Second Pass At The Bar

Not Going Mad While Studying for the CA Bar Exam

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It’ll be fine

The bar is next week. I don’t have to take it. Because I motherfucking passed, bitches!

But this isn’t about me. Or the fact that I never ever ever have to take it ever again.

This is about you.

And you’ll be fine. You’ll go through your three days of hell (or two…screw you if it’s only two) and you’ll come out on the other side and it’ll all be over and you’ll be fine. Life will go on, it will all continue and you can enjoy the rest of your summer. 

When you are taking the test go slow. Think thoroughly. An hour an essay is a long time. Be coherent. Take your time.

Look, it’s a giant mindfuck. We all know that. But don’t let it beat you. You beat it. Take it to the woodshed, show the stupid test who is in charge.

You know this. It’s in your brain. In the back of your brain you have all the information you could possibly need. It’s there already. And guess what? Even if you don’t: Make. It. Up. Seriously. Write something. That’s all they want. Write it convincingly and wow them with your logic.

If you start to get anxious or flustered or freaking out, take a deep breath and focus again. It’s a simple step but it’ll save your ass.

You got this. You so totally got this.

Filed under barstudy barexam

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'Plaining It: Crim Pro

Plaining it Crim Pro: After the jump. (Maybe. If it works. If not, sorry.) 

Constitutional Restraints on Crim Pro

Amendments 1-8 are binding on the states via Due Process Clause of 14th. Also:

1. 4th: prohibition against unreasonable search and seizure AND the exclusionary rule

2. 5th: privilege against compulsory self incrimination

3. 5th: no double jeopardy

4. 6th: right to speedy trial

5. 6th right to public trail

6. 6th right to trial by jury

7. 6th right to confront witnesses

8. 6th right to compulsory process for obtaining witnesses

9. 6th right to assistance of counsel in felony cases and misd where imprisonment is imposed.

10. 8th prohibition against cruel and unusual punishment


Poisonous Tree Doctrine: evidence obtained in violation of a D’s 4, 5, & 6 amendment rights is INADMISSIBLE at trial. All evidence obtained that flows from that illegally gained evidence is also inadmissible.


1. Fruits derived from statements obtained in violations of Miranda

2. evidence obtained from a source independent of the original illegality

3. An intervening act of free will by D

4. Inevitable discovery (police would have found it anyway)

5. Violations of knock and announce rule.


*Inapplicable to grand juries, civil procedures (hence this being CRIM pro), parole revocation hearings, or where evidence was obtained only in violation of state/agency (not fed) laws.

*Inapplicable to police good faith reliance on what they believe to be a good warrant or law

*Use of evidence for impeachment purposes: some illegal evidence is allowed to impeach D’s credibility

Harmless Error Test: If illegally obtained evidence is admitted, resulting in a conviction, it should overturned on appeal UNLESS government can show beyond a reasonable doubt that the error was harmless. IF error had a substantial and injurious effect of influence in determining jury’s verdict, person should be released.

Enforcing Exclusionary Rule: D is entitled to have admissibility of evidence or confession decided as a matter of LAW by a judge, outside of the hearing of jury. Burden is on the PROSECUTION to establish the admissibility by a preponderance of the evidence. D has a right to testify at a suppression hearing without testimony being admitted against him at trial on issue of guilt.

So what does it all mean? Here’s the deal: The cops go into your house without a warrant OR probable cause OR exigent circumstances (all of which will be explained later) and they find a whole bunch of evidence that basically says, “Yep. You did it. This is our guy.” Then they get you back to the station, MIRANDIZE you, and say, “We got all this on you…we know you’re guilty of sin” and you aren’t the smart type of criminal to keep your mouth shut, you just start spewing everything you did to them and blubbering like an idiot.

            Everything they found in the house? INADMISSIBLE. They obtained it illegally. The doctrine exists, and is one of the few times to do so (a vast majority of crim pro leans in the favor of the state), to keep the COPS honest. We don’t want them getting whatever they want whenever they want.

            Now: your admission of guilt can go one of two ways: It can flow from the same illegality that brought about them arresting you: but for them illegally obtaining entry to your home and the evidence therein, they wouldn’t have arrested you, you wouldn’t have confessed. Therefore your testimony is inadmissible and your confession is void. Like it never happened. It’s all fruit of the same poisonous tree that started with the bad obtaining of evidence.

OR: The court can say, with the passage of enough time and because of the D’s own free will, there was an intervening cause that allowed for the causal chain to be broken and the confession IS admissible.

So which is it? Heh. Good luck with that. The line between causal interruption and continuing poisonous tree doctrine is difficult to define and paper-thin. When it comes to this you are inevitably on a test question going to have to argue it both ways, so know it both ways. Release on own recognizance and returning to confess is a voluntary act of free will. Miranda warnings, passage of time, and consultation with friends is NOT sufficient time to break causal chain. In the example I gave, because I’m a novice and the facts aren’t clear? There’s no way of knowing. I imagine on the bar it’ll be clear that there was one of the exceptions that would create a break in the causal chain or not.

Additionally: when the defendant makes the motion to have evidence not admitted to trial, the jury isn’t allowed to hear it. It’s pretty self-explanatory why.


People have the right to remain FREE from unreasonable searches and seizures

What constitutes a seizure? When a REASONABLE (drink) person would believe that she is not free to leave or terminate an encounter with the government.

Arrest: occurs when police take a person into custody against her will for purposes of criminal prosecution or interrogation.

MUST have probable cause: trustworthy facts or sufficient knowledge to reasonably believe the suspect has committed a crime.

No warrant needed for public place arrest. Nonemergency arrest from a home? Need a warrant.

Investigatory Detentions: if police have a reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts, they may detain a person for investigatory purposes. IF police also have reasonable suspicion that detainee is armed and dangerous, may frisk for weapons. Detention must be no longer than necessary to conduct limited investigation to verify suspicion. Police may ask detained person to identify himself and generally may arrest the detainee for failure to comply. IF during detention other probable cause arises, arrest valid. Brief PROPERTY seizures also valid if based on reasonable suspicion.

Summary: The cops can’t just come into your house and arrest you. They need to have a warrant to come into your house to arrest you. The warrant is based on probably cause. If you are in public, they CAN arrest you without a warrant. So don’t fall for the “Hey! Come outside and talk to us!” *sound of handcuffs snapping on your wrists* trick.

If it’s an investigatory detention they just need reasonable suspicion (EVERYTHING IS REASONABLE!) but it can only be for a limited time.

Automobile Stops: Generally: police can’t stop a car unless reasonable suspicion to believe that a law has been violated.

HOWEVER! IF special law enforcement needs are involved, SC allows police to set up roadblocks to stop cars without individualized suspicion that driver violated some law. To be valid roadblock MUST: 1. Stop cars on bases of some neutral, articulable, standards AND 2. Be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility.

*An automobile stop constitutes a seizure of all passengers as well. They, then, have standing to raise a wrongful stop as a reason to exclude evidence found during the stops.

*In the interest of officer safety, the officer may order the occupants of the vehicle out. If he reasonably believes detainees to be armed, he may frisk the occupants AND search passenger compartments for weapons.

*Pretextual stops allowed: if cops stop for a traffic violation, even if they have some other ulterior motive, that’s okay.

So: automobile checkpoints for DUIs? Totally legit because it is related to the safe operation of automobiles.

Detention to obtain a warrant: If probable cause to believe drugs hidden in home, may detain for a reasonable time to obtain warrant and then search. We don’t want to give criminals opportunity to destroy everything first.

*You can also detain occupants of the premises to search for contraband. “You, sit there ‘til we’re done looking!” Standard in movies. Standard in life.

*Must have full PC to bring a person to station for finger printing or questioning.

*Demanding someone appear before a grand jury is NOT within 4th amendment protection.

*May not use deadly force to apprehend suspect (what good are they if they are dead?) May not use deadly force unless it is reasonable to do so under the circumstances (outside knowledge: there are whole classes on reasonable use of force for police officers. Despite movies and TV, they don’t often pull out their guns as soon as they see a bad guy)



Must be REASONABLE to be valid under 4th Amendment.


1. Does D have a fourth amendment right? (seizure BY THE GOVT concerning a place or thing in which D had a reasonable expectation of privacy)

2. Did government have a VALID WARRANT? (issued by a neutral and detached magistrate on a showing of probable cause and reasonably precise as to the place to be searched and items to be seized)

3. If police did NOT have a valid warrant, did they make a valid warrantless search and seizure?

*Govt conduct is required: not covered searches by private persons unless deputized as officers by the police.

If a stranger comes up and starts rifling through your purse, you have no crim law course of action. If a COP comes up and starts rifling through your purse, you have a course of action.

Reasonable Expectation of Privacy:

Standing: person must have his OWN reasonable expectation of privacy with respect to the place searched or the item seized. Determination made on TOTALITY OF CIRCUMSTANCES. Legit expectation of privacy when:

1. Owned or had a right of possession of place searched.

2. Place searched was in fact his home

3. He was an overnight guest of the owner of the place searched.

*No expectation of privacy in objects held out to the public

*If police have to use not readily available technology to obtain information, it violates a reasonable expectation of privacy

Oh yay! An amorphous totality of the circumstances test. Good luck overcoming that, criminal! Because the cops will say, “Well, we were in a known area of drug dealing and this guy put his paper bag UNDER the stoop and that was all suspicious like so…” Amazingly enough, cops aren’t completely stupid. And judges? They deal with enough criminals and are sort of on the “side” of the cops that the disinterested magistrate thing is kind of a joke. This is why I think crim law is skewed toward the cops. But: if you have a suitcase and are standing on the street corner, you probably have a reasonable expectation of privacy in the cops not grabbing that and looking through it.

Searches Conducted Pursuant to a Warrant

Showing of probable cause: will be issued only if there is PC to believe that seizeable evidence will be found on the person or premises at the time the warrant is executed. Officers MUST submit to a magistrate to make a determination of PC independent of officers’ conclusions. They can’t just submit to the magistrate, “Hey, I think there is PC.” They submit to the magistrate a bunch of facts that they believe BASED on, the MAGISTRATE will find PC to then issue the warrant for the officers to gather more evidence.

            Use of informers: falls under totality test. affidavit may be sufficient even though reliability and credibility of the informer or his basis for knowledge are not established. Generally need not reveal a CI’s identity.

            Search warrant issued on basis of an affidavit will be INVALID if D establishes ALL of the following:

1. A false statement was included in the affidavit by affiant

2. the affiant intentionally or recklessly included the false statement AND

3. The false statement was material to the finding of probable cause.

*D is rarely successful in challenging the search warrant

*If police reasonably rely on the validity of the warrant, any evidence they find is then admissible.

Warrant: Must be precise on its face. Must describe with reasonable precision the place to be searched and the items to be seized. If not, then unconstitutional. May be issued to search the premises of nonsuspects, as long as there is continuing probable cause to believe that evidence will be found there. Still must adhere to a neutral and detached magistrate issuing a warrant. (HAHAHAHAHAHA) A state atty general is not considered neutral.

Execution of the Warrant: only police may execute. You, citizen, are not allowed to go in guns a drawn to execute a search warrant. Once a warrant is issued, must be executed without reasonable delay. Police must knock, announce their purpose, and wait a reasonable time for admittance. UNLESS: reasonable suspicion based on facts that announcing would be dangerous. (Um, isn’t being a police officer in general dangerous?) Police may seize any contraband or fruits or instrumentalities of crime that they discover, whether or not specified in the warrant. In any case: violation of knock and announce rule will NOT result in the suppression of evidence otherwise properly obtained.

*Warrant founded on probable cause (which it has to be, remember) allows police to DETAIN during proper search but does not authorize to search all persons found on the premises unless they were named in the warrant.

Yeah. So. This is all kinds of stupid. We need to knock and announce but we don’t. We need to have a warrant on probable cause but that probable cause can come from an “informant” who I don’t have to tell you who they are or where they came up with information as long as it’s reasonable. And oh, I’m a cop who just likes having a job so like all kinds of reasonable is possible. But: I take all this information, I put it in an affidavit and I give it to a “detached and neutral” magistrate who decides if I can have the warrant I have applied for or not. Once I get that warrant, I have to execute it ASAP and it only gives me the right to search those people who have been named but I can detain those who I find in the place not named.

Exceptions to Warrant Requirement (6)

1. Search Incident to Constitutional Arrest: Police may search the person and areas into which a suspect might reach to obtain weapons or destroy evidence. May also make a protective sweep of area if they believe accomplices may be present. Search much be contemporaneous in time and place with the arrest, but not necessarily simultaneous. If an automobile: may only be searched if 1) arrestee is unsecured and still may gain access to interior or vehicle or 2) the evidence is in the vehicle. Search incident to incarceration or impoundment: at station, police may make an inventory search of the arrestees belongings pursuant to established department procedure.

SO!: TV movies where cops walk through a house with guns drawn and yell “Clear!”? Totally legal. If they have the person detained in the living room but not handcuffed, they can search around his area to make sure he can’t grab a weapon. If it’s his car, they can’t pull him out of his car, handcuff him and THEN search the car for weapons. They can only do that if they believe the EVIDENCE is in the car. If there is a standing department procedure (which there almost always is) to search someone prior to arrest and inventory all his belongings so he can’t later claim the cops took his Rolex, that is allowed. The same goes for impounding his car.

2. Automobile Exception: If police have PC to believe vehicle contains evidence of crime, may search whole vehicle and any container that might reasonably contain the item for which they had PC to search. IF warrantless search valid, police may tow vehicle to the station and search it later. This is not limited to driver’s belongings and they may search any passengers items as well. If they have PC ONLY to search a container, the scope is limited to that.

SO!: Police stop the car and believe it has drugs in it. They don’t need a warrant to search the car. And they can search any item in the car that they think could contain drugs. Not just the glove box, but the bag inside the glove box. But if they think the car contains a kidnapped person, they can’t open the glove box because people won’t fit. If they have PC to ONLY search a container and they find the container, they can only open that. If you’re unlucky enough to be in the car with someone who gets arrested and car searched, your stuff is open to being searched too.

3. Plain View: Police may make a warrantless seizure when: 1. They are legitimately on the premises 2. They discover evidence, fruits, or instrumentalities of crime or contraband 3. See such evidence in plan view AND 4. Have probable cause to believe that the item is what they think it is. *Make sure the police have the right to be on the premises. This means if they hopped a back fence to take a look in the window, they don’t have a right to be there. But how this really works is that the cops go to answer an alarm call and they enter the house in your absence to make sure everything is okay, stupid cat tripped the alarm. Except, you totally forgot about those piles of cocaine on your coffee table. The cops see it while their on the alarm call, are reasonably sure it’s cocaine and not powdered sugar and arrest you/seize your drugs. Ta-da! Plain view!

4. Consent: Valid if police have a VOLUNTARY and INTELLIGENT consent. Knowledge of the right to withhold consent is NOT a prerequisite. Scope of search limited but generally extends to all areas to which a reasonable person under the circumstances would believe it extends. *Person must have the authority to consent.

This is when the cops show up, don’t have probable cause but say, “Hey, can we come in and talk to you?” And being polite and nice and a little afraid of the people carrying, ya know, GUNS, you allow them into your house. Except you didn’t put away those baggies of heroin first. Whoops! So: don’t ever ever ever let the cops in your house without a warrant. Ever. And if one of them does that, “Hey, can I use your bathroom?” thing, you tell them know, because you’ve extended the area of consent so that when they walk past your room on the way to the bathroom and see the guns on the bed or open the cabinet in the bathroom (because who doesn’t?), you are also screwed. The authority to consent rule goes to a whole bunch of fine line cases where the mother consents to allowing the cops into little Johnny’s room. Is Johnny’s room generally locked? Is Johnny 17 or 32? What if it’s just a roommate situation (roommates have right to consent to common areas but usually not your personal space. I bet this can be overcome by being all, “Yeah, we hang out in Johnny’s room ALL THE TIME.”) Just, watch for the facts.

5. Stop and Frisk: Police may stop a person without probable cause for arrest is she has an articulable and reasonable suspicion of criminal activity.  If officer also reasonably believes person may be armed and presently dangerous, she may conduct a protective frisk.

*Stop is NOT an arrest so you don’t need to reach the probable cause standard for arrest (remember: at the time of arrest officer has within her knowledge reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe that the suspect committed or is committing a crime), just need reasonable suspicion.

*Scope: generally limited to a patdown of outer clothing, unless officer has specific information of a hidden weapon. May order people out of a vehicle to frisk them as well.

*Admissibility: officer may reach into suspect’s clothing and seize any item that officer reasonably believes on “plain feel” is a weapon or contraband AND such items ARE admissible.

Hey! Another one of those rules that does not favor the criminal! You’re hanging out in a bad area at night. You’re skulking around. The cops find this reasonably suspicious. So they just wanna have a chat with you. So they stop you. And when they do, because we do value officer safety and don’t like people killing cops, they have the right to do a cursory patdown for weapons. Just the outside of your clothes to make sure you aren’t gonna pull out a knife. It has to be plain feel, they can’t root around for five minutes playing “Guess the item”. But guess what? This also extends to if they find contraband on plain feel. A cop with any legitimate time on a police force is gonna think EVERYTHING is contraband. Oh, you have some folded up foil in your pocket? Really? That’s odd. Bet it’s drugs! So a cops “reasonable suspicion” results in you going to jail. Fun times! (This is why on The Wire, the kids NEVER kept drugs on them. And that money and drugs were kept separately.) (Addl: the cops then have to articulate all this in a police report…which if you’ve ever read are super duper boring but they have to lay out all the facts that led to them having reasonable suspicion to stop you. Except hindsight is 20/20 and they can reverse engineer it. This isn’t bar stuff, this is just life stuff and why I LOATHE crim law.)

6. Hot pursuit, evanescent evidence, and other emergencies: Or what I call the sounds like soft core porn, one hit wonder early ‘00s, default rule. There is no general emergency exception BUT:

*Police in hot pursuit of a fleeing felon MAY make a warrantless search and seizure and MAY even pursue the suspect into a private dwelling.

*Police may seize without a warrant evidence likely to disappear before a warrant can be obtained and

*Police may seize contaminated food or drugs, persons injured or threatened with injury, and burning fires justify warrantless searches and seizures.

So: If the cops are chasing you and have to chase you into a private building, they can then search that building. If they somehow find a bunch of drugs that don’t fit into one of the other exceptions and if they go get a warrant, they’re gonna disappear, they can take them. And if something is burning, they obviously have the right to go in and figure it out (this is how most of the marijuana grow houses in SF get caught. They catch on fire and they have to go stop it.)


Inspectors must have a warrant for searches of private residences and commercial buildings but the probable cause required to obtain a warrant is more lenient: Showing of a general and neutral enforcement plan will justify issuance of a warrant. There are a whole bunch of examples of this but the basic way to remember it is as the TSA exception: it’s not necessarily the cops searching you, but they have a neutral government reason for doing so and that is all they need. This is also schools searching students, parolees who give up freedoms by virtue of being criminals, drug tests for people in govt jobs, etc.

*As to those public school searches: Only need reasonable grounds. Will be held reasonable if: 1. Offers a moderate chance of finding evidence of wrongdoing, 2. Measures adopted to carry out the search are reasonably related to objective of the search AND 3. The search is not excessively intrusive in light of the age and sex of the student.


*Search by U.S. in foreign country and involving an alien where alien has no substantial U.S. connections: no application of the 4th amendment necessary. So: we go into Mexico searching for drug baddy and flaunt all our constitutional laws against a guy who is a Mexican citizen with no real ties to the U.S.? Totally okay! Because we’re IN Mexico which doesn’t have our constitution and pshaw, who cares what theirs says?

*No warrant necessary for border searches. Neither citizens nor noncitizens have a right in the 4th Amendment. So don’t try to cross from Canada with an RV full of meth (30 Rock reference). Roving border patrols within the U.S. may stop upon

reasonable suspicion of illegals.

*Permissible border searches include the opening of international mail when postal authorities have reasonable cause to suspect that the mail contains contraband (yes, they can open your international mail. This is why you find someone with consular ties and use their diplomatic bag to carry items. Duh.)

*If you’re being used as a drug mule and they have reasonable suspicion to so believe, they can detain you until such time as items pass.


Both constitute a search under the 4th. Valid warrant authorizing wiretap may be issued IF: 1) Probable cause to believe that a specific crime has been or is being committed must be made 2) suspected persons involved in the conversations to be overheard are named 3) warrant describes with particularity the conversations that can be overheard 4) Wiretap is limited to a short period of time 5) Wiretap is terminated when desired info has been obtained AND 6) return is made to the court showing what conversations have been intercepted.

Exceptions: speaker assumes the risk that the person to whom he is talking is an informer wired for sound or taping the conversations. Speaker has no 4th claim if he makes no attempt to keep a conversation private.

Pen registers: devices that record only phone # dialed from a phone not controlled by 4th but by statute, judicial approval is required before one may be used.

I haven’t seen the whole series of The Wire (I know, I know) but this is the season 1 rule. You can’t just run a wiretap for an unlimited time on unlimited persons for any. It requires some particularity. But, and again with the broad police powers, you ALWAYS run the risk that the person you are talking to is wired. And if you make no attempt to keep your conversation private, the police have access to it. So if you are in a coffee shop speaking a foreign language and a cop is in there as a mole listening to the whole thing? Guess what? No protection!

General evidentiary note: if it shocks the conscious as to how the police obtained it, it’s gonna be inadmissible. We won’t allow the police to go to extreme measures to get information.


14th: Voluntariness. Determined by totality of circumstances. Will be involuntary ONLY if some official compulsion.

6th right to counsel: in ALL police are prohibited from deliberately eliciting an incriminating statement outside presence of counsel AFTER D HAS BEEN CHARGED. UNLESS: waived right to counsel. So: we do set up some safeguards for criminals and one of them is that after you’ve been charged, we aren’t going to let the police take another stab at you without your lawyer present. As soon as formal proceedings click in, the police are then barred from talking to suspect without counsel. He entitled to counsel, court appointed or otherwise, at pretty much every important step of the process (there’s a list, but just…if it’s a substantial moment on the way to a loss of freedom, he’s entitled to counsel).

Waiver of right to counsel: MUST be knowing, voluntary, and intelligent. Does not require the presence of counsel, if counsel has not actually been requested by D but was appointed by the court. (If he’s paying for own counsel, needs to be there for waiver, if not, no need to have atty present at waiver.)

Remedy for failure to provide counsel: If at a nontrial proceeding, harmless error rule applies. If at trial, failure to provide a lawyer results in automatic reversal of the conviction.

*A statement obtained in violation of the D’s 6th right to counsel, while not admissible in case-in-chief, can be used to impeach D’s testimony.

5th Amendment Against Compelled Self-Incrimination

Miranda: a person in custody, prior to interrogation MUST be informed that: 1.He has a right to remain silent 2. Anything he says can be used against him in court 3. He has the right to presence of an attorney AND 4. If he can’t afford one, he’ll be appointed one.

*Miranda involves the 5th right to not self incriminate, NOT the right to counsel, which is covered above under the 6th.

When must you give Miranda? Anyone in custody of the govt and accused of a crime PRIOR to interrogation. There must be CUSTODY and INTERROGATION.  Generally Miranda is necessary only if D KNOWS he is being interrogated by a government agent (this means that the friendly guy in your cell talking to you that you are confessing your deepest secrets to? Not an interrogation.)

Custody is when freedom of action is denied in a significant way based on the objective circumstances (look for arrest)

Interrogation: any words or conduct by the police that they should know would LIKELY elicit a response from the D. NOT required before spontaneous statements made by D. Routine booking questions don’t constitute interrogations. Investigatory questions while on the scene of a crime like, “What happened here?” also don’t rise to interrogation, if asked generally.

Waiver: suspect can waive Miranda rights but prosecution must prove knowing, voluntary, and intelligent. Miranda applies to both inculpatory and exculpatory evidence. (If you say it and it points the finger at someone else, as well as the stuff you are idiotic enough to say that applies to you as well, it is all good under Miranda.)

Right to Terminate an Investigation: accused may terminate police interrogation any time prior to or during interrogation by invoking either right to remain silent OR to counsel.

Silence: IF accused indicates that he wishes to remain silent, police MUST scrupulously honor his request by not badgering the accused. So: Shut up and they can’t force you to talk. However, the courts have allowed later questioning on an unrelated crime.

Counsel: Accused must unambiguously indicate that he wishes to speak to counsel. When he does, ALL questioning must cease until counsel has been provided UNLESS accuses then waives his right to counsel. Counsel must then generally be present for any additional questioning.

*Violations of Miranda lead to inadmissibility at trial. May be used to impeach though for evidence of guilt.

*Can interrogate without Miranda if concern for public safety. (This is the dramatic “TELL US WHERE YOU HID THE GIRL!” exception)

SO!: Courts take Miranda seriously. Like really seriously. But we also hold the accused responsible for saying, “I want a lawyer.” If they say, “Maybe I should have a lawyer?” that’s not going to be unambiguous enough. If they shut up, they have to be left alone. But if the cop sits in the room with the accused and he then starts blabbering on of his own accord? No Miranda violation. If you shut up, stay shut up. The cops HAVE to leave you alone and can’t keep peppering you with questions. If you ask for an attorney they have to leave you alone until she arrives.


Preliminary hearing to determine if there is PC to detain: If PC has not already been determined (arrest warrant or grand jury indictment) AND there are significant constraints on an arrestees liberty (jail or bail), preliminary hearing to determine PC MUST be held within REASONABLE time (48 hours). This is an informal, non-adversarial proceeding. So: we can’t keep you in jail indefinitely if we don’t even know if you’re supposed to be there. You have to have a hearing to know your status. This hearing has to be had quickly.

Pretrial Detention: Most states constitutions have a right to be released on bail unless capital charge. Generally can’t be set any higher than is necessary to assure D’s appearance at trial. Refusal to grant bail or setting of excessive bail may be appealed immediately (inter loquitor appeal (civ pro bonus!)). Judge can’t set the bail at $5m on your shop lifting charge. It has to make sense for you showing up at court, not even the severity of your crime.

Grand Juries

5th right to indictment by a grand jury has NOT been incorporated into 14th but some states require grand jury indictment. Western states generally charge by filing information: written accusation of the crime prepared and presented by prosecutor. A grand jury is allowed to proceed in secrecy and the D is not granted access, has no right to notice or to get involved. There is no right to counsel at a grand jury proceeding or to Miranda rights. A grand jury may base its indictment off of information that will later be inadmissible at trial. The grand jury just decides if there is in fact enough information to indict you.

Speedy Trial: Violation of 6th will be evaluated on TOTALITY OF CIRCUMSTANCES (don’t we love that standard? Yes. Yes we do.) Included in that analysis are: length of delay, reason for delay, D’s assertion of right and the prejudice that the D faced.  Remedy for a speedy trial violation is dismissal with prejudice. Right attaches when D has been arrested and charged.

Prosecutorial Duty to Disclose Exculpatory Info and Notice of Defenses:

Government has a duty to disclose material, exculpatory evidence to the D. Either willful or inadvertent failure to disclose such evidence violates due process and is grounds for reversing a conviction if D can prove: 1. The evidence is favorable to him because it either impeaches or is exculpatory AND 2. Prejudice has resulted (there is a reasonable probability that the result of the case would have been different if undisclosed evidence presented at trial.)

SO!: Despite what Law and Order tell you, trial is not about “Surprise! New evidence!” The DA has to give you any information that will be helpful to you mounting a defense. If they don’t and you can prove that the evidence they withheld was favorable to you and that because you didn’t have it, the jury was less inclined towards your favor, you get your conviction reversed. Yay!

Also: If D is going to use insanity defense (see the crim outline) MUST notify the prosecution. If alibi MUST give a prosecution a list of witnesses. P must give D list of witnesses it will use to rebut defense. P may not comment at trial on D’s failure to produce a witness named as supporting the alibi or on a failure to present the alibi itself.

SO!: remember what I said up above about this not being Law and Order? Our system of law works on disclosure of evidence and information to both sides them then mounting the best information possible, of which the trier of fact (judge or jury) gets to decide how much weight to give to what. In deference to that, we want everyone to share information. You have to tell the prosecution what you’re going to do and they have to tell you.

Competency to Stand Trial:

Competency v. Insanity: Insanity is a defense to a criminal charge based on D’s mental condition at the time he committed the crime. (see crim outline)

Competency: not a defense but a bar to trial. Based on D’s mental condition at the time of trial. If D later regains competency, he can then be tried and convicted.

Due Process Standard: D is incompetent to stand trial if he either 1) lacks a rational as well as factual understanding of the charges and proceedings OR 2) lacks sufficient present ability to consult with his lawyer with a reasonable degree of understanding. State may place on D burden of proving incompetency by a preponderance of evidence but NOT by clear convincing evidence.

SO!: Insanity is a defense. Competency is a bar to you even being tried. If you suddenly can’t understand what is happening, how you ended up here, think aliens abducted you and placed you in the middle of a murder trial, the judge will say that you’re incompetent to stand trial, even if you were totally lucid when you committed the crimes. If you suddenly regain competency and start helping your attorney mount a defense, the trial will start again.

*Random footnote: Excessive pretrial publicity to the D may require change of venue or retrial. “Oh hey! Look! This has been on the news a ton. Let’s find an impartial jury!” Buahahaha.


You have a basic right to a fair trial.

Right to a public trial is guaranteed in the 6th and 14th to the states, but the right varies with the stage of proceeding. Almost all pretrial activities are open to the public and the press. At trial the public and press have a 1st amendment right to themselves to attend the trial.

Right to an Unbiased Judge: Due process violated if judge is shown to have ACTUAL MALICE against the D or to have a FINANCIAL interest in trial resulting in a guilty verdict.

Other Due Process Violations: trial conducted in a manner making it unlikely that the jury gave the evidence reasonable consideration, state compels D to stand trial in prison clothing, state compels D to stand trial by being visibly shackled (absent justification), jury exposed to influence favorable to prosecution.

Basically: The judge has to act like the impartial trier of fact we pretend she is. And the court can’t abuse you to make you look guilty. And whoever wants to can walk into a courtroom and watch proceedings. Which is super amazing if you’ve never done it (I lie).

Right to Trial by Jury: Only for serious offenses. Serious is defined as 6+ months in prison if authorized.

At least 6 jurors must be empanelled on your jury. If there are only 6 they have to come to a unanimous decision. We don’t have an exact line on what not unanimous will be upheld but it’s likely that 8-4 won’t stand.

D has a right to jury selected from a representative cross-section of the community. D does NOT have a right to proportional representation of all groups on his particular jury. So: We have to call everyone from the community. But if you end up with all white people on your jury, SOL.

During voir dire, when the DA or Defense are challenging jurors, they can’t eliminate people SOLELY on race or gender (see civ pro).

Right to Impartial Jury: Can question jury on racial bias whenever race is bound up in the case or he is accused of an interracial capital crime. Juror opposition to death penalty: must determine whether jurors views would prevent or impair ability to perform. Death sentence imposed by a jury from which a juror was improperly excluded is subject to automatic reversal. A juror automatically favoring the death penalty MUST be excluded.

SO!: Here’s the deal with juries: they have to not make snap judgments. Anyone who says, without hearing the evidence that they feel firmly one way or the other is likely to be dismissed. They are supposed to make decisions based on the evidence, not on preconceived notions. If they aren’t doing that, they probably need to be excluded. Race can only be an issue if a factor in the case and we don’t like our attorneys being any more biased than the jurors.


Violation of this right at trial requires reversal.

Waiver and Right to Defend Self: If waiver is KNOWING AND INTELLIGENT AND based on the trial judge’s consideration of D’s emotional and psychological state, he is competent to proceed pro se.

SO: If the judge knows you are a whack job, he’s not going to just let you represent yourself, the interests of justice are not served in such a case. Basically, we can force you to have an attorney if we don’t think you are in enough shape to rep yourself.

You have no right to rep yourself on appeal.

State generally provides counsel in indigence but may seek reimbursement from those who later become able to pay.

Effective Assistance of Counsel: Generally presumed. To show INEFFECTIVE assistance: 1. Deficient performance by counsel AND 2. But for deficiency: the result of the proceeding would have been different but for the attys actions. It is on the defendant to point out SPECIFIC instances, not just an overall failure. So: buahaha good luck with that one criminals. Your atty can sleep through your trial and unless you can show that unless otherwise, you still would be going to jail, your counsel was effective. I know, right? Welcome to the justice system!

Right to Confront Witnesses: Right NOT absolute: if preventing such confrontation serves an important public purpose, you can be denied (putting children in front of their molester is generally an OK exception). Judge may remove a disruptive D. D may also voluntarily leave the courtroom during trial and choose not to face his confronters.

Intro of Co-D’s confession: If 2 persons are tried together and one has given a confession that implicates the other, right of confrontation prohibits the use of that statement. MAY be admitted IF 1) all portions referring to other D can be eliminated 2) the confessing D takes the stand and subjects himself to cross-examination with respect to truth or falsity of what the statement asserts OR 3) confession of the non-testifying Co-D is being used to rebut the D’s claim that his confession was obtained coercively. SO: yeah, you can’t rat out your coconspirator just because in a written statement. You’ll have to take stand and answer for it yourself.

Prior Testimonial Statements of Unavailable Witness: this is covered in Evidence but since we like repeating things and all the areas of law cross over: only admissible if declarant is in fact unavailable AND D has opportunity to cross examine at time statement was made.

The due process clause requires in ALL criminal cases that STATE prove guilt of a crime beyond a reasonable doubt. Watch out for the MBEs where they try to put something on the D. They do this ALL the time.


Taking the plea: Advising the D of the charge, potential penalty, and his rights: JUDGE must determine that the plea is…wait for it…VOLUNTARY AND INTELLIGENT. Must be done by addressing the D personally in open court ON THE RECORD. Judge should make sure D understands: 1) the nature of the charge to which the plea is offered and the crucial elements of the crime charged. 2) The max possible penalty and any mandatory minimum AND 3) that he has a right to plead not guilty and that if he does plead guilty he waives the right to trial.

Pleas can be set aside for involuntariness, lack of jx, ineffective assistance of counsel or failure to keep the plea bargain.

Plea Bargaining: Will be enforced against the prosecutor and defendant but NOT against the judge who does not have to accept the plea.

SO: Because we don’t want to just screw over the defendant (hard to believe, right?) the judge has to ask him a series of questions in open court about what he knows before the judge accepts the plea. But the judge is going to almost always accept these because without them our system of justice grinds to a screeching halt.

*Guilty plea may be used as a conviction in other proceedings when relevant. Does NOT, however, admit the legality of incriminating evidence from that previous trial.

Constitutional Rights Related to Sentencing and Punishment

Procedural sentencing rights: right to counsel.

If there is resentencing after successful appeal and reconviction and the D is given a harsher sentence, judge must set forth in the record the reasons. Ensures D is not vindictively penalized for exercising his right to appeal.

Substantive Rights Re: Punishment

8th prohibits cruel and unusual punishment. Penalty that is grossly disproportionate to the seriousness of the offense committed is cruel and unusual.

Death penalty: can be imposed under a statutory scheme that gives the judge or the jury reasonable discretion, full info concerning D, and guidance in the decision making. Statute can’t be vague. Must allow sentencing body to consider ALL mitigating evidence. IF death penalty partly based on the aggravating factor of D’s prior conviction, sentence MUST be reversed if the prior conviction is later invalidated.

8th prohibits imposition of death penalty for crime of raping an adult woman or a child if was neither intended to result in nor did result in death (so, because that sentence sucks: if he raped her and didn’t intend to and didn’t kill her). Basically: there has to be a dead body in order for the death penalty to be imposed.

For felony murder to result in the death penalty the felony murder’s participation was major AND he acted with reckless indifference to the value of human life.

8th prohibits executing a prisoner who is insane at the time of execution. If you go insane in prison, we can’t kill you. We’re super thoughtful that way. (I’m trying to leave personal opinions out of this but just FYI that the U.S. is THE only industrialized nation to have the death penalty.) We also won’t execute the mentally retarded or minors who committed a crime.

Other sentencing guidelines: The trial judge may take into account a belief that the D committed perjury while testifying at trial on his own behalf. Also: can’t punish indigents for nonpayment of fines.

Constitutional Problems on Appeals:

No federal constitutional right to an appeal

If post conviction review provided, must be available to rich and poor so as to not violate equal protection.

Indigents then must be given counsel at state expense during a first appeal granted as a matter of right

SC announces a new rule of crim pro in a case on direct review, rule must be applied to all other cases on direct review.

Rights During Punishment:

Unless parole revocation or probation involves a new sentence, there is no right to counsel.

Prison life is hard, get used to it:

You have no right to freedom from search and seizure in your prison cell because there is no reasonable expectation of privacy.

Must be given reasonable access to the courts.

The prison can burden your first amendment rights if it relates to the interests of the prison.


Attaches: 5th: may not be retried for the same offense. In a jury trial it attaches at empanelling and swearing in of the jury. In bench trial, when the first witness is sworn it attaches. Commencement of juvie proceedings bars subsequent criminal trial for same offense.


1. May retry D whose first trial ends in a hung jury.

2. Trial may be discontinued and D reprosecuted for same offense when there is MANIFEST NECESSITY to abort the original trial.

3. State may retry D who has successfully appealed a conviction unless the ground for reversal was insufficient evidence. Retrial permitted though when reversal was based on WEIGHT of evidence (not amount).  On retrial, D may not be tried for great offense than that for which he was already convicted.

4. Charges may be reinstated after D breaches her plea bargain

Same offense: Generally, two crimes are the same offense unless EACH crime requires proof of an additional element that the other does not require, even though some of the same facts may be necessary to prove both crimes. Even if 2 crimes constitute the same offense, multiple punishments are permissible if there was legislative intent to have cumulative punishment.

Lesser Included: Attachment of jeopardy for a greater offense BARS retrial for lesser included. Attachment of jeopardy for lesser bars retril for greater except where V later dies. IF new evidence for the greater offense 1. Has not occurred at the time of prosecution OR 2. Has not been discovered despite due diligence, there’s an exception.

Double jeopardy also only applies to crim law. Civil trials can go on forever and be refilled and you can be charged civilly for something you’ve already been acquitted for criminally (this is the OJ Simpson wrongful death case).

SO!: As soon as a jury is sworn, you can’t later be tried for the same exact thing you are on trial for right now. Barring a whole bunch of exceptions listed above. Additionally, you can’t be tried for the same thing twice. If one charge has an element that other charge doesn’t, it’s not the same offense. Additionally, we can’t charge you for a lesser included (2nd degree murder) if you’ve already beaten the higher crime. We have to do it all at once or not at all (which is why charges are usually lists of like the same version of the crime over and over).

Separate Sovereigns: Funny enough we have a federal and state system of law. And each state is it’s own system of law separate from each other state. So if you are charged in California for murder and get off but for some reason Nevada has a right to that same crime, you can then be charged in Nevada and double jeopardy doesn’t apply. You can be charged for a federal crime, get off, and then face the same charges at the state level. You can’t, however, be charged by a state and then be charged by the city. Woot! (Ashley Judd still could have killed her evil ex husband and not been guilty of murder AGAIN. P.S. the bar at the hotel Monteleone is awesome).

Priv Against Compelled Self Incrimination

Hey guess what! You can’t be forced to rat on yourself! (I’m punchy.) But only if you are a person. The legal fiction that is a corporation CAN be required to testify against itself.

You can refuse to testify even if you are only going to be providing a link in the chain of evidence needed to prosecute you. MUST claim in civil proceeding to keep from being waived in a later criminal trial (they are going to use the transcript in your civil trial to read into the criminal trial and since it’s on the record, you’re screwed. Just raise it if you have it.)

Criminal D has RIGHT not to take the stand. You do not have to talk about yourself and can’t even be asked to take the stand. AND the jury can’t read anything negative into this (What is “stupid legal fiction” for a thousand please, Alex?) Anyone else can be subpoenaed and sworn then must invoke their 5th Amendment right.

This privilege extends to yourself and what you would say. It doesn’t extend to physical evidence. You can be required on order of subpoena to turn over fluid and such. (Eww.) Also: documents and papers are going to be subpoenaed. The violation of this right ONLY applies when a compelled statement is used against you in a criminal case.

Prosecution may not comment on a D’s silence after being arrested and receiving Miranda or on his failure to testify at trial. D may also have jury instructions drawn so that the jury is instructed not to draw any adverse inferences from failure to testify (see: supra, legal fiction). Even if the D doesn’t ask for this instruction, the judge can add it anyway. Basically: just because the dude is super guilty, you can’t read his lack of comment as part of his guilt.

Exception: If D’s attorney is stupid enough to say, “But we didn’t hear his side of the story!” after you don’t take the stand, P can say, “Uh, he didn’t tell it!”

If the P gives immunity, witness can be compelled to testify. Because why wouldn’t they? Nothing is going to happen to them if they do. Immunized testimony is coerced and thus voluntary, not compelled. Prohibited for use by a different sovereign.

Can’t claim right against self incrimination if there is NO possibility that you could incriminate yourself (the SOL has run).

A criminal D takes the stand, he waives the right of the privilege to the extent necessary to subject him to any cross-examination. Witness waives ONLY if he discloses any incriminating information.

SO: Once a criminal is on the stand, they can gather what information they need, you can’t take the stand and then invoke the right. But a witness waives only as soon as they disclose incriminating information.

Juvie Court: rights that must be afforded to a child during delinquency proceedings: 1. Written notice of charges 2. Assistance of counsel. 3. Opportunity to confront and cross-examine witnesses 4. Right not to testify. 5. Right to have “guilt” established by proof beyond a reasonable doubt. BUT! No right to trial by jury. Juvie proceedings are all in special courts and they are carefully monitored.

*Skipping the part on property forfeiture actions. Let’s just say that if it’s criminal there has to be due process, mkay?

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'Plaining it: Crimes

 Due process so requires that a criminal statute not be vague. It must be 1) fair warning that you are doing something illegal and 2) no arbitrary and discriminatory enforcement. (Eh, I think that dude is doing something illegal now. Let’s go get ‘em!) You need to clearly know that what you are doing is wrong and that the police will universally (giggle. Right) enforce it.

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The Bar Exam is…

I don’t even have the right word for what it is. It’s not exactly bullshit…I can see the value in it. Kinda. If I squint really hard and angle my head. It’s not written by assholes although it’s written by lawyers, and, well… It’s frustrating and annoying and aggravating. So some complaints:

All this stuff is completely anachronistic. It has nothing to do with real life law. NOTHING. And everyone knows this! Like they KNOW this. And yet, here we go, having to do it. 

Things that don’t ever happen in real life: suits for defamation (which, fuck you, Deadspin, might actually happen now. Thanks for boning a 17 year old, Mark Sanchez). 

Life tenancy? Do ANY of you know anyone with a life tenancy in an estate? Or people who leave them? NO! Why not? Because anyone with a modicum of estate planning knowledge leaves everything in an untaxable trust now. Which nullifies the whole category of wills anyway but get tested on that too. How ‘bout water rights? Huge issue in modern time, right? Unless you’re a farmer I’m gonna guess no. 

Limited Partnerships. Or even partnerships. Why is this moot? Because anyone with half a brain that want to Biz school starts an LLC. And why do I, lawyer, need to know business law? Fuck if I know! Because they said so? 

Professional Liability is just dickish to test us on because THEY ALREADY DID! No, seriously, the bar is actually 3 parts: the bar exam, the moral character application, and the MPRE. What’s the MPRE? Multistate Professional Responsibility Exam. You have to take and pass a SEPARATE TEST on your ethics. That they charge you $400 to take. Because they are dicks. That I already passed! But then they can still throw it on the actual bar exam too if they want. 

There are a thousand other topics like this. Or so it seems. You read something and you’re like “GAH! This isn’t real life!” 

So to keep sane I just treat it like I treat math. I am HORRIBLE at math. And that’s mostly because I sat in math class and went, “But yeah…WHY do I need to do this? Like, practically speaking, when am I ever gonna actually need to know the equation to find for the z plane in real life? When am I gonna whip out my TI-83 and figure it out?*” And there’s never really an answer to that. Not one that your high school Algebra teacher can use to satisfy a lit geek, anyway. I guess if I was an engineer that stuff is vastly important but I was in the dumb kid math classes. Always. Because I didn’t GET the rationale behind math. The only time I was ever successful at math (junior year HS), is when I stopped questioning the system and just DID it. Just go with it. You can’t fight it. It’s impossible. 

So I can’t question the system. If I start pondering the impracticability of the testable areas and why they are a good 75% moot, I go bananas. Must. Keep. Going. 

*I was a practical teenager and my parents were divorced and funds were tight so I would ask for sensible things for Christmas, like the required by school TI-83 graphing calculator. Which I got. And hated. What a horrible waste of a Christmas present. When it changed from 83 to 85 or whatever when my brother was a junior, he was smart enough to just ask my mom to buy it, not ask for as a present. I hate graphing calculators. 

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HA! I feel like a genius!

This is how I study and have always said, “I feel more connected when I write it out.” I didn’t know there was actual SCIENCE behind this. I even pondered writing out the bar exam but that just felt suicidal so, ya know, laptopping it like the rest of you. 

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"What’s for dinner?"

Do not ask me what I want for dinner during bar study, mkay? You could put a pot of gruel (whatever that is) in front of me and I would immediately eat it. I just can’t muster the energy to care. Or to even come up with a cogent answer. What do I want? Ummmm. Fried strict scrutiny on a whole wheat quasi contract? 

In fact, unless the question is, “Does that violate the rule against perpetuities?” “Has a duty been breached to act as a reasonable person should in that particular situation?” Or “Is there valid assent to the contract?” I got nothing for ya. Just, nothing. There is nothing in my brain not law related. It’s hard enough getting up and getting dressed each morning. I grab fistfuls of whatever cereal box I find first and when I have to decide for myself what to eat, I usually just stare blankly into the fridge before moseying back to my notebook. So don’t ask. Just do. Feed me, don’t feed me. I don’t care. Just DON’T ASK! 

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'Plaining It: Powers of Fed Govt Branches

 First, read the constitution. Go on. Do it. I’ll wait. It’s only 4400 words. That’s really not a lot. You know what you’ll be shocked by? What’s NOT in it. Which means that as soon as we get to constitutional analysis, the judges are just straight riffing. Like a Miles Davis concert. But a lot more esoteric. Actually probably about the same amount of esoteric. Yep. No lie. And I’m a liberal, FYI. I think activist judge is a good thing. ‘Til you got level of scrutiny and then I want to punch a baby. So, Con Law! Coming at ya!

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'Plaining it Torts cont

Defenses to Intentional Torts after the jump

Some Minor Addendums to the Intentional Torts:


Sometimes you can have a defense to why you did something. You tell the judge, “Yes, I did what you’re saying I did but I have a good excuse!”

For the Intentional Torts those are:

Consent: “But she said I could!” This will negate any liability. Plaintiff can rebut that with, “I said you could come onto my property and look around, you went beyond that and took off with my car!” (Beyond scope) Plaintiff can also say, “I only consented because he was threatening to punch me if I didn’t consent!” We call that duress and it negates the consent. If D lied to get P to consent that’s fraud and also negates the consent. So basically: If P consented, it better be under honest circumstances and actually given.

Implied Consent: Sometimes the law simply implied things. They don’t have to actually happen. Occasionally this happens with consent. Usually this has to do with emergency situations. Look for a person passed out and dragged out of harms way but somehow injured in the dragging. Usually the court will want you to imply consent. You can’t be pissed, you’d be dead if they didn’t do it.

Self Defense: Alright: if you are defending yourself, you can only use as much force as reasonable to fend off the attack. If someone throws a rock at you, you can’t shoot them. If someone comes at you with a gun and retreat is not reasonable, you can shoot them back. BUT! If you are in your own house being attacked with a gun, you don’t have to retreat. (A man’s home is his castle in the law. We kinda hold it sacred for some reason.)

Defense of Others: You can defend others if they would have had the privilege of defending themselves. So if guy is coming at woman with rock, she would have been able to defend herself. If you step in all heroic like to defend her instead, the law is pretty okay with that. Again with the reasonable use of force bladdy blah.

Defense of Property: Here’s the thing: It’s JUST stuff. Don’t get all crazy about it. You have home owners insurance, yes? Then you are better off just letting it go. You can never ever never use deadly force to protect your stuff. I don’t care if you own a rare 1903 buffalo nickel or whatever. We value human life more than your stuff. I’m not saying I agree with that theory, I’m just saying that’s what the law says.  

*Again with the reasonableness: if you make a reasonable mistake as to the danger in the defenses of people, property, or self, the law will forgive you for it. You were scared, you thought that things were worse than they were, understandable.

Necessity: If it reasonably (I hate that word. For serious) and apparently necessary to have your house or stuff interfered with to avoid a more serious injury, the law forgives the harm. BUT! If it was a private necessity: I had to drive through your fence to avoid the accident, the person has to pay for your fence. If PUBLIC necessity: The firefighters had to break down your door to get access to the backyard to stop the fire? SOL, buddy. 

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'Plaining It: Intentional Torts

Making complex subjects easy to understand. Like a normal person would and not some jerk with a law degree. First up: the intentional torts.

Intentional Torts:

Okay, first we have INTENTIONAL torts. They are called INTENTIONAL torts because they require, wait for it, INTENT. That means we don’t prosecute them if they are ACCIDENTAL. Those would be called ACCIDENTAL torts (actually they’re called negligence but that’s for later). So: Intentional torts need what? INTENT. Very good.

The legal (annoying) definition of INTENT is something that is done either: specifically with the goal of acting to bring about a specific consequence OR generally, when the actor knows with substantial certainty that the consequence will results.

Think of it this way: Specific: your little brother wants to hit you and does hit you. General: you’re little brother threw a water balloon at you knowing that the end result was likely going to be hitting you with it and getting you wet.

If your little brother meant to throw the water balloon at you but instead hit your grandmother who was sitting nearby, that’s transferred intent. Also transferred intent: your brother goes to throw the water balloon at you but instead yells at you, you turn around, apprehend his throw but he misses you. Or even: if you brother throws the balloon at you but misses and your grandma sees this and apprehends it’s coming towards her. All along he was intending to hit someone with something so we get transferred intent.

Oh, and the ACT that results in the tort has to be done by the defendant. Again, he has to purposefully do something. This seems self explanatory but the bar examiners suck and will try to have someone accidentally do something, have someone force another to do something, or really fun: have an unconscious person do something. It has to be a purposeful, volitional movement by the D. Whatever D did has to be a ‘substantial factor’ in your harm. If your brother throwing the water balloon at you resulted in you running out into the street and getting hit by a car, well, that’s probably enough to be a substantial factor in bringing about your harm. Your brother is a jerk, by the way.  

There are 7 intentional torts: battery, assault, false imprisonment, intentional infliction of emotional distress, trespass to land, trespass to chattels, and conversion.

Battery: Someone hit you. There. Done. Except that it needs to be harmful or offensive. If they hit you and you liked it? Well. I think there’s a website for that. They can also hit something ATTACHED to you (grab your tie), or have indirectly hit you by, say, pushing an object that then hits you. We judge whether the contact is harmful or offensive by a “reasonable person” standard. The reasonable person (RP from now on) is an asshole. No. He is. There is no such thing as a reasonable person. But think of it this way: would an ordinary person be offended by the contact? Would it make them mad that it happened? Then it’s harmful or offensive. If you are an overly sensitive nancy boy? The court has no patience for you, call a shrink.

Assault: Alright. This is one is kinda tricky but mostly because assault means something totally different in criminal law. Like sexual assault means an actual touching. So does assault with a deadly weapon. But Tort assault? It’s just the APPREHENSION (not fear) that someone MIGHT hit you. Yeah. Ya know what? Whoever sues for common law tort assault doesn’t deserve to win. Seriously. “I apprehended harm! Imma sue!” Here’s our favorite word again: the apprehension must be REASONABLE. And the apprehension needs to be of an immediate harm. So if the bully after school says, “I’m going to come here tomorrow and hit you!” that’s not assault. Also not an assault: if the armless legless Monty Python knight says he’s gonna hit you, it’s not an assault because your fear of harm is retarded. If the 300lb lineman says he’s gonna beat you to a pulp right now and lifts up his fist? THAT’S an assault. Your apprehension of being hit immediately makes sense. You should probably run. BUT! If the 300 lbs lineman is curled in bed being all cozy with his kittens (not a euphamism) and says he’s gonna hit you, that’s not assault. Words alone don’t work. It has to be coupled with action. I always think of assault as the lead up to a bar fight that will escalate in an actual fight. Anything less than that sort of male posturing is NOT assault, mkay?

*For bonus points: you can have a battery without an assault. If you are hit from behind, you never perceived the danger and thus had no apprehension. I know these things sound retarded but, well, the bar IS retarded.

False Imprisonment: If someone locks you in a room, tells you not to leave, and locks the door behind them, with no legal reason to do this, you have false imprisonment. Bam. You have to be locked in from all sides for it to be FI, you also have to KNOW you are being FI’d. If someone locks you in while you are asleep and unlocks the door before you wake up, it’s not FI. Also: if dude puts you in a room and tells you not to leave but then walks away and leaves the door open, don’t be a dumbass. Take the reasonable step to LEAVE THE ROOM. No FI for idiots who don’t just try to leave. If he leaves the door open but tells you that if you leave he’ll beat you to a bloody pulp, that’s not a reasonable means of leaving and you still have FI. If he closes the door and you believe it to be locked but it wasn’t, the escape was not known to you and it’s still FI. So FI: you are constrained, knowingly, to a specific area by someone who has no authority to do so. Oh, and even if they do this for like 5 seconds, it counts. But if you sue, you’ll be made fun of. (Frankly, I’m making fun of you for suit under most intentional torts. But I’m cold and heartless.)

Intentional Infliction of Emotional Distress: The main requirement is that whatever dude did has to be EXTREME AND OUTRAGEOUS! (Exxxxtreeemmmee.) This is almost never the answer because even if you think the behavior was pretty freaking ridiculous, it likely won’t be extreme and outrageous by bar standards. Bar standards are: “transcends all bounds of decency”. So unless its something like 2 girls and a cup, it’s not extreme and outrageous. (DON’T google that if you don’t get the reference.) Now, you know how I make fun of nancy boys? This is the one exception. In IIED, if the D knew that the person he was dealing with was fragile and screwed with him anyway, he can be liable for IIED. Same goes if it’s a child, an old person or a pregnant woman. The law considers them as all having fragile sensibilities. Additionally: if the D’s outrageous behavior was continuous he might be liable. Don’t call every five minutes and hang up.

And: there’s this thing called “common carriers” in the law. No, it doesn’t have to do with diseases. It has to do with airlines and train companies and other antiquated notions that don’t really exist anymore. I say antiquated because the outline also refers to “innkeepers”. Anyone been to an inn lately? Yeah, that’s what I thought. But: for those people who you pay to treat you with a modicum of respect? If they don’t, if they grossly insult you, without the extreme and outrageous, you can sue them under IIED.

Now, you don’t have to prove physical injury here but you have to prove that you were actually damaged. In all the other intentional torts we’ll let you sue no matter what and if we find D guilty, we give you nominal damages. Which are basically the court saying, “Thanks for playing, nancy boy, here’s your dollar.” Here you need to have something to show the court for loss of money by going to a shrink or something.

Oh: so let’s say for some reason your little brother is the recipient of the extreme and outrageous behavior but you’re standing there the whole time and the D KNEW you were his sister and standing there the whole time? You get by association IIED and can recover too. Nice!

Trespass to Land: You throw a rock on your neighbor’s roof? Trespass to land, bitches. You hop the fence and do a naked jig in your neighbor’s backyard? Trespass to land. You dig a hole in your neighbor’s backyard and bury some treasure there? Yep. You hop a fence in the woods thinking, “Hmm, this’ll be fun!” Trespass to land. Doesn’t matter that you didn’t know who owned it. Fire a gun that goes completely over your neighbors yard but at one point passed through his property? You violated his air space. No lie. Trespass to land. So: intentional physical invasion by you or an object of someone’s real property, including the immediate ground beneath and air above.

Trespass to Chattels: I hate the word chattel. Hate. No one uses it. Ever. You know what a chattel is? A thing you own. THING. Trespass to your things. Couldn’t just say that, could they? So what’s trespass to chattel? When you have a right to possess your THING, let’s say iPod, and someone else interferes with your right to possess it. In fact, it doesn’t have to be YOUR iPod. Let’s say your little brother was feeling generous and leant you HIS iPod and some other neighborhood jerk tries to take it from you. That’s TC. You had the right to it, they didn’t, they screwed with it. If that same neighbor doesn’t take the iPod from you to keep but instead takes it and drops it into the pool, damaging it, because “haha what happens if we drop an iPod in the pool?” that’s TC as well. So it’s a dispossession (taking) or intermeddling (screwing with your stuff to damage it). To recover you have to show that you were actually damaged. Either they ruined your iPod or they deprived you of its use for a period of time when you should have had it.

Conversion: Conversion is the civil way of saying “stealing”. Above, with the iPod? They were just screwing with it for awhile maybe. Here? They are taking it to own. Bastard. It’s yours! They are converting your iPod (the one your brother gave you the right to use, which still counts) into being their iPod: conversion. Because they totes took your iPod they have to pay you’re the full value of it. It’s like they bought it from you. But they stole it. Er, converted it.

Hey! Remember up above where we talked about transferred intent? Well, that applies to all the above EXCEPT for, and think about this logically: you can’t transfer intent in IIED or Conversion. The conduct in both of those requires a pretty high level of acting so you have to really mean to take the thing/be extreme and outrageous. Everything else? If you mean one of those but end up doing another, we’ll just switch up the intent. So Intentional Torts: Don’t be a jackass. 

Filed under plaining it torts