Con Law Requirements: 1 Injury, (usually economic) 2 Causation 3 Redressability Rule -No 3rd party standing UNLESS: 1 Close relationship between plaintiff and injured 3rd party (doctor/patient) 2 3rd party unable to assert his own rights 3 An organization may sue on behalf of its members IF: a. the members would have standing to sue, b. the interests are germane to the organization's purpose, and c. 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) 1 The hardship that will be suffered without preenforcement review 2 The fitness of the issues and the record for judicial review Rule -if a matter has already been resolved, the case will be dismissed as moot, UNLESS: 1 Capable of repetition, but evading review 2 Voluntary cessation (but defendant free to resume practice at any time) 3 Class action suits Political questions will NOT be decided…these include: 1 The republican form of government clause 2 President's conduct regarding foreign policy 3 Impeachment and removal process 4 Partisan gerrymandering Cases come before the Supreme Court in 2 ways: 1 Writ of Certiorari (Court has discretion whether to hear case) a. All cases from state courts come this way b. All cases from US Ct/App come this way c. The Sup Ct has ORIGINAL and EXCLUSIVE jurisdiction for suits b/t state governments 2 Appeal (Court MUST hear case…includes all cases from 3 judge federal district court) Appeals to Sup Ct from states if: 1 Final Judgment 2 From the highest state court with jurisdiction to hear the case (of a US Ct/App or of a 3 judge district court) 3 Presents a substantial federal question 4 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: 1 Waiver (must be explicit…NOT implied) 2 Pursuant to federal laws adopted under Sec. 5 of the 14th Amendment 3 The federal government may sue a state Note: suits against state officers are allowed if: 1 Sued for injunctive relief Standing 3rd Party Standing Mootness Political Questions Taxpayer Standing Ripeness Supreme Court Review Sovereign Immunity JUDICIAL POWER Page 1 $ASQBarExamMBEMemorization.xlsCon Law 2 Money damages to be paid out of state officer's own pocket…NOT the state treasury -Must be express or implied Congressional power -there is no general federal police power -The necessary and proper clause -Congress can choose any means not prohibited by the © for carrying out its authority ONLY applies to: 1 Military 2 Indian reservations 3 Federal lands and territories 4 District of Columbia Congress may tax and spend for the general welfare Very broad power -use a rational basis test -can attach strings or conditions on spending Note: "general welfare" is ONLY a correct answer if dealing with Congress' taxing/spending or police powers Congress may regulate: 1 The Channels of interstate commerce 2 The I nstrumentalities 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 un©al UNLESS authorized by Congress 1 All powers not reserved to the US are reserved to the states 2 Congress cannot compel state regulatory or legislative action -Congress CAN, however, induce state action by attaching "strings" on grants -Congress may prohibit harmful commercial activity by state governments Congress Power under Section 5 of the 14th May not create new rights or expand the scope of rights. May only act to prevent or remedy violations of rights recognized by the courts and such laws must be proportionate and congruent to remedying ©al violations General Rule -Congress CAN give, but CAN'T take -Congress can hand off any legislative power to an agency, executive branch or judiciary -Legislative and line item vetos are un©al -For Congress to act there must be bicameralism and presentment -Congress may NOT delegate any executive power to itself or its officers (i.e. veto power) 1 US Constitution 2 Federal Statute or Treaty (last in time prevails…whichever is most recent) 3 Executive Agreement (foreign) /Executive Order (domestic) 4 State Law 1 Foreign Policy a. Treaties (must be ratified by Senate) -prevail over conflicting state laws -if in conflict with a federal statute, the one adopted last in time prevails -if a treaty conflicts with the US © it is invalid b. Executive Agreements (do NOT require Senate approval) -can be used for any purpose -signed by Pres. and foreign head of nation -prevail over conflicting state laws, but NEVER over conflicting federal laws c. Commander-in-Chief (command American troops in foreign countries) -NEVER un©al -nonjusticiable 2 Domestic Affairs Delegation of Powers Hierarchy of Laws Federal Police Power Taxing /Spending Power Congress' Authority to Act LEGISLATIVE POWER EXECUTIVE POWER Presidential Powers Commerce Power 10th Amendment Page 2 $ASQBarExamMBEMemorization.xlsCon Law a. Appointment Power -ambassadors, federal judges & officers of US (Congress may appoint inferior positions (heads of departments) b. Removal Power -may fire any executive branch officer; Congress may limit to where there: -is an officer where independence from the President is desirable AND -cannot prohibit removal, only limit it to where there is good cause c. Pardon Power -only those accused or convicted of federal crimes…NOT civil (does NOT apply to events which led to an impeachment) d. Absolute Immunity -from civil suits for $ damages for any action while in office e. Executive Privilege -applies to papers and conversations, but must yield to other important governmental interests The President, VP, federal judges and officers of the US can be impeached and removed for treason, bribery, or for high crimes and misdemeanors Impreachment does NOT remove a preson from office -House has the SOLE power to impeach -Impeachment by the House requires a majority vote -Conviction by the Senate requires a 2/3 vote 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 Factors: a. How comprehensive is the state law b. Subject matter traditionally reserved to Congress c. Impossible to obey both laws d. Overlap of state and federal law e. Purposes served by the laws Note: States may NOT tax or regulate federal government activity Bill of Attainder 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 District of Columbia Congress has the power to exercise EXCLUSIVE legislation over DC Dormant Commerce Clause Rule -State or local law is unconstitutional of it places an undue burden on interstate commerce Privileges & Immunities Clause of Article 4 Rule -No state may fail to afford citizens of another state the privileges and immunities afforded its own citizens Privileges & Immunities Clause of 14th Amendment Hint -always the wrong answer UNLESS it deals with the right to travel Ask -does the state law discriminate against out-of-staters? 1 YES If the law burdens interstate commerce, it violates the dormant commerce clause, UNLESS: a. It is necessary to achieve an important government purpose b. Congressional approval c. Market participant Impeachment and Removal FEDERALISM Preemption Dormant Commerce Clause & P & I Clause Analysis Page 3 $ASQBarExamMBEMemorization.xlsCon Law If the law discriminates against out-of-staters with regard to their ability to earn a living, it violates the P & I clause of Article 4, UNLESS it is necessary to achieve an important government purpose Note: Corporations and aliens CANNOT use the P & I clause -discrimination must be w/regard to civil liberties or important economic activities 2 NO a. P & I clause does NOT apply b. If the law burdens interstate commerce, it violates the dormant commerce clause (apply a balancing test) State Taxation of Interstate Commerce 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: 1 The court that rendered the judgment had jurisdiction 2 The judgment was on the merits 3 The judgment is final Necessary & Proper ALWAYS wrong, unless attached to another power 1 Strict Scrutiny -necessary to achieve a compelling gov't purpose a. Must be the least restrictive means b. Burden on gov't 2 Intermediate Scrutiny -substantially related to an important gov't purpose a. Must be narrowly tailored…NOT least restrictive b. Burden on gov't 3 Rational Basis -rationally related to a legitimate gov't purpose a. Burden on challenger b. Gov't usually wins General Rule -private conduct need NOT comply with the Constitution Exceptions: 1 By statute, Congress may apply ©al norms to private conduct -a 13th can be used to prohibit race discrimination -private race discrimination does not violate the 13th, but a statute could prohibit it b. the commerce power can be used to apply ©al norms to private conduct -substantial economic effect c. Congress canNOT use section 5 of the 14th to regulate private behavior 2 Public Function -private entity performing a task traditionally and exclusively done by the gov't (i.e. "company town" or holding an election) 3 Entanglement -the Constitution applies if the gov't affirmatively authorizes, encourages, or facilitates unconstitutional activity a. Courts cannot enforce racially restrictive covenants b. State action when gov't leases a restaurant that racially discriminates c. State action when provides free books to schools that racially discriminate d. State action when private entity regulates interscholastic sports w/in a state e. NO state action when private school 99% funded by state fires a teacher b/c of her speech f. NO state action when NCAA orders suspension of a coach at a state university g. NO state action when a private club with liquor license from state racially discriminates The Bill of Rights applies ONLY to the federal gov't directly Full Faith and Credit Clause Incorporation Constitution's Protection of Individual Liberties Constitution's Protection of Individual Liberties Levels of Scrutiny Page 4 $ASQBarExamMBEMemorization.xlsCon Law Bill of Rights is applied to state and local gov't through incorporation through the 14th, EXCEPT: 1 2nd Amendment -right to bear arms 2 3rd Amedment -right to not have a soldier quartered in a home 3 5th right to grand jury indictment in criminal cases 4 7th right to jury trial in civil cases 5 8th right against excessive fines Procedural Due Process Issue -has there been a deprivation of life, liberty or property? Def -a deprivation of liberty occurs if there is loss of a significant freedom provided by the Constitution or a statute Notes: 1 Before an adult may be institutionalized, there must notice and a hearing (unless an emergency) 2 If a parent is going to institutionalize a child, there must only be a screening by a neutral 3rd party 3 Harm to reputation is NOT a deprivation of liberty 4 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: 1 Gov't terminates a job at 6 months after promising 1 year of employment…this IS a deprivation of property b/c there was entitlement 2 Job is terminated after 1 year on a year-to-year employment K…NO entitlement I Interest affected R Risk of error with no more procedures A Administrative cost on gov't of additional procedures Gov't negligence is NOT sufficient for deprivation of due process…must be intentional or at least reckless…UNLESS an emergency and then the gov't is liable only if its conduct "shocks the conscience" Note: generally the government's failure to protect people from privately inflicted harm (i.e. child abuse) does NOT deny due process UNLESS the government created the danger 1 Before welfare benefits terminated -notice and hearing 2 Social security benefit terminated -need only post-termination hearing 3 Student disciplined by public school -notice of charges and opportunity to explain 4 Before child custody terminated -notice and hearing 5 American citizen held by gov't as enemy combatant -must be afforded due process 6 Punitive damages awards require instructions to jury and judicial review 7 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 Substantive Due Process Def -whether the gov't has an adequate reason for taking away a person's life, liberty or property Economic Rights Only a rational basis test is used for laws affecting economic rights (i.e. minimum wage laws, consumer protection laws, etc…) Rule -the gov't may take private property for public use IF it provides just compensation There are 2 types of takings: 1 Possesory Taking -gov't confiscation or physical occupation of property DUE PROCESS Takings Clause Balancing Test for Procedural DP Liberty Interests Property Interests Standard What procedures are Required? Page 5 $ASQBarExamMBEMemorization.xlsCon Law 2 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 irrelevant…ONLY concerned with loss to the owner) Notes: 1 Gov't conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed 2 A property owner may bring a takings challenge to regulations that existed at the time the property was acquired 3 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 1 Right to marry 2 Right to procreate 3 The right to custody of one's children (but state may create an irrebutable presumption that married woman's husband is father) 4 The right to keep the family together 5 The right to control the upbringing of one's children (violates DP for a court to order grandparent visitation over parent objection) 6 The right to purchase and use contraceptives 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 8 Right to engage in private consensual homosexual activity -no articulated level of scrutiny 9 Right to refuse medical treatment. A state may require c/c evidence that a person wanted treatment terminated. A state may prevent family members from terminating treatment for another. Equal Protection 1 What is the classification? 2 What level of scrutiny should be applied? 3 Does this law meet the level of scrutiny? 14th Amendment Applies ONLY to state and local government DP of 5th Amendment 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 Contracts Clause Privacy is a fundamental right protected under SDP (use strict scrutiny unless otherwise noted) Analysis Race and National Origin Page 6 $ASQBarExamMBEMemorization.xlsCon Law -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© 1 Age discrim 2 Disability discrim 3 Wealth discrim 4 Economic regulations 5 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. The First Amendment -Must meet strict scrutiny -Either subject matter restrictions or viewpoint restrictions Content Neutral Need only meet intermediate scrutiny Prior restraints 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. Vagueness 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 Symbolic 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 Activity The gov't may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality 1 The material must appeal to the prurient interest Content Based Restrictions Overbreadth Obscenity & Sexually Alienage Classifications (non-US citizens) Discrimination against non-marital children All other types of discrim are reviewed under rational basis Fundamental rights protected under EP Gender Classifications Page 7 $ASQBarExamMBEMemorization.xlsCon Law 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 -Advertising for illegal activity, and false and deceptive ads are NOT protected by the First Amendment -The gov't may prevent professionals from advertising or practicing under a trade name -The gov't MAY prohibit attorney, in-person solicitation of clients for profit -The gov't may NOT prohibit accountants from in-person solicitation of clients for profit -Other commercial speech can be regulated if intermediate scrutiny is met -Gov't regulation of commercial speech must be narrowly tailored, but does NOT need to be the least restrictive alternative -If the P is a public official or running for public office, the P must prove falsity of the stmt and actual malice -If the P is a "public figure" the P must prove falsity of the stmt and actual malice -If the P is a private figure and the matter is of public concern -the P must prove falsity and negligence by the D. The P may recover presumed or punitive damages only by showing actual malice -If the P is a "private figure" and the matter is NOT of "public concern" -the P can recover presumed or punitive damages WITHOUT showing actual malice -The gov't may NOT create liability for the truthful reporting of information that was lawfully obtained from the gov't -Liability is NOT allowed if the media broadcasts a tape of an illegally intercepted call, if the media did not participate in the illegality and it involves a matter of public importance -The gov't may limit its dissemination of information to protect privacy -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 -Gov't properties that the gov't could close to speech, but chooses to open to speech -Must follow rules for public forums Non Public Forums Gov't properties that the gov't constitutionally CAN and DOES close to speech. The gov't can regulate speech so long as the regulation is rzbl and VP neutral -Laws that prohibit or punish group membership must meet strict scrutiny -Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny -Laws that prohibit a group from discriminating are © unless they interfere with intimate association (small dinner party) or expressive activity (Nazi party can exclude Jews) 1 Actively affiliated with the group 2 Knowing of its illegal activities, and 3 With the specific intent of furthering those illegal activities -Cannot be used to challenge a neutral law of general applicability Limited Public Forums Freedom of Association To punish membership in a group -it must be Freedom of Religion -Defamation Privacy PLACES AVAILABLE FOR SPEECH Public forums Oriented Speech Commercial Speech Page 8 $ASQBarExamMBEMemorization.xlsCon Law -The gov't may NOT deny benefits to individuals who quit their jobs for religious reasons S there must be a Secular purpose for the law E the Effect must be neither to advance nor inhibit religion X 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 groups The gov't MAY give assistance to parochial schools so long as it is not used for religious instruction. The gov't may provide parent parents vouchers which they use in parochial schools Freedom of Religion -The Establishment Clause Freedom of Religion Rules The Free Exercise Clause Page 9 $ASQBarExamMBEMemorization.xlsContracts 1 Applicable Law 2 Formation 3 SOF 4 Terms 5 Performance 6 Excuse Remedies 7 3d Party Problems Art. 2 Applies 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) 1 Express -created by the parties' words (oral or written) 2 Implied -created by the parties' conduct Elements: 1 Plaintiff has conferred a benefit on Defendant, and 2 Plaintiff reasonably expected to be paid, and 3 Defendant will be unjustly enriched if Plaintiff is not compensated Measure of Recovery -Reasonable value of benefit conferred…NOT the K price The parties swap promises A bilateral contract can be accepted in any reasonable manner Note: All Ks are bilateral unless the offer says it can be accepted only by performance Unilateral K The offer can be accepted only by performance Bilateral Executory K 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 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 1 Lapse of Time 2 Revocation by Offeror 3 Rejection by Offeree 4 Death of any party before Acceptance Lapse of Time An offer lapses after a reasonable time 1 Direct -statement of offeror to offeree and that is inconsistent with the offer 2 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 1 Option K -consideration must be paid to keep offer open 2 Detrimental reliance -must be reasonable and foreseeable 3 Part Performance under a Unilateral K -mere preparation not enough 4 Firm Offer under Article 2 -there must be a signed, written promise to keep an offer open by a merchant (may be kept open for up to 3 months) Counter Offer -operates as a rejection, but bargaining does NOT (a question is considered bargaining…"will you take $100?") Conditional Acceptance -operates as a rejection and terminates an offer Acceptance Containing Additional or Different Terms: 1 Common Law -rejection (Mirror Image Rule) 2 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: 1 Both parties are merchants 2 The term is NOT a material change, and 3 The offeror does NOT object within a reasonable time Analysis OFFER Advertisements Termination of an Offer Article 2 Rejection CONTRACT CREATION Creation of a Contract Quasi-K Bilateral K Revocation 4 Situations where an Offer may NOT be Revoked Rejection Page 10 $ASQBarExamMBEMemorization.xlsContracts Note: An offeree's terms are almost never included…a term is material if it substantially effects the economics or remedies under the K An offer is terminated if one of the parties to the K dies before acceptance Note: Knowledge of the parties death is irrelevant Exceptions: 1 Option K 2 Part performance under a unilateral K Bilateral K -start of performance IS acceptance Unilateral K -start of performance is NOT acceptance (must be full performance to constitute acceptance) Bilateral K -a return promise IS acceptance Unilateral K -a return promise is NOT acceptance Note: Article 2 is extremely flexible…generally an offeree can accept in any reasonable manner General Rule -If Buyer orders X and Seller ships Y, there is a simultaneous acceptance and breach Accommodation Exception -If Buyer orders X and Seller ships Y, but Seller explains why the shipment is nonconforming, there is a counter offer and NO breach General Rule -Acceptance is effective when mailed It does not matter if acceptance letter never arrives Exceptions: 1 If the offer provides otherwise (offeror can override the mailbox rule) 2 Irrevocable Offers 3 Acceptance, then Rejection -whichever arrives first is effective 4 Rejection, then Acceptance -whichever arrives first is effective 1 Lack of Capacity to K 2 Ambiguity of Term 3 Mistake of Fact 4 lack of Consideration Applies to: 1 Minors (under 18) 2 Intoxicated persons 3 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: 1 Defendant lacks capacity at the time of agreement 2 Defendant later gains the capacity to K, and 3 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: 1 Past consideration Defenses to Formation Lack of Capacity to K Ambiguity of Term Promise as Acceptance Sending the Wrong Goods as Acceptance Mailbox Rule DEFENSES TO CONTRACT FORMATION Start of Performance as Acceptance Death of a Party ACCEPTANCE Mistake of Fact Lack of Consideration Page 11 $ASQBarExamMBEMemorization.xlsContracts 2 Partial payment of a due and undisputed debt IS consideration: 1 Forbearance 2 Promissory estoppel Common Law -must have additional consideration to modify (Pre-Existing Duty) Article 2 -do NOT need consideration to modify…must have good faith Statute of frauds applies and, therefore, a writing is required for: 1 Transfer of interest in real property 2 Service K incapable of being performed within 1 year from date of agreement 3 Promise to answer for the debt of another (Exception -purpose of guarantee is to benefit guarantor…this will be on the MBE) 4 Sale of goods for $500 or more Contracts other than the sale of goods must contain: 1 All material terms 2 Signed by the party to be charged Contract for the sale of goods must contain: 1 Quantity term 2 Signed by the party to be charged The SOF is satisfied without a writing where there is: 1 Full performance of a service K 2 Part performance for the transfer of interest in real property (part performance means (1) moving onto the property with consent, and (2) making permanent improvements thereon) 3 Sales of goods where: a Part performance for goods delivered by seller or paid for by buyer b Custom made goods (once work has begun) c Judicial admissions d Merchant's confirmatory memo of prior oral agreement A party may use a memo they have signed to satisfy the SOF against the other party if: 1 Both parties are merchants, 2 The writing claims there was a prior oral agreement, and 3 Recipient does NOT object in writing within 10 days General Rule -reliance has NO effect on a SOF defense Exception: the other party orally agreed to reduce the terms of the agreement to writing Parol Evidence Rule -Keeps out evidence of what the parties said and did before they reduced the terms of their agreement to writing Exceptions: 1 To correct a clerical error 2 To establish a defense to the enforceability of an agreement 3 To explain or interpret the written contract 4 To supplement a partially-integrated writing Hierarchy: 1 Course of Performance -what the parties have done under this contract 2 Course of Dealing -what the parties have done under their earlier contracts 3 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 -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 Satisfying the Statute of Frauds with a Writing Modification and Consideration Conduct of the Parties Impossibility /Impracticability TERMS OF THE CONTRACT Parol Evidence Rule Merchant's Confirmatory Memo Statute of Frauds & Estoppel Satisfying the Statute of Frauds without a Writing Words of the Parties Statute of Frauds Page 12 $ASQBarExamMBEMemorization.xlsContracts -Exceptions: 1 To correct a clerical error 2 To establish a defense to the enforceability of an agmt 3 To explain or interpret the written K 4 To supplement a partially integrated writing YOU CAN CHANGE AN AGMT AFTER IT HAS BEEN REDUCED TO WRITING 1 Express Warranties 2 Implied Warranty of Merchantability 3 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 Implied Warranty of merchantability 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 1 Buyer has a special purpose 2 Buyer is relying on seller to select suitable goods 3 Seller knows it a Express warranties cannot be disclaimed b Implied warranties can be disclaimed -"as is" or "with all faults" disclaims all warranties, c To disclaim merchantability you must say merchantability and if in writing must be conspicuous, and d To disclaim fitness, must be in writing and conspicuous Limits recovery for breach, not warranties; Can limit even breaches of express warranties Test -Unconscionability -with consumer goods limiting remedies for personal injury it is presumed unconscionable Privity of K and warranty liability TX Law -court decides on a case by case basis if the warranty extends to a 3rd party a 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) b Destination K -seller must actually get the goods to where the buyer is located (FOB any city not where the seller is) 1 Agreement of the parties 2 Breaching party is liable, even if loss is unrelated 3 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 a Ask -is the seller a merchant b Yes -risk shifts when the buyer takes possession of goods c No -risk shifts when seller tenders (makes available) the goods Such clauses will be given effect IF: 1 Not boilerplate in the K, 2 There is a valid reason for inclusion, and 3 One party is not materially benefited while the other royally hosed a 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 b 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 Seller's Warranties of Quality in a Sale of Goods (Art. 2) PERFORMANCE Performance of Ks for Sale of Goods Time is of the Essence Clauses Express Warranties Implied Warranty of Fitness for a Particular Purpose Disclaiming Warranties in a Sale of Goods (Art. 2) Limiting Remedies in a Sale of Goods (Art. 2) Seller's Delivery Obligations in a Sale of Goods using a Common Carrier Who bears Risk of Loss in Sale of Goods K -Hierarchy What loss is borne Who bears ROL when there is not a common carrier Page 13 $ASQBarExamMBEMemorization.xlsContracts a Def -K language that requires or authorizes seller to deliver in separate installments b 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 a Merely paying is not enough, must have a rznble chance to inspect the goods b 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 a Once accepted you cannot revoke acceptance b Exception -ONLY if the non-conformity substantially impairs the value AND it was difficult to discover Paying Ks under Art. 2 Checks are fine, but the seller can demand cash -the buyer then has a rznble amt of time to get the cash Merchant buyer's duties as to rightfully rejected goods 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 a Substantial performance -don't need perfection b Only a material breach excuses performance, but you can still sue for BoK Divisible Ks -Common Law 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 a Sale of goods -need perfect tender -if not can reject all, some or accept all b Common law -substantial performance required -must have less for this excuse a Def -repudiate before performance is due -excuses your performance -You can retract an anticipatory repudiation as long as there has been NO reliance by the other party -Can only sue on an anticipatory repudiation if there is material prejudice -Expression of mere doubt cannot support an anticipatory breach 1 Modification -takes effect immediately and discharges existing obligations 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 1 Destruction of something Necessary for the performance. Common Law -makes performance impossible. Art 2 -same but the destroyed goods MUST be the subject matter of the K (particularly identified) or if the buyer bore the risk of loss there is no need for excuse of performance 2 Death or incapacity of a person ESSENTIAL for performance (anyone can pay money) 3 Government regulation or order Excuse Based on Frustration of Purpose (buyer) Buyer had a primary purpose, but something happens (gov't regulation) Def -limits obligations by K language ("if", "so long as", "provided", "on condition that", "unless", "when"). Must have STRICT compliance Installment Sales Ks and Performance Acceptance of Goods (Art. 2) Revoking acceptance of Goods (Art. 2) Performance of Common Law Ks EXCUSES FOR NON-PERFORMANCE BASED ON LATER EVENTS Excuses Based on Other party's breach Excuse based on Other party's Anticipatory Repudiation Excuse Based on Later Agmt Excuse Based on Unforeseen Event making Performance Impossible (seller) Excuse Based on Failure of an Express Page 14 $ASQBarExamMBEMemorization.xlsContracts 1 Satisfaction Clauses -Means rznble satisfaction (OBJECTIVE std), but if it is art or matters of personal taste then use a Subjective std 2 Condition precedent/concurrent/subsequent ** When the parties have an express condition but do not include it in the writing of the K -the PER does not apply and evidence of the condition (or non-occurrence of the condition) IS admissible to show the condition did not occur -to show that there is no agmt at all. a Failure to cooperate -If the party protected by the condition fails to cooperate the condition is excused b Estoppel -Later stmt by protected party AND Reliance Personal Services K Performance is excused by illness of the party to perform the personal service…UNLESS the K otherwise provides 1 Specific Performance 2 Right to Request Adequate Assurances of Future Performance 3 Unpaid Seller's Right of Reclamation 4 Entrustment Def -compelling a party to do what he agreed to do Parties are rarely entitled to specific performance Only available when money damages are inadequate Always available in real estate deals (property is unique) Always available if goods are unique (art, antiques, custom-made goods) Does NOT apply to service contracts (indentured servitude)…but courts can issue injunction to keep employee from working for a competitor A party may request adequate assurances from the other party if they have reasonable insecurity as to whether the other party will perform under the k Request must be in writing Cannot use this remedy to rewrite a k or to demand a particular kind of assurance General Rule -an unpaid seller has no rights in goods it has delivered Exception: Seller has the right to reclaim if Buyer: 1 Was insolvent when it received the goods, and 2 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) 1 Liquidated Damages 2 Expectation Damages 3 Incidental Damages 4 Consequential Damages 5 Mitigation 6 Punitive Damages are NOT available Permissible if damages were: 1 Difficult to estimate, and 2 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 Incidental Damages Def -costs reasonably incurred in arranging a replacement deal (advertising, phone calls, etc…) Consequential Damages Def -special damages that were reasonably foreseeable at the time of contract Condition Excusing Conditions REMEDIES FOR BREACH OF CONTRACT Non-Monetary Remedies Specific Performance Adequate Assurances Right of Reclamation Entrustment (Article 2) Monetary Remedies Liquidated Damages Expectation Damages Page 15 $ASQBarExamMBEMemorization.xlsContracts A party may NOT recover damages they could have avoided with rzbl effort When dealing with a terminated employee: 1 Employer has burden of proof to show employee could have mitigated damages 2 Other employment must be the same type of work in the same city 3 Employee does NOT have to take new job 1 TPB -a person who did not make a contract, but has rights under it because the contract was intended to benefit him 2 Promisor -person who promises to do something for the 3rd party 3 Promisee -the other contracting party 4 Intended Beneficiary -if the 3rd party is named in the contract, she is a intended beneficiary 5 Incidental beneficiary -if a 3rd party is NOT named in the contract, she is an incidental beneficiary 6 Creditor Beneficiary -if a 3rd party is a creditor of the promisee, she is a creditor beneficiary 7 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: 1 3rd party required to or asked to consent to the K and she does so, 2 3rd party learns of the K and detrimentally relies on it, 3 3rd party files a lawsuit to enforce the K Intended beneficiary can sue the breaching promisor (no privity required) A promisor, however, can raise any defense he may have against the promisee when sued by the TPB Intended beneficiary can sue the promisor only if he is a creditor beneficiary of the promisor 1 Delegating Party -person who delegates the duty to perform 2 Delegate -person to whom the duty is delegated 3 Obligee -person to whom performance is owed General Rule -contractual duties may be delegated WITHOUT the obligee's consent Exceptions: 1 The contract prohibits delegation (contract language controls) 2 The contract requires (1) special skill, or (2) a person with special skills Requirements for Effective Delegation There are NO requirements for effective delegation (i.e. no consideration required) 1 Delegating party remains liable 2 Delegate liable to obligee ONLY if delegate received consideration from delegating party 1 Assignor -person who transfers rights under a K 2 Assignee -person to whom the rights are transferred 3 Obligor -person who owes the performance 1 Consideration is NOT required 2 A writing is required ONLY if the amount assigned is more than $5000 3 Must use words of present assignment (not "I will" or "I promise to") 1 Common Law -the assignment cannot substantially change the duties of the obligor 2 Requirements Contract -assignable as long as the assignee's requirements are in line with the assignor's Requirements for Making an Assignment Limitations on Assignment Rescission or Modification of K Rights of 3rd Party Beneficiary Mitigation THIRD PARTY PROBLEMS 3rd Party Beneficiary Law (Vocabulary) Delegation of Duties (Vocabulary) Delegation of Duties Consequences of Delegation Assignment of Rights (Vocabulary) Page 16 $ASQBarExamMBEMemorization.xlsContracts 3 Contract clauses -rights may NOT be assigned if the clause invalidates an assignment (i.e. "all assignment hereunder are void")…rights CAN be assigned if the clause merely prohibits assignment (i.e. "rights under this contract are not assignable") 1 Assignee can sue the obligor 2 Obligor has the same defenses against assignee as it would against assignor Note: Obligor payment to assignor is effective unless obligor knows of the assignment Multiple Gratuitous Assignments Rule -the last gratuitous assignee in time wins General Rule -first assignee for consideration wins Exception: later assignee for consideration takes precedence over earlier assignees if: 1 He does not know of the prior assignments, and 2 Is the first to obtain payment or a judgment Bankruptcy An express promise to pay all or part of an indebtedness of the POR, discharged in a BK proceeding begun before the promise is made, is binding EVEN WITHOUT CONSIDERATION Rights of an Assignee Multiple Assignments for Consideration Page 17 $ASQBarExamMBEMemorization.xlsContracts Page 18 $ASQBarExamMBEMemorization.xlsContracts Page 19 $ASQBarExamMBEMemorization.xlsContracts Page 20 $ASQBarExamMBEMemorization.xlsContracts Page 21 $ASQBarExamMBEMemorization.xlsContracts Page 22 $ASQBarExamMBEMemorization.xlsContracts Page 23 $ASQBarExamMBEMemorization.xlsContracts Page 24 $ASQBarExamMBEMemorization.xlsCriminal Law Larceny 1 Taking (exercise of actual control) 2 Asportation (some movement) 3 Corporal personal property of another 4 From the possession of another 5 Wrongfully -without permission OR with permission obtain by deception 6 With intent to permanently deprive Larceny: taking and asporting a Asportation only requires SOME movement and a taking does not require the removal from the premises, but there needs to be control b Only have to take the property from one with a greater right of possession Larceny: Intent to permanently deprive Must @the time of taking, INTEND to permanently keep the property OR do something creating a high risk that the owner will never get the property back, Intention is KEY. Larceny Exception 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 Embezzlement 1 Have possession of property under trust arrangement 2 Conversion of that property (use it contrary to the terms of the trust) 3 Intent to Defraud Embezzlement: rules a Intent to return or replace converted property does NOT show the lack of intent required for embezzlement b Custody of the property = larceny. An employee usually only has custody of an employer's property c With possession can commit embezzlement, but not larceny -possession requires extensive and discretionary control False Pretenses 1 Obtaining title to property from another 2 By means of a misrepresentation of past OR present fact 3 With intent to defraud a Unkept promises or misrepresentations of Future fact are NOT sufficient b Your state of mind can be a misrepresented present fact c Failure to correct a misunderstanding is sufficient if D created the misunderstanding 1 Receiving (taking possession) 2 Of property acquired by larceny or other property crime -KEY: property must actually be STOLEN 3 Knowing that the property is stolen 4 With the intent to permanently deprive the owner Theft 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 Robbery Larceny in which property is taken either by: 1 Force -force to obtain property or prevent victim from immediately regaining it OR 2 Threats (intimidate) -must be of immediate physical harm; put the victim in fear of harm; AND must cause apprehension in a rznble person Robbery: No force When D lifts item from P's pocket OR slips item from P's hand without resistance Number of Robberies One for EACH person, but not for each item Extortion Obtaining property by means of other threats, such as: 1 To do something other than physical harm OR 2 Do physical harm, but not imminent PROPERTY CRIMES False Pretenses: Rules Receiving Stolen Property Page 25 $ASQBarExamMBEMemorization.xlsCriminal Law Burglary 1 Entry -any part of the body or instrument if the instrument is to be used to commit the crime inside 2 By breaking 3 Of the dwelling (actually used as a sleeping place) of someone else 4 During the nighttime 5 With the intent to commit a felony inside the structure Burglary: Rules a Intent and entry must be at the same time b Breaking only requires SOME force c No need to carry out the intent d Can be committed by entering a party of a dwelling, once inside e No need to carry out the intent Burglary: Modern Statutes May: expand places covered; eliminate the need for breaking; eliminate the requirement that entry be in nighttime; expand intend Burglary: Intent Prosecution must prove: 1 D entered with intent to commit certain acts AND 2 Those acts if committed by D would be a felony Mistaken belief that one's conduct is a felony is NOT the requisite intent Arson 1 Malicious -can be an awareness of high risk 2 Burning 3 Of Another's dwelling Arson: Burning 1 Must have some damage (can be minimal) 2 Must be by fire -the flame, not smoke or heat 3 To a part of the structure itself Analysis 1 Did D cause the death of the victim 2 Did D act with malice aforethought (if yes -murder unless 3) 3 If yes -was there adequate provocation (voluntary manslaughter) 4 If no -did D either (a) act with criminal negligence or (b) cause death while committing a misdemeanor (involuntary manslaughter) Causation with Homicides 1 Factual causation -"but for" D's acts, the victim would not have died AS and WHEN he did 2 Year and one day rule -victim must die w/in 1 year and 1 day from the infliction of the injury 3 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 Superseding Cause No PC if a factor is interjected into the chain of causation that is: 1 Independent of the D's actions 2 Unforeseeable AND 3 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 Murder Def -Killing with malice aforethought -which requires: 1 Intent to kill OR 2 Intent to cause serious bodily injury OR 3 Awareness of extremely high risk that death will result OR 4 Intent to commit a felony Felony Murder a Rule -Accidental deaths caused during a felony are murder IF the death was objectively foreseeable OR the felony was dangerous as committed b Co felons are guilty of felony murder if the death was foreseeable to them CRIMES AGAINST THE HABITATION CRIMINAL HOMICIDE Proximate Cause Proximate Cause: Rules Page 26 $ASQBarExamMBEMemorization.xlsCriminal Law Felony Murder: Merger Rule Felony murder cannot be based on felony assault or battery causing death of victim (merges into death of victim) Felony Murder: Bystanders a Many courts don't apply felony murder if the fatal shot was not fired by one of the felons b Courts are most reluctant to apply felony murder when the person killed is one of the felons Degrees of Murder Most killings with malice aforethought are 2nd degree murders Some STATUTES label as 1st degree: certain felony murders and premeditated killings Premeditation Some conscious deliberation over whether or not to kill -a provoking incident usually shows absence of premeditation Voluntary Manslaughter Intentional killing that would otherwise be murder is reduced to voluntary manslaughter if 3 things are shown: 1 Objectively rznble provocation (mere words are insufficient) 2 D acted on that before an objectively sufficient cooling period elapsed AND 3 Actually cause the D to kill the victim a Killed in the course of committing a misdemeanor OR b Killed with criminal negligence Liability for Omissions 1 D had a legal duty to act -arises from: criminal law; tort law; K law; or any other body of law 2 D was aware of the facts giving rise to a duty to act 3 Performing the duty was possible 4 D has necessary intent Rape or Sexual Assault a Rape -sexual intercourse by a male with a woman not his spouse w/o the woman's effective consent b Fraud renders the woman's consent ineffective only if the fraud goes to the nature of the act (whether is sex or not) Kidnapping 1 Confining or restraining a person OR moving a person 2 Without authority of law Kidnapping: Rule 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. 1 Commit the act constituting the crime 2 Participate in either before or during is commission 3 Use an innocent agent to commit it Note: Assistance after the crime does not create liability for the crime 1 Participation in the offense -encouraging or assisting but NOT mere presence 2 With the required intent 1 Know the primary actor is going to commit the offense AND 2 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 a Presence pursuant to an agreement to aid is sufficient to show participation b An aider and abettor can be convicted even if the primary actor is acquitted a The participant is a member of the class of persons protected by the crime (ex: buyer in a drug sale case) OR b The crime inherently involves several types of participants and only some are made liable Attempt 1 Go far enough -i.e. -do something constituting a substantial step towards commission of the crime 2 With intent to commit the crime Involuntary Manslaughter OTHER CRIMES AGAINST THE PERSON PARTIES TO A CRIME When you can be guilty of a crime Aiding and Abetting Elements Aiding and Abetting: Intent Aiding and Abetting: Rules Aiding and Abetting: Exceptions to liability THE PREPARATION CRIMES Page 27 $ASQBarExamMBEMemorization.xlsCriminal Law Abandonment of Attempt NO defense a LEGAL impossibility is a defense b FACTUAL impossibility is NOT a defense c 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 1 Impossible for D to perform the conduct he set out to perform OR 2 Cause the result he set out to cause 3 BUT mistakenly believes he will be successful D thinks his conduct would constitute a crime, but he is mistaken about the criminal law This is LEGAL impossibility NO defense -this is factual impossibility D's intended conduct if completed would not constitute a crime b/c one of the circumstances is not what is required for the crime --If the circumstances were as D believed, his intended conduct would constitute a crime Solicitation 1 Requesting someone to commit an offense (even if it is rejected immediately) 2 With the intent they commit it Conspiracy 1 Entering into an agreement to commit a crime 2 The intent that the crime be committed 3 An overt act in furtherance by ONE member of the group Co-Conspirator Rule All members of a criminal conspiracy are guilty of crimes committed by other members of that conspiracy if those crimes are both: 1 Committed in furtherance of the scheme AND 2 A foreseeable result of the scheme -NOT a defense to conspiracy, but is a defense under the co-conspirator rule -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 R: If ALL other members of the alleged conspiracy have been acquitted (or the equivalent) then D must be acquitted Equivalents of Acquittal = a Not guilty by reason of insanity b Person did not intend to go through with the crime Ignorance or Mistake of Fact 1 Effects criminal liability ONLY is it shows D lacked the intent required for the crime AND 2 The mistake was objectively reasonable -If the mistake shows an absence of a necessary specific intent, it need not be reasonable 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 a Purpose -conscious desire 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 Exception to mens rea requirement: a Statutory rape -no need to know the victim's age Strict Liability = NO mistake of fact Conspiracy: Defense of No Meeting of Guilty Minds DEFENSES Specific Intent Crimes Modern Mens Rea Definitions Impossibility: Mistake about one's ability Impossibility: Mistake about criminal law Impossibility: Mistake about circumstances Conspiracy: Withdrawal Impossibility defense for Attempt Page 28 $ASQBarExamMBEMemorization.xlsCriminal Law 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 NOT a defense to say you were ignorant of the law, UNLESS 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: Advice of counsel NOT a defense unless there is a specific knowledge mens rea that the law is being violated. 1 Facts show that D had a serious mental illness OR defect 2 this caused a defect in his reasoning abilities 3 As a result he did not either: a understand the nature of the act he was doing OR b understand that his act was wrong 1 Assume the situation as the D perceived it 2 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 Unconsciousness Defense 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 -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 Necessity or Choice of Evils Defense 1 D believed that committing the crime would prevent an imminently threatened harm 2 D believed this threatened harm would be greater than the harm that would result from commission of the crime 3 These beliefs were objectively rznble 1 D wrongfully created the situation making the choice necessary OR 2 The D killed another to avoid his own life 1 D was compelled to commit the crime by a threat that if he did not do so, the threatening person would do: 2 Immediate and physical harm 3 To D or a third person Exception -Not a defense to a crime that consists of an intentional killing Self-Defense 1 D believed he was in imminent danger of being harmed by another 2 The force he used was necessary to prevent the threatened harm 3 These beliefs were objectively rznble Necessity is NOT a defense Duress or coercion Defense Loss of Control and Insanity Note: If involuntary, we treat as a mental illness and apply the insanity test Voluntary Intoxication Defense Entrapment Defense Intoxication Defense defense Ignorance or Mistake of Law Insanity: Analysis Insanity Defense (M'Naghten) Page 29 $ASQBarExamMBEMemorization.xlsCriminal Law Self Defense with Deadly Force 1 D rznbly believed she was threatened with imminent death or serious bodily injury AND 2 Deadly force used was necessary to prevent the harm to her. a General rule -opportunity to retreat is a factor to consider reasonableness b 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 1 A person who starts a fight cannot use force in self defense during the fight 2 An aggressor regains the right to use force in self-defense during a fight by either: a Withdrawal from the fight OR b Giving notice of desire to do so Deadly force in Homicide Cases 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. Defense of Other Persons Defense 1 The D believed that another person was threatened with imminent unlawful harm by a third person 2 The D believed that the force she used was necessary to prevent the harm 3 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: a Only NON_DEADLY force can be used b Force can only be used to prevent the interference, and NOT to LATER regain the property, except in immediate pursuit Defense of Property Defense Deadly Force: Retreat Self Defense: Aggressor Page 30 $ASQBarExamMBEMemorization.xlsTX Crim Pro 12345678910 11 12 13 14 15 12312 County Court Jurisdiction 1234a. b. c. d. e. 51a. b. 212a. b. -Steps in a Felony Prosecution District court Jurisdiction Justice Court Jurisdiction Municipal Court Jurisdiction Initial Appearance before Magistrate Consequences of Not Going before the Magistrate Process to Deny Bail in a Noncapital Case Bail: When can it be denied Page 31 $ASQBarExamMBEMemorization.xlsTX Crim Pro ----a. b. c. -LASSO12a. b. c. 34a. b. c. d. e. -Factors in Setting Bail & decide whether excessive Process to Deny Bail in a Capital Case Procedures to reduce bail that is set Personal Bond v. Bail Bond Examining Trial Indictments Page 32 $ASQBarExamMBEMemorization.xlsTX Crim Pro Complaint 1234a. b. 51234a. b. c. d. e. f. 56---Limitations Periods 12a. b. 123a. b. c. Information Grand Jury Rights Grand Jury Subpoena Challenges to Indictments based on Grand Jury Proceedings General periods of Limitations Page 33 $ASQBarExamMBEMemorization.xlsTX Crim Pro 12345678123412ab123 General rule Exception Timeliness 12 ----121 One offense is a lesser included offense of another (and more serious) if: A jury should be instructed on an uncharged offense if: If the D believes the name on the indictment is not his "true name" Significance of Indictment for Trial If TC quashes indictment, State may Charging Instruments in general Formal Requirements of Indictment or Information How does D challenge the indictment What if the D does NOT assert a timely challenge to indictment On appeal, a Page 34 $ASQBarExamMBEMemorization.xlsTX Crim Pro 2 -----On day of trial ----Prejudice to D ----123 No contest v. guilty Evidence of insanity --------1234 conviction will be reversed for error in overruling a MTQ for: Distinctions Btw Form and Substance When amendment is sought BEFORE the day of trial To get indictment amended, Prosecution must Summary Pleas available to D What must judge tell D before accepting a felony plea of guilty or no contest Pretrial hearing and conference Page 35 $ASQBarExamMBEMemorization.xlsTX Crim Pro 567 MTQ -----ab ----12 ---12 Motion to Suppress v. Motion in Limine Witness Lists Deposition Inspection (Real Discovery) Witness left off an ordered witness list Can the court compel discovery? Authorities must preserve DNA if: Informant Disclosure Page 36 $ASQBarExamMBEMemorization.xlsTX Crim Pro 12123abc41a. b. 2a. b. 123 ----12 Competency to Stand Trial Venue and Change of Venue CONSTITUTIONAL DUTY TO DISCLOSE EXCULPATORY A D's Due Process Rights are violated if With regard to exculpatory evidence: Page 37 $ASQBarExamMBEMemorization.xlsTX Crim Pro -12 -12a. b. 1234 --12 ------123 ---Disqualification of the Judge Presence of the Accused Joinder and Severance of Charges Page 38 $ASQBarExamMBEMemorization.xlsTX Crim Pro --12 --123123123 -a. b. ---121212 Right to Counsel and Self-Representation Right to Effective Representation Joiner and Severance of Defendants Continuances and Postponements Dismissal by the State Page 39 $ASQBarExamMBEMemorization.xlsTX Crim Pro --a. b. a. b. ------------12312345678 Jury Trial on Guilt-Innocence (Basic Structure) Qualifications of Jurors & Challenges for Cause Page 40 $ASQBarExamMBEMemorization.xlsTX Crim Pro 910 12 --a. b. c. d. -123 --1212345678910 -Peremptory Challenges Trial Procedure Page 41 $ASQBarExamMBEMemorization.xlsTX Crim Pro -121212a. b. c. 3 --a. b. --a. b. -12 ---a. b. -Hearsay Character Evidence Directed Verdict Page 42 $ASQBarExamMBEMemorization.xlsTX Crim Pro a. b. c. -12a. b. --12345 -a. b. -a. b. c. d. -12 -Rule of Optional Completeness Writings and recorded Statements Extraneous Offense Evidence Page 43 $ASQBarExamMBEMemorization.xlsTX Crim Pro Physician-Patient Privilege --121a. b. c. 2 ----1212a. b. c. 12a. b. --12 --1 Marital Communications Privilege Statements Made in Plea Bargaining Discussions Subpoenas Bolstering a Witness Attorney-Client Privilege Privilege of the Defendant's Spouse Page 44 $ASQBarExamMBEMemorization.xlsTX Crim Pro 21a. b. c. 212 -Jurors Asking Questions 1234123412 Impeachment with Bias 12-a. b. "The Rule" Trial Ruling No Nos by the Judge Competency of a Witness Methods of Impeachment Impeachment with Character Evidence Impeachment with Bad Conduct Impeachment by Contradiction Page 45 $ASQBarExamMBEMemorization.xlsTX Crim Pro 121234---Determining Admissibility of Expert Testimony/Scientific Evidence 1234a. b. a. b. 1234a. b. 1 Evidence Requiring Corroboration The Rule: Exclusions Expert Testimony Disclosure During Trial Photographs as Evidence Texas Exclusionary Rule with Illegally Obtained Evidence Page 46 $ASQBarExamMBEMemorization.xlsTX Crim Pro 23a. b. c. d. 412123123121234 Pleadings, Instructions & Burden of Proof Failure to Object to the Charge Omissions from the Charge Jury Charge Objecting/Requesting to the Charge Orally Page 47 $ASQBarExamMBEMemorization.xlsTX Crim Pro Jury Instruction Example: 12341234--123412-1212a. b. c. d. e. 3a. b. 4J Texas Confession Statute: Art. 38.22 Generally Oral Stmt Requirements Written Stmt Requirements Order of Jury Argument Commenting on D's silence Limitations on Jury Argument Page 48 $ASQBarExamMBEMemorization.xlsTX Crim Pro RRa. b. c. d. e. C12123 -----Evidence of Ds previous bad acts/crimes Good time/Parole Self Incrimination Ds character Judicial confession 123 Stmts obtained Out of State or by Federal Officers Texas Procedure for Litigating Confession Issues Jury Trial Factors in Assessing Death Penalty Page 49 $ASQBarExamMBEMemorization.xlsTX Crim Pro Eligibility Statutory Considerations ----1 ---21234 --D violates CS D completes CS --123 Timing ------123 Jury consideration Eligibility Procedure: TC must Deferred adjudication v. Probation Reasons Why Sentence should not be pronounced Grounds for granting a new trial Can be made on the grounds that Page 50 $ASQBarExamMBEMemorization.xlsTX Crim Pro ---123412 Guilty plea and error 12 Certification D Escapes What if App Ct affirms Ds conviction 12312abc3123 Cross appeal DNA testing 1 What court? Procedure Denial of Bail Guilty plea pursuant to plea bargain Discretionary Review by Ct of Crim Appeals can occur Pre trial: State may appeal if TC Post trial: State may appeal if TC If State takes an Page 51 $ASQBarExamMBEMemorization.xlsTX Crim Pro 2123121231234 Unnecessary allegation 12121212 Non© Error Constitutional error How to bring it ----appeal from a pretrial order favoring D Appellant has a responsibility to To preserve error in EXCLUDING evidence To preserve error in ADMITTING evidence To preserve error in improper arg Ps failure to prove an unnecessarily included allegation D must show D already appealed once but now wants to appeal on DIFF Legal sufficiency Factual sufficiency Summary Page 52 $ASQBarExamMBEMemorization.xlsTX Crim Pro 12 --345 ground How can D get DNA testing Page 53 $ASQBarExamMBEMemorization.xlsTX Crim Pro Page 54 $ASQBarExamMBEMemorization.xlsTX Crim Pro Page 55 $ASQBarExamMBEMemorization.xlsTX Crim Pro Arrest Presentment before magistrate Examining trial Consideration by grand jury Presentiment of indictment (from here on, must be in district court) Arraignment Pretrial hearing Trial-guilt/innocence Trial-penalty Pronouncement of sentence Motion for new trial Motion to arrest judgment Notice of appeal Appeal to the court of Appeals (this is a RIGHT) Review by Court of Criminal Appeals Felonies Misdemeanors involving official misconduct Transferred county court prosecutions for misdemeanors punishable by jail time Offenses punishable ONLY by a fine -this court has exclusive jurisdiction over NOTHING Exclusive jurisdiction over offenses created by city ordinance AND punishable ONLY by fine Concurrent jurisdiction over offenses created by state law AND punishable ONLY by fine Misdemeanors Must present the arrested without undue delay , and NEVER more than 48 hours after arrest At such hearing the magistrate's duties include: Inform arrested of the charges Inform arrested of his right to counsel Inform arrested of his right to examining trial Miranda type rights: Remain silent Have an attny present during questioning Any stmt may be used against him Request an appointed attny At any time he can terminate an interview with the police Set bail If there has been NO probable cause determination (no warrant or initial appearance): In felonies -release within 48 hours of arrest on bond In misdemeanors -release within 24 hours of arrest on bond Magistrate can NOT delay release for more than a total of 72 hours ONLY in the following cases: Capital murder prosecutions Noncapital felonies if: Substantial evidence of D's guilt of that crime AND One of the following: 2 prior felony convictions OR Present offense committed while out on bail for a felony OR One prior felony conviction AND present offense involved use of a deadly weapon OR Present offense was a violent or sexual offense committed while on felony probation or parole To deny bail the prosecutor must file a motion for denial of bail in District Court w/in 7 days of the D's apprehension INTRODUCTION PRETRIAL PROCEEDINGS Page 56 $ASQBarExamMBEMemorization.xlsTX Crim Pro If bail is denied that order is appealable to the Court of Criminal Appeals A denial of bail in a noncapital case lasts ONLY 60 days as long as the defense does not move for a continuance -D should file a motion to set bail Ask the MAGISTRATE to whom the D is presented Prosecution must show: The D is charged with capital murder Likelihood that he will be convicted of that crime AND Likelihood that death will be imposed A denial of bail is challenged by writ of habeas corpus in District Court -a hearing is held and if the judge holds bail to have been proper there is a right of immediate appeal to the Court of Appeals L ikelihood of D appearing for trial (amt necessary to give rzbl assurance D will appear for trial) MUST CONSIDER Ability of the defendant to make bail MUST CONSIDER Seriousness of the crime charged Future Safety of the victim and the community MUST CONSIDER Required bail is not to be an instrument of Oppression ** In determining whether D is indigent, Court may NOT consider whether D has posted or is capable of posting bail; exception permits this to be consdiered insofar as it reflects D's financial circs as measured by other considerations, such as income, property owned, dependents, etc. This is confusing. So, can't consider it in deciding whether he is indigent, but can consider it when? why? what? wtf? File application for writ of habeas corpus in District Court At hearing introduce evidence showing: Bail was excessive D cannot meet bail set Amt of bail that D could meet The District judge may order bail reduced If not, D can appeal to the Court of Appeals BEFORE trial Personal bond is the D's promise to pay the amt if the bond is forfeited Bail bond requires a surety or cash deposit Purpose -pretrial hearing before a magistrate requiring the prosecution to produce evidence showing probable cause of the D's guilt & therefore should be held to bail pending trial. **Any magistrate (all judges are magistrates) in Any court** -if no PC is found, D gets to go free, but the State can come back and seek a conviction later Rights of the D at the examining trial: Be present Be represented by counsel Have the rules of evidence applied Cross examine the State's witnesses Subpoena and present defense witnesses **NO RIGHT to examing trial if already been indicted. D has an absolute RIGHT to an examining trial if charged with a felony, UNLESS there has been an indictment ***D MAY make an unsworn, voluntary stmt, but this must be done before any W's are examined. D MAY alternatively take the stand after state has presented its E & testify under oath. To get one a grand jury must vote (by at least 9 out of 12) to return a "true bill" against the D -to do this the grand jury must find that probable cause exists to find D guilty Right to a grand jury MAY be waived in all cases except Capital murder by doing the following: D must be represented by counsel Waiver must be by written instrument or in open court AND Waiver must be voluntary Page 57 $ASQBarExamMBEMemorization.xlsTX Crim Pro Def -a pleading filed by the state charging a person with a criminal offense Used to charge a D when the indictment has been waived Different from an indictment in that it need 1) only be approved and signed by the prosecutor, where an indictment must be approved by a grand jury and signed by the foreman -an information must be supported by a 2) valid and sworn complaint, which must be 3) filed Can be used when the D is charged only with a misdemeanor in municipal or JP courts D has NO right to participate or appear -D may appear as a witness or with the grand jury's permission he may be allowed to address the grand jury ONLY the prosecutor and grand jury may question the witnesses D's Lawyer may appear before a grand jury ONLY if the grand jury permits it AND the prosecutor approves D may be subpoenaed, and if he is: he has the right to refuse to answer incriminating questions he has the right to the following warnings: -the offense of which he is suspected -the county in which it was committed -the time of its occurrence The questions asked and D's testimony MUST be recorded The witness is called the "suspect" witness -he can be compelled to appear but can invoke his privilege against self incrimination Has the following rights: Have his lawyer OUTSIDE the grand jury room Consult with the lawyer before answering questions Have a lawyer appointed, if he is indigent Must be orally warned that:\ The testimony will be recorded A false answer subjects him to perjury He can refuse to answer the incriminating question He has a right to counsel He has a right to consult with his lawyer outside the room His testimony can be used against him He must be given a written copy of the warnings He must have a rznble opportunity before appearing to obtain and consult with counsel An indictment may NOT be challenged for insufficiency of evidence An indictment may NOT be overturned for unauthorized people being present during the hearing An indictment MUST be reversed in there is someone other than grand jurors in the deliberation room Limitations period starts to run from the COMMISSION of the offense and stops on the date of presentment -Date of presentment is determined from the date of file stamp on the indictment Tolling occurs when: The accused leaves the state -don't count the time they are absent A charging instrument is pending and later dismissed Misdemeanors -2 years Felonies -3 years NO limitations period for: Murder and manslaughter Offense involving leaving the scene of an accident Sexual assault, where DNA testing indicates the perpetrator is not a person whose identity is readily ascertained LIMITATIONS PLEADINGS Page 58 $ASQBarExamMBEMemorization.xlsTX Crim Pro An indictment or information alleges ONLY facts -it does not identify the charged crime by name Substantive requirements -must 1) charge the offense AND provide the accused with 2) trial preparation notice -to charge the offense you need facts constituting 1) all elements (statutory language is usually sufficient) and any 2) victim must be named Commence: "In the name and by authority of the State of Texas" Name the accused or describe him Set forth all elements of the offense Specify enough detail to give the accused notice Allege the crime was committed on a date that is within the period of limitations AND before presentment of indictment Allege commission of the crime in a county within the court's jurisdiction Conclude -"Against the peace and dignity of the State" Signed -indictment by the foreperson of the grand jury; information by the prosecutor Determines those offenses for which the accused can be convicted Jury can convict D ONLY of an offense charged in the indictment, UNLESS there is a lesser included offense It is proved by some but not all of the same facts required to prove the more serious offense; or It requires only a less serious injury to the same person, ppty, or interest as the more serious; or It requires only a less culpable mental state than the more serious offense; or It consists of an attempt to commit the more serious offense The other offense is a 1) lesser included offense of the crime charged; and The evidence before the jury is such that the 2) jury could find both that: D is NOT guilty of the charged offense; and D IS guilty of the lesser included offense The D must raise this at the arraignment The D must specify his true name and The judge is then to correct the indictment so it accuses the D by his own true name When does P need to raise it? Can P raise at any time? 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 UNCHARGED AND LESSER INCLUDED OFFENSES NAME OF THE ACCUSED RAISING INDICTMENT DEFECTS Page 59 $ASQBarExamMBEMemorization.xlsTX Crim Pro A defect of substance WITHOUT inquiry into harm Defects of SUBSTANCE consist primarily of failures to allege ALL elements of the crimes Defects of FORM consist of most other defects \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 File a 1) motion for leave to amend D must be given 2) adequate notice Trial judge holds a 3) hearing and decides whether to amend If authorized, the amendment must be 4) made on the actual indictment An amendment to an indictment prejudices the Ds "substantial right" to be tried only on a grand jury indictment if the amendment so changes the allegations that the D can be convicted on the basis of a different indictment than that considered by the grand jury Takes place in TC Accused enters a plea This is the point for fixing the accused's identity, and Judge appoints counsel Guilty Not guilty Nolo contendere There is no difference in a criminal case. BUT in a civil case -a plea of GUILTY could be used against the D -but a plea of NO CONTEST could not. Notice of the defense intent to introduce such evidence must be filed 10 days before trial Inform D of the 1) range of punishment Inform D that 2) recommendations by State as to punishment are not binding Inform D of the limited right, after a guilty plea, to 3) appeal (i.e. if Plea is pursuant to a plea bargain, he can only appeal on ground of rulings on pretrial written motions, OR if trial court gives permission) Inform D that plea may result in 4)deportation, exclusion from US to denial of naturalization Inquire as to whether there is a 5)plea bargain Note: The D has the (right to withdraw) the plea if he wants PRETRIAL MATTERS A trial judge MAY set a case for a pretrial hearing and conference If one IS set -the parties must do the following 7 days BEFORE enter any special pleas Make challenges to the indictment Make motions for continuance Make motions for change of venue CURING DEFECTS BY AMENDMENT PRETRIAL PROCEDURE IN TRIAL COURT ARRAIGNMENT PLEAS BY THE ACCUSED Page 60 $ASQBarExamMBEMemorization.xlsTX Crim Pro Make motions to suppress Make discovery requests Raise claims of entrapment Note: D can testify but ONLY on an issue related to that hearing **State is limited to scope of supression hearing; cannot cross examine D regarding commission of charged crime; limit questions to hearing (i.e. circs under which stmt was made if hearing to suppress stmt bc unvoluntary). *D NOT waive his right to remain silent at trial. But, if testifies at trial & his testimony is inconsistent w/hearing testimony, can use hearing test to impeach D If there IS a pretrial hearing set -the defense counsel has to file the motion to quash BEFORE the hearing A pretrial ruling on MTS DOES preserve the issue for appeal A pretrial ruling on a MIL does NOT preserve a matter for appeal (must make objectionat time of the action) Ex: don't want P to mention extraneous offense during voir dire of jurors, so I 1) file motion in limine asking court to consider pretrial the admissibility of this E, find it inadmissible & order P not to refer to it during VD. Regardless of ruling on motion, I should object immediately and on the record if P mentions it. Generally: Trial judge has discretion to order the State to provide the defense with a list of witnesses the State intends to call Expert Witness List: Trial judge has discretion to order either/both sides to provide the other with list of expert witnesses it may call at trial (at least 20 days before trial date) A D may be permitted to depose a witness: The trial judge must issue an 1)order authorizing the depo if the D shows 2)"good reason" for the depo Depo may be used 1. For discovery -obtaining info to prepare for trial OR 2. To preserve testimony for later use at trial Inspection MAY be ordered if (1) the thing is tangible; (2) constitutes or contains material evidence; (3) is in the possession of the State; (4) is not "work product" of the State [ex: a report by the State Crime Law, police reports of the investigating officers, written stmt given by State witnesses to the police] Inspection MUST be ordered if the item is evidence ESSENTIAL to the State's case (D's confession, samples of physical evidence to enable the D to est the material before trial) Inspection, if ordered, cannot require the State to give up possession of the time The inspection must be sufficient to give the accused the information necessary to prepare for trial The trial judge has discretion to exclude or admit based on : Whether omission was intentional and Whether the defense received actual notice that witness would testify Names/address of experts -YES Summary of expert testimony -NO ANY info of fact witnesses -NO, except can compel State to give D list of fact W? The evidence contains biological material that if subjected to scientific testing would establish the perpetrator's identity or exclude someone from those who could have committed the crime; and The authorities KNOW this Rule: The identity of an informer is generally privileged and CAN be withheld by the State Exception: If the informant provided information by which the State obtained evidence in a way the D claims was illegal -the court has discretion to require disclosure if necessary to establish the informer's reliability Exception: Upon a showing the informant can provide testimony necessary to a fair determination of guilt/innocence , the court must order disclosure PRETRIAL DISCOVERY & EVIDENCE PRESERVATION -TEXAS Page 61 $ASQBarExamMBEMemorization.xlsTX Crim Pro **PRETRIAL DISCLOSURE OF GRAND JURY TRANSCRIPT-of any transcription of testimony given before the grand jury that considered the case. D is entitled to this transcription ONLY upon a showing of "particularized need." Showing should involve any reason D has to believe that one or more W's who testified before GJ will also testify at trial , & that their trial testimony may differ from that given before the GJ The prosecution fails to disclose exculpatory information that is in its possession AND This information is "material" which means that if it had been disclosed, there is a rzbl probability that the outcome of the case would have been different Prosecution has a due process duty to disclose such evidence Evidence that impeaches a prosecution witness is exculpatory Evidence must be disclosed if it is in the possession of The trial prosecutor Another prosecutor; or The police A conviction is invalid for nondisclosure only if the nondisclosed exculpatory evidence is material A defendant is incompetent to stand trial if either: She lacks the ability to consult with counsel with a rzbl degree of rational understanding , or She lacks a rational and factual understanding of the charges ** To rebut legal presumption that D is competent, must show 1 of 2 things by POE: 1)D lack a rational & factual understanding of charges, OR 2)D lack sufficient present ability to consult with Lawyer with rzbl understanding*** ***Insanity -looks to the accused's condition at time of the offense; depends on whether accused knew conduct was wrong; if found insane, he's acquitted & cannot again be prosecuted. ***Competency focuses on the accused's condition at the time of trial; depends on whether the accused understands the charges & can consult w/defense counsel. if found incompetent, proceedings are only suspended & can be continued if D regains competency. If after being found incompetent to stand trial the accused's condition improves: The defendant can be determined to be competent, and The prosecution can proceed How is the issue of competency raised? The defense may, by motion, suggest the defendant may be incompetent, or The State may, by motion, suggest the defendant may be incompetent, or The trial court may, on its own, suggest the defendant may be incompetent Note: If evidence comes to the trial court's attention that the defendant may be incompetent, the trial court must, on its own motion, suggest the defendant may be incompetent How is the issue of competency resolved? Trial judge must make a preliminary inquiry. If this shows significant evidence of incompetency, the judge must hold a full hearing. If either party or the judge requests, the determination must be made by a jury. There is a legal presumption that the defendant IS competent To rebut the presumption, the defense must show by a preponderance of the evidence that defendant is incompetent General Rule: venue lies in the county where the crime was committed A Defendant may seek a change of venue because: prejudice in county would prevent a fair trial , or Dangerous combination of influential persons against the defendant would prevent fair trial CONSTITUTIONAL DUTY TO DISCLOSE EXCULPATORY EVIDENCE Page 62 $ASQBarExamMBEMemorization.xlsTX Crim Pro The State may seek a transfer of venue because: Combinations or influences in favor of defendant would prevent fair trial , or Life of defendant or a witness would be jeopardized by local trial The Trial Court may change venue on its own motion because it not possible to conduct a trial that is fair and impartial to both the state and the accused To Obtain a change of venue, the defense counsel must file: A Written motion for change of venue, Affidavits that a fair trial cannot be held in the county signed by: The defendant, and 2 credible residents of the county Note: At the Hearing, defendant must present evidence showing there is sufficient prejudice in the particular county to prevent a fair trial A judge may be disqualified on the following grounds: Judge was the victim of the crime Judge was counsel for either side (in this case) Judge is related w/in 3 degrees (by blood or marriage) to either the defendant or the victim Bias Judge presiding at trial cannot testify in trial as trial witness In a Felony case or a prosecution for a misdemeanor punishable by jail time, the defendant must be present at the beginning of trial Beginning of trial means: In a Jury case -through selection of the jury In a Non-jury case -through D's plea to the indictment AND the D must be present at the end of the trial for formal sentencing BUT, if D is voluntarily absent in the middle, the trial may nevertheless proceed in the D's absence In prosecution for a fine-only misdemeanor, the D can be absent b/c she may appear by counsel IF the prosecution consents An indictment may allege only one offense. If an indictment alleges more than that, it is to be quashed A D may be tried on only one indictment per trial. If a D is scheduled for trial on several indictments. The D is entitled to have the trials severed The state may JOIN in one indictment all offenses arising out of one "Criminal Episode" If a D is charged in different indictments with offenses arising out of one criminal episode, the State may have those indictments CONSOLIDATED for trial together Crimes are a part of the same criminal episode if they are: Part of the same transaction, or Part of a common plan or scheme, or The same or similar offenses The State is NOT required to seek trial together of offenses arising out of one criminal episode; State's Discretion to join/consolidate A D who is scheduled for trial together on multiple charges because those charges arose from the same criminal episode has the absolute right to have the charges severed for separate trial BUT a D who invokes the right to severance incurs a potential disadvantage…the trial judge has the discretion to make the prison terms Consecutive Note: If the charges were tried together…the prison terms must run Concurrently Page 63 $ASQBarExamMBEMemorization.xlsTX Crim Pro Several defendants may be charged in one indictment if they are all charged with the same offense Several defendant's may be joined for trial if: They are charged with the same offense, or They are charged with different offenses arising out of the same transaction Mandatory Severance -A D who moves for severance and shows her codefendant has a prior conviction admissible against that codefendant at trial MUST be granted a severance Discretionary Severance -In other situations, a trial judge has discretion to grant a motion for severance of trials, and should gran t such a motion if a joint trial would be prejudicial to the D who has moved for severance Generally, a motion for continuance must be: In writing, and Supported by a showing of good cause, and Sworn **ALL motions for continuance are at trial judge's Discretion, NOT Matter of Right!!* A motion made after trial has begun, must also be: Based on an occurrence that happened after trial began, and And that occurrence could not have been anticipated, and Surprise must be such as to prevent a fair trial Defendant's motion for continuance to obtain a missing witness must contain: Name and residence of missing witness, and Efforts made to secure witness's presence, and Material facts defense expects to prove by witness An indigent D sometimes has a right to an appointed attorney A D charged with a felony always has such a right A D charged with a misdemeanor need NOT be provided an attorney if no jail time is imposed upon conviction A D has a 6th Amendment right to represent himself A judge MUST make sufficient inquiries of the D to assure he is competent to engage in selfrepreseentatio Competency to engage in self-representation requires only that the D understand the disadvantages and risks of that course If the D satisfies the competency standard, the judge may NOT require the D to accept an appointed attorney Confused about this: "Judge may NOT consider whether D has posted or is capable of posting bail. Exception--> this may be considered as it reflects D's Financial circumstances as measured by proper considerations, such as income, property owned, dependants, etc. A D has a 6th Amendment right to effective representation that is violated if: The lawyer's actions were beyond the bounds of professional competence (and not simply tactical decisions), and There is a rzbl probability that had counsel been effective, the results of the proceeding would have been different Representation is NOT effective where counsel: Fails to conduct adequate investigation, or Fails to convey to the client an offer of a plea bargain The State may dismiss some or all of the charges brought provided it: Files a written statement of the reasons, and The trial judge approves Page 64 $ASQBarExamMBEMemorization.xlsTX Crim Pro No further prosecution may occur if a dismissal occurs after jeopardy has attached Criminal D MUST be tried to a jury unless D waives his right to a jury trial Jury Size District Court -12 County, Municipal, Justice Court -6 Verdict is usually "general" (guilty/not guilty) except: Special plea is submitted to the jury (found true or not true) Jury finds D "not guilty by reason of insanity" Communications during trial between judge and jury Jury must communicate with the judge in writing Judge's response must be (1) in writing and (2) read to the jury in open court Jury Shuffle Either the D or the State can demand that the members of the panel from which the jury will be selected be re-seated in a random manner. *Can only happen ONCE A request for a jury shuffle must be made before voir dire of the jury panel begins Burden of Proof and Verdicts The State must prove guilt beyond a rzbl doubt The verdict must be unanimous If the jurors cannot agree on a unanimous verdict, the judge must declare a mistrial. **Judge can declare mistrial w/o agreement of the parties if he finds the jury has been kept together long enough to be improbable that it will be able to reach the required unanimous verdict** WAIVER of a Jury Trial Whether to have a case tried by a jury or not is a decision to be made by the D If the D wants to have the case tried to the judge, the D must waive jury trial…this must be done before trial The D's choice need NOT be the same as to both phases…whether or not the D waives jury trial on guilt, he can elect jury assessment of punishment or let the judge assess punishment In a capital murder where the State seeks the death penalty, the D may NOT waive jury trial as to guilt Waiver of a jury trial on guilt requires consent of (1) the judge and (2) the prosecutor When the members of the jury panel have been sworn, and before voir dire begins, the judge asks and determines: Are you a qualified voter in this county and state? Have you ever been convicted of theft or any felony? Are you under indictment or accusation of theft or any felony? Challenges for cause that may be made by the State or the Defendant: UNLIMITED # ALLOWED Prior conviction for theft or a felony (absolute disqualification) Under formal charge for theft or felony (absolute disqualification) Insane (absolute disqualification) Not qualified to be a voter Is a witness in the case Served on a jury in prior trial of the case Served on indicting grand jury Cannot read and write TRIAL: GUILT-INNOCENCE Page 65 $ASQBarExamMBEMemorization.xlsTX Crim Pro Biased or prejudiced for or against the accused Bias or prejudice against any law applicable to the case on which the defense or the State is entitled to rely If a juror absolutely disqualified sat on the jury, the conviction must be set aside if the D either: Raised this before the verdict was entered, or Shows significant harm as a result of the juror's service A juror who state he has formed an opinion that would influence his verdict MUST be discharged for cause A juror who states he can render a verdict on the law and evidence despite his opinion need not be discharged if the court satisfied the juror can be impartial To est basis for challenge for cause can do 1 of 2 things: 1)Elicit from juror that he will be unable to put his view aside & properly determine punishment according to judge's instructions/decide case on merits, or 2) if juror says he can put them aside, persuade judge that despite what juror says, he will not put his view aside & thus will not objectively apply the law to the case Each side in a criminal trial gets a limited number of peremptory challenges which can be exercised with no explanation : Capital murder death penalty cases: 15 Other felony cases: 10 Misdemeanors in county, municipal or justice court: 3 Misdemeanors tried in district court: 5 Neither side may exercise peremptory challenges on the basis of race or gender If making a Batson Challenge , counsel should: State the grounds of the challenge (racial, gender) Move to dismiss the array of prospective jurors The motion should be made after each side submits its lists of challenged jurors and before the trial court empanels the jury Challenger has BOP racial discrimination. If the party making the challenge demonstrates a prima facie case of discrimination, the burden then shifts to the other side to explain their challenge on neutral grounds If the party succeeds in its Batson challenge, the trial judge MUST do one of the following: Dismiss the array and start jury selection over, or Reinstate those jurors struck for discriminatory reasons Note: The party making the Batson challenge need NOT be a member of the same class of persons as those jurors being challenged A trial proceeds as follows: Judge calls for and parties give announcements of readiness Prosecutor reads the indictment Defense counsel enters a plea for the D Prosecutor makes State's opening statement Prosecution presents State's case-in-chief Defense counsel makes defense's opening statement Defense present's its evidence Rebuttal evidence is presented The judge reads the charge to the jury Counsel makes final arguments to the jury (State argues last ) Note: Upon request, defense counsel may make the defense opening statement immediately after the State's opening statement Page 66 $ASQBarExamMBEMemorization.xlsTX Crim Pro If defense counsel believes that the State has failed to show the D's guilt beyond a rzbl doubt , he should make a motion for a directed verdict of not guilty at: The end of the State's case-in-chief, AND The close of all the evidence Note: Because this motion presents an issue for the judge, NOT the jury, the motion should NOT be made within the hearing of the jury If after resting, defense counsel believes that the State has failed to prove that the crime occurred in the specified county, defense counsel should move for a directed verdict of not guilty, specifying that the evidence is insufficient b/c it fails to prove venue by the required preponderance of the evidence . This motion should be made: At the close of the State's case-in-chief, and (if judge not grant motion) At the close of all the evidence Admissions of a Party Opponent are admissible Statements Against Penal Interest are admissible if: The statement is shown to be 1)incriminating regarding the declarant, A 2)rzbl person would not have made it unless she believed it to be true, and There are 3)corroborating circumstances that clearly indicate the trustworthiness of the statement (CRIMINAL) Records of Regularly Conducted Activity (business records) are admissible in criminal litigation as they would be in other litigation MUST lay the proper business records predicate : 1) Records kept in regular course of biz; 2) rcbiz for person w/Knowledge of matter to make/transfer info; 3) entries made at or near time of events; and 4) W is the custodian. If a party lacks the extrinsic evidence necessary to admit the evidence, that party may still have the records admitted at trial if: They file an affidavit with the records attached with the court at least 14 days before trial starts, and They give the other party notice of the filing at least 14 days before trial General Rule: the State cannot introduce evidence that the D has a bad character to prove D's guilt The State can prove the D's bad character: If the accused puts his character in issue by exercising his right to introduce evidence of good character at the punishment stage of the trial Character witness may give two kinds of testimony Personal opinion as to the person's character, or The person's reputation for the character trait Character evidence CANNOT be proved by evidence of specific instances of conduct (except on Cross) Reputation testimony is NOT hearsay Foundation for character testimony Opinion testimony: personal familiarity with the person Reputation testimony: witness participated in discussions with others of person's reputation, or overheard others discussing that reputation Cross-examination of character witnesses EVIDENCE Page 67 $ASQBarExamMBEMemorization.xlsTX Crim Pro Inquiry into specific instances of conduct is allowed "Have you heard" questions are okay if reputation witness "Did you know" questions are okay if opinion witness At the guilt stage of a criminal trial, a character witness is Qualified to testify as to the D's character only if: On reputation, the witness was substantially familiar with the D's reputation prior to the day of the offense, or On personal opinion, the witness was substantially familiar with the facts on which that opinion is based prior to the day of the offense General Rule: evidence of an extraneous offense is INADMISSIBLE Extraneous offense = crime of which the accused cannot be convicted at this trial Neither a charged offense, or A lesser included offense If evidence showing an extraneous offense is relevant to some issue other than the accused's character , it is admissible UNLESS the trial judge is convinced that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice Extraneous offense evidence may be admissible as relevant to (MIMIC): Motive Intent (or knowledge) Mistake or accident (to rebut) Identity (when D has put that in issue) Common scheme or plan A defendant puts his identity into issue by either: Introducing evidence that he was not the perpetrato r, such as alibi testimony, or Impeaching all the State's eyewitnesses Upon timely request by D, the State must give pretrial notice of: Intent to introduce evidence of other crimes, wrongs or bad acts not arising in same transaction as charged crime to be introduced in the State's case-in-chief given in advance of trial ***To keep testimony about extraneous offense out of court: 1)ask court to send jury out; 2)ask court rule in advance that any E of D's extraneous offense would be inadmissible E of an ext.off. that's relevant only to D's character; 3) ask court to rule that E, if relevant to some issue other than character, is inadmissible b/c its probative value is outweighed by risk of undue prejudice; 4) ask court to direct P to ask no questions that would elicit testimony about the handgun, & 5) ask court to instruct witness not to volunteer any testiomny about D's possession of the handgun. If court refuses to rule in advance on this, Ask court to instruct P to approach bench & alert court & D counsel that P intends to elicit testimony about ext. offense. If one party introduces all or part of a writing or recorded statement, the other party is entitled to introduce: any other part of the writing or recorded statement, or any other writing or recorded statement , that in fairness should be considered by the jury at the same time The other party is entitled to introduce this immediately If one party introduces part of an act, conversation, or statement , the other party is entitled to prove the rest of the subject. **i.e. W asked about dislike of Party; other counsel can question into basis for that dislike (you dislike him b/c he beat your wife...) Page 68 $ASQBarExamMBEMemorization.xlsTX Crim Pro Does NOT apply in criminal litigation In criminal litigation, the client of an attorney is entitled to have kept confidential both: A private communication to the attorney, and Any fact coming to the attorney's attention because of the attorney-client relationship (criminal trials only) **Clergy Privilegecommuniication made to clergy 1) privately in member's 2) professional character as spiritual advisor General Rule: the spouse of a defendant has a privilege not to be called as a witness to testify against the defendant Exceptions: the defendant's spouse may be called if either: The prosecution is for an offense committed against any minor child a household member of either spouse, the spouse, or The spouse is called by the State to testify only about matters that occurred prior to the spouse's marriage to the defendant The privilege belongs to the SPOUSE…NOT the defendant Whether the spousal privilege is available turns on whether the witness is married to the D at the time of trial Any person (including a criminal D) has a privilege to refuse to disclose and to prevent others from disclosing a confidential communication made by the person to their spouse during marriage Communication is confidential only if it was both: Made privately, and Not intended for disclosure to any other person Exceptions: NO privilege exists if: The communication was made to commit a crime or fraud, or The prosecution is for a crime committed against the person of: any minor child, a household member of either spouse the spouse A statement made by the D is INADMISSIBLE if: It was made in the course of plea discussions with a prosecutor, and Those discussions either: did not result in a plea of guilty or nolo contendere, or resulted in such a plea that was later withdrawn Both sides on application to the clerk are entitled to have subpoenas issued for witnesses Either side is entitled to have an attachment issued for a witness if both: The witness has been properly subpoenaed, and The witness fails to appear In a criminal case, a subpoena is good state-wide (No 150 mile rule) If a witness actually fails to appear at the time specified in the subpoena, the defense may seek an attachment for the witness. This is directed to a peace officer and directs the officer to find the witness and bring the witness before the court. General Rule: a party may not bolster the testimony of the party's own witness by: Proving prior out-of-court statements by the witness consistent with the witness's testimony Page 69 $ASQBarExamMBEMemorization.xlsTX Crim Pro Introducing evidence that the witness is a truthful person Exceptions: Bolstering a witness with prior consistent statements is permitted if the other party has made either an express or implied charge of: Recent fabrication by the witness, or Improper influence on the witness, or Improper motive on the part of the witness Bolstering by testimony of a witness's truthful character is permitted only if the witness's character has been attacked by evidence of untruthfulness All persons are competent to be witnesses except: Certain insane persons, and Children The child witness should be examined by the judge to determine whether the witness has sufficient intellect to relate transactions regarding which he will be asked to testify A judge may NOT allow jurors to question a witness as it creates too high a risk that they will too quickly arrive at a decision and thus will not objectively evaluate all the evidence Contradiction Prior convictions Showing character for untruthfulness Showing bias or interest A witness may be impeached by character evidence, in the form of opinion or reputation, of untruthfulness A witness' credibility may NOT be attacked by inquiry into specific instances of conduct, EXCEPT convictions Witness may be impeached by showing prior bad or criminal conduct ONLY if it is established that: The conduct resulted in a FINAL criminal conviction The conviction is not STALE -more than 10 years from later of conviction or release The conviction was for a misdemeanor that involved moral turpitude OR a felony -MORAL turpitude -theft; perjury; forgery; making false report to police; aggravated assault on a female; prostitution -NOT moral turpitude -DWI; drunkenness; assault; possession of dope; liquor law violations; unlawfully carrying a weapon The prejudicial value of the inquiry is substantially outweighed by its probative value A party can impeach a witness for the other sided by introducing extrinsic evidence that contradicts what the witness said UNLESS -the witness' assertion is on a collateral matter -a matter is collateral if the impeaching party would not be able to prove it as a part of its own case Other matters may be explored on cross in order to correct a misleading impression left by the witness (generally will be when the witness is non-responsive ) Can always impeach with bias -i.e. -the witness made a deal with the prosecution for its own crimes Judge MUST NOT: Comment on the weight of the evidence OR Convey to the jury the judge's opinion on the merits Upon request of EITHER party witnesses must be excluded from the courtroom except during their own testimony When invoked the judge must give the following admonishments at the BEGINNING of trial Those persons that the witness may talk to about the case during trial Those persons that the witness may NOT talk to If a witness is found to have violated the rule, the court may: Page 70 $ASQBarExamMBEMemorization.xlsTX Crim Pro Hold the witness in contempt and/or Exclude the testimony of that witness Exclusion of the following is NOT permitted: The D If the D is a corporation, an officer or employee of the D Any person whose presence is shown to be ESSENTIAL to the presentation of a party's case The victim, the victim's guardian, or a close relative of a deceased victim, UNLESS the court finds that the testimony would be materially affected by hearing other testimony -the spouse of the D is NOT exempt Generally, an expert may testify to an opinion without first disclosing the facts or data on which that opinion is based IN criminal cases, a party against whom expert testimony is offered has a RIGHT upon request, to voir dire the expert on the facts of data BEFORE the witness testifies to the opinion **In Civil Case it's discretionary. An expert MAY testify as to an ultimate issue to be decided by the fact finder Should Consider: 1)Whether it's a Legitimate Area of Expertise, 2) whether testimony is w/in scope of that expertise; 3) whether expert will property apply the principles of the field of expertise; 4) Whether the expert took into account enough of the facts of this situation, & 5) Whether the jury will be confused or misled by the testimony ***AKE Motion-1)Due process entitles an indigent D to the 2)appointment of an expert to assist in his defense when he makes a 3)preliminary showing that the issue for which expert assistance is sought is likely to be a significant factor at trial. Must show that expert has 4)expertise regarding the issues. A party is entitled to a WRITING if witness for the other side used it: to refresh her memory before or during her testimony A party is entitled to the prior written or recorded stmt of a witness for the other side (or a stmt of the witness made to the grand jury) after the witness has finished DIRECT examination -does NOT apply to D "Use Before the Jury Rule" -a party is entitled to an item if it is used by opposing counsel in front of the jury in such a way that its contents become an issue Work product doctrine does NOT apply here as it does pretrial Sanctions for refusal to produce a stmt MUST strike the testimony from the record MAY dismiss the prosecution if the interests of justice requires General rule -photos are admissible if a witness would be permitted to give a verbal description of what the photo shows -still subject to a 403 prejudice objection Authentication requires a sponsoring witness to testify that: The witness saw the matter shown in the photo AND The photo accurately depicts what the witness knows the matter looked like Evidence may NOT be admitted against the D at trial if it was obtained by an officer or other person in violation of: The © of the US The © of Texas The Laws of the US The Laws of Texas Good Faith Exception: Illegally obtained evidence is admissible if it was obtained by an officer: acting in good faith reliance upon a warrant AND this was issued by a disinterested magistrate based on probable cause Accomplice testimony (Accomplice Witness Rule) An accomplice witness is one who could be convicted of the crime charged Page 71 $ASQBarExamMBEMemorization.xlsTX Crim Pro Rule -a D cannot be convicted on the testimony of an accomplice UNLESS there is corroborating evidence that tends to connect the D to the crime D's out of court confession (Corpus Delicti Rule) Rule -A D cannot be convicted on an out of court confession UNLESS there is corroborating evidence of the "corpus delicti", that is, evidence tending to show that a crime was in fact committed Sexual assault victim's testimony Rule -a D cannot be convicted on the testimony of a sexual assault victim without corroborating evidence connecting the D to the offense , UNLESS: the victim told someone other than the D about the offense within 1 year of its commission the victim was under 18 years of age at the time of the crime the victim was impaired -unable to satisfy her need for food, shelter, care and protection OR the victim was 65 years of age or older Some testimony by an undercover informer Rule -in a prosecution for a drug offense, conviction cannot rest on the uncorroborated testimony of a person NOT a law enforcement officer, who acted covertly for or under the color of law enforcement The judge is NOT to: Summarize the evidence Comment on the weight of the evidence Charging the jury must: The judge must read the charge to the jury in court BEFORE the lawyers make final arguments The jury is given a written copy of the charge Abstract -general portions that don't refer to the specifics of the case Application -where the law and the facts are applied Objections and requests MUST be in writing, Unless An oral objection or request is sufficient if: it is dictated to the court reporter in the presence of the judge and the prosecutor AND done before the final charge is read to the jury Error in the charge is subject to special harmless error criteria, under which a conviction may be reversed for "fundamental" error despite the lack of a trial objection: Preserved error requires reversal if it results in SOME error Unpreserved error requires reversal, ONLY if it results in EGREGIOUS harm and thus prevents a fair trial Error in the jury charge can be preserved either by: Objection OR Request for a special charge The charge must require proof of all elements of the crime, even if doing so requires expanding beyond the indictment's allegations -a D's failure to object to the indictment's failure to allege all elements of the crime does NOT waive the right to have the jury charge require the State to prove ALL elements of the charged crime Elements of the crime -must be pled; jury is always instructed; State must prove it beyond a rznble doubt Exceptions -must be negated in the pleadings; jury is always instructed; State must prove it beyond a rznble doubt Defenses -need NOT be pled; jury is instructed if evidence is produced; State must prove it beyond a rznble doubt Affirmative defenses -need NOT be pled; jury is instructed if evidence is produced; D must prove it by a preponderance JURY CHARGE Page 72 $ASQBarExamMBEMemorization.xlsTX Crim Pro Insanity is an affirmative defense. The burden of proof is on the defendant to prove this defense by a preponderance of the evidence. Therefore, if you find that the State has proven all elements of the crime beyond a rznble doubt and the defendant has proved insanity by a preponderance of the evidence, you will find the D not guilty. 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 Applies Only to stmts: Made while in custody AND Resulting from official interrogation -different requirements for written and oral stmts Impeachment exception: stmt inadmissible to prove guilt can be used to impeach testifying D if it is voluntary Determining voluntaries of challenged confession: Initial determination must be made by a)judge at b)hearing c)out of presence of the jury If this is resolved for the State, D sometimes has the right to have the issue submitted to the jury Must be SIGNED by D, unless it is in his own handwriting Must show on their face that the D was warned of: Right to remain silent Any stmt may be used against that person at trial (NEVER say "for or against") Right to an attny present prior to and during questioning If unable to employ a lawyer, the right to have one appointed Right to terminate the interview at any time Must show on their face that the above warnings were given by either: Magistrate OR The person to whom the stmt was made Must show on their face that prior to and during the making of the stmt, the person intelligently and voluntarily waived the rights Generally, Miranda determines whether warnings are required General rule -Oral statements are inadmissible b/c they are oral and thus unreliable Exceptions: admissible if -JRRC The stmt was J udicial -made in open court or before grand jury TEXAS CONFESSION STATUTE (p. 123 lecture notes) ARGUMENTS OF COUNSEL Page 73 $ASQBarExamMBEMemorization.xlsTX Crim Pro 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 d