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Yessie's Bar review pt. 7

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yessieb's version from 2015-06-30 13:39

Section

EVIDENCE MNEMONICS

1) The proof must be “highly probable” (clear and convincing) to prove CLAM GAP CAMP

Question Answer
CA CONSTRUCTIVE trust (T CUP)
LA LOST will
AACTUAL malice in a defamation case
MMUTUAL mistake, reformation, or fraud
GGIFT (AID
AADVERSE possession (EUNUCH)
PPROVISIONAL remedies (LIAR)
CA CRL (covenant running with the land))
AADULTERY
MMOLINEAUX – “mimic” prior acts or convictions (N.Y.)
PGrounds to terminate PARENTAL rights (MA & PA)
memorize

2) Judicial notice is taken of indisputable facts when they are LMN

Question Answer
LLEGISLATIVE facts
MMANIFEST facts that are easily and quickly verifiable by referring to an indisputably accurate source
NNOTORIOUS facts that are so commonly known within the court’s jurisdiction that it wouldwaste the court’s time for a party to prove those facts
memorize

3) A judge doesn’t have to admit M-CUP

Question Answer
MEvidence MISLEADING or confusing to the jury evidence:
CCUMULATIVE evidence to prove facts already established
UEvidence that would cause UNDUE delay (too time consuming)
PIt would have an “unfair” PREJUDICIAL effect on the jury (“SOUP”)
memorize

4) Relevant evidence can be excluded if its probative value is SOUP

Question Answer
SSUBSTANTIALLY
OOUTWEIGHED by its
UUNFAIR
PPREJUDICIAL effect on the jury
memorize

5) Admit a RED

Question Answer
RIt was the party’s repetitive, regular, ROUTINE response habit in NY negligence cases where:
EThe party was in complete and EXCLUSIVE control of the circumstances; AND
DThe routine act was DELIBERATE
memorize

6) OPENS

Question Answer
OOFFERS of compromise (in civil cases) is closed out, even though it’s relevant:
PEvidence protected by PRIVILEGE
EEvidence pertaining to the EXISTENCE of liability insurance in a personal injury case
NA criminal defendant’s admissions in unsuccessful plea bargain NEGOTIATIONS
SEvidence of SUBSEQUENT remedial repairs after an accident (in civil cases)
memorize

7) A witness must PURR

Question Answer
PPERSONALLY perceived the event; except for a witess’s expert testimony before she can testify:
UUNDERSTAND and take the oath or affirmation
RREMEMBER the event
RBe able to RECALL the event on stand
memorize

8) A witness can be impeached with prior convictions, as well as prior VIC

Question Answer
VVICIOUS acts acts for which she was not convicted:
IIMMORAL acts
CCRIMINAL acts
memorize

9) The 4 “PRIORS”

Question Answer
1PRIOR recorded recollection aren’t hearsay provided the declarant testifies:
2PRIOR out-of-court identification
3PRIOR consistent statement
4PRIOR inconsistent statement that was given under oath, subject to penalty of perjury, at a prior trial, hearing, or EBT
memorize

10) Diversity jurisdiction requires federal courts to use state rules for PIPS

Question Answer
PPRIVILEGES
IINCOMPETENCY of witnesses
PPRESUMPTIONS and inferences
SSOL
memorize

11) For NOW

Question Answer
NIn a NEGLIGENCE action involving a car, boat, or plane (for general facts and results of accident), the Dead Man’s Statute is set aside (NY exceptions):
OWhen estate offers evidence/“OPENS the door” or questions an interested W about transactions or conversations with a dead person
WIf an estate fails to timely object at trial, it WAIVES the right to object based on DMS
memorize

12) NON FLIPS

Question Answer
NNEWSPAPER and periodicals are self-authenticating documents:
OOFFICIAL publications issued by public authority
NNOTARIZED/acknowledged documents (except wills), where the signer appeared before a notary, swore to truth of its content, and acknowledged execution
FFOREIGN public records, if the custodian’s signature is certified by the U.S. Embassy
LProducts identifiable by LABEL, tag, or trademark affixed in the reg course of business
INegotiable INSTRUMENTS and commercial paper
PCopies of PUBLIC documents or records, certified by the clerk of the agency or court that oversaw its custody
SDocuments with a government SEAL
memorize

13) An original document may be replaced by A DOPE

Question Answer
AIts content was judicially ADMITTED by party against whom it’s being offered when:
DThe document has been DESTROYED or lost
OThe original is OUTSIDE the court’s subpoena jurisdiction
PPUBLIC record
EThe original is under the EXCLUSIVE possession of the opposing party
memorize

14) The judge looks to see whether the expert wears a CRAPE

Question Answer
CCONFIRMED by testing when deciding whether to admit the expert testimony:
RREVIEWED by peers
AWidely ACCEPTED theory in the profession
PPUBLISHED
EPotential rate of ERROR
memorize

15) To rebut an inference, a party can show that a missing witness was UCC

Question Answer
UUNAVAILABLE
CNot under the party’s CONTROL
CThe missing witness’s testimony would only be CUMULATIVE
memorize

16) The source for federal privileges are in the 3Cs

Question Answer
CThe CONSTITUTION
CActs of CONGRESS
CFederal COMMON LAW
memorize

17) Confidential privileges are CHIMP’S RAP

Question Answer
CCLERGY privilege
HHUSBAND-WIFE privilege and spousal testimonial privilege
IPrivilege against self-INCRIMINATION (under the 5th & 14th Amendments)
MM.D./PATIENT privilege
PPh.D./PSYCHOLOGIST privilege, which NY protects in the same manner as AC privilege
SCertified SOCIAL worker privilege
RRAPE crisis counselor’s privilege (NY, not in Federal Courts)
AATTORNEY-CLIENT privilege
PPRESS privilege
memorize

18) No leading questions on direct, unless the witness is HAIRY

Question Answer
HHOSTILE, unwilling, or biased
AAn ADVERSE party
IIDENTIFIED/associated with an adverse party
RUnable to RECALL facts and so recollection needs refreshing
YVery YOUNG or old with a communication problem
memorize

19) Use a CRIB PIC

Question Answer
CImpeachment by CONTRADICTION to impeach a witness:
RW’s bad REPUTATION in the community for truthfulness
IW’s prior VIC
BW’s BIAS acts (vicious, IMMORAL, or criminal)
PW’s PRIOR inconsistent statement
IINFLUENCE of drugs or alcohol on W
CPrior criminal CONVICTIONS of W
memorize

20) RIP

Question Answer
RREPUTATION character evidence is admissible when a W’s character or trait of character is an essential element in a crime, civil claim, or defense:
ISpecific INSTANCES of prior conduct
PW’s PERSONAL opinion
memorize

21) A MIMIC

Question Answer
MTo show D’s MOTIVE for committing crime can introduce prior crimes, on direct exam:
ITo show D’s specific INTENT or guilty knowledge
MTo show absence of MISTAKE or accident
ITo IDENTIFY D as perpetrator
CTo establish a COMMON PLAN or scheme
memorize

22) A witness’s truthful character is admissible when attacked by a VCR

Question Answer
VPrior VIC acts
CPrior criminal CONVICTIONS, or
RBad REPUTATION for truthfulness in community
memorize

23) Hearsay is admissible for ARIES DWARFS

Question Answer
AADMISSIONS of an opposing party
RBusiness or public RECORDS
IPresent sense IMPRESSION
EEXCITED utterance
SDeclarant’s existing STATE of mind
DDYING declaration
WWITNESS tampering (Intimidated Witness Rule)
ADeclaration AGAINST interest
RRESIDUAL hearsay exception
FFORMER testimony
SPedigree STATEMENTS of personal history
memorize

24) The six DWARFS can only be let into court by an unavailable MR. POD

Question Answer
MA party who lacks MEMORY of the incident in question
RA party who REFUSES to testify, even when ordered to do so by the court
PA party who invokes a PRIVILEGE
OA party OUTSIDE the court’s subpoena power
DA party who is DEAD or too sick to come to court
memorize

25) BRIBE K

Question Answer
BBELIEF, and admit the listener’s state of mind:
RREASON
IINTENT
BBIAS
EEMOTION
KKNOWLEDGE
memorize

26) Offer the Business Records of Mr. TRUMP

Question Answer
TRecord must have been TIMELY made “at or near” the time of the matter recorded
RIt must have been the habitual, ROUTINE, regular practice of that business to systematically make and keep such a record
UOut-of-court declarant must have been UNDER a duty to supply information for the record, unless the statement falls into another hearsay exception, in which case the statement would be admitted, provided the other 4 TRUMP
MThe record was MADE and the info was kept as part of the regular practice of that elements are satisfied (“hearsay w/in hearsay”) business; AND
PBusiness records must identify the source of the info, and the person supplying info for the record must have had PERSONAL knowledge of the matter recorded
memorize

27) Declarations against interest require PUMP

Question Answer
Pthat the OOC declarant knowingly made statement against declarant’s own
memorize
:
3P
Question Answer
PPENAL interest
memorize
interest:
Question Answer
PPENUNCIARY interest ($)
PPROPRIETARY interest
Uthat the OOC declaration was made by person who is MR. POD
Mthat when the declaration was made, the declarant had no MOTIVE to misrepresent the facts;
memorize
AND
UNAVAILABLE at trial
Question Answer
Pthat the declarant had PERSONAL knowledge of facts asserted
memorize

28) Non-testimonial BEAD hearsay is admissible against the criminal defendant:

Question Answer
BBUSINESS records
EEXCITED utterance
AADMISSION by co-conspirator made during and in furtherance of the conspiracy
DDYING declaration
memorize

 

CONSTITUTIONAL LAW MNEMONICS

1) PEG a violation of the Establishment Clause:

Question Answer
PThe state statute or activity must have a primarily secular PURPOSE as opposed to the purpose of advancing or inhibiting religion
EThe law’s primary or inevitable EFFECT must neither disapprove of nor endorse religion AND
GThe law or conduct can’t foster excessive GOVERNMENTAL religious entanglement
memorize

2) A content-neutral regulation must be a reasonable SON of the First Amendment:

Question Answer
SThe restriction must be justified by a SIGNIFICANT governmental interest
OThe regulation must leave OPEN ample alternative channels of communication AND
NThe regulation must be NARROWLY tailored to further the government’s goal, but doesn’t have to be least restrictive means of doing so
memorize

3) All commercial speech restrictions with STAN are valid:

Question Answer
SGovernment must have a SUBSTANTIAL INTEREST to restrict the speech
TAdvertisements must be TRUTHFUL and concern lawful products and services
AGovernmental restrictions must directly and materially ADVANCE the government’s “substantial interest” in enacting the law (and there must be “reasonable fit” between the state’s goal and means used to achieve that goal)
NThe regulation must be NARROWLY-DRAWN and must not be more extensive than necessary to achieve the government’s substantial interest
memorize

4) The statute’s primary purpose must be a secular (non-religious) purpose, as opposed to a DOE

purpose of Disapproving Or Endorsing religion

5) SLAP POP’S PAW is simply obscene, and is not constitutionally protected:

Question Answer
SLAPLacks SCIENTIFIC, LITERARY, ARTISTIC, or POLITICAL value (determined by a national standard, not local)
POP’SPATENTLY OFFENSIVE PORTRAYAL of SEX
PAWPRURIENT interest appeal, in which the material tends to excite lewd, lascivious, and lustful thoughts in a person of AVERAGE sensitivity; here, the WHOLE material must be weighed by the court
memorize

6) A suspect class RIO for equal protection:

Question Answer
RRACE
IIMMIGRANT
ONational ORIGIN
memorize

7) Fundamental rights drink from the Equal Protection VAT:

Question Answer
VVOTING rights
AACCESS to courts
TThe right to TRAVEL throughout the U.S.
memorize

8) Privileges and Immunities claims cannot be asserted by RAG CAP:

Question Answer
RA RESIDENT of the state who’s law is being challenged (i.e., the P here must be a non-resident or a newly arrived resident)
AALIENS
GThe U.S. GOVENMENT
CCORPORATIONS
AASSOCIATIONS (partnerships, LLCs, etc.)
PPARTNERSHIPS
memorize

9) For an intermediate level of judicial scrutiny, use “IS” four times…

Question Answer
ISINTERMEDIATE level of judicial SCRUTINY
ISThere must be an IMPORTANT governmental interest, and the method chosen must SUBSTANTIALLY relate to achieving that interest
ISILLEGITIMACY and SEXES (genders)
ISILLEGAL SCHOOL-AGE children
memorize

10(a) Intermediate scrutiny arises whenever you drink GIN:

Question Answer
GGENDER
IILLEGAL school age IMMIGRANTS
NNONMARITAL children
memorize

10(b) Note that “IS” does NOT apply to a MAP person:

Question Answer
MMENTALLY disabled
AAGE discrimination victim
PPOVERTY-STRICKEN person
memorize

11) The President always wears his VETS’ CAPS:

Question Answer
VVETO power over Congressional acts
EEXECUTIVE power to “take care” that laws of the U.S. are faithfully executed
TTREATY Power
SSTATE of the Union recommendation to Congress for proposed legislation
CCOMMANDER in Chief of the armed forces
AAPPOINTMENT power over ambassadors, judges of the Supreme Court, and other “superior officers” of the U.S.
PPARDON power over federal crimes
SPower to call a SPECIAL Session of Congress
memorize

12) Congress requires a 2/3 vote only when drinking a TEA I.V.:

Question Answer
TFor the Senate to ratify a TREATY
ETo EXPEL a member from either House of Congress
ATo propose an AMENDMENT to the Constitution (2/3 vote in each House)
IFor the Senate to convict an IMPEACHED official (2/3 of those present)
VFor both Houses to override a Presidential VETO
memorize

 

13) PIEPER FIT WABCD in Congress (express powers of Congress, enumerated in Article I of the
U.S. Constitution):
Question Answer
PPOST office
IINVESTIGATORY power to find facts in order to pass legislation
EENFORCEMENT of federal civil rights under the 13th, 14th, and 15th Amendments
PPROPERTY power
EFederal ELECTIONS
RRAISING revenues by taxing
FFISCAL power
IThe power to regulate INFERIOR federal courts and their procedures
TTREATY power
WThe power to declare WAR
APower over ALIENS and their naturalization to become citizens
BBANKRUPTCY
CInternational and interstate COMMERCE
DDISTRICT of Columbia police power
memorize

14) The 13th Amendment confronts the VIBS of slavery:

Question Answer
VVESTIGES
IINCIDENTS and
BSBADGES of the SLAVERY system
memorize

15) MAD2 COPS protect fundamental privacy interests:

Question Answer
MRight of heterosexual couples to MARRY
ARight to an ABORTION (“undue burden” standard)
DSpouse’s right to DISSOLVE a marriage
DRight of a terminally ill person to DIE
CRight to buy, sell, or use CONTRACEPTIVES
ORight to privately possess OBSCENE material (but not if it depicts minors)
PPARENTING rights (right to control the upbringing and education of child)
SRight to private, consensual SEXUAL activity
memorize

16) A parent has 3-C fundamental rights to raise children:

Question Answer
CCUSTODY
CCARE
CCONTROL
memorize