Rule Statements

Front 1

Agency is _______________

Back 1

a legal relationship in which an agent is authorized to represent a principal in business dealings.

Front 2

An agent's duties to their employer include their express duties and ___________, _________, and ____________.

Back 2

, a fiduciary duty of loyalty, obedience to reasonable instructions, and reasonable care (including a duty to disclose).

Front 3

Actual authority in an agency relationship may be created __________. Implied authority arises where __________.

Back 3

either expressly or through implication;
the agent reasonably believes she has authority as a result of the principal's actions.

Front 4

The agency relationship may be terminated through:

Back 4

1. lapse of time;
2. occurrance of a specified event;
3. change in circumstances;
4. agent's breach of fiduciary duty;
5. unilaterally by either party; or
6. by operation of law where either party dies or becomes incompetent.

Front 5

Irrevocable Agency

Back 5

An irrevocable agency is formed where the agency was created to protect the agent's or a 3rd pty's right and was supported by consideration. An irrevocable agency may not be unilaterally terminated by the principal or by operation of law

Front 6

A person may ratify the acts of an unauthorized agent where ___________. Acceptance may be manifested through ___________.

Back 6

the principal knows (or should know) all material facts, accepts the entire transaction, and has capacity to accept; express statement, or implied through acceptance of the contracts benefits, failing to disaffirm if there is a duty to do so, or suing on the transaction. The transaction may not be ratified where the other party has withdrawn or there has been a material change in circumstance. The agent may not accept the contract as his own.

Front 7

Where the principal is fully disclosed the agent is ________ liable to 3rd parties unless _____. Where the principal is only partial disclosed or undisclosed the agent is _______, but the third party must _____________. An agent is always liable _________.

Back 7

not liable; the parties so intend;
liable;
elect who to hold liable prior to judgment;
for an implied warranty of authority.

Front 8

The doctrine of respondent suprerior____________-

Back 8

imputes joint and several liability to employer/principals for the torts of their employee/agents committed within the scope of employment.

Front 9

As a general rule employers are liable for the acts of _____________. An agent is an employee where __________. In determining this the court will consider:

Back 9

employees, not independent contractors;
the principal has the right to control the means and methods of his performance;
length of employment, form of payment, industry custom, parties' understanding and chacterization, who provides the tools and space, and relation to the employer's core business. Employers are directly liable for the acts of independent contractors where:
1) they are engaged in inherently dangerous work;
2) nondelegatable duties have been delegated; or
3) the employer knowingly hired an incompetent contractor.

Front 10

An action is within the scope of employment where:________. As a general rule, employers are not liable for the intentional torts of their employee unless _________

Back 10

1) it is similar or incidental to authorized activities;
2) it occurs during a small detour during the time of employment rather than during a substantial deviation from directions; or
3) it is motivated at least in part by a purpose to serve the employer;
they are a natural incident of the employee's duties.

Front 11

A contract is_____

Back 11

a legally enforcable agreement

Front 12

Sales of goods are governed by ___________. Goods are defined as _________.

Back 12

Article 2 of the UCC; tangible, personal property.

Front 13

An offer is ______________. The basic test for an offer is __________________. The terms of an offer must be ______________.

Back 13

a manifestation of the intent to commit; whether a reasonable person in the offeree's position would believe that their assent created a contract; sufficiently definite to be enforceable.

Front 14

Valid offers for real property must contain ________. For sales of goods ________.

Back 14

price and description; quantity

Front 15

An offer cannot be accepted once it has been________.

Back 15

terminated (via time lapse, death or incapacity of either party, revokation, or rejection)

Front 16

To effectively revoke an offer the offeror must ____________. Offers made by publication must be ____________. Revocation is effective when ___________.

Back 16

unambiguously revoke by statement to the offeree or through conduct that the offeree is aware of; revoked in the same manner; received.

Front 17

An option is an irrevocable offer created by:

Back 17

1. a promise not to revoke;
2. coupled with consideration.

Front 18

Under the UCC _____________ an offer is irrevocable where:_________. If not time is set the offer is kept open for _______.

Back 18

Firm Offer Rule; 1) offeror is a merchant, 2) offer is for the purchase or sale of goods, and 3) there is a signed written promise to keep the offer open for up to 3 months; a period the court deems reasonable up to 3 months.

Front 19

An irrevocable offer is created in the following situations:

Back 19

1. options k
2. UCC Firm Offer Rule
3. Reasonable Foreseeable Detrimental Reliance
4. part performance on a unilateral K (more than mere preperation)

Front 20

As a general rule, once the offeree has rejected the offer_________.

Back 20

he cannot then accept it unless it is reofferred.

Front 21

Rejection of an offer can be express or though the following types of conduct:

Back 21

1. counteroffer
2. conditional acceptance
3. or acceptance w/ additional terms (CL) aka the Mirror Image Rule

Front 22

An acceptance that contains additional terms is governed by ______ in the UCC. The acceptance is _____________. Where once party is not a merchent ___________. Where both parties are merchants ___________.

Back 22

2-207;
valid so long as it is not conditional;
the new terms do not become part of the k;
the new terms become part of the k unless 1) they materially change the offer, or 2) the offeror objects.

Front 23

Under the CL, if improper acceptance is tendered, but the parties subsequently behave as though there were a k, ____________. Under the UCC, such conduct is treated as_____________.

Back 23

the conduct is treated as acceptance of the counteroffer;
as a k based on the conduct.

Front 24

Full performance is always acceptance, but___________.

Back 24

Notice of performance may be required where the offeror is unlikely to know of acceptance.

Front 25

Acceptance is judged under a ________ standard of ___________. Unless the offer states otherwise ____________are valid. Acceptance is valid upon ___________.

Back 25

objective; whether a reasonable person would think there has been an acceptance;
any reasonable means;
dispatch.

Front 26

Acceptance may be:

Back 26

1. express
2. through full performance
3. start of performance;
4. promise to perform

Front 27

The mailbox rule states:

Back 27

1. all communications but acceptance are effective upon receipt;
2. acceptance is effective upon dispatch;
3. when a rejection mailed before an acceptance whichever one is received first wins.
4. the mailbox rule does not make option deadlines

Front 28

A unilateral contract may be accepted by ____________. Beginning performance renders the _____________. Acceptance requires that the offeree ____________________.

Back 28

full performance;
irrevocable; know of and be motivated by the offer.

Front 29

Under the UCC when a party responds to an offer by sending nonconforming goods __________, unless he _____________then it is treated as __________.

Back 29

there is an acceptance and breach;
sends the goods as an accommodation with an explanation;
a counteroffer.

Front 30

Generally, offers may be accepted by ___________. Options are _________.

Back 30

only to the person to whom they are made;
assignable unless the k says otherwise.

Front 31

Consideration is __________.
___________- and __________ are not valid consideration.

Back 31

a bargain-for legal detriment;
illusory promises;
past performance (unless there was an express request + expectation of payment)

Front 32

Under the CL an agreement to perform a prior existing duty is not consideration unless ____________. The exception is where______________.

Back 32

an intervening difficulty has arisen so severe as to excuse performance;
performance is owed to a third party.

Front 33

Under the CL, modification requires _________- to be valid.

Back 33

new consideration

Front 34

Under the UCC, modification requires _____ to be valid.

Back 34

good faith

Front 35

Part payment of an existing debt is valid consideration only where:

Back 35

the debt is disputed or not yet due.

Front 36

A promise to satisfy an obligation for which there is a defense is enforceable if__________.

Back 36

It is written

Front 37

A promise not couple with consideration will be enforced under the doctrine of promissory estoppel where:

Back 37

1. reliance was reasonable, foreseeable, and detrimental; and
2. enforcement is necessary to prevent injustice.

Front 38

People lack capacity to contract who are: _____________. Such people may _____________. Contracts for necessities will be _________.

Back 38

minors, mental incapacitated such that they do not understand the contract, of intoxicated and the other party has reason to know;
disaffirm the contract (or ratify it once they regain capacity);
are treated under quasi-k.

Front 39

The following contracts fall under the statute of frauds:

Back 39

1. in consideration of marriage;
2. service cannot be performance within one year; (theoretically w/ unlimited resources)
3. land (except least of one yr or less)
4. executors guarunteeing debts of the decendent;
5. sale of goods above $500;
6. guarantees of debts of another (main purpose exception)

Front 40

The statute of frauds may be satisfied through:

Back 40

1. performance (service req full performance)
2. a writing;
3. judicial admission

Front 41

In a sale of goods K part performance satisfies the SoF for _____________ unless __________ or ____________.

Back 41

the goods already delivered;
the k is for a single non-divisible item in which case it satisfies for the whole; a substantial beginning has been made on custom goods.

Front 42

Under the CL a writing must contain ____________ to satisfy the SoF. These elements ___________ in the same writing.

Back 42

all material terms, including:
1. IDs of parties
2. subject matter
3. consideration
4. signature of the party being enforced against;
do not need to be

Front 43

Under the UCC a writing must contain _________- to satisfy the SoF.

Back 43

1. indication that it is for the sale of goods;
2. quantity
3. signature of the pty being enforced against unless, both are merchants and the unsigned party received a signed writing and failed to respond w/in 10 days.

Front 44

Authorization to act for someone else must be in writing when _________ under the __________ rule.

Back 44

the underlying agreement must be in writing; equal dignities rule.

Front 45

Must jurisdictions will allow performance to remove a sale of land K from the SoF where:

Back 45

2 out of 3 have been met:
1. at least part payment
2. possession
3. valuable improvements (mod valuable services)

Front 46

A modification falls w/in the SoF when______________.

Back 46

The transaction as alleged to have been modified falls within the SoF.

Front 47

Under the CL provisions requiring modifications in writing are_________. Under the UCC such provisions are _______.

Back 47

not effective;
effective so long as they have not been waived.

Front 48

Contracts may be unenforceable due to:

Back 48

1. illegal subject matter
2. known illegal purpose
3. public policy
4. misrepresentation (innocent or not)
5. wrongful nondisclosure
6. duress (econ often = improper threat to breach + vulnerability)
7. unconscionability (procedural + substantive at time of contracting)

Front 49

Where a contract term is ambiguous the contract will be ________ unless __________ in which case _________.

Back 49

not enforced;
one party knew of the ambiguity;
the contract is enforced according to understanding of the confused party

Front 50

Where the parties made a mutual mistake the contract is ___________ where the mistake is __________, ___________, and _____.

Back 50

invalid;
1. about a basic assumption of the contract (nature of an item, not its value)
2. materially changes the transaction, and
3. the denying party did not bear the risk.

Front 51

Where only one party to a contract is mistaken the contract is ____________- unless __________.

Back 51

valid;
the other party knew or had reason to know of the mistake.

Front 52

Parol evidence is __________.

Back 52

oral or written statements made before a contract is integrated.

Front 53

An integrated agreement is __________.

Back 53

the parties' final written agreement.

Front 54

Parol evidence is not admissible to ______________. But it may be admitted to show ___________. It can add terms to the contract where ___________.

Back 54

contradict the integrated agreement;
defense (such as misrep), a mistake in the writing, or resolve ambiguities in terms;
the agreement is only partially integrated or additional terms are normally contained on a seperate sheet.

Front 55

Courts will look to the conduct of the of the parties to define terms according to the following heirarchy:

Back 55

1. course of performance under the agmt
2. course of dealing between the parties
3. custom and usage in the industry.

Front 56

In a sale of goods, the seller satisfies his delivery obligation when he __________ or _________.

Back 56

1) gets the goods to a common carrier, 2) makes reasonable arrangements for delivery, and 3) notifies the buyer in a shipment contract;
when the goods arrive with the buyer in a destination contract.

Front 57

The risk of loss occurs ____________. It is borne according to the following heirarchy ______-

Back 57

when the goods are destroyed after the contract is formed and before buyer receives goods through no fault of either party;
1. agmt of the parties,
2. breaching party (even if unrelated to loss,
3. whether the delivery obligation has been met,
4. where the seller is a merchant he bears risk until goods get to buyer.

Front 58

The following warranties are available under the UCC:

Back 58

1. express
2. implied warranty of merchantability
3. implied warranty of fitness for a particular purpose.

Front 59

The implied warranty of merchantability applies when ________ and states that __________.

Back 59

the seller is a merchant (deals in the type of goods sold);
the goods are fit for their ordinary purpose and uses.

Front 60

The implied warranty of fitness for a particular purpose applies when _________.

Back 60

1) the buyer has a particular purpose,
2) is relying on the seller to select appropriate goods,
3) and the seller knows of the purpose.

Front 61

In order to sue under the warranties of the UCC the plaintiff must be ____________ except ____.

Back 61

In privity with the defendant;
for cases of strict liability.

Front 62

Sellers can limit their liabilities by _____________ the implied warranties or __________ subject to _____________.

Back 62

conspiculously disclaiming;
limiting recovery;
unconscionability (prima facie unconscionable to limit recovery for consumer products that cause personal injury).

Front 63

Under the UCC's Perfect Tender Rule ________________-.

Back 63

buyer has the right to reject delivery unless the tender is entirely perfect. He can also recovery for damages for breach.

Front 64

Under the UCC's Perfect Tender Rule in the case of breach the seller must be given ______________.

Back 64

an opportunity to cure where 1) the seller has reasonable grounds to believe imperfect tender would be accepted (such as past dealings), and 2) the time of performance has not expired.

Front 65

Installment contracts are an exception to __________. Installment contracts exist where ____________.

Back 65

the perfect tender rule, delivery can only be rejected where there is substantial impairment and no possibility of cure; performance is due in separate lots and acceptance made of each lot individually.

Front 66

Under the UCC B cannot accept delivery and then _________ unless ____________. B may revoke acceptance where: ____.

Back 66

reject it; there was no opportunity to inspect before accepting;
1) substantial impairment of value;
2) excusable ignorance of grounds; and
3) revocation w/in reasonable time of discovery.

Front 67

The UCC supplies the following missing terms:
An open price = ________.
A price fixed by one party ___________.
Payable in goods = ____________.

Back 67

reasonable price at time of delivery;
in good faith;
party is a seller of the goods provided.

Front 68

The CL requires ___________ to trigger performance.

Back 68

substantial performance, not perfect tender

Front 69

Under the UCC as seller who has not received payment may reclaim her goods where _______________.

Back 69

1) be was insolvant at the time of delivery; and
2) demand was made w/in 10 days (or a reasonable time if S was given assurances of solvancy); and
3) B still has the goods at the time of demand.

Front 70

A good faith purchaser from a thief gets __________.

Back 70

no title and possible liability for conversion or trespass to chattels.

Front 71

Expectation damages place the non-breaching party_________

Back 71

in the position they would have been had the contract been performed without breach.

Front 72

Reliance damages place the non-breaching party _____.

Back 72

in the position they would have been in had no contract ever occurred.

Front 73

Restitution damages ____________.

Back 73

give the non-breaching party the value of the benefit they conferred.

Front 74

Under the UCC, where the seller breaches and the buyer keeps the goods:

Back 74

the buyer receives either the difference between the value they bargained for and the value received or their payment and what they received.

Front 75

Under the UCC when the seller breaches and the seller keeps the goods:

Back 75

the buyer is awarded the cost of replacement or the fair market value of the goods at the time of breach minus the contract price

Front 76

Under the UCC when the buyer breaches and the buyer keeps the the goods:

Back 76

the seller is awarded the contract price

Front 77

Under the UCC when the buyer breaches and the seller keeps the goods:

Back 77

the seller is awarded the contract price minus the price of resale or provable lost profits.

Front 78

Under the UCC, after reselling the goods buyer failed to pay for, a volume seller is entitled recover ___________.

Back 78

their lost profits on the additional sale plus incidental damages

Front 79

Under contract law, the non-breaching party receives what damages?

Back 79

1) resitutionary
2) incidental
3) and foreseeable consequential damages
-minus avoidable loss (the duty to mitigate)

Front 80

Under the CL, a ______ breach will excuse performance. If _______ performance has occurred then the breach is not ______. Generally, _____ % of performance is substantial.

Back 80

material;
substantial;
50%

Front 81

Under the CL, if a party renders less than substantial performance on a contract they will recover _________.

Back 81

reasonable value of the benefit provided under quasi-contract theory

Front 82

In a divisible contract under the CL, substantial performance is tested __________________.

Back 82

for each part separately

Front 83

If a condition to a contract is not met the other party _____________. The party benefiting from the condition may _________ or ____________ and the condition will not be enforced.

Back 83

has no duty to perform;
waive it (after condition ought to have occurred);
be estopped from asserting it where they made a statement prior to occurrence waiving it and the other party relied upon that.

Front 84

Evidence must be ___________- to be admissible

Back 84

relevant

Front 85

Evidence is relevant if it___________.

Back 85

Has any tendency to make a fact of consequence to the determination of the case more or less probable.

Front 86

The court has the discretion to exclude relevant evidence if ___________.

Back 86

the probative value is substantially outweighed by unfair prejudice, confusion, or waste of time.

Front 87

Types of evidence excluded for policy reasons when used to establish neglgience:

Back 87

1. liability insurance
2. subsequent remedial measures
3. offers to settle or pleas and related statements (unless there is no dispute or no claim has been asserted yet)
4. offers to pay medical expenses (but not related statements)

Front 88

Evidence about similar occurrence may be relevant to show:

Back 88

1. causation
2. pattern of fraudulent claims
3. preexisting conditions
4. intent
5. to rebut defense of impossibility
6. establish value

Front 89

Habit evidence is evidence of ____________ and may be offered to prove_________-. In a business context this is called_____________.

Back 89

specific frequently repeated conduct;
conduct in accordance with habit; routine practice evidence.

Front 90

__________ may be used to show the standard of care in an industry.

Back 90

Industry custom evidence

Front 91

In civil cases character evidence may be admitted to prove conduct ________________. It is, however, always admissible when ___________.

Back 91

only in claims based on sexual assault or child molestation;
character is at issue in the case.

Front 92

In criminal cases the only times the prosecution may introduce character evidence first about the D are when_____________.

Back 92

charges are for sexual assault or child molestation or where D has offered evidence about the same trait in the V.

Front 93

On direct questioning _____________ character evidence is admissible. On cross ________ evidence is admissible.

Back 93

reputation and opinion;
all types including specific instances.

Front 94

In a criminal case, the prosecutor may introduce evidence as to the victim's character where ___________.

Back 94

the D has first offered evidence as to that trait in the victim or the case is a homicide and D is claiming self defense (then prosecutor can use evidence of peacefulness in V).

Front 95

Character evidence is always admissible (subject to legal relevancy) to prove:

Back 95

anything other than character such as D's state of mind (fear of victim, etc.)

Front 96

In criminal sexual assault cases specific instances of the victim's conduct may be used__________. Reputation and opinion evidence of V's character is _____________.

Back 96

to show that 3rd party is the source of semen or injury or prior acts of intercourse with the defendant;
never admissible.

Front 97

In civil sexual assault cases, ________ evidence of the V is admissible if ___________. Reputation of the V may be used where ___________.

Back 97

opinion, reputation, or specific instances of character;
the probative value substantially outweighs the unfair prejudice;
where the V/P placed her reputation at issue.

Front 98

Specific instances of the D's bad acts may be used to prove ____________.

Back 98

anything other than character, including: motive, intent, absence of mistake, identification, or common scheme or plan.

Front 99

In order to be competent to testify a witness must:

Back 99

1. have personal knowledge of the subject
2. present recollection
3. ability to communicate
4. willingness to take an oath or affirmation of sincerity.

Front 100

Objections to testimony must be __________. Common objections are:

Back 100

timely and specific;
narrative, leading on cross (unless adverse or confused witness), outside the scope of direct (on cross), unresponsive, compound question, argumentative, or assumes facts not in evidence.

Front 101

All documents used by witnesses during testimony are ______________. They may be used to _______________, but if so they must be _____________.

Back 101

out of court statements;
refresh the witness' recollection;
shown to the opponent and may be admitted into evidence.

Front 102

Where a witness is unable to refresh their memory by looking at a document the document may be admitted directly into evidence where:

Back 102

Patrick King, Monk's Dominant Artist Made Four Attorneys Into Musicians =
1.personal knowledge at the time the document was created;
2. witness made document, directed it be made, or adopted it
3. memory was fresh when doc was made
4. accurate when created
5. witness has insufficient memory to testify to the matters in the document.

Front 103

Lay opinion is admissible where__________. Common examples of admissible lay opinion are:

Back 103

it is rationally based on W's perceptions and helpful to the jury. Auto speed, intoxication, sanity, emotion, value of W's property.

Front 104

In order to be admissible an expert's opinion must be:

Back 104

HQ Believes Franny's Reasons
1. helpful to the jury
2. expert is qualified
3. expert believes the opinion with a reasonable degree of certainty
4. supported by a proper factual basis.
5. based on reliable principles reliably applied.

Front 105

In order to be helpful to a jury and expert's testimony must ____________.

Back 105

use specialized knowledge to reach a conclusion the average juror could not

Front 106

To be admissible an expert's opinion must be based on a proper factual basis. Proper factual basis are __________.

Back 106

W's personal knowledge, admitted evidence, inadmissible evidence reasonably relied upon of a type the expert would normally rely upon (like lab reports).

Front 107

Whether or not an expert's testimony is based on reliable principles is determined by ___________.

Back 107

the Daubert/Kumho test which looks at whether the method has been peer reviewed and published, if it has been tested and is subject to retesting, low error rate, and a reasonable level of acceptance in the relevant community.

Front 108

A learned treatise is admissible to prove ________________-- if it is ______________.

Back 108

anything it contains;
an accepted authority in the field.

Front 109

Evidence to bolster a witness' credibility may be offered after ___________.

Back 109

their credibility has been attacked.

Front 110

A witness' prior consistent statement is admissible where ______. In that case the statement may be admitted for __________.

Back 110

it was made prior to a bribe or inconsistent statement;
any purpose

Front 111

A party may impeach ___________ witness.

Back 111

any (even their own)

Front 112

Types of impeachment of witnesses:

Back 112

1. prior inconsistent statements
2. bias or motive
3. conviction of a crime
4. bad acts
5. opinion or reputation for truthfulness
6. sensory deficiencies

Front 113

Hearsay is ________________.

Back 113

an out of court statement used to prove the truth of the matter asserted.

Front 114

To determine whether a statement is hearsay consider the purpose for which it is being offered and whether _____________.

Back 114

if the speaker were mistaken or lying the jury would be misled.

Front 115

Words of ___________ are not hearsay.

Back 115

independent legal significance

Front 116

A witness' quotation of her own out of court statements is __________ because ___________.

Back 116

hearsay;
she cannot be crossed at the time she made the statement

Front 117

The following statements have been designated by the FRE as exempt from hearsay rules.

Back 117

1. admissions by party opponents (statement by or attributable to a party as through vicarious admissions)
2. prior consistent statements used to rebut a charge of recent fabrication or improper influence or prior inconsistent statements made under oath
3. identifications made after perceiving the person

Front 118

Party admissions are different from other testimony in that they do not require _________-- and can include ______________.

Back 118

personal knowledge;
legal conclusions

Front 119

Vicarious party admissions are statements by:

Back 119

1. authorized spokesmen
2. employees concerning a matter within the scope of their employment during the period of employment
3. statements by high-ranking officials of the party (implicitly authorized)
4. adopted admissions
5. co-conspirator statements made during and in furtherance of the conspiracy.

Front 120

Testimony from a prior hearing may be admitted if the declarant is unavailable where:

Back 120

1. the party it is offered against was part of the prior hearing and had an opportunity to cross and similar motivations to do so or
2. (CIVIL) the party it is being offered against had a close privity relationship (is a successor in interest) to a party to the prior proceeding who had an opportunity to cross and similar motivation for doing so.

Front 121

A declarant is unavailable where:

Back 121

1. they are ill or dead
2. refuse to testify
3. are exempt under a privilege
4. cannot be procured through process or other reasonable means
5. their memory fails

Front 122

Declarations by an unavailable declarant are admissible under a hearsay exception where they were made ______.

Back 122

against the declarant's financial or penal interest at the time made. if offered to exculpate an accused they must be corroberated.

Front 123

Dying declarations qualify for an exception under the hearsay rules where:__________. Dying declarations are only admissible in ______- and _________ cases.

Back 123

1. the declarant believes that he is about to die
2. the statement is about the cause or circumstances of his death
3. the declarant is unavailable, but need not be dead;
civil and homicide

Front 124

Under the excited utterance hearsay exception statements ____________. The declarant _____ need to be unavailable.

Back 124

relating to startling events that are made while the declarant is still excited by the event are admissible;
does not

Front 125

Under the present sense impression hearsay exception statements _____________.

Back 125

describing or explaining an event or condition as the declarant is perceiving it are admissible. The declarant does not need to be unavailable.

Front 126

All property acquired during marriage is ____________.

Back 126

community property absent an agreement to the contrary.

Front 127

Property acquired prior marriage or after seperation is ________.

Back 127

separate property

Front 128

The marital economic community begins ______-- and ends _________. For registered domestic partners it begins at ________.

Back 128

at marriage; death or when the spouses effect a permanent physical separation;
registration.

Front 129

Wages earned during marriage are ___________.

Back 129

community property absent an agreement to the contrary.

Front 130

A spouse may acquire separate property during marriage from the following sources:

Back 130

1. gift, bequest, or devise to one spouse
2. rents or profits from SP acquired before marriage or during marriage
3. property acquired through exchange of separate property.

Front 131

Property acquired during marriage is presumed __________. That presumption can be rebutted by _________.

Back 131

to be community property;
tracing the property to separate property or showing that it was a gift.

Front 132

Personal injury damages are _________________. At divorce the damages will be ____________.

Back 132

community property if the cause of action arose during marriage;
awarded to the injured spouse unless justice demands otherwise.

Front 133

Pensions are treated as ____________.

Back 133

community property to the extent that they were earned during marriage (even if paid after separation).

Front 134

Disability and worker's compensation payments are _________.

Back 134

CP to the extent that they are meant to replace earnings during marriage. Awards after marriage are SP even if the right to benefits was earned during marriage.

Front 135

Severance pay paid after separation is treated as _________.

Back 135

CP if it is a retirement replacement, but as SP if meant to sustain worker until a new job has been acquired.

Front 136

Options are treated as ___________.

Back 136

CP is earned during marriage even if exercised afterwards. (but look for options awarded to keep an employee from leaving employment).

Front 137

Business and professional goodwill is treated as ___________. It is calculated by __________.

Back 137

CP if earned during marriage;
market sales valuation or capitalization of past excess earnings

Front 138

Education and training received by a spouse during marriage is treated as ___________. At divorce __________ where ___________. Educational loans outstanding at divorce _________.

Back 138

SP;
the community has a right to reimbursement + interest;
CP was used to pay for it or pay loans on it AND the education or training substantially enhanced the party's earning capacity;
outstanding loans are assigned to the party that accrued them.

Front 139

The community may not be owed reimbursement for educational expenses where:

Back 139

1. the community has already substantially benefited from the training (+10 yrs)
2. the other spouse received community funded education
3. the need for spousal support is reduced by the training.

Front 140

When a person names someone other than their spouse as their life insurance beneficiary the proceeds ___________. For whole life the division of proceeds depends on_______. For term policies the division depends on ___________.

Back 140

if the premiums were paid from CP, the proceeds are CP, with the surviving spouse entitled to their 1/2;
the % of premiums that were paid from CP;
whether the last premium was paid from CP

Front 141

At divorce, life insurance policies are treated as _______.

Back 141

CP to the extent that they have a cash value (whole life). term policies are not treated as having any value.

Front 142

Premarital agreements must be _______ under the ____. Oral agreements may be enforced when:

Back 142

written, SoF;
when the promiser has fully performed his promise or the promiser is estopped from asserting the statute of frauds (typically detrimental reliance)

Front 143

A premarital agreement is unenforceable if:

Back 143

1. it promotes divorce;
2. was not entered into voluntarily (w/ understanding and time to deliberate); or
3. it was unconscionable when entered AND the burdened party did not have adequate disclosure of the other party's wealth.

Front 144

A waiver of death rights in a premarital agreement is ___________.

Back 144

enforceable.

Front 145

Post-marital agreements made before _______ are subject to the doctrine of _________ which recognizes oral____________.

Back 145

1985;
transmutation;
oral agreements to change property rights between spouses and agreements and donations inferred from behavior.

Front 146

Post-marital agreements entered after _____ require _______ to be valid. The rule does not apply to ____________.

Back 146

1985;
a writing signed by spouse whose interest is adversely effected;
gifts of a personal nature between spouses that are of insubstantial value given the couple's financial circumstances.

Front 147

Statements in wills or inter vivos trusts describing property as CP are __________.

Back 147

not evidence of transmutation absent an unambiguous intent otherwise.

Front 148

When one spouse gains an advantage over another spouse in a property transaction __________.

Back 148

there is a rebuttable presumption of undue influence, although courts hesitate to upset transactions between spouses.

Front 149

In order to create a joint tenancy in spouses the deed must say ________. In this case each spouse holds __________.

Back 149

"to H and W, as joint tenants";
1/2 of title in SP.

Front 150

Community property is a form of title in which each spouse ________.

Back 150

holds an undivided 1/2 share and neither may partition.

Front 151

Prior to _____ any property conveyed to "H and W" presumptively was treated as _____. After _______ that conveyance is presumed to be ______.

Back 151

1975;
tenancy in common w/out right of survivorship;
1975, CP.

Front 152

When written title was placed in a married woman's name prior to ______ the property was _______. If title was taken as tenants in common by a married couple W's interest was ________ and H's interest was _________. This rule is called _____________.

Back 152

1975;
presumptively her SP;
SP, CP;
the married woman's special presumption.

Front 153

The married woman's special presumption is rebuttible between the spouses by showing _______. When W's title is relied on by a gf purchaser the title was ________.

Back 153

that H did not intend to put title in her name or intend the property as a gift;
irrebuttable.

Front 154

Today, absent evidence to the contrary it may be _____ that when one spouse purchases property and places title in the other's name ___________.

Back 154

inferred;
it is intended as a gift and SP.

Front 155

When spouses take joint and equal title in property, ______ states that the property is __________ regardless of ________. This remains true when the marriage ends in _____.

Back 155

Lucas;
presumed to be CP;
SP used in the purchase or improvement;
death

Front 156

The Lucas rule says __________.

Back 156

when spouses take title to property in joint and equal interest the property is presumed to be CP regardless of SP used in the purchase or improvement.

Front 157

Under the ________, when a marriage ends in __________ the spouse who contributed _________ jointly held property is entitled to _________.

Back 157

anti-Lucas statutes;
divorce or separation;
SP to acquire, pay down principal or improve;
reimbursement from CP without interest.

Front 158

All property held in joint form by spouses is presumed to be _________.

Back 158

CP, rebuttable by agreement otherwise.

Front 159

Available community funds are presumed to be used for _______. If SP is used to pay for _______ it is presumed to be _______.

Back 159

family expenses;
family expenses, a gift.

Front 160

A spouse may demonstrate use of SP to acquire property where funds are comingled by tracing using either the _______ or ________. A proponent cannot simply show that _____________.

Back 160

direct tracing, showing that SP were available and the spouse intended to use them;
exhaustion method, showing that community funds in the account had already be exhausted on family expenses so the asset must have been purchased with SP;
funds in the account exceed community funds-community expenses and therefore every else is SP.

Front 161

If a spouse cannot show by _______ that funds in a comingled account are SP, then _________. Contents of a bank account are __________.

Back 161

tracing;
the entire account is treated as CP;
presumptively CP under the probate code.

Front 162

Business profits may be apportioned between CP and SP using either the _________ or_____ accounting method. In the ______ accounting _______. In the ________ accounting ________. Which method is appropriate depends on __________.

Back 162

Van Camp, Pereira;
Van Camp-manager-spouses cervices are valued at mkt salary. The family expenses paid from biz profits are subtracted. The remainder profits are CP. The rest of the biz is SP.;
Pereira-SP is manager's separate capital + fair interest rate. The rest is CP.;
whether the management is primarily responsible for growth (Pereira) or the character of the separate biz (Van Camp).

Front 163

When CP is used to pay down principal on SP debt, the CP takes ___________.

Back 163

an ownership in the SP proportional to the principal paid with CP.

Front 164

If a spouse uses CP improve the other spouses' SP, the funds are presumptively ________. If a spouse uses CP to improve their own SP, it is presumptively_______--.

Back 164

a gift from the CP to the spouse, absent agreement otherwise;
a loan under which the CP is entitled to reimbursement for either the amount given or the increased value of the realty, whichever is greater.

Front 165

When an untitled asset is purchased with both SP and a community bank loan_________.

Back 165

The asset is SP according to proportion used for purchase and CP as to proportion purchased with community loan.

Front 166

Whether a loan is CP or SP is determined according to _____________. To demonstrate that purchases made with a loan acquired while married are SP, the proponent must show__________. Loans based on earning potential are _______.

Back 166

the intent of the lender;
that the lender primarily relied on the borrower's SP in extending credit;
CP.

Front 167

A divorce court has the power to divide _______ and ______. It only has the power to divide ______ if _______.

Back 167

CP and jointly titled SP;
separately titled SP if both parties agree.

Front 168

Upon divorce each spouse is entitled to ____________.

Back 168

a 1/2 interest in each community asset (an in kind division).

Front 169

A divorce court may deviate from the in kind division of assets where __________. The common example is where _________.

Back 169

it deems proper and can effect a substantially equal division of the estate;
division of the family home would uproot minor children or an asset is intimately tied to one spouse.

Front 170

Where one spouse violates his fiduciary relationship with the other by misappropriating CP, the court may__________.

Back 170

offset the value of the misappropriated property from that wrongful spouses' share of remaining property.

Front 171

When liabilities exceed assets upon divorce the liabilities are divieded____________.

Back 171

as the court deems fit taking into account the parties' relative ability to pay debts.

Front 172

Educational debts incurred by one spouse are treated as ____________.

Back 172

separate debt upon divorce.

Front 173

When one spouse incurs a tort liability, upon divorce it is treated as _______ where__________.

Back 173

a separate liability;
the tort was not committed for the benefit of the community.

Front 174

Assets and liabilities for divorcing spouses are valued at the time ________. Businesses are valued at the time________.

Back 174

as near trial as possible;
as near separation as possible.

Front 175

Transfers between spouses pursuant to divorce are _______ taxable events.

Back 175

non-taxable

Front 176

The divorce distribution may be set aside in cases of ________. This action must be brought within __________.

Back 176

mistake, fraud, excusable negligence or where a party failed to comply with the full disclosure requirement;
one year of judgement (or 1 year of discovery)

Front 177

A married person may devise _________.

Back 177

their 1/2 interest in community property.

Front 178

A spouse may make an inter vivos gift of CP where ________. At the death of the donor spouse __________.

Back 178

he has the written consent of the other spouse, otherwise the gift is voidable;
unauthorized gifts are treated as devises of the decedant's 1/2 share of CP>

Front 179

Upon a spouse's death the surviving spouse is entitled to _________. Unless she consents this claim is not satisfied by _________.

Back 179

1/2 of all community assets;
a 1/2 aggregate of CP.

Front 180

A surviving spouse ________ when the deceased spouse's will attempts to devise an entire CP asset to a 3rd party. The surviving spouse may assert both testamentary rights and CP rights where________.

Back 180

elect to take under the will or CP;
doing so does not upset the testamentary plan.

Front 181

When a spouse dies intestate their 1/2 CP interest passes _______.

Back 181

to their spouse

Front 182

When a spouse dies intestate their SP passes to ___________-.

Back 182

1. 100% to spouse if decedant died without issue, parents, siblings, or issue of siblings; or
2. 1/2 to spouse and 1/2 to surviving single issue or single surviving issue of issue or to surviving parents, siblings, or their issue; or
3. 1/3 to spouse when decedant leaves more than one living child, or one living child + issue of other deceased issue, or 2 or more deceased issue.

Front 183

When a surviving spouse dies intestate without a living spouse or issue, the realty derived from their deceased spouse _________ providing the predeceased spouse died _________. The same rule applies to personal property worth _______when ______________.

Back 183

returns to the predeceased spouse; family line;
not more than 15 years prior;
more than $10,000;
the spouse died not more than 5 years prior.

Front 184

Quasi-CP is __________.

Back 184

property acquired by either spouse that would have been CP had they lived in CA when it was acquired.

Front 185

Creditors may reach any property ___________. Quasi-CP is treated as ___________.

Back 185

over which the debtor has management or control;
CP for these purposes.

Front 186

Debt is incurred when ________. Spousal and child support debt is incurred ____________.

Back 186

at the time the contract is made or tort committed;
incurred before marriage.

Front 187

Creditors may reach _______. Creditors for debt incurred before marriage may not reach ______________. Both spouses are personally liable for _________.

Back 187

all CP and the debtor's SP, but not the spouse's SP;
the non-debtor spouse's earnings if they are kept in a separate account to which the debtor spouse has no right of withdrawal;
debt for necessities for either spouse incurred until a separation agreement is in place.

Front 188

A person is not liable for their spouse's torts unless _________. If the tort is based on an act performed __________ then the debt is satisfied by ____________. If the tort is not for this reason the debt is satisfied by ______________-.

Back 188

they would have been liable for them had the marriage not existed;
for the benefit of the community, first the community property then the spouse's separate property;
first from SP then from CP.

Front 189

Divorced spouses are liable for all debts ______________. When a former-spouse's creditor takes the other's property _____________.

Back 189

they personally incurred (even if not assigned to them) or were assigned by the court;
there is a right of reimbursement.

Front 190

When property passes through probate, debts are paid from the decedent's estate __________.

Back 190

after the court has made a division of SP and CP and assigned the debts appropriately.

Front 191

When a deceased estate passes to their surviving spouse without probate debts are ___________.

Back 191

charged against the CP, quasi-CP, or SP of the decedent and the surviving spouse becomes personally liable.

Front 192

One spouse may seek statutory reimbursement from the other spouse when CP was used to__________, _______ debts are paid out of the other spouse's SP and debtor SP or CP was available, or _________.

Back 192

pay child or spousal support claims and SP was available to pay;
necessity debts;
where the order of priority for tort liability was not followed.

Front 193

The right to statutory reimbursement between spouses must be exercised _________.

Back 193

within 3 years of after actual knowledge of the claim or in divorce or death proceedings.

Front 194

Federal law preempts CA CP law in:

Back 194

1. federal homestead act
2. armed forces life insurance or disability benefits
3. US savings bonds
4. SS benefits.

Front 195

Federal law allows CA to treat the following federal benefits according to CP law:

Back 195

1. military retirement benefits
2. federal civil or foreign service retirement pay
3. division of copyright proceeds

Front 196

Quasi-CP is treated like ______ at divorce. It is treated like ______- during life.

Back 196

CP;
SP (except spouse's creditors can reach it).

Front 197

If a spouse transferred quasi-CP to a third party while they were alive not for valuable consideration, their surviving spouse may _______-- if__________.

Back 197

demand 1/2 the value of the transferred property;
the decedent reserved any rights to revoke, income, or disposition of the principal, or if the decedent had a right of survivorship.

Front 198

For the purposes of death, CP acquired in another CP state is treated as__________.

Back 198

CP, rather than quasi-CP.

Front 199

If real property is held out-of-state, a CA court will effect a divide of it by:

Back 199

1. dividing the assets in such a way as to not effect the out of state property; or
2. requiring the parties to execute the necessary conveyances; or
3. granting one spouse the monetary value of a conveyance.

Front 200

Real property is probated ________.

Back 200

according to the laws of the jurisdicition in which it sits.

Front 201

For the purposes of death, when a spouse exchanges out of state real property that would be CP in CA to property in CA, the resulting CA property is_______.

Back 201

CP.

Front 202

Real property located in CA is probated according to the law ______.

Back 202

of the decedent's domicile.

Front 203

Common law marriage are _______ recognized by CA, but______.

Back 203

not;
such marriage arising in states that do recognize them are recognized by CA.

Front 204

A putative spouse is____________. A putative spouse's rights cease when ________.

Back 204

a person who is not actually married, but has a good faith belief that they were married based on objectively reasonable grounds;
they learn that they are not validly married.

Front 205

Putative spouses have _____- rights. If a decedent leaves both a legal and a putative spouse_______.

Back 205

normal spousal rights;
the decedent's estate is divided between the two by the court.

Front 206

Cohabitants have ______-- rights between each other. Property acquired during cohabitation is ____ if the couple later marries.

Back 206

only contractual rights (can be implied by their conduct and the doctrine of quantum meruit);
SP even

Front 207

Each spouse has separate control and management of _______. Each spouse has ________ CP.

Back 207

SP and quasi-CP;
equal management, but the ability to fully sell, spend, or encumber

Front 208

In order to transfer real property held in CP ___________.

Back 208

both spouses must execute the transfer (except for leases under 1 yr).

Front 209

If one spouse transfers CP held only in their name to ________, the other spouse may_________. Transfers to good faith purchasers are ________. A non-consenting spouse may __________- a security interest on CP.

Back 209

an innocent purchaser (as by misrepresenting their marital status);
void the transaction w/in 1 yr by returning the purchase price;
presumed valid, but may be rebutted by showing the other spouse did not consent or participate in the sale;
void (but not the debt)

Front 210

All transfers of ___________- require the written consent of the other spouse. A nonconsenting spouse may_____________.

Back 210

CP household furniture or clothing of the spouse or minor children;
void the transfer at any time without returning the purchase price.

Front 211

A spouse who operates a business interest that is substantially CP has ________ management rights over the biz. He must give the other spouse __________ on transactions involving___________. The non-managing spouse has a remedy where______________. The non-managing spouse may ______ the transaction.

Back 211

primary;
prior written notice;
transactions involving all or substantially all of the personal property used in the biz;
her 1/2 interest has been substantially impaired by the transaction;
not void.

Front 212

A bank account __________ is unreachable by anyone except a _______.

Back 212

held in one spouse's name and for their exclusive benefit;
creditor.

Front 213

Gifts of CP require ___________. The non-donor spouse may _________. After the donor spouse's death, the surviving spouse can_________.

Back 213

written consent of the non-donee;
revoke the gift in its entirety at any time;
can recover 1/2 interest in the gift from the donee or the donor's estate.

Front 214

Spouses owe each other ______. Prior to ______ deliberate destruction of CP was actionable by a spouse. Since ____, ____ destruction is actionable.

Back 214

fiduciary duties;
2003;
2003, grossly negligent or reckless

Front 215

A state has criminal jurisdiction where:

Back 215

the crime occurred in, caused a result in, neglected a duty imposed by, or a conspiracy was planned inside the state

Front 216

Constituitionaly, a criminal statute must give_________ and not be _________.

Back 216

fair warning;
arbitrarily or discriminatorily applied.

Front 217

Under the CL, doctrine of _____ a person could be convicted of both a ______ for the same act.

Back 217

merger;
felony and misdemeanor

Front 218

Under the modern law, the doctrine of _________ no longer applies. However, a person cannot be convicted of both _______ and ________.

Back 218

merger;
solicitation and the completed crime, attempt and the completed crime.

Front 219

Under double jeopardy a person cannot be convicted or tried of both _____, although the court may _______________.

Back 219

a greater crime and its lesser included crime;
impose multiple punishments for two or more statutorily defined offenses for the same conduct.

Front 220

A crime requires both ______ and ______.

Back 220

actus reus and mens rea

Front 221

To commit a crime the defendant must do something __________, unless___________.

Back 221

volitional;
they knew that they were likely to become unconscious and perform the act

Front 222

A person may only be convicted of an omission where:

Back 222

1. there is a duty to act
2. the person knows of the facts requiring their act, and
3. it was reasonably possible for them to perform the duty

Front 223

In a crime of possession, the required act is_____________. Many statutes add a knowing requirement under which D must________.

Back 223

knowing that they possess the object, but not necessarily its illegality;
know the nature or identity of the item (but willful ignorance is not a defense).

Front 224

specific intent crimes require that the defendant _____________. The specific intent crimes are:

Back 224

intended to do the specific act, cannot be inferred by the act itself;
solicitation, attempt, conspiracy, 1st degree murder, assault, larcency and robbery, burglery, forgery, false pretenses, and embezzlement

Front 225

Criminal malice is ___________. Crimes of malice are ___________.

Back 225

reckless disregard for a known risk;
CL murder and arson

Front 226

General intent crimes require ____________.

Back 226

awareness of all factors constituting the crime, acting in a particular way and likelihood that any attendant circumstances will occur.

Front 227

The doctrine of transferred intent applies where__________. It applies to the following crimes:

Back 227

D intended the harm caused, but to a different victim or object or intended a different harm to the same victim;
homicide, arson, and battery

Front 228

Under the Model Penal Code, the levels of fault are _____________.

Back 228

purposefully (w/ conscious object),
knowingly(aka willfuly) (w/ awareness of nature of conduct or likelihood of a particular result,
recklessly (knows of a substantial unjustified risk and consciously disregards it)
neglgience (unaware of a substantial and unjustifiable risk)

Front 229

The mental fault and the physical act of a crime must _________.

Back 229

be concurrent

Front 230

An accomplice is one who __________. Mere _______ is insufficient. They are liable for _______.

Back 230

gives aid, encouragement, or counsel to a principal in committing a crime with the intent that they commit that crime;
knowlege of a criminal purpose when selling ordinary goods at ordinary prices; the crimes aided and any others committed in the course of the crime that were probable or foreseeable.

Front 231

An accessory after the effect is one who __________ and is liable for _____________.

Back 231

aid a person to escape knowing that they have committed a felony;
liable for the crime of being an accessory after the fact/

Front 232

Who cannot be an accomplice?

Back 232

1. a member of the class intended to be protected by the law
2. a necessary party to the crime who is not provided for by the statute (buyer in a sales crime)

Front 233

A person may avoid accomplice liability by withdrawing ____________.

Back 233

before the crime becomes unstoppable and
1) offering repudiation where only encourgaement was offerred, or
2) attempting to neutralize any aid that was offered.

Front 234

Solicitation is the _______________.

Back 234

inciting, counseling, urging, or commanding of another to commit a crime with the intention that that person commit the crime (they need not agree).

Front 235

It is not a defense to solicitation that ____________. It is a defense that ________.

Back 235

the person solicited is not convicted or did not agree, that the solicitor renounced their support, that the crime was impossible;
the solicitor is protected by a legislative intent not to convict

Front 236

A conspiracy is ______________.

Back 236

(1) an agreement between two or more parties (2) with the intent to enter the agreement (3) and an intent of at least two people to commit a crime. Many states also require an overt act in furtherance of the conspiracy.

Front 237

Under the __________ Rule where two or more parties _________ it takes ______ people to find conspiracy. The Rule does not apply to _________.

Back 237

Wharton;
are necessary for the crime to occur;
additional parties;
agreements with parties who are necessary to the commission of the crime, but not included in the statute (they can be guilty of conspiracy)

Front 238

Under the traditional view an alleged co-conspirator could not be charged where_______. Under the MPC view _______________.

Back 238

all his co-conspirators were acquitted at trial;
D can be convited even where all other parties were acquitted or only feigning agreement.

Front 239

Co-conspirators are liable for the crimes of their co-conspirators where____________.

Back 239

they were foreseeable and performed in furtherance of the conspiracy.

Front 240

Generally, a conspiracy terminates ____________.

Back 240

when the objective is achieved, unplanned acts of concealment after that point are generally not part of the conspiracy.

Front 241

Withdrawal from a conspiracy occurs where______________. It has the effect of ____________.

Back 241

notice of withdrawal is affirmatively given to all members of the conspiracy in time for them to abandon their plans. If assistance has been given the withdrawer must attempt to neutralize it;
releasing the defendant from liability for future crimes committed in furtherance of the conspiracy, but not from the crime of conspiracy.

Front 242

In a large conspiracy all members are liable for the crimes of the others in a ______ relationship in which ____________. They are not all liable for each other's crimes in a _______ relationship in which_________.

Back 242

chain, all parties are interested in the single larger scheme;
hub and spoke, subagents are linked to a common co-conspirator.

Front 243

An attempt is ________________.

Back 243

an act done with the intent to commit a crime that falls short of committing the crime.

Front 244

In order to be liable for attempt a person must commit __________. The traditional test was__________, but the modern test is ________________.

Back 244

an act beyond mere preparation;
the dangerously close to completion "proximity test";
substantial step that strongly corroborates criminal purpose.

Front 245

________- impossibility is a defense to attempt, ___________ impossibility is not.

Back 245

legal (acts would not have constituted a crime under any circumstances);
factual (could not be carried out)

Front 246

The M'Naghten rule states ________.

Back 246

D is entitled to acquittal due to insanity where he had a mental disease or defect that caused him to either (1) not know his act was wrong, or (2) not understand the nature and quality of his act. (does not cover loss of control)

Front 247

The Irresisitible Impulse test states____________.

Back 247

that D shall be acquitted where if because of mental illness he was unable to control his actions or conform conduct to the law.

Front 248

The Durham test states that ___________.

Back 248

D is entitled to acquittal if the crime was the product of his mental disease (but for). (boardest test)

Front 249

The MPC test for insanity defenses states that_________.

Back 249

D is entitled to acquittal where he (1) had a mental disease or defect, the result which he lacked the ability to either (a) appreciate the criminality of his conduct, or (b) conform his conduct to the requirements of the law.

Front 250

____ has the burden of raising the insanity defense. The defense may be raised ________. If the defense is raised the D may not _________.

Back 250

D;
before taking a guilty plea;
refuse a court-ordered psychiatric exam

Front 251

Under the due process clause, a person cannot be tried or convicted if, as a result of mental disease or defect, _____________. A defendant may not be executed if____________.

Back 251

(1) he us unable to understand the nature of the proceedings against him, or
(2) to assist his lawyer in the preparation of his defense;
he is incapable of understanding the nature and purpose of the punishment.

Front 252

In states where a "diminished capacity" defense is allowed __________.

Back 252

D show that he did not have the necessary intent to commit the crime due to a mental defect short of insanity (generally only applies to specific intent crimes).

Front 253

Voluntary intoxication is _________. It may be offered as a defense to ___________. It is no defense for___________.

Back 253

intentional consumption of a substance known to be intoxicating without duress;
intent or knowledge crimes where the D could not form the requisite intent or knowledge (generally specific intent crimes);
crimes involving malice, recklessness, or negligence.

Front 254

Involuntary intoxication is___________. It entitles D to___________.

Back 254

ingestion of an intoxicating substance without knowledge of its nature, under duress, or pursuant to medical advice while unaware of the effect;
acquittal under the insanity standards in the jurisdiction.

Front 255

The self-defense jusificaition allows a person to___________. A person may use deadly force _______________. Some states allow___________.

Back 255

use such force as reasonable appears necessary to protect themselves from imminent, unlawful force (no duty to retreat);
when they are (1) w/out fault (did not start it), (2) confronted with unlawful force, and (3) is threatened with imminent death or great bodily harm;
imperfect self-defense where all elements for deadly force are not met but the charge is reduced to manslaughter.

Front 256

In those states that require retreat before use of deadly force the following exceptions apply:

Back 256

1. retreat must be safe
2. the attack occurs in the V's house
3. while the victim is making a lawful arrest
4. the assailant is in the process of robbing the V

Front 257

As a general rule, when a person is the aggressor in an altercation they are only privileged to use self-defense where:

Back 257

1) they have previously effectively withdrawn from the altercation and alerted the other party; or
2) the other party escalated the fight into a deadly altercation before D could withdraw.

Front 258

The right to use force in the defense of others exists where ________.

Back 258

she reasonably believes the other party has the right to use force in their own defense. Must be a reasonable appearance of right,

Front 259

______ force is privileged in the defense of a dwelling. _________ force is privileged in defense of a dwelling only where_____________.

Back 259

nondeadly force;
deadly force, to prevent a violent entry made with the intent to commit a personal attack on an occupant or to commit a felony therein

Front 260

________ force may never be used in defense of a possession. ________ may be used to _______, but not where__________.

Back 260

deadly;
nondeadly force;
defend property in one's possession from unlawful interference;
a request would suffice.

Front 261

Force may not be used to _________ possession unless_______.

Back 261

regain;
it is used in hot pursuit of the taker.

Front 262

Force may be used to prevent a crime where__________ . Deadly force may be used __________.

Back 262

it appears reasonably necessary to prevent a felony or serious breach of the peace;
only to terminate or prevent a dangerous felony involving risk to human life.

Front 263

Police officers may use ________ to effect arrest. Deadly force may be used when_________.

Back 263

nondeadly force as it appears reasonably necessary;
to prevent a felon's escape if the felon threatens death or serious bodily injury.

Front 264

A private person may use nondeadly force to effect an arrest where___________. They may use deadly force where__________.

Back 264

a crime was in fact committed and the person has reasonable grounds for believing the person arrested committed it;
the person harmed was actually guilty of the offense.

Front 265

Nondeadly force may be used to resist an __________. Deadly force may be used to resist _________.

Back 265

improper arrest even if defendant knows the other is a police officer;
arrest only where defendant does not know the other person is a police officer.

Front 266

Necessity is a valid defense where________. The limitations of the defense are:

Back 266

the defendant reasonably believed that the crime was necessary to avoid imminent and greater danger to society than the crime. (good faith is not enough);
deadly force may never be used to protect property;
there is no defense of necessity where the person created the danger;
necessity only involves natural or physical dangers, not duress.

Front 267

A police officer is justified in using ________force so long as _________.

Back 267

reasonable;
he is acting pursuant to a law, court order, or process requiring him to so act.

Front 268

Parents or anyone in loco parentis are justified in using ________

Back 268

reasonable force for the purpose promoting the welfare of the child.

Front 269

Duress is a defense for ___________.

Back 269

any crime except homicide in which defendant reasonably believed that another person would imminently inflict death or great bodily harm on him or a member of his family if he did not so behave.

Front 270

The justification defenses are:

Back 270

1. self defense
2. defense of others
3. defense of dwelling
4. defense of property
5. crime prevention
6. arrest
7. resist arrest
8. necessity

Front 271

Mistake is a valid defense against ____ crimes. It must be reasonable for _______ crimes.

Back 271

intent;
general intent, but not specific intent

Front 272

As a general rule mistake of law is not a valid defense even where __________. However, it is a defense where___________.

Back 272

reasonable and based on legal advice;
the law was not published or made available prior to the conduct, she acted in reasonable reliance on a published judicial decision, and (in some jurisdictions) she acted in reasonable reliance on official interpretation or advice.

Front 273

Generally, consent is only a defense where ________ is an element of the crime. It is also a defense for _________. Where consent is a defense it must be_____________.

Back 273

lack of consent;
minor assaults or batteries;
voluntary and freely given, by a person legally capable of giving consent, and no fraud used to obtain it.

Front 274

Entrapment exists where____________. A person cannot be entrapped by_________.

Back 274

the original criminal design originated with the officers and the defendant was not predisposed to commit the crime before contact with them;
a private person or the mere supply of contraband by a government agent.

Front 275

A battery is_________.

Back 275

an unlawful application of force to the body of another resulting in bodily injury or offensive touching.

Front 276

An aggravated battery is___________.

Back 276

1) battery with a deadly weapon
2) battery resulting in serious injury
3) battery of a woman, child, or police officer

Front 277

An assault is_____________.

Back 277

Either:
1) attempted battery, or
2) intentional creation of reasonable apprehension in another of imminent bodily harm using more than words.

Front 278

Mayhem is_____________.

Back 278

at CL dismemberment or disablement of a body part. Under the modern trend this is treated as aggravated battery.

Front 279

The CL homicides are:

Back 279

1. murder
2. voluntary manslaughter
3. involuntary manslaughter

Front 280

CL murder is____________.

Back 280

the unlawful killing of a human with malice aforethought. Malice aforethought exists where one of the following exists:
1) intent to kill
2) intent to inflict great bodily injury
3) reckless indifference to a grave danger to human life (malignant heart)
4) intent to commit a dangerous felony (felony-murder).

Front 281

CL involuntary manslaughter is ____________. ______ is adequate if__________. Some states also recognize a __________.

Back 281

a killing that would be murder, but for adequate provocation. Provocation;
1) it would raise a sudden and intense passion in the mind of an ordinary person causing him to lose control
2) D was in fact provoked
3) insufficient time between provocation and killing for passions to cool in a reasonable person and
4) D did not in fact cool off before the killing;
imperfect defense killing that is manslaughter.

Front 282

CL involuntary manslaughter is_____________.

Back 282

committed with criminal negligence or during the commission of an unlawful act (misdemeanor felony).

Front 283

Under a many state statutes murder is divided into degrees. Typically, murder is _______ unless one of the following circumstances render it ________.:

Back 283

2nd degree;
1st degree;
1) deliberate and premeditated
2) felony murder (commonly arson, robbery, burglary, rape, mayhem, kidnapping)
3) particular forms of murder by statute

Front 284

Any death caused in the course of___________ is murder. For this rule to apply the defendant:

Back 284

in the commission of or attempt to commit an inherently dangerous felony;
1) must be guilty of the underlying felony,
2) the killing must be distinct from the felony
3)death must be a foreseeable result
4) caused before immediate flight (not reached a place of temporary safety yet)
5) V not a co-felon
6) death is caused by D or his accomplice, except in proximate cause jurisdictions where D may be liable for innocent Vs of the V or police

Front 285

A death caused during the commission of a misdemeanor is_________. The death must have been __________.

Back 285

misdemeanor manslaughter;
a foreseeable result of the misdemeanor or the crime malum in se.

Front 286

To be convicted of murder the D's conduct must be_________ of the victim's death.

Back 286

both the cause in fact (but for) and the proximate cause (natural and probable consequence of conduct, no intervening factors broke chain of causation).

Front 287

For murder, an act that hastens an inevitable result________. Simultanious acts of two persons may____________. A V's preexisting weakness _____________.

Back 287

is still the cause (still murder);
may be independently sufficient causes leading to death;
is not an intervening factor even where unforeseeable.

Front 288

Traditionally, for D to be tried for murder the V must die __________. The modern trend is_______.

Back 288

within one year and one day of the infliction of the injury;
to abolished this rule.

Front 289

Generally, an intervening acts shields D from murder liablity if_________. ____________ are both treated as foreseeable.

Back 289

it is a coincidence or outside the foreseeable sphere of risk created by D;
negligent medical care and V refusal to accept medical care

Front 290

Criminal False imprisonment is _____________.

Back 290

1) the unlawful confinement of a person (MPC requires substantial interference with victim's liberty)
2) without his valid consent (invalidated by threats, coercion, deception, or incapacity due to mental illness, youth, or retardation.)

Front 291

Criminal Kidnapping is _____________.

Back 291

unlawful confinement of a person and either (a) movement of them, or (b) concealment of them in a secret place

Front 292

Criminal rape is ____________.

Back 292

unlawful carnal knowledge of a woman, not her husband, without her effective consent. (most states reject the husband bit)

Front 293

Lack of effective consent for criminal rape exists where:

Back 293

1. intercourse accomplished through force
2. through threats of great and immediate bodily harm
3. when V is incapable of consenting due to intoxication, unconsciousness, or mental capacity
4. V is fraudulently caused to believe the act is not intercourse

Front 294

Statutory rape is______________. It is a _______ crime.

Back 294

carnal knowledge of a female under the age of consent;
strict liability

Front 295

Adultry is___________. Fornication is_____________.

Back 295

sexual intercourse in which at least one of the parties is married to someone else (gen must be open and notorious);
open and notorious fornication by unmarried persons

Front 296

Criminal seduction is____________.

Back 296

inducing an unmarried woman to have intercourse by promise of marriage (chastity not needed)

Front 297

Bigamy is ________. It is a _____ crime.

Back 297

marrying someone while having a living spouse;
strict liability

Front 298

Criminal larceny is_____________.

Back 298

1. a taking
2. and carrying away
3. of tangible personal property
4. from the possession of another
5. by trespass (without consent or by fraud)
6. with intent to permanently deprive (intent at time of taking).

Front 299

For the purposes of property crimes, a taking while the D is in possession is _________, in custody is _________.

Back 299

embezzlement;
larceny (more limited scope of authority over property such as a low level employee)

Front 300

There is no larceny when at the time of taking the D _____________. If D later forms the intention to keep goods that she has taken this is____________.

Back 300

believes the goods to be her own, intends to return them, or to keep it in repayment of a debt;
larceny when she decided to keep them if they were wrongfully (not innocently) taken

Front 301

Embezzlement is _____________. There is no embezzlement where the D intended______________.

Back 301

1) the fraudulent
2) conversion (dealing w/ in a manner inconsistent with the the arrangement by which D has possession)
3) of personal property
4) of another
5) by a person in lawful possession of that property.;
to return the exact property (same quantity of $ not good enough) or took with a claim on the property

Front 302

The crime of false pretenses is______________.

Back 302

1) obtaining title
2) to the personal property of another
3) by an intentional false statement of past or existing fact (V must have relied on this) (false promises to perform are insufficient)
4) with the intent to defraud

Front 303

If V is tricked into giving up possession of propety this is the crime of _________. If he is tricked into giving up title of property this is__________.

Back 303

larceny by trick;
false pretenses

Front 304

Criminal robbery consists of ____________.

Back 304

1) a taking
2) of personal property of another
3) from the other's person or presence
4) by force of threats of immediate death or injury to the V, a member of his family, of a person in the V's presence
5) with the intent to permanently deprive.

Front 305

Extortion traditionally is______________. Modern trend includes____________.

Back 305

the corrupt collecting of an unlawful fee by an officer under color of office;
obtaining property by means of threats to harm of expose information.

Front 306

Receipt of stolen property is____________.

Back 306

1) receiving possession and control (need only be in a place the D controls)
2) of stolen personal property (stolen as of the time D receives it, if its a police set up it is only an attempt)
3) known to have been obtained by means of a crime
4) by another person
5) with the intent to permanently deprive

Front 307

Forgery is______________.

Back 307

1) the making or altering of
2) a writing with legal significance
3) so that it is false (represents something that it is not)
4) with the intent to defraud (fraudulently obtaining another's signature to a document is forgery)

Front 308

Uttering a forged document is___________.

Back 308

1) offering as genuine
2) an instrument that is false
3) with the intent to defraud

Front 309

Malicious mischief is______________.

Back 309

1) the malicious (intended or contemplated the damage)
2) destruction or damage of
3) the property of another

Front 310

Burglary is________________.

Back 310

1) a breaking
2) and entry
3) of a dwelling (regularly used for sleeping)
4) of another (occupied by someone else)
5) at nighttime (mod generally eleminated)
6) with the intent to commit a felony in the structure (mod misdeameanor may be enough)

Front 311

Arson is_____________.

Back 311

1) the malicious (intentional or with reckless disregard)
2) burning (at least some charring)
3) of the dwelling (mod includes other properties)
4) of another

Front 312

Houseburning is_________

Back 312

1) the malicious
2) burning
3) of one's own dwelling
4) if the structure is situated in a city or town near enough to other houses to endanger them

Front 313

Perjury is_______________. The person who induces perjury is guilty of _________.

Back 313

the intentional taking of a false oath in regard to a material matter in a judicial proceeding;
subordination of perjury

Front 314

Bribery is________________.

Back 314

the corrupt paying or taking of anything of value for official action.

Front 315

The compounding of a crime is_________.

Back 315

agreement to conceal or not prosecute a felony in exchange for valuable consideration.

Front 316

The constitutional rights of _________ in criminal cases do not apply to the states.

Back 316

right to indictment by a grand jury and right against excessive bail.

Front 317

The fourth amendment prohibits __________ and creates the ____ rule.

Back 317

unreasonable searches and seizures;
exclusionary

Front 318

The fifth amendment grants the rights: __________.

Back 318

1) privilege against self-incrimination
2) prohibition on double jeopardy

Front 319

the sixth amendment grants the rights__________.

Back 319

1) to a speedy trial
2) a public trial
3) to confront a witness
4) a compulsory process for obtaining witnesses
5) the assistance of counsel in felonies or misdemeanors where imprisonment is imposed

Front 320

the eighth amendment prohibits _________.

Back 320

cruel and unusual punishment