Colorado Mee Issues And Rule Statements - 2013

Front 1

A contract that fails for lack of consideration

Back 1

Courts will enforce a promise as a contract only if it is supported by consideration.

Consideration is a bargained for exchange that has legal value.

Legal value is usually considered to be either a benefit to the promisor or a detriment to the promisee. Most courts focus on the detriment element.

The promise must induce the detriment and the detriment must induce the promise.

There is no bargain when one party gives a gift to another.

If an offer came after performance, even if there was a detriment the promise could not have induced the act, therefore there is no bargain and thus no consideration to support a contract.

Hint 1

1. General rule re consideration
2. Definition of Consideration
3. Definition of Legal Value & Bargained-for-Exchange
5. Gift is not consideration
6. Offer following an act

Front 2

Exception to the "bargained-for-exchange" requirement of consideration when promise exchanged for prior act

Back 2

"While the general rule is that something already given or performed cannot be consideration, some courts have created exceptions. The modern trend is that some courts will enforce a promise if
(i) it is based on a material benefit that was previously conferred by the promisee on the promisor, and
(ii) the promisee did not intend to confer the benefit as a gift.
Under the 2nd restatement the promise is unenforceable to the extent it is disproportionate to the benefit conferred. "

Hint 2

"1. General rule, past performance not consideration
2. Modern Trend it is IF material benefit and not intended to be a gift
Note: 2nd restatement limits to the extent that promise is disproportionate to benefit"

Front 3

Reliance on a promise when agreement fails to fulfill the requirements of contract formation

Back 3

"If necessary to avoid injustice, a court will enforce a promise without consideration if:
(i) the promisor should have expected the promisee to change his position in reliance on the promise;
(ii) the promisee did change his position; and
(iii) the change in position was to the promisee's detriment"

Hint 3

"Promissory Estopel
(i) should forsee reliance
(ii) does rely
(iii) to detriment
(iv) necessary to avoid injustice"

Front 4

General Warranty Deed (Covenants)

Back 4

"3 Present Covenants
1. Seizen (possession)
2. Covenant of Right to Convey
3. Covenant Against Encumbrances
3 Future Covenants
1. Covenant of Quiet Enjoyment (grantor will indemnify against claims of title by 3rd parties)
2. Covenant of General Warranty
3. Covenant of further Assurances (will take necessary steps to perfect grantee's title)"

Front 5

Double Jeopardy

Back 5

Blockburger Test for determining if two crimes constitute the same offense: "two crimes do not constitute the same offense if each crime requires proof of an additional element that the other crime does not require, even if some of the same facts may be necessary to prove the elements of each offense."

Front 6

What remedies are available to a buyer against a seller who misrepresented material facts re: goods?

Back 6

"The buyer may:
(i) keep the goods and sue for breach of warranty
(ii) revoke his acceptance of the goods and due for damages,
(iii) or avoid the contract on the ground of misrepresentation"

Hint 6

"1. Keep + Breach of warranty suit
2. Revocation + damages
3. Avoid on Misrepresentation"

Front 7

Measure of damages for a breach of an employment contract

Back 7

Employee Breaches: costs to replace the employee (standard measure whether or not breach was intentional, eg b/c of illness)

Employer Breaches: the full contract price, regardless of when the breach occurs—before performance, after part performance, or after full performance.

Front 8

M’Naghten Rule

Back 8

1. Disease of the mind which caused a defect of reason such that the Δ lacked the ability to

a. Know the wrongfulness of his conduct; or

b. Understand the nature and quality of his actions

Front 9

Model Penal Code test for insanity

Back 9

Lacks the substantial capacity to:
a. To appreciate the criminality or wrongfulness of his conduct; OR
b. Conform his conduct to the requirements of law

Front 10

Duram Test

Back 10

Crime was a product of mental defect such that the Δ would not have committed the crime but for the mental disease.

Front 11

At issue is the mens rea for second degree murder.

Back 11

1. Define Murder - killing with malice aforethough
2. Second degree = all others not "deliberate or premeditated" or committed during the course of enumerated felonies
3. Mens Rea for 2nd Degree = "reckless indifference to unjustifiably high risk to human life," or intent to commit a felony, or intent to inflict great bodily injury
4. Apply
- deliberate & premeditated?
- reckless?
- intent to cause great bodily harm?

Front 12

At issue is whether an intervening event will relieve a defendant from criminal liability for a killing

Back 12

1. [after discussion of mens rea for the crime] D's act must be the proximate cause of the victim's death
- Actual = but for
2. Intervening act will shield when: a mere coincidence or unforeseeable -- therefore the actual and proximate cause of death
3. Apply
- but for
- coincidence / foreseeability

Front 13

Pretrial Motions in a Criminal Trial:
Probable Cause to Arrest a person found in public place

Back 13

1. Define Right Involved: (4th Amt via 14th Amt) right to be free from unreasonable searches & seizures
2. Define Terms:
a. Arrest = seizure
3. Standard: Arrest in public then only PC = reasonable cause to believe that a felony has been committed, and the person before him has committed the felony
4. Apply PC standard

Front 14

Issue is the admissibility of statements

Back 14

1. Define Right Involved: Admissibility of statements dependent on presence of procedural safeguards (Miranda warnings) to ensure freedom from compelled self-incrimination (5th Amt via 14th)
2. SCOTUS standard set in Miranda = warnings b/f custodial interrogation [list them]
3. General Rule if custodial interrogation and no warnings = inadmissible; if NOT custodial interrogation then no warnings needed
4. Define terms:
Custody = reasonable person would not feel free to leave
Interrogation = words or conduct police know or reasonably should have known might elicit an incriminating response
5. Explain situations NOT considered "custody" if applicable
6. Explain situations not considered interrogation; exceptions when stmts before & after warnings
7. Limitation on suppression of evidence unlawfully obtained in violation of Miranda to prosecutor's case-in-chief

Front 15

Issue whether the exclusionary rule applies to items seized from car trunk found pursuant to a search conducted during routine traffic stop -- valid search of car???

Back 15

1. Rule re Searches: If govt conducts warrantless search and search not a recognized exception then suppressed under SCOTUS's exclusionary rule.
2. Government Action? -if so BOP on gov't to show search was proper
3. Define Automobile Exception: police can search w/o warrant if PC to believe contains fruits, instrumentalities or other evidence of crime
(a) IF NO PC initially and officer arrests, search of passenger compartment ONLY if arestee is unsecured OR searching for evidence of the crime which suspect was arrested.
(b) If PV of interior of the car may establish PC to search if immediately apparent evidence of a crime, contraband etc

Front 16

Discretionary exclusion of evidence if...

Back 16

The court determines the probative value is outweighed by:
[accuracy reasons]
1. the danger of unfair prejudice
2. confusion of the issues
3. misleading the jury
[efficiency reasons]
4. undue delay
5. waste of time
6. Unduly cumulative

Front 17

If there is a writing, what evidence rules are invoked

Back 17

1. Hearsay
2. Authentication
3. Best evidence
4. Business records exception

Front 18

NOT hearsay by definition

Back 18

- verbal acts or legally operative facts (words of contract, defamatory words)
- Stmts to show effect on the hearer or listener (torts - notice of occurrence)
- circumstantial evidence of state of mind (eg insanity or knowledge -- NOT present intent b/c there is a specific exception)

TIP: does it matter if declarant is telling the truth? if NO, then NOT HEARSAY

Front 19

Non-Hearsay
[otherwise meet the definition but the rules carve out an exception for these things]

Back 19

[these are admissible as substantive evidence]
- Prior inconsistent stmt by a WITNESS given under oath at a prior proceeding
- consistent statement of a WITNESS offered to rebut claim of lying/exaggeration
- Prior stmt of identification
- Statements/Admissions by a party-opponent

Front 20

Hearsay exceptions requiring the witnesses unavailability

Back 20

1. Former testimony
2. Dying declarations
3. Declarations against interest

always mention if unavailability is required!!