIS LAWYER IS THERE o Miranda is NOT offense specific o If Miranda warnings have been given and adversarial proceedings have NOT COMMENCED= the POLICE CAN LIE TO the D 23. MASSIAH 6th amendment (try to trick you on massiah v. Miranda) • 6th Amendment: D has right to counsel at any POST-indictment interrogation Apply Massiah after the D has been indicted with the relevant crime • • After formally charged with the crime MASSIAH attaches o Thus atty must be present for questioning unless D knowingly and intelligently waived his rights Ex: “persuades D to admit”= attempt to interrogate C violation of D’s 6th Amendment right to counsel 6th Amendment right to counsel IS OFFENSE SPECIFIC it does NOT APPLY TO OTHER CRIMES 24. DOUBLE JEPARDY one may not be twice tried for the same offense a. TEST: 2 crimes do not constitute the same offense if each crimes requires proof of an additional element that he other crime does not require, even though some of the same facts may be necessary to prove both crimes i. Elements that need to be proved 1. A, B, C v. A, B, X a. These crime requiring 2 different elements 2. A, B, C v. A, B, C, D= NOT OK= violates double jeopardy b. Reckless homicide and driving while intoxicated= OK no DJ i. Same facts= OK 25. 6th Amendment (The Federal Crime Caused Severe Penalty Daily) a. Trial by jury b. Fair & impartial c. Confront witnesses d. Counsel (HIS CAT) (hearing, prelim; indictment, post lineup; sentencing; custodial interrogation; arraignment; trial) e. Sentencing f. Public trial g. Due process