Final Exam Outline

Finals Review Unit 1: Intro to American Legal System Sources of Law Understanding Legal Cases Judiciary Jurisdiction Justiciability Unit 2:Procedural Law Civil Procedure Evidence Criminal Procedure Unit 3: Substantive Law Torts Criminal Law Contracts Property Judicial Review Appellate courts in the US are obligated to determine whether or not a statute or action is contrary to the constitution; if it is, invalidate Triangle diagram Supreme Court, Court of Appeals, District Courts, Courts of Limited Jurisdiction (Federal administrative agencies) US Supreme Court Original Jurisdiction Cases involving ambassadors, state a party, etc.; all delegated to Special Minister w/ concurrent original jurisdiction Appellate Jurisdiction Court grants Cert on cases of first impression, national significance, and to clear up confusion within the appellate courts Automatic right to appeal in District Courts Courts of general jurisdiction, meaning they have the authority to review both civil criminal cases Federal Question Jurisdiction Constitution, Federal Laws, Federal Treaties, two or more states

Federal Diversity Jurisdiction The parties are from different states AND The amount of the controversy is over $75,000 USSC will accept appellate jurisdiction on issue of constitution or federal law Mootness requires issue of case to continue throughout and during all stages of review o Exception: repeatable issues Ripeness this is the requirement that lawsuit not be brought to the courts prematurely o Relationship between the parties cannot still be developing or in flux

Substantive Law Refers to law that defines the rights and duties of the parties to a legal action Civil law Provides legal resolution to non-criminal disputes and for non-criminal injuries, physical or economic Procedural Law Refers to law that sets forth the process of bringing, maintaining, and defending a lawsuit Establishes a set of rules for all legal proceedings; ends disparit among the courts Procedural Law Procedural due process Notice and hearing o A right to know accusation against you o Right to an impartial hearing Damages Monetary damages o Actual o Nominal o Punitive Equitable o Specific performance o Injunctions and restraining orders Notice Apprises defendant that lawsuit has been filed against him o Personal service o Publication Motions Informational motions Compelling motions o Take actions, e.g. discovery request

Dismissal motions o Motions to dismiss lawsuit o motion for summary judgement Discovery o Depositions oral testimony of a party or witness given outside of court o Interrogatores written questions submitted by one party to the other party o Production of documents o Physical and mental examinations Burden of Proof o Obligation of plaintiff to meet the burden of proof o Beyond a reasonable doubt Criminal o Clear and convincing evidence Highly probable and free from serious doubt o Preponderance of evidence More probable than not Settlement and arbitration o Voluntary settlement o Alternative Dispute Resolution Mediation Arbitration Usually contractual Plaintiff goes first Evidence o Actual evidence Exhibits e.g. gloves o Documentary evidence Evidence is actually created for use in the court eg. Diagrams, photos, correspondence, etc. o Stipulated facts Undisputed facts o Judicial notice Universally accepted facts Direct evidence o Points immediately to an issue in question, no need to make assumption Circumstantial evidence o Provides the jury with information so that they can make an assumption or draw an inference towards an issue in question o Law makes no distinction between the two Admissibility Consideration o Relevancy Helps prove or disprove a fact of consequence

o Prejudicial or overly confusing May be excluded if probative value outweighed by danger of unfairly prejudicial or confusing o Hearsay Statement made by person who was not original declarant Inadmissible b/c cannot cross-examine o Impeachment Evidence which shows that a witnesss current testimony cannot be believed or trusted Can be done by attacking competency, recall ability, prior instances of bad acts, inconsistent statements, or bias o Privilege Confidential communications made within statutory relationship are protected by law Voided by presence of third party o Proof of other crimes Not admissible if used to prove propensity toward criminal behavior Only admissible to establish motive, opportunity, intent, preparation, or common scheme or plan Criminal Procedure Overview o 4th search and seizure o 5th grand jury clause double jeopardy clause self-incrimination clause th o 6 speedy trial clause compulsory process clause o 8th bail clause cruel and unusual punishment clause Fourth Amendment o Search and seizure refers to methods used by law enforcement to Investigate crimes Track down evidence Arrest suspects o Components Establishes privacy interest by recognizing right to be secure in their persons, houses, papers, and effects. Protects person, not places More than just physical trespass No expectation of privacy in personal characteristics

o Handwriting, voice samples, blood, etc. Second component prohibits unreasonable searches and seizures Some do not require warrant Arrest in a public place Stop and frisk or Terry Stop o Must reasonably believe criminal activity afoot o Only for weapons, not drugs Plain view o Open fields Incident to an arrest o All areas of immediate reach and control, including clothing and person o Justified on grounds of finding hidden weapons Destruction of Evidence Likely Traffic Stop o Most used Border Search Sobriety Checkpoints Good Faith Exigent Circumstances Third component is for searches and seizures requiring warrant, the warrant must describe the particular place to be searched, and the persons or things to be seized and be supported by oath or affirmation of officer Preference for warranted searches Probable cause must exist o Facts and circumstances within the police officers knowledge provide a reasonably trustworthy basis for man to believe that criminal offense has been committed or is about to take place o Evidentiary Rules of the 4th Amendment Exclusionary Rule Evidence Evidence is inadmissible if it is the result or product of an illegal search or seizure Fruit of the Poisonous Tree Doctrine Evidence obtained from an unreasonable search and seizure is tainted. Taint touches all secondary evidence derived from illegal search and seizure. Inevitable Discovery Doctrine Can correct inadmissibility If illegally obtained evidence would have in all likelihood been discovered anyway th Amendment 5

o grand jury clause no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury o Double Jeopardy Clause Second prosecution for same offense after acquittal or conviction Multiple punishments for the same offense Doesnt bar separate state and federal prosecutions in cases where crime violates both Doesnt bar retrials after previous hung jury Substantive crime and conspiracy to commit that crime arent the same offense for double jeopardy purposes o Self-incrimination clause Privilege is claimed by 3 people Criminal suspect Criminal defendant Witness in legal proceeding Miranda v. Arizona Applies only in criminal cases Civil court can require defendant to testify Witness Transaction immunity witness is immune from prosecution for all offenses related to his testimony Use immunity witness may be prosecuted but his testimony cannot be used against him o Due-Process Clause Assured of fair procedure when the government imposes a burden on an individual Doctrine seeks to prevent arbitrary government 6th Amendment o right to speedy trial 60 days from arraignment o Right to impartial jury Twofold requirement Representative cross section of community where crime was committed Assurance that jurors are unbiased o Right to be informed of the crime o Right to confrontation of a witness Cross-examination Face-to-face Right to compulsory process for obtaining witnesses in his favor o Right to assistance of counsel

Til 1930 right limited to assuring person wishing and able to afford counsel allowed to do so Next came right ot counsel was fundamental due process right Expansion of right to requiring appointment of counsel for criminal defendants who could not afford a lawyer 1984 court held right of counsel was a right for effective assistance of counsel th Amendment 8 o excessive bail o excessive fines o cruel and unusual punishment Steps in Criminal Prosecution o Initial arraignment o Preliminary hearing Determine if there is probable cause o OR Grand Jury o Arraignment o Pretrial Motions o Trial o Criminal Trial Process Motion for judgment (directed verdict) o Sentencing

[Substantive] Criminal Law Branch of law that defines criminal conduct and specifies Crimes are wrongs against society o not merely wrongs against particular victims Somehow related to INTENTIONAL TORTS? Classification of Crimes o Felonies Serious Punishment is incarceration for a year or more o Misdemeanors Les serious Usually punishable by fine and/or imprisonment for less than one year Elements of a Crime o Wrongful act Must be intended Must be voluntary o Guilty State of Mind or Criminal Intent Accused must possess the requisite subjective state of mind to perform a specific act Types of Intent o Specific intent

Found where the accused purposefully, intentionally, or with knowledge commits an prohibited act o General intent Found where there is a showing of recklessness or a lesser degree of mental culpability o Strict Liability Some statutes impose criminal liability, e.g. statutory rape Defenses to Crime o Burden of proof is on the prosecution to establish beyond reasonable doubt the crime which the defendant has been charged o Affirmative defenses Defendant concedes all elements of the crime, but justifies or excuses the crime by any of the following Self defense Insanity Diminished mental capacity Duress Entrapment o Other Defenses Claimed at trial Alabi Wrong person Claimed early in the legal proceeding Statute of limitations Jurisdiction Defenses to Intentional Torts o Consent o Self-Defense Next Category of Torts: Negligent Torts Negligence o Failure of a person to use reasonable care o And that failure results in an injury Four Elements of negligence o Duty to act o Breach of that duty o Causation Defendants negligent act must be the proximate cause of the injury Must be reasonably foreseeable o Injury Defenses to Negligence o Assumption of Risk o Contributory Negligence o Comparative Negligence

Liability is apportioned between the plaintiff and defendant with relative percentages Strict Liability Torts o Liability without fault o Dangerous activities o Product liability Defenses for Strict Liability o ?? o Mitigate damages as best you can Contracts o Agreement between two or more parties that is enforceable by law o Promise with teeth o Three elements to an enforceable contract: Mutual assent Offer and acceptance Capacity to contract Consideration Something of value given by one party to another Money, exchange of benefits, act of forbearance, object, services to be rendered o Types of contracts Bilateral Exchange promise for a promise Unilateral One party responds to another partys offer by performing some act o Status of Contracts Executory contract Executed contract Void contract Law does not recognize Voidable contract Minor, lack of mental competence Rescission of Contract when contracts are voidable Another type of damages in addition to monetary and equitable

Property Ownership of Property o Ownership means the right to use History o Property law in the US arises out of English Common Law The right of property consists in the free use, enjoyment and disposal of all acquisitions, without any control or diminution, save only by the laws of the land. Blackstones Commentaries o Private property is specifically recognized by the Due Process Clauses of the Fifth and 14th Amendments to the U.S. Constitution. What is property? o Real property o Personal property Real Property o Consists of land o Also of structures that are built upon or attached to the land Growing timber and crops Airspace above the land Minerals underneath the surface of the land Personal Property o All other types of property o Can either be tangible or intangible Tangible property is something that is personal and movable, e.g. car, furniture, clothing Intangible property is something that evidences a property interest. Like shares of stock, promissory note, a government or corporate bond, or intellectual property. Legal Issues Regarding Personal Property o Giving it away o Losing it o Have someone else hold it for us. o Transfers or giving it away Gifts Gifts inter vivos is a gift made during a donors lifetime. Gifts causa mortis is a gift that is made in anticipation of death Lost of Abandoned Personal Property (Finders Keepers, Losers Weepers) Mislaid property.

o Personal property that an owner voluntarily places somewhere and then inadvertently forgets it Owner of the premises where the property is mislaid does not acquire title to the property He has the right of possession against all except the rightful owner Rightful owner can reclaim the property Lost property o Personal property that an owner leaves somewhere because of negligence or carelessness Finder obtains title to the property against the whole world except the true owner Rightful owner can reclaim the property Abandoned property o Personal property that an owner has discarded or mislaid or lost property that the owner gives up any further attempt to locate. The finder acquires title to the property The prior owner cannot reclaim the property. Bailments A bailment occurs when the owner of personal property delivers the property to another person to be held, stored, or delivered for some other purpose o When I park my car in the parking garage for the day or with a valet o Hire a moving truck to move my furniture o Store-it-yourself warehousing o Parties are: the bailor is the owner of the property and the bailee is the party to whom the property is delivered. Legal Issues Regarding Real Property o Ownership

The right to exclusive use, control, or possession of property Ownership Interests Freehold Estates o Where the owner has a present possessory interest in real property Life Estates Future Interests o Transfers of Ownership of Real Property Sale of Real Estate An owner sells his or her property to another for consideration o Marketable title: a title free of encumbrances, defects in the title, or other defects o Deed: Instrument used t ot convey real property by sale or gift. Warranty Deed: Provides the most protection to the grantee because the grantor makes warranties against defect in title. Quitclaim deed: provides least amount of protection to the grantee because the grantor transfers only the interest he or she may have in the property o Adverse Possession: a person who occupies anothers property acquires title to the property if the occupation has been 10-20 years, visual, exclusive, and continuous. o Easement: an interest in land that gives the holder the right to make limited use of anothers property without taking anything from it (e.g., driveways, gas lines, party walls). o Concurrent Ownership Wehre two or more persons jointly own real property Joint tenancy: co-ownership of property. Owners may transfer their interests without the consent of co-owners; transfer severs the joint tenancy Marriage

o Tenancy by the entirety: form of coownership that can be used only by a married couple; it treats the couple as one legal entity. A surviving spouse has the right of survivorship. o Community property: form of coownership that applies only to a married couple; it treats property that is acquired during the marriage, except gifts or inheritance, as jointly owned by both spouses and when a spouse dies, the surviving spouse automatically receives one-half of the community property. Property Rights are Not Absolute o There can be public control over private property o Eminent Domain o Government Regulation Eminent Domain o Because of its sovereign powers, state and federal governments can take private property from an individual Most used method of property acquisition by the government How does action of eminent domain not violate the takings Clause of the Fifth Amendment? How the government acquires most of its property. nor shall private property be taken for public use, without just compensation. The private owner must be paid just compensation. o Determining the compensation is usually some calculation of the fair market value. o Paid by taxpayers Parks, highways, military bases, government buildings, etc. o Condemned property must be used for public use. o Condemnation Action Legal conflicts arise when the property owner doesnt want to part with his property despite being compensated. The government then files a legal action called a Property Condemnation Suit The government must prove to the court that the right of the public to use of the property

o Regulations Regulation may deprive an owner of most or all beneficial use of his property and may destroy the values of the property for the purposes to which hit is suited Government interference with property rights.

outweighs the right of the private individual to own it Government has to prove that the condemned land is going ot be used for the public use, and o Public use has been interpreted b the courts to mean public purpose or public interest. o The Twentieth Century has seen approved takings even though title is often transferred to private parties.