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when can a suspect invoke his 5A Miranda right to counsel?
how must it be done?
- Any time BEFORE or DURING INTERROGATION.
- - the request must be unambiguous and specific
if suspect agrees to answer questions orally, but requests presence of counsel for written statements, are oral statements admissible?
if suspect requests his right of counsel under Midanda, must ALL questioning cease, or only questioning about the specific offense?
- ALL QUESTIONING MUST STOP, even if about an unrelated crime
- 5A = not offense specific
- 6A = offense specific
what does res judicatata (claim preclusion) require?
- 1) a valid, final judgment on the merits on the first case;
- 2) cases bought by the same P and D;
- 3) same cause of action in the later suit.
can a seller of real ppt transfer marketable title if seller got the ppt though adverse possession?
NO - seller must first bring an action to QUIET TITLE.
when is there state action in seemingly private action?
- 1. where the private actor is performing an EXCLUSIVE STATE FUNCTION; or
- 2. the government is SIGNIFICANTLY involved in the private actor's activities.
- NOTE: ex, a museum can discriminate unless gov super involved in it
does the granting of land constitute state action?
- significant state involvement requires the state to:
- 1. affirmatively facilitate;
- 2. encourage; or
- 3. authorize
- the acts of discrimination.
what does a suit for invasion of privacy under misappropriation of person's likeliness require?
the use of person's likeness for COMMERCIAL ADVANTAGE.
gov action based on AGE will be upheld if:
- there is a conceibalve RATIONAL BASES for the classification
- BOP is on the PLAINTIFF
for regulations involving HELTH, SAFETY, and WELFARE, will the Court generally presume that state police powers are preempted?
- The court will presume that state police powers are NOT preempted unless that was clear manifest purpose of congress when it enacted the fed law.
for a valid K, in what types of situations can silence be deemed to be an acceptance?
- 1. when the parties have so agreed;
- 2. when that has been their course of dealing.
majority rule and common law PPT;
where ppt is subject to a valid K for sale, and the ppt is destroyed w/o fault of either party before the date set for closing, who bears the loss?
BUYER bears the loss for THE ENTIRE K PRICE
without waiting for discovery request, parties must inform what?
but not what?
- - names of ppl likely to have discoverable info;
- - subjects of the info the ppl likely have;
- NOT REQUIRED:
- - SUMMARY OF EXPECTED TESTIMONY
what does a CRIMINAL ATTEMPT consist of?
- 1. a APECIFIC INTENT to commit a crime;
- 2. an OVERT ACT in furtherance of that crime
- NOTE: this means defendant must have intended to perform an act and intended to obtain the result that would constitute the crime charged if achieved.
what does attempt always require?
does murder require specific intent to kill?
- malice aforethought is enough ("abandoned and malignant heart")
- NOTE: attempted murder DOES require specific intent to kill
what are the SPECIFIC INTENT CRIMES?
- 1. SOLICIATION
- specific intent to have person solicited commit a crime;
- 2. ATTEMPT;
- intent to commit a crime;
- 3. CONSPIRACY;
- intent to have crime completed;
- 4. 1st DEGREE PREMEDITATED MURDER;
- premeditated intent to kill;
- 5. ASSAULT;
- intent to commit a battery;
- 6. LARCENY & ROBBERY;
- intent to permanently deprive someone of his ppt;
- 7. BURGLARY;
- intent to commit a felony in the dwelling;
- 8. FALSE PRETENSES / EMBEZZLEMENT;
- intent to defraud.
what are the general intent crimes?
- 1. BATTERY;
- 2. RAPE;
- 3. KIDNAPPING;
- 4. FALSE IMPRISONING;
what are the malice crimes?
- 1. common law murder;
- 2. arson
what are the strict liab crimes?
- 1. statutory rape;
- 2. selling liquor to minors;
- 3. bigamy
what does the best ev rule require?
that when THE CONTENTS OF A WRITING are sought to be proved, the writing itself be entered into evidence.
what is the least number of jurors necessary to meet the 6A and 14A right to jury trial?
- NOTE: there is NO right to unanimous verdict BUT a 6 PERSON JURY VERDICT MUST BE UNANIMOUS
elements of conspiracy:
- 1. agreement b/t 2 or more persons;
- 2. intent to enter into agreement;
- 3. intent to achieve objective of the agreement.
when are conspirators liable for the crimes of co conspirators?
- 1. the crimes were committed in furtherance of the conspiracy;
- 2. foreseeable (natural and probable consequence)
what is an effective withdrawal of a conspiracy?
- 1. an affirmative act that notifies ALL members;
- 2. done in time for other members to abandon conspiracy .
what is the effect of an effective withdrawal to a conspiracy?
- - NOT A DEFENSE TO CONSPIRACY
- - MAY BE A DEFENSE TO CRIMES COMMITTED IN FURTHERANCE
what is the riparian doctrine of water use?
- Each owner of land bordering the water is allowed reasonable use of the water.
- Uses are categorized as NATURAL OR ARTIFICIAL.
- - NATURAL USES PREVAIL OVER ARTIFICIAL USES.
- - Natural: household consumption, gardening, limited grazing)
- - Artificial: irrigation, manufacturing.
- NOTE: OWNERS CAN TAKE ALL THE WATER THEY NEED FOR NATURAL USES BUT CANNOT TAKE WATER FOR ARTIFICIAL USES UNLESS THERES ENOUGH TO SATISY OTHER OWNER'S NATURAL USES
burden of proof on crime element?
burden of proof on affirmative defenses?
- ELEMENTS = STATE, BEYOND REASONABLE DOUBT
- AFF DEFENSE = DEFENDANT
when may the parties to a contract mutually rescind their agreement?
- when their duties are still EXECUTORY on both sides
- (neither one has performed yet)
as commander and chief, what can prez do?
- DEPLOY military forces agasint any enemy, FOREIGN OR DOMESTIC.
- NOTE: this means that an act of Congress directing the prez to mobilize troops would be unconst.
does an assignment require:
- a writing?
does the exclusionary rule apply to ev presented to the grand jury?
6A right to counsel applies to misdemeanors trials only when:
a sentence of imprisonment is actually imposed.
what is the result of OVERUSE or MISUSE of an easement?
- servant owner can sue for an injunction
- it DOES NOT TERMINATE THE EASEMENT