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Con Law

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
1
2
3
4

Sovereign Immunity
1
2
3
1
2
Congress' Authority to Act
Federal Police Power
1

JUDICIAL POWER
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,
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 decidedthese 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
Appeal (Court MUST hear caseincludes all cases from 3 judge federal district court)
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 explicitNOT 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 pocketNOT the state treasury
LEGISLATIVE POWER
Must be express or implied Congressional power - there is no general federal police
The necessary and proper clause - Congress can choose any means not prohibited
by the for carrying out its authority
ONLY applies to:
Military
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Federal Police Power

Con Law
2
3
4

Indian reservations
Federal lands and territories
District of Columbia
Taxing / Spending
Congress may tax and spend for the general welfare
Power
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
Commerce Power
Congress may regulate:
1 The Channels of interstate commerce
2 The Instrumentalities of and persons or things in interstate commerce
3 Activities 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
unal UNLESS authorized by Congress
10th Amendment
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
Congress Power
May not create new rights or expand the scope of rights. May only act to prevent or
under Section 5 of the
remedy violations of rights recognized by the courts and such laws must be
14th
proportionate and congruent to remedying al violations
Delegation of Powers
General Rule - Congress CAN give, but CAN'T take
Congress can hand off any legislative power to an agency, executive branch or
Legislative and line item vetos are unal
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
Hierarchy of Laws 1 US Constitution
2 Federal Statute or Treaty (last in time prevailswhichever is most recent)
3 Executive Agreement (foreign) / Executive Order (domestic)
4 State Law
EXECUTIVE POWER
Presidential Powers 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 unal - nonjusticiable
2
a.
b.
c.
d.
e.
Impeachment and
Removal

Domestic Affairs
Appointment Power - ambassadors, federal judges & officers of US (Congress may
appoint inferior positions (heads of departments)
Removal Power - may fire any executive branch officer; Congress may limit to where
- 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 crimesNOT 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
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Impeachment and
Removal

Preemption

Con Law
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
1 Express - Congress declares that federal law is exclusive in an area, then it is
2 Implied - If federal and state law are mutually exclusive (not possible to comply with
both simultaneously), federal law preempts state law
a. State law CAN be more strict (offer more protection) than federal law
b. If state law impedes the achievement of a federal objective, federal law trumps
c. If Congress evidences a clear intent to preempt state law, federal law trumps
a.
b.
c.
d.
e.

Bill of Attainder

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

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

Ask - does the state law discriminate against out-of-staters?


YES
If the law burdens interstate commerce, it violates the dormant commerce clause,
a. It is necessary to achieve an important government purpose
b. Congressional approval
c. Market participant

2
a.
b.
State Taxation of
Interstate Commerce
Full Faith and Credit
Clause
1
2
3
Necessary & Proper

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
NO
P & I clause does NOT apply
If the law burdens interstate commerce, it violates the dormant commerce clause
(apply a balancing test)
States may not use their tax systems to help in state businesses - may only tax
activities if there is a substantial nexus to the state and it must be fairly apportioned
Courts in one state must give full faith and credit to judgments of courts in another
state, so long as:
The court that rendered the judgment had jurisdiction
The judgment was on the merits
The judgment is final
ALWAYS wrong, unless attached to another power
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Con Law
Levels of Scrutiny

Constitution's
Protection of
Individual Liberties

1
a.
b.

Constitution's Protection of Individual Liberties


Strict Scrutiny - necessary to achieve a compelling gov't purpose
Must be the least restrictive means
Burden on gov't

2
a.
b.

Intermediate Scrutiny - substantially related to an important gov't purpose


Must be narrowly tailoredNOT least restrictive
Burden on gov't

3
a.
b.

Rational Basis - rationally related to a legitimate gov't purpose


Burden on challenger
Gov't usually wins
General Rule - private conduct need NOT comply with the Constitution
Exceptions:
By statute, Congress may apply al norms to private conduct 13th can be used to prohibit race discrimination - private race discrimination does not
violate the 13th, but a statute could prohibit it
the commerce power can be used to apply al norms to private conduct - substantial
economic effect
Congress canNOT use section 5 of the 14th to regulate private behavior
Public Function - private entity performing a task traditionally and exclusively done by
the gov't (i.e. "company town" or holding an election)
Entanglement - the Constitution applies if the gov't affirmatively authorizes,
encourages, or facilitates unconstitutional activity
Courts cannot enforce racially restrictive covenants
State action when gov't leases a restaurant that racially discriminates
State action when provides free books to schools that racially discriminate
State action when private entity regulates interscholastic sports w/in a state
NO state action when private school 99% funded by state fires a teacher b/c of her
NO state action when NCAA orders suspension of a coach at a state university
NO state action when a private club with liquor license from state racially
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:
2nd Amendment - right to bear arms
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?

1
a
b.
c.
2
3
a.
b.
c.
d.
e.
f.
g.

Incorporation
1
2
3
4
5
Procedural Due
Process
Liberty Interests
1
2
3
4
Property Interests

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 employmentthis IS a
deprivation of property b/c there was entitlement
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Con Law
Balancing Test for
Procedural DP

2
I
R
A

Standard

What procedures are 1


Required?
2
3
4
5
6
7

Substantive Due
Process
Economic Rights
Takings Clause
1
2

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

Job is terminated after 1 year on a year-to-year employment KNO 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 processmust be intentional
or at least recklessUNLESS 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
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
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)
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 irrelevantONLY 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

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unless otherwise
noted)
Con Law
7

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.

Analysis

1
2
3

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

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
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.
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Con Law

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
Incitement of Illegal
The gov't may punish speech if there is a substantial likelihood of imminent illegal
Activity
activity and if the speech is directed to causing imminent illegality
Obscenity & Sexually 1 The material must appeal to the prurient interest
Oriented Speech
2 The material must be patently offensive under the law prohibiting obscenity
3 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
The gov't may seize the assets of businesses convicted of violating obscenity laws
Commercial Speech 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
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
Defamation
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
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
Regulations need NOT use the least restrictive alternative
Limited Public Forums Gov't properties that the gov't could close to speech, but chooses to open to speech
Must follow rules for public forums
Symbolic Speech

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Con Law
Non Public Forums
Freedom of
Association

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

1
2
3
S
E
X

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
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
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
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

Art. 2 Applies
Creation of a Contract 1
2
Quasi-K
1
2
3
Bilateral K
Unilateral K
Bilateral Executory K

Advertisements
Termination of an
Offer

Lapse of Time
Revocation

1
2
3
4
1
2

5 Situations where an 1
Offer may NOT be 2
Revoked
3
5
Rejection

1
2
Article 2 Rejection
1
2
3

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 conferredNOT 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
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 - effective only
on receipt
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)
Signed written promise to keep an offer open that recites purported consideration and
proposes a fair exchange w/in reasonable time
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
Note: An offeree's terms are almost never includeda term is material if it
substantially effects the economics or remedies under the K
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Contracts
Death of a Party
1
2

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

1
2
3
4

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 flexiblegenerally 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

Start of Performance
as Acceptance
Promise as
Acceptance

Sending the Wrong


Goods as Acceptance

Mailbox Rule

Defenses to
Formation

1
2
3
4

Lack of Capacity to K
1
2
3

1
2
3
Ambiguity of Term

Mistake of Fact

Lack of Consideration
1
2
1
2

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
Partial payment of a due and undisputed debt
IS consideration:
Forbearance
Promissory estoppel
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Contracts
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
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

Impossibility /
Impracticability

1
2
3
-

Common Law - must have additional consideration to modify (Pre-Existing Duty)


Article 2 - do NOT need consideration to modifymust 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 guarantorthis 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
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
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
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

Parol Evidence Rule

1
2
3
4
Seller's Warranties of 1

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
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Seller's Warranties of
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
Obligations in a Sale
of Goods using a
Common Carrier
Who bears Risk of
Loss in Sale of Goods
K - Hierarchy

a
b
1
2
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
Installment Sales Ks a
and Performance
b
Acceptance of Goods a
(Art. 2)
b
Revoking acceptance a
of Goods (Art. 2)
b
Paying Ks under Art.
2

Contracts
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
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
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
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
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Contracts
Merchant buyer's
duties as to rightfully
rejected goods

Performance of
Common Law Ks
Divisible Ks Common Law

a
b

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

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 Mutual Rescission Agmt - Each party must have some performance remaining or
there is no consideration.
4 Novation - substitute a new party for an existing on - ALL parties must agree or it is a
mere delegation of duties
Excuse Based on 1 Destruction of something Necessary for the performance. Common Law - makes
Unforeseen Event
performance impossible. Art 2 - same but the destroyed goods MUST be the subject
making Performance
matter of the K (particularly identified) or if the buyer bore the risk of loss there is no
Impossible (seller)
need for excuse of performance
2 Death or incapacity of a person ESSENTIAL for performance (anyone can pay
3 Government regulation or order
Excuse Based on
Buyer had a primary purpose, but something happens (gov't regulation)
Frustration of Purpose
(buyer)
Excuse Based on
Def - limits obligations by K language ("if", "so long as", "provided", "on condition
Failure of an Express
that", "unless", "when"). Must have STRICT compliance
Condition
1 Satisfaction Clauses - Means rznble satisfaction (OBJECTIVE std), but if it is art or
matters of personal taste then use a Subjective std
When the
parties have an express condition but do not include it in the writing of
2 **
Condition
precedent/concurrent/subsequent
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.
Excusing Conditions a
b
Personal Services K

Non-Monetary
Remedies

Specific Performance

1
2
3
4

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)
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Specific Performance
Contracts

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
Mitigation
1
2
3
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

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
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
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
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)
Page 14

301271511.xls

Contracts

Rights of 3rd Party


Beneficiary

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

1
2
1
2
3
1
2
3
1
2
3

Rights of an Assignee 1
2
Multiple Gratuitous
Assignments
Multiple Assignments
for Consideration
1
2
Bankruptcy

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
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
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
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
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
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

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301271511.xls

Criminal Law
Larceny

Larceny: taking and


asporting

1
2
3
4
5
6
a
b

Larceny: Intent to
permanently deprive
Larceny Exception

Finders of lost
property

Embezzlement

1
2
3
Embezzlement: rules a
b
c
False Pretenses
False Pretenses:
Rules
Receiving Stolen
Property

1
2
3
a
b
c
1
2
3
4

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

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,
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
In order for a finder of lost (or mislaid) property to be guilty of larceny, the following 2
requirements must be met: (1) the finder must, at the time fo the finding, INTEND to
steal it, AND (2) the finder must either know who the owner is or have reason to
believe that he can find out the owner's identity.
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

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Criminal Law

Burglary

Burglary: Rules

2
3
4
5
a
b
c
d
e

Burglary: Modern
Statutes
Burglary: Intent
1
2
Arson
Arson: Burning

1
2
3
1
2
3

Analysis

1
2
3
4

Causation with
Homicides

1
2
3

Proximate Cause
Superseding Cause
1
2
3
Proximate Cause:
Rules
Murder

Felony Murder

1
2
3
4
a
b

Felony Murder:
Merger Rule

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
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 17

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Criminal Law
Felony Murder:
Bystanders

a
b

Degrees of Murder
Premeditation
Voluntary
Manslaughter
1
2
3
Involuntary
a
Manslaughter
b
Liability for Omissions 1
2
3
4
Rape or Sexual
Assault

a
b

Kidnapping

1
2

Kidnapping: Rule

When you can be


guilty of a crime

1
2
3

Aiding and Abetting


Elements

2
Aiding and Abetting: 1
Intent
2
Aiding and Abetting: a
Rules
b
Aiding and Abetting: a
Exceptions to liability
b
Attempt

1
2

Abandonment of
Attempt

Impossibility defense a
for Attempt
b
c
Impossibility: Mistake
about one's ability

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
Most killings with malice aforethought are 2nd degree murders
Some STATUTES label as 1st degree: certain felony murders and premeditated
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
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 (aid, abet, encourage) the
perpetrator in the commission or attempted comission of the crime (but NOT mere
With the required specific intent that the crime be committed
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
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

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
Page 18

301271511.xls

Impossibility: Mistake
about one's ability 1
2
3
Impossibility: Mistake
about criminal law
Impossibility: Mistake
about circumstances

Criminal Law

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
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 AND
of Fact
2 The mistake was objectively reasonable
If the mistake shows an absence of a necessary specific intent, it need not be
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
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
Ignorance or Mistake
NOT a defense to say you were ignorant of the law, UNLESS
of Law
1 A D's affirmative (but mistaken) belief that the criminal law did not prohibit her conduct
is a defense if:
2 That belief was objectively reasonable
3 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
Mistake of Law:
NOT a defense unless there is a specific knowledge mens rea that the law is being
Advice of counsel
violated.
Page 19

301271511.xls

Criminal Law
Insanity Defense
(M'Naghten)

Insanity: Analysis
Loss of Control and
Insanity
Unconsciousness
Defense
Intoxication Defense

Voluntary Intoxication
Defense

Entrapment Defense

Necessity or Choice
of Evils Defense

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
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)
Under M'Naghten it is NOT a defense
May be a defense under statutory versions of insanity based on the Model Penal Code
OR the irresistible impulse version of insanity
If the D was unconscious, his behavior cannot constitute the necessary VOLUNTARY
act
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
Will acquit ONLY if the crime requires proof of specific intent (higher than recklessness
under modern statutes) and the intoxication shows he lacked that intent
This can disprove premeditation but NOT malice aforethought
Courts can find that voluntary intoxication is irrelevant to criminal liability
1 The D was not predisposed to commit crimes like this AND
2 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
1 D believed that committing the crime would prevent an imminently threatened harm
2

Necessity is NOT a
defense
Duress or coercion
Defense

3
1
2
1
2
3

Self-Defense
Self Defense with
Deadly Force

1
2
3
1

2
Deadly Force: Retreat a
b
Self Defense:
Aggressor

1
2
a
b

Deadly force in
Homicide Cases
Defense of Other
Persons Defense

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.
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
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Criminal Law
2
3
Defense of Property
Defense
a
b

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

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Steps in a Felony
Prosecution

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

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
1
2
3
1
2

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


-

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
Concurrent jurisdiction over offenses created by state law AND punishable ONLY by
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
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
If bail is denied that order is appealable to the Court of Criminal Appeals
Page 22

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Process to Deny Bail


in a Noncapital Case

TX Crim Pro
-

Process to Deny Bail in a Capital Case


a.
b.
c.
Factors in Setting Bail L
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.
Indictments

Information

Complaint
Grand Jury Rights

1
2
3

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
Likelihood of D appearing for trial
Ability of the defendant to make bail
Seriousness of the crime charged
Future Safety of the victim and the community
Required bail is not to be an instrument of Oppression
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
- 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
D has an absolute RIGHT to an examining trial if charged with a felony, UNLESS
there has been an indictment
To get one a grand jury must vote (by at least 9 out of 12) to return a "true bill" against
- 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
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 only be approved and signed by the
prosecutor, where an indictment must be approved by a grand jury and signed by the
- an information must be supported by a valid and sworn complaint, which must be
Can be used when the D is charged only with a misdemeanor in municipal or JP
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
Lawyer may appear before a grand jury ONLY if the grand jury permits it AND the
prosecutor approves
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4

Grand Jury Subpoena

Challenges to
Indictments based on
Grand Jury
Proceedings

Limitations Periods

General periods of
Limitations

Charging Instruments
in general

Formal Requirements
of Indictment or
Information

D may be subpoenaed, and if he is:


a. he has the right to refuse to answer incriminating questions
b. 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
5 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:
1 Have his lawyer OUTSIDE the grand jury room
2 Consult with the lawyer before answering questions
3 Have a lawyer appointed, if he is indigent
4 Must be orally warned that:\
a. The testimony will be recorded
b. A false answer subjects him to perjury
c. He can refuse to answer the incriminating question
d. He has a right to counsel
e. He has a right to consult with his lawyer outside the room
f. His testimony can be used against him
5 He must be given a written copy of the warnings
6 He must have a rznble opportunity before appearing to obtain and consult with
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
1 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
2 Tolling occurs when:
a. The accused leaves the state - don't count the time they are absent
b. A charging instrument is pending and later dismissed
1 Misdemeanors - 2 years
2 Felonies - 3 years
3 NO limitations period for:
a. Murder and manslaughter
b. Offense involving leaving the scene of an accident
c. Sexual assault, where DNA testing indicates the perpetrator is not a person whose
identity is readily ascertained
PLEADINGS
An indictment or information alleges ONLY facts
- it does not identify the charged crime by name
Substantive requirements - must charge the offense AND provide the accused with
trial preparation notice
- to charge the offense you need facts constituting all elements (statutory language is
usually sufficient) and any victim must be named
1 Commence: "In the name and by authority of the State of Texas"
2 Name the accused or describe him
3 Set forth all elements of the offense
4 Specify enough detail to give the accused notice
5 Allege the crime was committed on a date that is within the period of limitations AND
before presentment of indictment
6 Allege commission of the crime in a county within the court's jurisdiction
7 Conclude - "Against the peace and dignity of the State"
8 Signed - indictment by the foreperson of the grand jury; information by the prosecutor
Page 24

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TX Crim Pro
Significance of
Indictment for Trial

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
If the D believes the 1
name on the
2
indictment is not his 3
General rule
Exception
Timeliness
If TC quashes
indictment, State may
How does D
challenge the
indictment

1
2
What if the D does
NOT assert a timely challenge to
indictment
1
2
On appeal, a
1
conviction will be
2
reversed for error in
overruling a MTQ for:
Distinctions Btw Form and Substance
When amendment is
sought BEFORE the
day of trial

On day of trial

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 provided 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 lesser included offense of the crime charged; and
The evidence before the jury is such that the 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
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
A defect of substance WITHOUT inquiry into harm

Defects of SUBSTANCE consist primarily of failures to allege ALL elements of the


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 REQUEST a continuance
NO amendments are permitted on day of trial BEFORE trial begins
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TX Crim Pro
To get indictment
amended,
Prosecution must

File a motion for leave to amend


D must be given adequate notice
Trial judge holds a hearing and decides whether to amend
If authorized, the amendment must be made on the actual indictment
Prejudice to D
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
Summary
- 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
Pleas available to D 1 Guilty
2 Not guilty
3 Nolo contendere
No contest v. guilty
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.
Evidence of insanity
Notice of the defense intent to introduce such evidence must be filed 10 days before
What must judge tell - Inform D of the range of punishment
D before accepting a - Inform D that recommendations by State are not binding
felony plea of guilty or - Inform D of the ltd right, after a guilty plea, to appeal
no contest
- Inform D that plea may result in deportation exclusion from US to denial of
- Inquire as to whether there is a plea bargain
- Note: The D has the right to withdraw the plea if he wants
PRETRIAL MATTERS
Pretrial hearing and - A trial judge MAY set a case for a pretrial hearing and conference
conference
- If one IS set - the parties must do the following 7 days BEFORE
1 enter any special pleas
2 Make challenges to the indictment
3 Make motions for continuance
4 Make motions for change of venue
5 Make motions to suppress
6 Make discovery requests
7 Raise claims of entrapment
Note: D can testify but ONLY on an issue related to that hearing
MTQ

Motion to Suppress v. Motion in Limine


Witness Lists

Deposition

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

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:
a The trial judge must issue an order authorizing the depo if the D shows "good reason"
for the depo
b Depo may be used
1. For discovery - obtaining info to prepare for trial OR
2. To preserve testimony for later use at trial

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TX Crim Pro
Inspection (Real
Discovery)

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
- 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
Witness left off an
The trial judge has discretion to exclude or admit based on :
ordered witness list 1 Whether omission was intentional and
2 Whether the defense received actual notice that witness would testify
Can the court compel - Names/address of experts - YES
discovery?
- Summary of expert testimony - NO
- ANY info of fact witnesses - NO
Authorities must
1 The evidence contains biological material that if subjected to scientific testing would
preserve DNA if:
establish the perpetrator's identity or exclude someone from those who could have
committed the crime; and
2 The authorities KNOW this
Informant Disclosure
Rule: The identity of an informer is generally privileged and CAN be withheld by the
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
CONSTITUTIONAL DUTY TO DISCLOSE EXCULPATORY EVIDENCE
A Ds Due Process 1 The prosecution fails to disclose exculpatory information that is in its possession AND
Rights are violated if 2 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
With regard to
1
Prosecution has a due process duty to disclose such evidence
exculpatory evidence: 2 Evidence that impeaches a prosecution witness is exculpatory
3 Evidence must be disclosed if it is in the possession of
a The trial prosecutor
b Another prosecutory; or
c The police
4 A conviction is invalid for nondisclosure only if the nondisclosed exculpatory evidence
is material
Competency to Stand 1 A defendant is incompetent to stand trial if either:
Trial
a. She lacks the ability to consult with counsel with a rzbl degree of rational
b. She lacks a rational and factual understanding of the charges
2
a.
b.
1
2
3

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.
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Venue and Change of
Venue
1
2

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 (MBE - the prosecution has the burden to
prove the D's competency by a preponderance of the evidence once the issue has
been
raised)
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

1
2

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

1
2
a.
b.
Disqualification of the
Judge
1
2
3
4
Presence of 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
Judge is related w/in 3 degrees (by blood or marriage) to either the defendant or the
Bias
In a felony case or a prosecution for a misdemeanor punishable by jail time, the
defendant must be present at the beginning of trial

1
2

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

Joiner and Severance of Charges


-

1
2
3
-

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
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Joiner and Severance of Defendants

Continuances and
Postponements

1
2

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

1
2
3

Discretionary Severance - In other situations, a trial judge has discretion to grant a


motion for severance of trials, and should grant 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

1
2
3

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

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

Right to Effective
Representation

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 disadvantagethe trial
judge has the discretion to make the prison terms consecutive
Note: If the charges were tried togetherthe prison terms must run concurrently
Several defendants may be charged in one indictment if they are all charged with the
same offense

1
2

1
2
Dismissal by the State
1
2

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 self-representation
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
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
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Dismissal by the State


TX Crim Pro

Jury Trial on GuiltInnocence (Basic


Structure)

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

a.
b.

Jury Size
District Court - 12
County, Municipal, Justice Court - 6

a.
b.

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
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

Qualifications of
Jurors & Challenges
for Cause
1
2
3
1
2
3
4
5
6
7
8
9
10

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 trialthis
must be done before trial
The D's choice need NOT be the same as to both phaseswhether 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:
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
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
Page 30

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1
2
Peremptory
Challenges
a.
b.
c.
d.
1
2
3

Trial Procedure

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
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

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

1
2

If the party succeeds in its Batson challenge, the trial judge MUST do one of the
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:
1 Judge calls for and parties give announcements of readiness
2 Prosecutor reads the indictment
3 Defense counsel enters a plea for the D
4 Prosecutor makes State's opening statement
5 Prosecution presents State's case-in-chief
6 Defense counsel makes defense's opening statement
7 Defense present's its evidence
8 Rebuttal evidence is presented
9 The judge reads the charge to the jury
10 Counsel makes final arguments to the jury (State argues last)
-

Directed Verdict

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

1
2

Note: Upon request, defense counsel may make the defense opening statement
immediately after the State's opening statement
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

Page 31

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1
2
Hearsay

1
2
a.
b.
c.

Statements Against Penal Interest are admissible if:


The statement is shown to be incriminating regarding the declarant,
A rzbl person would not have made it unless she believed it to be true, and
There are corroborating circumstances that clearly indicate the trustworthiness of the
statement

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
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

a.
Character Evidence

b.
a.
b.

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

1
2

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

Reputation testimony is NOT hearsay

a.
b.

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

a.
b.
c.

Cross-examination of character witnesses


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

1
2
Extraneous Offense
Evidence

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
At the close of all the evidence
EVIDENCE
Admissions of a Party Opponent are admissible

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Extraneous Offense
Evidence

TX Crim Pro
a.
b.
-

1
2
3
4
5

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.
b.

A defendant puts his identity into issue by either:


Introducing evidence that he was not the perpetrator, such as alibi testimony, or
Impeaching all the State's eyewitnesses

a.
b.
c.
d.
Writings and recorded Statements
1
2
Rule of Optional
Completeness
Physician-Patient
Privilege
Attorney-Client
Privilege

1
2

Privilege of the
Defendant's Spouse

Marital
Communications
Privilege

Extraneous offense = crime of which the accused cannot be convicted at this trial
Neither a charged offense, or
A lesser included offense

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
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
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 (or representative of attorney), and
Any fact coming to the attorney's attention because of the attorney-client relationship
(criminal trials only)
General Rule: the spouse of a defendant has a privilege not to be called as a witness
to testify against the defendant

1
a.
b.
c.
2

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 SPOUSENOT 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

Page 33

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Marital
Communications
Privilege

TX Crim Pro
1
2
1
2
a.
b.
c.

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

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
Introducing evidence that the witness is a truthful person

1
2
1
a.
b.
c.
2
1
2
Jurors Asking
Questions
Methods of
Impeachment

Impeachment with
Character Evidence

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

1
2

Bolstering a Witness

Competency of a
Witness

Communication is confidential only if it was both:


Made privately, and
Not intended for disclosure to any other person

1
2
3
4

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
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
Page 34

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Impeachment with
Bad Conduct

Witness may be impeached by showing prior bad or criminal conduct ONLY if it is


established that:
1 The conduct resulted in a FINAL criminal conviction
2 The conviction is not STALE - more than 10 years from later of conviction or release
3 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
4 The prejudicial value of the inquiry is substantially outweighed by its probative value
Impeachment by
1 A party can impeach a witness for the other sided by introducing extrinsic evidence
Contradiction
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
2 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)
Impeachment with
Can always impeach with bias - i.e. - the witness made a deal with the prosecution for
Bias
its own crimes
Trial Ruling No Nos
MUST NOT:
by the Judge
1 Comment on the weight of the evidence OR
2 Convey to the jury the judge's opinion on the merits
"The Rule"
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
a. Those persons that the witness may talk to about the case during trial
b. Those persons that the witness may NOT talk to
If a witness is found to have violated the rule, the court may:
1 Hold the witness in contempt and/or
2 Exclude the testimony of that witness
The Rule: Exclusions
Exclusion of the following is NOT permitted:
1 The D
2 If the D is a corporation, an officer or employee of the D
3 Any person whose presence is shown to be ESSENTIAL to the presentation of a
party's case
4 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
- the spouse of the D is NOT exempt in criminal trials
Expert Testimony
Generally, an expert may testify to an opinion without first disclosing the facts or date
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
An expert MAY testify as to an ultimate issue to be decided by the fact finder
Disclosure During 1 A party is entitled to a WRITING if witness for the other side used it:
Trial
to refresh her memory before or during her testimony
2 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
3 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
4 Work product doctrine does NOT apply here as it does pretrial
Sanctions for refusal to produce a stmt
a. MUST strike the testimony from the record
b. MAY dismiss the prosecution if the interests of justice requires
Page 35

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Photographs as
Evidence

a.
b.
Texas Exclusionary
Rule with Illegally
Obtained Evidence

1
2
3
4
a.
b.

Evidence Requiring
Corroboration

3
a.
b.
c.
d.
4

Jury Charge
1
2
1
2
3
Objecting/Requesting
to the Charge Orally
1
2
3

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
Sometimes under TX law whether evidence was illegally obtained is a question for
jury. D can get to the jury if he can raise a contested question of fact before the jury
concering the legality of the manner in which the object was obtained. If D raises an
issue, the jury will be told to disregard the evidence if it has a rzbl doubt as to whether
itAccomplice
was illegally
obtained(Accomplice Witness Rule)
testimony
An accomplice witness is one who could be convicted of the crime charged
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
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
Page 36

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Failure to Object to
the Charge

Omissions from the


Charge

1
2

Pleadings,
1
Instructions & Burden
of Proof
2
3
4
Jury Instruction
Example:

Limitations on Jury
Argument

1
2
3
4
1
2
3

Order of Jury
Argument

4
-

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

1
2

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
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 (ex. incorrect mental state in charge required for crime)
Error in the jury charge can be preserved either by:
Objection OR
Request for a special charge
If cousel objects to omission, it is the judge's responsibility to prepare a charge that
include the erroneously omitted definitions/instructions
The charge must require proof of all elements of the crime, even if doing so requires
expanding beyond the indictment's allegations (ex, if indictment is incorrect)
- 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 (rznble doubt generally not defined in charge)
Exceptions - must be negated in the pleadings (must be pled); 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
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
Applies Only to stmts:
Made while in custody AND
Resulting from official interrogation
- different requirements for written and oral stmts
if either custody or interrogation is lacking, the statute does not apply and stmt is
Page 37

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Texas Confession
Statute: Art. 38.22
Generally
TX Crim Pro
1
2
Written Stmt
Requirements

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

Oral Stmt
Requirements
J
R
R
a.
b.
c.
d.
e.
C
Test

1
2
3

Stmts obtained Out of 1


State or by Federal
Officers
2
Texas Procedure for
Litigating Confession 1
Issues
2
3

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 judge at hearing 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 fact 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 Judicial
- made in open court or before grand jury
The stmt was Res gestae of either the offense OR arrest
- res gestae --> D's spontaneous and impulsive reaction to the excitement
The stmt was electronically Recorded, 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 Corroborated
- 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
Does Miranda require exclusion? If no, move to #2
Is this an oral statement made during custodial interrogation? If yes, statute applies.
If no, statement is admissible automatically
If statute applies, does the statement come within exception to rule of exclusion?
Apply JRRC exceptions
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
Judge must make findings of fact (Jackson v. Denno hearing)
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

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Jury Trial

- prosecution has the burden to prove beyond a rznble doubt that the stmt was
voluntary (if state cannot meet burden, jury should disregard the statement and not
consider it in deciding whether state has proved D guilty)
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
(jury required to assess punishment if state seeks death penalty)
- D can invoke jury sentencing by a timely election (before voir dire begins) OR a timely
motion for probation
- 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 always gets to argue last at both guilt and punishment

Matters that may be


proved at sentencing

1
2
3
4

D's prior criminal record


D's general character evidence (reputation and opinion)
Circumstances of offense
Juvenile court conviction based on felony conduct
Evidence of extraneous offense or bad act by D, whether or not D has been convicted
5 of that

Evidence of Ds
previous bad
acts/crimes
Good time/Parole

If requested by D, state must 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 (prosecutor cannot do this either)
Self Incrimination
Rule against self incrim applies at sentencing stage too
Ds character
At penalty stage of the trial - the Ds character is AUTOMATICALLY at issue and
evidence can be introduced by the state
Judicial confession
A judicial confession at punishment does NOT automatically waive any error
committed during the guilt stage of the trial
Mistrial
A mistrial declared during the punishment stage of the trial applies to both phases of
the trial (if mistrial in sentencing, then court must re-try the guilt phase as well)
Factors in Assessing 1 Is there a probability that the D will commit criminal acts of violence constituting a
Death Penalty
continuing threat (always submitted)
2 Did the D actually case the death of the victim or intend to kill the victim or anticipate
that a human life would be taken (only submitted if at guilt stage of trial the judge
instructed the jury that it could convict the D as a party to a killing actually committed
3 Are there sufficient mitigating circumstances to warrant life in prison rather than death
(always submitted)
* NOTE: If jury unanimously votes "YES" on questions #1 and #2(if submitted), and
"NO" on question 3, then the judge MUST impose death. Otherwise, life

Eligibility

Jury consideration

Sentencing: Community Supervision or Probation


D is eligible for community supervision (CS) if punishment assessed does not exceed
10 years in prison
Upon proof by a preponderance of the evidence (w/o jury trial) that a D has violated a
condition of CS, that CS can be revoked and D required to serve the prison sentence
assessed (or as reduced by the trial judge)
If D successfully completes CS, the trial court has discretion to dismiss the charges
The jury CAN consider recommending CS if D filed pretrial an application for
probation that was (1) in writing; (2) sworn to; and (3) states that the D has not been
If the jury recommends it and D is eligible --> judge MUST place him on community
supervision
Page 39

301271511.xls

Jury consideration
TX Crim Pro
-

What is it?
Eligibility

1
2
Procedure: TC must 1
2
3
4
D violates CS
D completes CS
Deferred adjudication v. Probation
Generally
1
Reasons Why
Sentence should not 2
be pronounced
3
Victim statement

Timing
Grounds for granting
a new trial

Ruling
Can be made on the 1
grounds that
2
3

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 180 days and then
his sentence is suspended and he is placed on CS
Sentencing: Deferred Adjudication
Procedure where TC places the D on CS without actually finding D guilty, because it
defers a finding of guilt
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
Formal sentencing done by trial judge, and before sentence pronounced, the judge
asks D whether he has anything to say as to why sentence should not be pronounced
D has received a pardon
D has becomes incompetent to continue trial
D is not the person convicted of the crime
Victim or relative of a deceased victim has a right to make a statement to the court
and the D. It must be permitted only after setence has been pronounced. Victim may
not direct questions to D and court reporter may not transcribe statement
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
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 (evidence must be material - see next cell below)
"material" = (1) unknown to D before trial, (2) failure to discover evidence eariler was
not due to D's lack of dilligence, (3) evidence is competent and not merely collateral
or impeaching, AND (4) evidence is so persuasive that it would probably cause a
different result in a new trial.
Must be ruled on within 75 days of sentencing or overruled by operation of law
Motion in Arrest of Judgment
The indictment has a defect of substance
The verdict varies from the indictment OR
The judgment is invalid
APPEAL
General Framework for Appeals By Defendants
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What court?

Procedure

2
3
Denial of Bail

4
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
1
If State takes an
appeal from a pretrial 2
order favoring D

D convicted of capital murder and sentenced to death in dist ct: appeal is mandatory
and to Ct of Crim 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 court for trial de novo
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 motion for new trial 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
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
- 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 not independent of
the plea (evidencary surpression issues)
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 raised by pretrial written motion and ruled on pre-trial
In all appeals by Ds, the record must contain a certification of the Ds right to appeal
(usually in "guilty pleas pursuant to plea bargain" where trial judge grants permission
If the D escapes while appeal is pending - the prosecutor should move to dismiss the
appeal and the court of appeals SHOULD dismiss it
To have appeal reinstated the D MUST return to custody: (a) voluntarily AND (b)
within 10 days of the escape
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 (if conviction reversed by court of appeals)
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 can appeal in a proceeding for post - conviction DNA testing
D in custody is entitled to release on rzbl bail
If the order is one that ends the prosecution (that is, a dismissal) D is entitled to
personal bond
Preserving Error
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Appellant has a
responsibility to

1
2
3
1

To preserve error in
EXCLUDING
evidence
2
To preserve error in 1
ADMITTING evidence 2
3
To preserve error in 1
improper argument or 2
comment (by lawyer 3
or judge)
4
Unnecessary
allegation
Prosecution failure to 1
prove an
unnecessarily
2
included allegation
Legal sufficiency

1
2

Factual sufficiency

1
2

Summary

1
2

Non Error
Constitutional error

How to bring it
D must show

D can bring 2nd


habeas corpus if:

1
2

DNA testing
D convicted,
sentenced, conviction
affirmed on appeal. D
wants to attack on
other grounds. D
should:

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 Q and A
form (informal bill of exceptions
Record MUST 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 on each one!
Resolving Appeals: Evidence Sufficiency and Variances
An unnecessary allegation describing something necessary to the indictment is no
longer ALWAYS required to be proved in order to avoid a factual "variance" btw the
pleadings and the proof
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
In determining whether evidence is legally insufficient, the court views it in the light
most favorable to the State and asks 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 court views all the
evidence NOT in a light most favorable to the State and asks 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 outcome 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 (which requires new evidence showing innocence that is now
available AND clear & convincing evidence that no rzbl jury hearing this evidence
2nd action based on ground NOT available when 1st action brought (ex, D did not
know of DNA evidence) OR
D establishes both (1) D's federal rights were violated AND (2) "but for" that
violation, no rational juror could have found D guilty
A convicted D may make a motion in the trial court for DNA testing of evidence
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
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D convicted,
sentenced, conviction
affirmed on appeal. D
wants to attack on
other grounds. D
should:

TX Crim Pro

How can D get DNA 1


testing
2
3
4
5

The dist judge will then compile a record


The record will be transmitted to the Ct of Crim Appeals to determine whether relief
granted or not
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
Identity was at issue
Rzbl probability he would not have been convicted if DNA testing had given
exculpatory results AND
The motion is NOT made for unrzbl delay

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Basic Rules

Exceptions - 2nd trial 1


IS allowed
2
3
4
5
Federal attachment of
jeopardy
Texas attachment of
jeopardy

Rule
Blockburger Test for
determining "lesser
included"
Collateral Estoppel
1
2
Summary

1
2

General rule
Examples of separate gov'ts
What options does D 1
have to raise a claim
of double jeopardy
2

General rule
General rule

DOUBLE JEOPARDY
General Rules
Once D placed in jeopardy for an offense, D can never again be tried for that same
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
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
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 (ex, identity); 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
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.
Privilege Against Self Incrimination
Authorities cannot compel a person to engage in self-incrimination "testimonial"
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 (if granted "use" immunity only, then person can
be compelled to testify) (in other words, person CANNOT insist on transactional

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Use immunity

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

Transactional
immunity

Testimonial
Examples of
testimonial

1
2
3
4

Examples of Nontestimonial

Definition
NOT a search

YES a search
Plain view

1
2
3
4
5

1
2
3
4
5
1
2
-

Open fields

2 Elements

1
2

Items subject to
seizure

1
2
3
4

Racial profiling
(TEXAS law)

Requirements

Protection Limited To TESTIMONIAL Behavior ONLY


An intentional communication of one's thoughts
State calls D as a witness and compels D to answer when prosecutors ask "did you
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
aerial surveillance of fenced yard
examination of trash left in yard
determining #s dialed (pen register)
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
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 (area surrounding and used in connection with a residence) of a dwelling do
NOT search
Rzblness of Search
Must be pursuant to a valid search warrant (multiple exceptions)
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
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
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Knock and Announce

Limits of search

1
2

What can officers


seize

1
2

Informant analysis
1
2

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,
including justice of the peace)
In deciding whether a warrant was validly issued (based on PC), 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 (ex, diary)
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
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
Warrantless Searches
Consent searches do NOT require a warrant or probable cause

1
2

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),
someone rznbly believed by officers to have such access (apparent authority)

Joint Occupation Situation


Officers need consent from only one of several joint occupants

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
Subsequent
evidentiary warrant
Consent Searches

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
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 valid by 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

Scope of consent
Consent covers what a rzbl person in the situation would understand the words used
to mean
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Automobile Searches
a.
b.

Vehicle Exception to Warrant Requirement - moving vehicles and those parked in


public places can be searched without a warrant
BUT probable cause is necessary
Search can extend to any place where the items might be found

a.
b.

Search Incident to Arrest - custodial arrest of a person in a vehicle (or immediately


after getting out) permits as an incident of that arrest:
Search of the passenger compartment (including the glove compartment)
But NOT the trunk
Inventory Inspection - properly seized or impounded vehicle may be administratively
inventoried pursuant to standardized procedure

Exigent
Circumstances
Searches

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

Contents of Containers in Car - CAN be examined IF car can be searched


Note: If officers have PC to believe a traffic violation was committed, their actual
"motive" for making the stop is irrelevant
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

1
2

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

Rule: If valid arrest is made, officers can automatically search (ex, a wallet)
General Rule: An arrest must be made pursuant to a valid arrest warrant

1
2

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
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

Texas Arrest Law

3
4
5
6
7
8
1
2

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
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3
4
1
2
3
Non-Arrest Detentions and Citizen-Officer
Contacts

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
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
crimeBUT an anonymous tip is not enough if not adequately corroborated

1
2
3

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

1
2

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 (so cop could arrest
pursuant to violation of traffic law, and then search the car)

1
2

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

Federal Constitutional Limits


a.
b.
c.

LINEUP LAW
D has 6th Amendment right to lawyer present at lineup or show up IF it is conducted
after judicial proceedings have begun (ex, indictment)
NOT triggered by D's arrest
No right to lawyer at showing of photographs
Can be waived by D

a.
b.

D has due process right not to have procedure be extremely suggestive


Applies even where right to counsel does not
Standard: Was procedure so suggestive that it creates high likelihood that witness
will erroneously identify D as perpetrator?

a.
b.

If witness identifies D at procedure conducted in violation of either rule:


Prosecution cannot prove that identification
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

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

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Voluntariness
Fed Crim Pro
-

D's undisclosed mental impairment alone will NOT create involuntariness

1
2
3

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

1
a.
b.
c.

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

2
Miranda

1
a.
b.
2

Confession given during improper delay in bringing D before magistrate after arrest
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

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

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
No interrogation must occur if suspect indicates a desire to remain silent

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

1
2
3
4
5

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 (ex,
traffic stop)
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
If a suspect invokes the right to remain silent, the suspect may be reapproached if
this is done very carefully
Any action which an officer should rznbly know is likely to result in an incriminating
response is the equivalent of interrogation
Questioning after right to counsel was waived must cease only if suspect makes an
unambiguous request for counsel ("Maybe I should talk to a lawyer" is NOT enough!)

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6th Amendment Right
to Counsel

In interrogation situations, the accused has a 6th Amendment right to counsel IF


judicial proceedings have begun (indictment, appearing before magistrate, bail setting
by magistrate, complaint setting by judge)
If suspect is already represented by counsel, officer's interference with counsel's
access to client-suspect will NOT invalidate Miranda waiver, but it WILL render invalid
waiver of 6th amendment right to counsel

6th Becomes applicable:


D has a right to counsel at questioning by undercover officer
D has a right to counsel at questioning even if not in custody (ex, D released on bail)
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
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 Poisonous
Fruit of the Poisonous Tree - if a search is unrznble, all fruit must be excluded
Tree
- 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
Impeachment
A D who takes the witness stand can be impeach by some otherwise inadmissible
exception to the
- evidence obtained in violation of Miranda or in an unrznble search can be used to
federal rule (not in
- involuntary confession cannot be used to impeach (because unreliable)
Unrznble Searches
No probable cause
- ex: drugs in the trunk in an amber alert stop
Miranda warnings
Police arrest, violate Miranda, and D tells cops where she hid gun, cops find gun.
Gun admissible because Miranda has NO "fruit of poisonous tree" rule. Only the
statement is excluded!
Standing with
1 Mere authorized presence in the premises is NOT enough
residences
2 Presence pursuant to a short and commercial stay is NOT enough (dividing up drugs)
3 Presence as part of overnight personal visit IS enough
Warrantless and
"Good faith" exception to 4th amendment exclusionary rule does NOT apply to most
"Good Faith"
police action taken without a warrant!
Inevitable discovery
Evidence officers actually obtain by an improper search becomes admissible if
prosecution shows both (1) officers would inevitably have obtained that evidence if
they had no illegally searched AND (2) they would have obtained evidence in a
manner
TX exclusionary rul has NO inevitable discovery exception and NO impeachment
1
2
3

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Evidence
General Principles

1
2
a.
b.

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

RELEVANCE
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
All relevant evidence is admissibleUNLESS:
some exclusionary rule is applicable, or
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 handthe 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
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
2 defining characteristics of habit:
Frequency of the conduct
Particularity of the conduct
Key words that suggest habit: "always," "automatically," "invariably," "instinctively,"
and "habitually"

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Evidence
Industrial Custom as
Standard of Care
Policy Based
Exclusions

1
2

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
This evidence is admissiblebut 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

1
2

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

1
2
3
4

Liability Insurance

Subsequent Remedial
Measures

Examples: post-accident repairs, design changes, policy changes


Settlements

1
2
1
2
3
4

Offer to Pay Hospital


or Medical Expenses

Character Evidence
Purposes
1
2
3

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
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
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) "Dont worry, I'll pay your hospital bills. (b) I'm sorry I ran the red light."
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
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Evidence
Character Evidence 1
Rules - Criminal Case

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,
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
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
- 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

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

2
Victim's character in self defense criminal
case
1
2
-

Victim's character in
sexual assault
criminal case

1
2
1
2
1
2

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:
Prosecution can give evidence of victim's good character <-- only can do this one in
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
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Evidence
Character evidence in
Civil cases
1
2
a
b
c
Using Defendant's
crimes for Noncharacter purposes

M
I
M
I
C
Method of Proving
MIMIC crimes

1
2
-

Sexual Misconduct to
show Propensity

Authenticity in
General

Methods of
Authentication

1
2

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
AUTHENTICATION OF WRITINGS
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

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Evidence
Self Authenticating
Documents

Texas - Business
Records

1
2
3
4
5
6
1
2
3
4

Authentication of
Photos

Rule
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
Exceptions

1
2
3

Testimonial
Qualifications

1
2
-

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
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
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 TX, 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

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Evidence
Dead Man's Statute

Leading
1
2
3
4
Refreshing
Recollection

1
2
3

Past Recollection
Recorded (HS
Exception)

Lay Opinion
Admissible If:
Expert Opinion

1
2
3
4
5
1
2
-

Daubert Factors

Texas Factors
(Robinson/Kelly)

T
R
A
P
1
O
N
2

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 is read into evidence by introducing party, but NOT introduced unl;ess
introduced by the adverse party
Rationally based on witness' perception (personal knowledge) AND
Helpful to jury in deciding a fact
Qualifications: Education and/or experience
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
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
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Evidence
Ways to Use Learned 1
Treatise in Aid of
Expert Testimony
2
Ultimate Issue

Introduction

1
2

1
2
3
4
5

If federal action based on DIVERSITY jurisidiction where state substantive law applies
to the parties' claimsprivileges 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

1
2
3

Exceptions
Future crime or fraud
Client puts legal advice in issue
Attorney-client dispute

Attorney-Client
Privilege

Physician-Patient
Privilege

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
PRIVILEGES
If federal action based on FEDERAL QUESTION jurisidictionprivileges are
governed by the common law as they might be interpreted by the federal courts

1
2

Definitions
Confidential communications - client must intend confidentialityNO 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 partiesbut is NOT privileged between the clients
Attorney - member of the bar or person that client rzbly believes is a member of the
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 partyprivilege continues after A/C relationship ends and
even after death of clientclient's estate has the power to waive the privilege after
client's
death does NOT apply to underlying information, pre-existing documents, or
Note - privilege
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
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Physician-Patient
Privilege
Evidence

Husband-Wife
Privilege

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

1
2

Texas Exceptions:
Does NOT apply in criminal cases
Does NOT apply if either party relies on patient's condition as part of their claim or

Note: on the MBEthe 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

Definition

Non-Hearsay
Statements

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

1
2

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)

1
2

Additional Texas civil exceptions:


All types of disputes between spouses (e.g. breach of K)
Incompetency / commitment proceedings

1
2

HEARSAY
Out of court statement of a person (oral or written) AND
Offered to prove the truth of the matter asserted in the statement

1
2
3
4

Prior Statements of
Trial Witness
1
2

General Rule - hearsay is INADMISSIBLE unless an exception or exclusion applies


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
Witness's prior inconsistent statement IF prior statement was under oath and made
during formal trial, hearing, proceeding or deposition
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Trial Witness

Evidence
3
4
Party Admissions There will be at least SIX questions on this -

Exceptions

1
2
-

The statement is made during agency/employment


Does NOT mean on the jobbut during employment

1
2
3
4
5
6
7
8
9
10
11

1
2
3
4

Former Testimony
Exception

Statement Against
Interest Exception

Rule - any statement made by a party (plaintiff or defendant) is admissible against the
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

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

Grounds of
Unavailability

Prior consistent statement used to rebut charge of recent fabrication or improper


motice or influence
Statement of co-conspirator made in furtherance of conspiracy

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 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:
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301271511.xls

Statement Against
Interest Exception

Dying Declaration
Exception

Evidence
a
b
c
d

Pecuniary
Proprietary OR
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

1
2
3
-

Excited Utterance
Exception

1
2

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
- 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

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

Present State of Mind


Exception

Rationale - declarant has no time to fabricate


Def - Contemporaneous statement concerning declarant's present state of mind,
feelings or emotions

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

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

a
b
c

Business Records
Exception

1
2

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:
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
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Business Records
Exception
Evidence

Public Records
Exception

3
4

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

a
b
c

- 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

Impeachment of
Hearsay Declarants
Exception
Cross Examination

Rule: Party has a RIGHT to CX any opposing witness who testifies at the trial
Scope - FRE - direct
Scope - TRE - wide open
Credibility and
Bolstering Own Witness - can't do until AFTER witness' credibility has been attacked.
Impeachment
The exception is a prior identification of a person - this is a HS exception.
- Impeachment of own witness - permitted WITHOUT limitation
Impeachment
1 Prior inconsistent stmt - oral and written if there is a clear inconsistency
methods (Note: These - Exception - Prior inconsistent stmt may be admitted both for impeachment and
DO NOT come in for
substantive evidence if it was a prior inconsistent stmt given orally under oath AND as
the TMA - only for the
part of a formal hearing, proceeding, trial, or depo
limited purpose of
- FRE Confrontation - Confrontation timing is flexible - must be given an opportunity at
impeachment)
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
2 Bias, Interest, or Motive
- TRE Confrontation - Confrontation on stand usually required - contents, time, place,
person, and IMMEDIATE opportunity to explain or deny
- 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
3 Sensory deficiencies
- Confrontation required? NOPE
- Extrinsic evidence allowed? NOPE
4 Bad reputation or opinion about witness' character for truthfulness
- Confrontation required? NOPE
- Extrinsic evidence allowed? YES
- Reputation or opinion ONLY
5 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
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Evidence

6
-

7
Rehabilitation

1
2

When is it
appropriate?
Effect on case

1
2
-

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
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

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KEY w/ Estates
Fee Simple Absolute

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

Future interests
Future Interests
Retained by
GRANTOR

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
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:
1 Members of the class who predecease the testator are eliminated and do not recover;
their gift LAPSES
2 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
3 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
FUTURE INTERESTS
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
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Future Interests
Retained by
GRANTOR

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

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

RULE AGAINST PERPETUITIES


What estates does it 1 Contingent remainders
apply to?
2 Executory interests
3 Vested remainders subject to open
Rule
If there is ANY chance than an interest might vest outside of a life-in-being + 21 years
--> that interest is void

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Timing
Perpetuity Saving
Clause
Options and Rights of
First Refusal
Charity to Charity
Exception
Class Gifts
The Unborn Spouse

Introduction
1
2
Joint Tenancy
1
-

2
Creating a Joint
Tenancy

1
2
3
4
-

Destruction of a Joint
Tenancy
1
2
Severance
1
2

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 interestand so on. The surviving tenants take automaticallyNOT 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:
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
- Does NOT destroy it when the JTs act in concurrence
A mortgage in a title theory state
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Real Property

Tenancies-inCommon

Allocating Rights &


Duties Between CoTenants

Lien theory state - NO severance


Title theory state - there IS severance
Note: If no indicationassume lien theory state

3
-

A contract of sale
Doctrine of Equitable Conversion means severance occurs when a K of sale is signed

4
-

A creditor's sale of the interest in the JT


A creditor's judgment lien is NOT enoughthere must be an actual judicial sale
Two characteristics:
Right to Partition
NO right of Survivorship

1
2
1

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


General Rule - One co-tenant does NOT have to account to another co-tenant for a
share of the profits

1
2
3
4

4 types of NonFreehold Estates

Tenancy for Years

1
2
3
4
-

Periodic Tenancy

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 taxesNOT 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 timeno 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)

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

Operation of Law
2 situations:

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Real Property
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
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

1
2
-

2 requirements for proper notice:


Time (equal to the period UNLESS year-to-yearthen 6 months notice required)
The right effective day of termination (must be the last day of the period)
Either party can terminate at any timewithout notice

b.
Termination of a
Periodic Tenancy

Tenancy at Will

1
2
3
4
5
Tenancy at
Sufferance

1
2

b.

If the LL elects to impose a new periodic tenancy on tenant:


If residential - the new period will always be month-to-month
If commercial - the new period is determined as follows:
if the old expired tenancy was for less than a year, new tenancy is the same as the
old tenancy
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

1
2
a.

Tenant's Duties

LL's Remedies

LL's Duties

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

1
2
1
2

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
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
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:
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

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3

Assignment

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
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

General rule
Exceptions

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)

1
2
3
4

LL's TORT LIABILITY


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
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

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General rule

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

FIXTURES
If the attached item became a fixture - chattel CAN NOT be removed either by seller
or tenant
To determine fixture
Look at whether the one doing the installing INTENDED that the item stay with the
real ppty as a fixture?
If no agmt - look at 1 Degree of attachment
2 General custom with this item - is it the type of thing that sellers or tenants normally
take when they leave?
3 Degree of harm to the premises on removal
4 Trade fixtures, which are chattels used in trade or business, are NOT fixtures (always
remove)
Washer/dryer
NEVER fixtures
When can you
If T can remove the chattel - it must be removed BEFORE the end of the lease
remove chattel?
If Owner removes chattel - it must be removed BEFORE CLOSING
EASEMENTS
Definition of
A non-possessory interest in land involving a right of USE <-- use is the key
Types of Easements 1 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
Ways to create an 1 Express easement
easement
2 Easement by Implication
3 Easement by prescription
Express easement 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)
Rule

Easement by
implication

Easement by
Prescription

1
a
b
c
2

1
2

Transfer of the
Easement Benefit

3
4
1
2

Transfer of the
Easement Burden
Use of Easements

Previous use by a common owner, and that use is:


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
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:
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Use of Easements
1
2
Repair of
Easements**

Termination of
Easement

a
b
c
1
2
3
4
5
6

License*

Tickets

Irrevocable License
1
2
Profits
Restrictive Covenants
Covenant at law:
Requirements

1
2
1
2
3
4

Covenant at law:
Types of Privity

1
2
-

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
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

Tickets are always licenses


They give no in rem rights, ONLY K rights
Can always be revoked, but K damages may be imposed
Def - License plus money spent on property furthering the license
Anytime an easement is attempted but fails due to the SoF, there is a license
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
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
Def - gives the right to restrict someone else's use of their land, 2 types
Covenants running with the land at law - if P wants money damages
Equitable servitude - if P wants an injunction
Intent that it run with the land
Notice to the person against whom enforcement is sought
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
Privity - conveyance of the property from one party to another --> See below to figure
out what privity is required
Horizontal privity - ALWAYS refers to the original parties to the covenant
For horizontal privity you must have a conveyance of the property between the
original parties
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
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Real Property
Covenant at law:
Process for privity

1 Find the successor in interest


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
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
Equitable Servitude: 1 Unclean hands defense - P did the same thing
Defenses to
2 Acquiescence - let someone else do the same thing
Enforcement
3 Laches - too late
4 Estoppel - P said earlier that he did not mind
Termination of
Can always be done by release or unity of ownership, but look for termination by
Restrictive Covenants
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
Elements for Adverse
Question - when does X's being on the land constitute adverse possession, so that
Possession
title is obtained, and when it is merely a trespass?
H Hostility - being on the property with no right to be there
E Exclusivity - X must be excluding others from possessing the property
L Lasting - 20 years, unless told otherwise
U Uninterrupted - the kind of continuous use an owner would make
V Visible - out in the open
A Actual - must actually possess, unless you have constructive adverse possession or
lease the land you don't own
2 things NOT required 1 Owner does not have to know that X is on the land
2 X does not need to think he owns (has a claim of right) the property
AP: Lasting in Texas 1 Possessor is under a color of title and has only narrow specified defects in title = 3
years (very hard to satisfy)
2 Possessor is there under a color of title and pays all taxes = 5 years
3 Possessor is just in bare possession of property with no color of title = 10 years, but
possession is limited to 160 acres, unless fenced
4 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
Constructive Adverse
If X goes on property under a color of title (bad title) to a larger tract, but only actually
Possession
possesses a PART of the larger unit, constructive AP can give title to the rest of the
property if:
1 The amt actually possessed bears a rznble relation to the whole AND
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Constructive Adverse
Possession
Real Property
Leasing and Adverse
Possession
Adverse Possession
against Concurrent
Owners
Future Interests and
AP

2
a
b
1
2
3

AP: Tacking

AP: Disability
a

AP: Other

b
c
-

Introduction
1
2
Contract of Sale
1
a.
b.
c.
a.
b.

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

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
If the disability arises after the AP begins, it's an intervening disability, and is ignored
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:
Contract of sale,
Deed (at closing)
Contract is governed by all regular contract rules, plus these 4:
Statute of Frauds
Any signed writing will do, provided it includes:
A description of the property,
The names of the parties,
The price
Exception to SOF: Part Performance
An oral contract will suffice IF:
The oral contract is certain and clear, and
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

a.

Legal Effect of the Contract Between Time of Signing K and Closing


Four issues:
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.

Marketable Title - every land sale K has implied warranty of marketable title (this is
not perfect title)
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Real Property
i
ii
iii

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
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

i
ii
iii

Remedies of buyer if seller's title is unmarketable:


Buyer must first give notice to seller and a rzble time to cureif seller does not cure,
then buyer has the following 3 remedies:
Rescission
Damages
Specific performance
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.
Remedies for Breach 1
of Sales Contract
2
Defects on the
Property
1
2
Deed

Execution of Deed

1
2
-

Delivery of Deed

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
Damages
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
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 transferintent 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

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Real Property
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

2
-

Oral Condition
If the condition is made orally at the time of delivery of the deed, disregard the oral

3
-

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)
Quitclaim deed - seller makes no promises regarding title and buyer gets whatever
seller owns

Covenants for Title

There are six types of covenants a seller may make and the deeds that go with these
covenants are called general warranty deeds

1
a.
b.
c.

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

2
a.
b.
c.

Future Covenants
Covenant for quiet enjoyment (seller will protect buyer from anyone who later claims
Covenant of warranty (seller will protect buyer from anyone who later claims title)
Covenant of further assurance (seller promises to do whatever necessary to pass

Damages for Breach


of Covenant
Estoppel by Deed

Deed to a Dead
Person

Introduction

Types of Recording
Acts

1
2
1
2
3

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
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Real Property
Notice Acts

1
-

Protect subsequent purchasers who are BFPsthose 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
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

Race-Notice Acts

Pure Race Acts

"for value"

"Without Notice"
1
2
3
a.
b.
Definition
3 Kinds of SI

1
a
b
2
3

Consequences of
having a mortgage
OR deed of trust

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 recordmust 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)
Inquiry Notice - two situations:
If a reading of the deeds discloses an unrecorded transaction, the subsequent
purchaser must check it out
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
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
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)

Equity of redemption - at any time up to the fc sale - debtor can redeem the ppty.
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Consequences of
having a mortgage
OR deed of trust

Real Property
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

Right of Support

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
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

SPECIAL RIGHTS
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
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Right of Support
Real Property
2
Water Rights
-

Who can get one?


How?
Rural HS

1
2

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

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
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

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Torts
4 Major Testing Areas 1

Approach

2
3
4
1
2
3

Intent
General rules

a
b

c
d
e
f
Assault

g
1

3
4

Battery

1
2
3

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

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
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
- need factual and legal causation - an answer that just says "but for" is probably
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
Liable for assault: (1) where D acts intending to place the P in apprehension of
imminent battery and P is placed in such apprehension OR (2) where D's conduct
creates a substantial certainty that P will be placed in apprehension
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
Using physical barriers, physical force, or threats of immediate physical force
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EXAM
Torts
5
-

IIED

1
2
3

Trespass to Land

1
2
3
-

Conversion
Trespass to Chattel

Consent

D's act was voluntary and with the intent to confine or restrain (doesnt have to be
directed at a particular person)
- Motive does NOT matter
- Motive does NOT matter
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
Note: one who employs an independent contractor to do work which the ER knows or
has reason to know is likely to involve a trespass upon the land of another is subject
to liability for harm resulting to others from such trespass (recover if damages)
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
requires an intentional interfereance with one's chattel
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
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Torts
Self Defense

a
b
c
d

Defense of Others
Defense of Land or
Chattels
1
2
3
Necessity

Discipline
Slander vs. Libel
Rule

Defamatory Stmts

Publication

Can't consent to DEADLY force


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
Note: if a person knows that the other's intention to attack him is inspired by a mistake
as to one's identity, the person is not privileged to await the other's attack and use
force to defend himself if he as time to correct the mistake and prevent the attack
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

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 (including radio)
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
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
The defamatory stmt must be communicated to a 3d party - if D only tells P, there is
NO publication
Note: ordinarily the D is not liable for any publication made to others by the P.
However, if the defamed person's transmission of the communication to the third
person was made because he was under some necessity, and it was rzbly to be
anticipated that he would do so, then the original writer has been held to be
responsible
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

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Torts
Group defamation
Presumed damages

Defenses

1
2
3

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
3
4

Defense
Fraudulent
Misrepresentation

Negligent
Misrepresentation

If the group is defamed - an individual member of the group can only bring an
individual defamation action if the group is small
Libel is actionable PER SE, meaning that injury to the P's reputation is presumed w/o
the necessity of pleading and proving special 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
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
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
- 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
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Negligent
Misrepresentation

Torts
2
3
4

Elements

1
2
3
4
5

General Rules

1
2
3
4
5
6
7

Standard of Care

Definitions

2 step Approach
P injured OFF Ds land

P injured ON Ds land

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
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 (law demands that person conduct consistent with professional skill or
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
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

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P injured ON Ds land
Torts

Attractive Nuisance

1
2
3
4

Adjacent Public
Highway
Res Ipsa

Custom

Negligence Per Se

1
2
3

Actual Causation

Proximate Cause
Intervening Cause

Rule
Types of Damages

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.
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
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
In order to establish a PFC for RIL, the P must present evidence showing an
inference of negligence on the part of the D. But establishing a PFC for RIL will not
support a judgment for damages. The jury must still determine that the D was
negligent and thus liable for the P's injury.
Note: P will avoid a directed verdict ONLY (no presumptions, no shifting of risk)
Note: once an inference of negligence is established, a motion for directed verdict
by the D will be DENIED (P does not have to present evidence of "exclusive control")
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
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, subseqent disease) --> 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
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Torts

Types of Damages
2
3
4
Emotional distress

Assumption of Risk
Contributory
negligence (minority
view)

Comparative
negligent

Types

Defenses

1
a
2
-

Negligent
Strict Liability

1
2
3
4
5
6
-

Private Nuisance

1
2
3

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
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
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
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
W Ps use and enjoyment
Of ppty (one's POSSESSORY interest in land)
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Torts
4

Remedies
Examples
Note
Public nuisance

Elements

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

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, or owner did not have possessory interest in land
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)

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