Welcome to the Deep Dive the show really engineered to cut
through all that information overload.
We want to deliver the crucial insights you need to truly grasp
complex legal topics. Yeah, get right to the heart of
it. Exactly.
And today, we're taking on two real Titans of legal study,
property law and criminal law. These aren't just dense
subjects, they are absolutely foundational for anyone you know
navigating law school exams. And of course, the ultimate
challenge, right? The bar exam.
Right, huge topic. A massive undertaking,
absolutely, but seeing how these principles come alive and
practice well, that's incredibly rewarding, I think.
That's precisely right, and you should think of this deep dive
as your focused strategic study session.
Our mission really is to give you a direct path to
understanding the intricate nuances, those key distinctions,
and the essential facts all drawn from the source material
you've given us. OK, our goal isn't like rope
memorization. It's about equipping you with
the analytical tools you need to be able to identify and dissect
those tricky fact patterns. The ones that always pop up on
exams. Exactly the ones that lead to
those deeply satisfying aha moments, those insights.
That's what truly translates into exam success.
Agreed. So what our game plan for this
deep dive? We've carved out a pretty clear
route for you. First, we're going to immerse
ourselves in the foundational concepts and, you know, the
practical applications of property law, the rights, the
estates, the whole fascinating world of transactions.
Got it. Property first.
Then we'll transition into the core principles of substantive
criminal law. We'll break down various crimes
and defenses, and finally, we'll navigate the crucial procedural
safeguards in criminal procedure with a special look in Tofford
that often debated and frankly highly nuanced area of
self-defense. OK, sounds like a solid plan.
Let's unpack this all. Right, let's kick things off
with property law. Now.
When most people think of property, their mind immediately
goes to something tangible, right?
Like a house, a car, maybe a piece of land.
Sure, the physical stuff. But in the legal realm, property
is so much more abstract and, well, honestly more interesting.
Our sources really emphasize A fundamental idea.
Property isn't merely a physical object, but rather a collection
of rights. It's best understood as what
legal scholars call a bundle of sticks, a metaphorical
collection of rights held by people concerning things.
That bundle of sticks analogy is just incredibly powerful for
visualizing what property truly entails.
And trust me, it's a concept you'll see on every single
property exam. Each stick represents A distinct
right. You have the right to
possession, which is, you know, the ability to physically
control the property. There's the right to transfer,
also known as alienation, meaning you can sell it, gift
it, or pass it on. You also have the right to use
your property as you see fit, and even to a certain extent,
the right to destroy it. But perhaps the most fundamental
stick in that bundle, and one will immediately focus on is the
right to exclude. This is often described as the
fundamental property right. I find that image so compelling
because it forces you to think beyond just the physical thing,
like how many of those sticks can actually be removed from
your bundle before, you know, no longer have what we recognize as
property. It's a great thought experiment.
It really is for any law student, and it underlies so
many property disputes. This idea of the right to
exclude is fascinating because it implies property confers
exclusive sovereign control over a thing, essentially rights in
R.E.M. against the world. What that means is your property
right is enforceable against everyone.
That's a crucial point for the bar exam.
This absolute control against all others is reinforced in
classic cases. Think about Jacques V Steenburg
homes. The mobile home case.
Exactly. Here, a mobile home company
intentionally crossed a homeowner's land, despite being
expressly told not to, simply because it was a more
convenient. Route right?
Just easier for. Them and the court held that all
trespass causes harm even without physical damage.
This wasn't about like a broken fence, it was about the
fundamental violation of the right to exclude.
So even if they didn't actually hurt anything.
It didn't matter. It established that nominal and
punitive damages were acceptable, powerfully
reinforcing the inviolability of that right for your exam.
The real take away from Jacques is that the right to exclude is
so fundamental, even a harmless trespass demands a remedy.
It's not about the damage, it's about the dignity of ownership
itself. That's a powerful statement from
the court, but then you have cases that seem to push back on
that absolute control, like him and V Pacific.
Air right, the airplane case. Yeah, this is where the old AD
column rule comes into play. The idea that if you own land,
you own to the heavens, into the depths.
All the way up, all the way down.
Exactly. Yet in Hinman, the court
determined that property rights are not exclusive to the
airspace above a home, particularly due to a public
policy against injunctions that would disrupt air travel.
Makes sense practically. And the Supreme Court later
solidified this, stating that the navigable airspace is
federally controlled. So your air rights for practical
purposes only go as far as you can use them.
What stands out here, I think, is that constant balancing act
between private rights and the public good.
Absolutely. Hinman is a clear illustration
of how private property rights can, and sometimes must yield to
broader public policy objectives, especially for
things like infrastructure and commerce.
And this leads us directly to vital limitations on the right
to exclude that you must certainly know for your exams.
The Civil Rights Act of 1964, for instance, it explicitly
prohibits discrimination or segregation in places of public
accommodation. Your right to exclude cannot be
used to discriminate based on protected characteristics.
Period. And then the Americans with
Disabilities Act of 1990 further expanded this It prohibits
discrimination by public accommodations and even requires
new construction and alterations in public and commercial
facilities to be accessible. Right, physical access
requirements. So while you have this
fundamental right to exclude, it's never truly absolute.
These statues embody a societal decision that certain rights,
like equality and access, are more fundamental than an owner's
unrestricted control. Precisely.
And while criminal trespassing laws are a common legal method
to protect the right to exclude, even those laws face pushback
and nuance, often reflecting evolving societal values about
public access versus private property.
OK, so from the tangible world of land and physical
possessions, let's make a leap to the intangible intellectual
property, or IP. This is a whole different beast,
isn't it? And it's increasingly relevant
in our modern economy. Oh absolutely.
It's broadly defined as non tangible personal property,
specifically creations of the mind.
Things like works or inventions born from human creativity that
can be legally protected. And why protect them?
While the core reason these legal protections exist is
basically to encourage innovation by granting creators
temporary monopolies over their creations, give them an
incentive. And that encouragement comes in
different forms of protection, each with its own distinct
rules, which is exactly what you'll be tested on.
Definitely. First up, copyright.
This protects original works of authorship, which must be fixed
in any tangible medium of expression, whether published or
unpublished. Think of novels, songs,
screenplays, architectural designs, even computer code.
So if you write a short story, can compose a piece of music, or
even just snap a unique photograph, it's automatically
copyrighted the moment you put it down, written, recorded, or
captured. That's right, fixation is key.
You don't need to register it with the US Copyright Office,
but registered registration does provide significant additional
enforcement rights, like the ability to sue for statutory
damages and attorneys fees, and it creates a public record of
your claim, so it's usually a good idea.
Makes sense. What rights do you get?
The owner of a copyright gets exclusive rights to reproduce
the work, prepare derivative works like, say, a movie
adaptation of a book, perform publicly and display publicly.
This protection typically lasts for the life of the author plus
70 years. That's a long time.
It is a substantial term designed to foster creative
endeavors. However, copyright has key
limitations you absolutely need to know.
It only prevents copying, not independent creation of an
identical work. OK.
And it also crucially protects the expression of an idea, not
the idea itself or facts or functional aspects.
That's the classic Bob's cocktail recipe example, right?
And it's a fantastic illustration of that
distinction. Exactly.
Explain that one. Well, if Bob copyrights his
specific expression of how to make a cocktail, his unique
phrasing may be the narrative of way he writes the recipe he's
protected. But if Irma then uses her own
words to describe the exact same process, the same ingredients,
in the same order, she hasn't infringed Bob's copyright
because she didn't copy his expression.
She just independently created her own expression of the same
underlying idea or facts. That's a crucial distinction for
your exams. It truly is.
The threshold for protection under federal copyright law is
actually very low, requiring only a modicum of creativity.
Even small choices of arrangement or wording can meet
this. Good to know and defenses.
And don't forget the common defenses 1st Amendment
considerations, especially fair use for purposes like criticism,
comment, news reporting, teaching, scholarship or
research, and parity, which often come into play in
infringement cases. OK, Next up, trademarks.
Right. These are any word, name,
symbol, or device used in commerce to indicate the source
of goods and distinguish them from others.
They're kind of a hybrid of state common law rights and
federal statutory rights. And the main point?
The core purpose here is to prevent consumer confusion.
Got it. So people know who made what.
This is all about source identification and protecting
the goodwill a business builds up.
Trademarks can be wordmarks like the name Coca-Cola or its slogan
It's the real Thing. Or they can be non word marks,
symbols, logos, colors, even unique fonts.
Think of the distinct Coca-Cola script.
It's iconic red color, that wave design.
Or even the bottle shape. Exactly the distinctive shape of
its bottle, which is a form of trade dress.
That specific bottle shape is so iconic, it has adapted to
various materials over the years.
And beyond that, you have less traditional trademarks like
sounds, the famous Tarzan yell or the NBC chimes.
Really. Some rare and difficult to
register cents have even been granted protection and service
marks, meanwhile, designate the source of services rather than
goods, like a specific airlines logo.
So trademark law doesn't necessarily stop someone from
making an identical product, correct?
But it does stop them from using your name or symbol in a way
that would confuse consumers about the source of that
product. Exactly, and the spectrum of
distinctiveness is crucial for register ability.
Marks range from generic, which are not registerable at all.
You can't call an Apple company. Apples makes sense to highly
distinctive or arbitrary fanciful marks like Kodak for
cameras, and a significant risk for a trademark owner is that
their mark can become generic and lose protection.
Like what nearly happened with Band-Aid?
Precisely if the brand isn't diligently protected and the
public starts using it as the general name for the product
type. OK.
And the third leg of the IP stool.
Finally, we arrive at patents. This grants an exclusive right
to exclude others from making, selling or using an invention
for 20 years from filing the application.
So it's a right to stop others? Exactly this is considered a
negative right. Unlike copyright, which is more
of a positive right to reproduce, patents are really
specific. Inventors choose precisely how
to write and what serves their best interest in their
application, often drafting claims very narrowly to ensure
they meet the rigorous requirements of novelty, utility
and non obviousness. Got it.
OK, moving from creations of the mind back to shared ownership
of, well, actual stuff. Let's explore Co ownership
estates. Right.
These define how multiple people can simultaneously own a single
piece of real property. For your exam, pay close
attention to the distinctions between these forms.
It's prime testing ground. So what's the default?
The default form of Co ownership, if nothing else is
specified, is tenancy. In common.
Here each Co tenant has an undivided possessory interest,
meaning they can possess the whole property regardless of the
size of their ownership share like 50% or 25%.
Undivided possession. OK, and what about when someone
dies? Crucially, there's no right of
survivorship. Ah, OK, big difference.
So if one Co tenant in a tenancy in common dies, their interest
doesn't automatically go to the other Co tenants.
Instead, their interest is discernible, meaning their
specific share can be identified.
Divisible can be passed by will and transferable inter vivos,
meaning they can sell or gift their share during their life.
And can one person just. Get out.
Yes. Importantly, any Co tenant can
unilaterally sever their interest without the consent of
the others, turning it into a different form of ownership or
just selling their share. OK, what's next?
Next we have joint tenancy, which you can think of as
tenancy and common rights plus survivorship.
This is a critical distinction. Survivorship again.
Yes. At death, the deceased owner's
interest disappears and the surviving owner's or owner's
interest automatically expands to take full ownership.
So it avoids probate. Exactly.
This is often used by spouses or business partners as an
alternative to a will because it automatically bypasses probate,
simplifying asset transfer. But creating it is tricky,
right? The four unities.
Absolutely critical and frequently tested.
To create a joint tenancy, you must have what are known as the
four unities. Time.
All joint tenants must acquire their interest at the same time.
Title. They must acquire it by the same
instrument like a single deed. Interest They must have equal
shares and durations and possession.
They must have the right to possess the whole property just
like tenants in common. That straw man thing.
Yeah, historically there was a straw man workaround to satisfy
these unities when an owner wanted to create a joint tenancy
with themselves and someone else.
But many states have eliminated the need for this legal fiction
by statute. You can often just deed it
directly now. Good to know.
Is there another type? Then there's tenancy by the
entirety, which is a special form of marital Co ownership.
Only married couples can hold property this way.
OK. How's it different from joint
tenancy? It shares many characteristics
with joint tenancy, including the requirement of the four
unities and the right of survivorship.
What makes it critically different is that it cannot
easily be severed unilaterally. Ah, so one spouse can't just
sell their half. Typically no.
It usually requires the consent of both spouses or the legal
ending of the marriage, such as through divorce or annulment.
This added protection means one spouse usually cannot convey
their interest to a third party or suffer individual creditor
liens without the other spouses consent.
It offers more protection to the marital unit.
OK. Let's unpack this next big area
acquisition of property. This isn't just about buying a
house, is it? It goes back to the very basic
idea of first possession, which is really about establishing
control at base. Right, how do you get property
in the 1st place? A prime example, and one you'll
undoubtedly encounter in your studies, is the rule of capture.
Pearson View post The Fox Hunt. The very one.
To achieve actual legal possession of a wild animal, one
must kill or capture it or deprive it of liberty.
Legal possession can also be shown by mortal wounding plus
chase if it's clear the animal cannot escape, or by custom,
like in whaling, where using a Lance bomb that sinks into the
whale counts as possession even if the whale drifts away.
The key is actual physical control, or an imminent
likelihood of it. But then you have rare
exceptions like Papa V Hayashi, the baseball case involving
Barry Bond's home run ball. That's the one.
This case introduced the concept of pre possessory interests.
Here, the court held that ownership, or at least a
superior claim, could be established if one was in the
process of bringing the baseball under control when he was
stopped by the unlawful acts of others.
So like he almost had it but got mobbed.
Exactly. It's an equitable claim to
possession where significant effort was put in and the
process was interrupted by outside interference.
It's an unusual situation where courts grant a possessory
interest even if the item isn't fully under physical control.
Very fact specific. OK, what about Rashian Soli?
Yes, rashiona soli, which literally means by reason of the
soil. This rule states that wild
animals and natural resources captured on private land belong
to the landowner, not the captor who might have trespassed.
So the landowner has the better claim.
Yes. It protects land owners
reasonable expectations and their right to take possession
of any wild animal that wanders onto their property.
It gives them a constructive possession simply by virtue of
owning the land. And what about things that are
just well found? That's where the concept of
relativity of title comes in. The idea that property title
isn't absolute, but relative to competing claims.
OK for lost property, property found where the true owner
likely didn't intend to set it down and isn't likely to find
it. The original owner still retains
the best claim always. OK, true owner first, but what
about the Finder? The Finder of lost property,
upon taking possession, becomes the owner against the entire
world except the true owner. So it's a hierarchy that's
frequently tested true owner Finder the rest of the world.
Got it and treasure trove. A special type of found property
is treasure trove money, gold or silver intentionally placed
underground, found so long later that the owner is likely dead or
won't return. the US generally treats us like any other lost
property, granting it to the Finder subject to the true
owners claim. But historically in England it
belonged to the king. Different role there.
Here's where it gets really interesting and is, like you
said, a common ME topic. Adverse possession.
This is a powerful legal doctrine where a non owner can
acquire full legal title to land by openly possessing it for a
long statutorily defined period under specific conditions.
Absolutely. For your exams, always remember
the acronym CAOE for the elements.
CHAOES. OK.
Break it down C. Continuous possession for the
statutory period. This means the possessor acts
like a true owner would consistent with the nature of
the property. It doesn't mean 204 seven, but
regular use hostile possession. This fundamentally means without
the true owner's permission, it's adverse to the owner's
rights. Actual possession.
The adverse possessor is literally occupying and using
the land as a true owner would, not just occasionally visiting,
physically present, open and notorious.
The possession must be visible and obvious enough to put a
reasonably attentive true owner on notice that someone is
claiming their land exclusive possession.
The adverse possessor is not sharing the property with the
true owner or the general public.
They're possessing it against everyone.
Statutory period. The possession must last for the
length of time required by the state statute, which varies
often 1015 or 20 years. That hostile element has crucial
nuances for your exams, doesn't it?
Oh definitely. At its base, it means no
permission, but jurisdictions differ on the adverse possessors
mental state. Some require good faith.
The possessor mistakenly believed they owned it.
Like an error in the D description.
Right. Others require bad faith.
They knew they didn't own it, but intended to claim it anyway.
Sometimes called the aggressive Trespass review.
And some, which is the majority rule, consider the possessor's
mental state irrelevant. As long as there's no
permission, it's hostile. What about color of title?
Color of title means the adverse possessors claim is based on a
written document like a deed, even if that document is
defective or invalid. While not always required for
AP, having color of title can sometimes make the process
easier, perhaps reduce the statutory period in some states,
or allow for constructive adverse possession of the whole
parcel described in the faulty document, even if only part was
actually possessed. So how does someone actually get
the title? Legally, acquiring title via
adverse possession happens through a quiet title action in
court. The adverse possessor sues to
get a judicial declaration of their ownership.
And it's a new title. Yes, it's important to
understand this isn't a transfer of the existing title.
A new original title arises when adverse possession is proven in
court. It wipes the slate clean in a
way. And tacking, what's that?
For satisfying the statutory period, tacking enables a
succession of adverse possessors to combine their periods of
possession if they are in privity.
Privity meaning. Privity here generally means the
prior possessor knowingly and intentionally transferred their
possessory interest to the subsequent possessor.
This typically occurs through a sale, gift, or inheritance.
You can't just have random squatters adding up time.
So if I buy a house and the previous owner was already
adversely possessing a strip of land next door for say 10 years
and the statute is 15 years. Right.
And you continue that possession for another five years.
I can tack their ten years onto my five years to meet the 15
year requirement, assuming we meet all the other CIO ES
elements and there was privity between us regarding that strip.
Exactly. So why does this doctrine even
exist? What's the policy behind adverse
possession? Good question.
It seems like rewarding wrongdoing.
Well, the policies usually cited are promoting the productive use
of land, penalizing owners who sleep on their rights, providing
fairness to long term possessors, especially those
acting in good faith, belief of ownership, and reducing
transaction costs by clearing up old uncertain titles where
historical facts might be unclear.
It settles things eventually. Makes sense?
OK, let's move into conveyancing, the process of
selling real property. This involves a whole series of
steps, right? Each with legal implications.
Absolutely. It usually starts with the
purchase contract or agreement. This is the bedrock of the
transaction, outlining the price, what's included like
fixtures versus personal property, any easements, known
problems, contingencies. Like financing or inspection
contingencies? Precisely then a title
examination is performed. Someone, usually an attorney or
title company, searches the public records to ensure the
seller owns the property and that there are no hidden liens,
mortgages or other interests clouding the title.
OK, then inspection. Then comes the property
condition evaluation, typically through a professional home
inspection. This often gives the buyer a
window to back out or renegotiate the price if
significant, previously unknown problems are revealed.
And financing. After that the buyer typically
obtains financing. This involves steps like getting
pre approval, the lender doing underwriting, figuring out the
down payment, maybe private mortgage insurance, PMI,
understanding the loan terms, interest rates, closing costs,
repayment penalties, the loan length, APR versus interest
rate. All that.
That's the details there. Definitely.
Once financing is secured, escrow is opened.
An escrow agent acts as a neutral third party to hold
documents and money. All necessary documents are
prepared like the deed, transferring ownership, the
mortgage, securing the loan, the promissory note, the actual
promise to repay and title insurance policies.
And then the big day closing. The big moment is the closing,
where money and keys are exchanged, documents are signed
and legal ownership officially changes hands.
Finally, and crucially, the deed and mortgage are immediately
recorded with the Local Government Recorder's Office.
Why is recording so important? Recording provides public notice
of the new ownership and any security interests like the
mortgage. This protects the buyer and
lender against future claims by third parties.
It puts the world on notice. Essential to the purchase
contract itself is the Statute of Frauds.
You mentioned that for easements too.
Yes, it applies broadly to interests in land.
Oral agreements to sell land are generally unenforceable.
The contract must be in writing, contain all essential terms,
parties, price, property description clearly identified
and be signed by the party against whom enforcement is
sought. And that property description
needs to be clear. Very clear using methods like a
government survey system like section Township range, a meats
and bounds description following boundary lines and monuments, or
a reference to a recorded subdivision map or plaque.
Ambiguity here can void the contract.
A key concept for buyers and a common exam question is
marketable title. What does that mean exactly?
Marketable title means the title is reasonably free from defects
and there's no reasonable doubt about ownership that would
subject the buyer to a risk of litigation.
It's a title a prudent, informed buyer would accept.
So what makes title unmarketable?
Examples of unmarketable title include significant encumbrances
not mentioned in the contract, like an unrecorded mortgage or
easement that materially affects the property's use or value, or
a defect in the chain of title or existing zoning violations.
But not all restrictions make it unmarketable.
Correct. Things like general zoning
ordinances that apply broadly or minor encumbrances that don't
significantly impair value or use typically don't make title
unmarketable unless they create reasonable doubt or substantial
impairment. For instance, not being able to
put up a six foot fence due to a standard local ordinance usually
doesn't affect marketability unless that was a specific
condition of the sale. Related to this insurable title,
how's that different? It's a slightly lower standard
often used in contracts. Insurable title is simply a
title that a title insurance company would be willing to
insure at a normal rate. While not perfectly clear, it
essentially means the existing encumbrances, though they might
exist, don't prevent the buyer from getting title insurance,
providing A practical financial safeguard.
Marketable title is the higher standard.
OK. Then there's the duty to
disclose defects. How has that evolved?
Big changes here over time. The old common law approach, now
a minority view followed. Caveat emptor.
Buyer beware. A seller was generally only
liable for affirmative misrepresentation, outright
lying, active concealment like painting over water damage right
before showing, or failure to disclose only if a fiduciary
relationship existed. But that's not the case now
Most. Right.
The modern rule, which is the overwhelming majority approach
in the US and the one you should assume applies unless told
otherwise, states that a seller is liable for failure to
disclose known defects that one materially affect the property
value. A&D are not known to or readily
discoverable by the buyer through reasonable inspection.
These are often called latent defects.
And what's material? We generally use an objective
approach. A defect is material if it
affects a reasonable person's decision to buy or significantly
decreases the market value. Some jurisdictions, though
fewer, use a subjective approach.
Did it matter to this buyer or require specific statutory
disclosures like if there was a murder in the home or if it's in
a flood zone? What about as IS clauses?
Do they get sellers off the hook?
Jurisdictions are split on whether these clauses shield
sellers from liability for non disclosure of latent material
defects. Some say yes, some say no,
arguing it undermines the duty to disclose.
However, crucially, no jurisdiction allows an AS IS
clause to shield a seller from liability for affirmative
misrepresentation. If you actively lie AS IS, won't
protect you. Good to know.
Another important concept often relevant in sales is fixtures.
Define that for us. Sure.
Fixtures are goods, items of personal property that have
become so related to the real property so attached that an
interest in them arises under real property law.
Think of something that was movable but has been permanently
attached or integrated into the real estate, like built in
cabinets, a furnace, or special lighting.
And whether an item is a fixture determines if it conveys with
the property automatically in the sale unless excluded.
Exactly. Courts look at factors like the
degree of attachment, adaptation to the use of the Realty, and
the intention of the party who attached it.
OK. For title assurance, besides the
title search, you mentioned deeds and insurance.
Let's talk about the different types of deeds.
Right. A general warranty deed offers
the broadest protection the grantor warrants against all
defects in title, even those that arose before the grantor
owned the property. They're making six traditional
covenants about the title. That's the best for the buyer.
Definitely a special warranty deed is narrower.
The grantor warrants against defects only arising during the
grantor's period of ownership. They aren't promising about
things that happened before them.
OK. And the last one.
And a Quitclean deed provides no warranties at all.
It simply transfers whatever interest the grantor has, if
any. If they have good title, you get
good title. If they have nothing, you get
nothing. The grantee has no recourse
against the grantor under the deed if the title turns out to
be bad. Use those with caution then.
Generally yes, unless you know the title situation well.
Now, recording acts are crucial for establishing priority of
interests in land, especially when there are multiple
conveyances or liens regarding the same property, like if a
seller sells the same land to two different people.
Who wins? It depends on the state's
Recording Act. There are three types, and
they're highly tested. Race.
The first person to record their deed wins, regardless of whether
they knew about an earlier unrecorded conveyance.
Very rare. Now notice a later buyer who
buys without notice of a prior unrecorded interest wins.
Even if they record their D later than the first buyer.
Their status as a bona fide purchaser BFP without notice
protects them and. The third.
Race notice a later buyer wins only if they buy without notice
and D they record their deed first.
They must be both ABFP and win the race to the recorder's
office. This is the most common type.
You absolutely must be able to distinguish these and apply them
to fact patterns. Got it.
Race notice. Race notice and methods of
assurance. Methods of assurance include a
title opinion, where an attorney searches public records and
renders an opinion on the state of the title.
But this has limitations. It won't catch things outside
the public record like forged deeds, adverse possession claims
or unrecorded easements. So more common is.
More commonly you have title insurance where a private
company insures the grantees title against specified defects,
providing financial protection up to the policy amount if a
covered title problem arises later.
It doesn't guarantee perfect title, but it insures against
loss. OK.
The mortgage itself is a critical concept.
Remind us what it is. It's important to remember it's
not the money you borrow. The mortgage is the security
interest in the property that gives the lender the right to
have the property sold if the borrower defaults on the loan.
And the parties? The borrower is the mortgagor
gives the mortgage and the lender is the mortgage.
E receives the mortgage. Easy way to remember Mortgagor
has an O like borrower. Mortgage E has an E like lender.
OK. And the theories title versus
lien? Right, there are two main legal
theories regarding mortgages, which can matter for things like
joint tenancies. Title theory.
Minority View now says that legal title actually transfers
from the mortgagor to the mortgage until the loan is paid
off. This transfer can break a joint
tenancy by destroying the unity of title or interest than the
other. Lien theory, which is the
majority view, says the mortgage is just a lien on the property,
a right to foreclose if necessary.
No title transfer occurs unless and until foreclosure happens.
In a lien theory, state granting a mortgage does not sever a
joint tenancy. Are there alternatives to a
traditional mortgage? Yes, you might encounter
alternatives like a deed of trust.
Here. The borrower trustor gives a
deed to a neutral third party trustee who holds it for the
benefit of the lender beneficiary.
If the borrower defaults, the trustee can often sell the
property through a non judicial foreclosure process.
Simpler foreclosure often quicker and less expensive for
the lender than judicial foreclosure.
Another alternative is a land contract, sometimes called an
instalment land contract or contract for deed.
This is a form of seller financing, where the buyer takes
possession and makes payments over time, but the seller keeps
legal title until the property is fully paid off.
If the buyer defaults, the remedies can be harsh, sometimes
involving forfeiture of all payments made.
OK. After closing, as we mentioned,
the deed and mortgage are recorded for public notice.
Crucial. Absolutely.
Public notice and if things go South, there's foreclosure.
What types are there? Foreclosure can be judicial,
which requires the lender to file lawsuit and get a court
order to sell the property. Or it can be non judicial, where
the mortgage or deed of trust document itself contains a power
of sale clause permitting the lender or trustee to sell the
property with proper notice but without direct court
supervision. Both types require advance
notice to the borrower. What if the sale doesn't cover
the debt? If the foreclosure sale price is
less than what's owed on the loan, the lender can often
pursue A deficiency judgment against a borrower personally
requiring them to repay the difference, although some states
limit or prohibit deficiency judgments, especially after non
judicial foreclosures or on primary residences.
Can the borrower stop it? Before the foreclosure sale to a
third party, the borrower usually has an equitable right
to redeem. This means they can pay the full
outstanding mortgage amount plus costs and get the property back
free of the mortgage. Some states also have a
statutory right of redemption after the sale for a limited
period. OK.
Huge topic. Let's transition from sales to
ongoing occupancy, landlord tenant relationships.
Understanding the types of tendencies is absolutely key for
exams, right? Absolutely fundamental.
First, a term of years is a tendency for a fixed determined
period. Could be 6 months, a year, 99
years. It automatically terminates at
the end of the specified term without requiring notice from
either party. Got it fixed end date.
Then a periodic tendency repeats for a set period, like month to
month or year to year. It renews automatically until
proper notice of termination is given by either party, usually
equivalent to the period itself. For example, one month's notice
for a month to month. OK.
What else? Then there's tenancy at will.
This has no fixed duration and continues only as long as both
the landlord and tenant desire. It terminates at the will of
either party, although modern statutes often require
reasonable notice, typically 30 days.
And last one, yeah, the holdover.
Exactly Tenancy at sufferance. Often called a holdover tenancy,
this occurs when a tenant who is rightfully in possession remains
after the lease expires without the landlord's permission.
They're technically a trespasser, but the landlord has
a crucial one time election. With the election.
The landlord can either evict the tenant as a trespasser, or
they can choose to hold the tenant to a new tenancy.
This usually creates a new periodic tenancy, typically
month to month by default, often on the same terms as the
original lease except duration. The landlord has to choose one
or the other. OK, when selecting tenants,
landlords face important anti discrimination limitations,
right? Yes, very important.
The Civil Rights Act of 1866, Section 1982 offers broad
protection against racial discrimination in all property
transactions, including rentals. And the main federal law.
More specifically, the Federal Fair Housing Act of 1968, FHA
covers most of the housing market.
It makes it unlawful to refuse to sell or rent, discriminate in
terms or conditions, or publish discriminatory ads based on
race, color, religion, sex, familial status, having kids or
national origin. Handicapped, disability and
familial status were added later.
So you can't refuse to rent to someone just because they have
children? Generally no, unless it's
qualified senior housing. The FHA protection also includes
refusing to permit reasonable modifications for handicapped
persons, like installing grab dars at the tenants own expense
or refusing to make reasonable accommodations and rules,
policies or services necessary to afford a handicapped person
equal opportunity to use and enjoy a dwelling, like allowing
a service animal despite a no pets policy.
Are there any exemptions to the FHA?
Yes, there are some narrow exemptions, like for single
family houses sold or rented by an owner who owns no more than
three such houses and doesn't use a real estate agent.
Or the Misses Murphy exemption for owner occupied dwellings
with no more than four families living independently.
Like renting out rooms in your own house.
But you can't advertise discrimination.
Crucially, these exemptions cannot be advertised in a
discriminatory way. Even if the rental itself is
exempt, the advertisement is not, and racial discrimination
is never allowed under the 1866 Act even if an FHA exemption
applies. How is discrimination proven?
Proving discrimination can involve disparate treatment
claims which target intentional discrimination based on a
protected characteristic. I won't rent to you because you
are a protected class. OK, intentional.
Or it can involve disparate impact claims.
This is where a seemingly neutral policy in practice has a
disproportionately harmful effect on a protected group,
even without proof of discriminatory intent.
For example, an occupancy limit based purely on number of people
might disproportionately exclude families with children.
Got it. What about ending the lease if
the landlord wants out? If the landlord wants out, they
can sell the property. They sell their reversion
interest, their right to regain possession at the end of the
lease term. The purchaser buys the property,
subject to any existing leases. They become the new landlord.
And if the tenant wants out sublease versus assignment.
This is always tricky. It is, and it's absolutely
critical for exams, especially regarding previty, which
determines who can sue whom for rent or other lease obligations.
OK, breakdown sublease first. In a sublease, the original
tenant, let's call them T1, grants an interest in the leased
premises that is less than their own entire remaining interest,
or they reserve a reversionary interest or gamble.
T1 has a year left on the lease and sublets to S for 11 months
or reserves a right to reenter. So it keeps something.
Right in an assignment, T1 conveys the whole remaining term
of their lease, leaving no interest or reversionary.
Right in T1T1 transfers their entire leasehold interest to the
assignee. How do courts tell the
difference? The common law rule majority
view is objective. It focuses on the instrument
itself and what was actually transferred, not the party's
intent or what they called it. If it transfers the entire
remainder of the term, it's an assignment.
If for less than the entire term, it's a sublease.
And the privity relationships. This is key.
Absolutely essential for your exam.
Let's map it out with the original landlord LL and
original tenant T1. You start with both privity of a
state based on their shared interest in the land and privity
of contract based on the lease agreement.
OK, in an assignment, LLT, 1A, LLL, and T1 still have privity
of contract. T1 remains liable for the rent
unless released by novation. A specific agreement by LL to
release T1 and substitute ALL and the assignee.
A now have privity of estate because A holds the possessory
interest, so LL can sue A for rent and A is bound by covenants
that run with the land. T1 and A have privity of
contract based on their assignment agreement.
OK, that makes sense. No sublease LLT 1-S.
In a sublease, LLT 1S, LL and T1 maintain both their original
privity of contract and privity of estate.
T1 is still the tenant in relation to LLLL and the sub
lease. OS have no privity of estate, no
privity of contract. LL generally cannot sue S
directly for rent, though FS pays.
T1T1 and S have both privity of contract, their sublease
agreement and privity of estate. T1 carved out a lesser estate
for S. That privity chart is gold for
exams. What about abandonment?
Abandonment occurs when a tenant vacates the premises without
justification, without intent to return and defaults on rent
payments. The landlord then has options
which vary slightly by state but generally include like what?
They can accept the tenants surrender and terminate the
lease, relieving the tenant of future rent liability but
allowing the landlord to sue for accrued rent and damages.
Or they can re let the premises on the tenants behalf and hold
the tenant liable for any deficiency.
Modern trend requires the landlord to mitigate damages by
trying to re let or in some places though less it's common
now, they could just leave the premises vacant and sue the
tenant for rent as it comes due. OK.
Landlords also have key duties, right?
And tenants have remedies if they're breached.
Yes. First is the duty to deliver
possession. There are two competing rules
here. The English and American rules.
Exactly. The English rule majority states
the landlord must deliver actual physical possession as well as
legal possession, so the LL breaches if a prior holdover
tenant is still physically there on the lease start date.
And the American rule. The American rule minority
states the landlord only has to provide legal possession, the
right to possess if a prior tenant is physically there.
It's the new tenants problem to evict them, not the landlord's
breach. You need to know which rule
applies. Another crucial one often tested
is the covenant of quiet enjoyment.
What's that? This is an implied promise in
every lease, commercial and residential, that the landlord
or someone acting for them, or someone with paramount title
won't wrongfully interfere with the tenants possession or use
and enjoyment of the premises. How can it be breached?
It can be breached by actual eviction where the landlord
physically kicks the tenant out of all or even just part of the
premises. If actually evicted, the tenants
obligation to pay rent ceases entirely.
OK. Or.
Or, more subtly, by constructive eviction.
This occurs where the landlord's substantial interference, either
through an act like blocking access or a failure to act when
they have a duty like failing to provide heat in winter, renders
the premises uninhabitable or unfit for the purpose of the
lease, effectively forcing the tenant to vacate.
Is that the Fidelity Mutual V Kaminsky case?
The doctor with the abortion protesters.
That's a classic example. The landlord failed to act
against disruptive protesters interfering with a tenant's
medical practice, and the interference was so substantial
it amounted to constructive eviction.
What does a tenant have to do for constructive eviction?
For constructive eviction, the tenant must typically one show
substantial interference, two give notice to the landlord of
the problem, 3 give the landlord a reasonable opportunity to cure
the problem, and critically, 4 the tenant must actually vacate
the premises within a reasonable time after the landlord fails to
fix it. If they stay, they waive the
claim. Got it.
Vacate is key. What about habitability?
In residential leases, usually not commercial, there's also the
implied warranty of habitability.
IWH. This means the premises must be
fit for basic human habitation, safe, clean and meeting basic
living standards, often tied to local housing codes.
This cannot be waived in the lease.
And if breached? A breach of the IWH allows the
tenants several remedies. Unlike quiet enjoyment where
they usually have to vacate, they can withhold rent using
various procedures, make necessary repairs themselves and
deduct the cost from rent, repair and deduct, sue for
damages, or sometimes terminate the lease.
And the landlords can't retaliate.
Correct. Landlords cannot to engage in
retaliatory eviction, meaning they can't punish tenants by
raising rent, reducing services, refusing to renew a lease, or
starting an eviction process simply because the tenant
exercised a legal right, like complaining about unsafe
conditions to a Housing Authority or utilizing their IWH
remedies. There's usually a presumption of
retaliation if the landlord acts within a certain time frame
after the tenants protected activity.
OK, let's move on to the last big section of property land use
controls, starting with nuisance.
Right Nuisance is a non trespassery interference with
the use and enjoyment of land. Trespass is about interfering
with the right to possess. Nuisance is about interfering
with the right to use and enjoy. What?
Are the elements. For an exam, remember the key
elements. For a private nuisance, the
interference must be 1 Intentional or negligent or
sometimes strict liability For abnormally dangerous activities,
two non trespassery 3 unreasonable and four cause
substantial interference with the plaintiffs use and enjoyment
of their land. That unreasonable element seems
tricky. It is.
It typically involves balancing the utility of the defendant's
conduct. Is it socially valuable against
the gravity of the harm to the plaintiff?
Courts weigh various factors. Nuisances can be invasive, like
dust or noise. Right, like dust from a cement
factory invading a town. Or they can be non invasive,
such as in Puritan holding Covey Hollischitz, where the mere
existence of a badly rundown derelict property was found to
be a nuisance, affecting the value and quiet enjoyment of
adjacent properties even without physical invasion like visual
blight. And private versus public
nuisance. Private nuisance is a non
trespassery invasion of private use and enjoyment, usually
brought by private parties whose specific property is affected.
The remedy often involves balancing the equities, which
might lead to damages rather than an injunction, especially
if the defendant's activity is socially useful, like the
example of $50,000 damages instead of shutting down a
$2,000,000 cement plant over dust.
OK. And public.
Public nuisance is an unreasonable interference with a
right common to the general public, something that affects
health, safety, or welfare of the community as a whole, like
pollution of a river or blocking a public highway.
These are typically brought by a government entity, though a
private party can sometimes sue if they suffer special harm
different from the public. Next, easements.
What's the basic idea? An easement is a non possessory
right to use the land of another for a specific limited purpose.
It's a right to use, not to possess.
Common bar exam topic. And the types a pertinent versus
ingrows. Right, an easement A pertinent
benefits a particular piece of land called the dominant
tenement or dominant estate. It requires 2 distinct tracts,
the dominant parcel that benefits from the easement and
the Serbian parcel that is burdened by it, AG and easement
to cross lot B to reach lot A. It runs with the land, meaning
it passes automatically with transfers of the dominant
tenement. OK.
And. An easement in gross benefits a
specific person or entity personally, not a piece of land.
There's a Serbian parcel, but no dominant parcel.
Think of a utility company's right to run power lines across
your land. These may or may not be
transferable, depending on the purpose.
Commercial easements and gross usually are.
Personal ones often aren't. Affirmative versus negative
easements. An affirmative easement permits
the holder to perform an action on the servient land, like
walking across the path running pipes.
Most easements are affirmative. A negative easement is much
rarer. It entitles the holder to
prevent the servient owner from doing something on their own
Land. Historically limited to light
air support stream water flow. Modern versions often involve
covenants like conservation easements preventing
development. How are easements created?
This seems important. Very important.
A frequent test area. They can be created expressly,
meaning in writing. Usually a deed that complies
with the Statute of frauds so it can be recorded.
This can be by grant selling or giving someone an easement
across your land, or by reservation selling your land.
About reserving an easement for yourself across the land you
just sold. OK, express in writing.
What else? They can also be created by
implication. This arises when land under
common ownership is divided and there was a use before severance
that was apparent, continuous and reasonably necessary for the
enjoyment of the dominant part. It's like the party should have
created an express easement but forgot.
Like a path that was always used.
Exactly. Another way is prescription.
This is essentially like adverse possession, but for use rather
than possession. Requires use that is continuous,
hostile, without permission, actual, open, and notorious for
the statutory period. You get an easement to continue
the use, not title. And the last one, necessity.
By necessity, this typically arises when a common owner
divides land in a way that leaves one parcel completely
landlocked with no access to a public Rd. except over the other
parcel. Requires strict necessity at the
time of severance. Public policy disfavors
landlocked parcels. How do easements end
termination? Several ways release the
easement holder gives it back to the Serbian owner in writing
merger. The dominant and Serbian tracks
come under common ownership, extinguishing the need for the
easement, adverse possession or prescription.
The Serbian owner blocks the use openly and hostile for the
statutory period. Abandonment requires non use
plus some affirmative act showing intent to permanently
abandoned the easement or by estoppel, necessity ending or a
condemnation of the Serbian estate.
OK. Now covenants and servitudes.
These are promises about land use that run with the land right
binding future owners. Exactly, there are promises
concerning the use of land that are enforceable buyer against
subsequent owners. We distinguish between real
covenants and equitable servitudes based mainly on the
remedy sought. Let's focus on real covenants.
What's needed for the burden to run?
A real covenant is a promise enforceable by money damages
against a successor owner. For the burden of the covenant
to run to a successor of the promissor, you generally need
one writing statute of frauds compliant 2 intent by the
original parties that the covenant by in successors 3
privity of a state both horizontal and vertical 4 the
covenant must touch and concern the land, affect the party's
legal rights as land owners relating to the use, enjoyment,
or value of the land and five the successor must have notice
of the covenant when they took the land, actual inquiry or
record notice. Horizontal and vertical privity
remind us. Horizontal privity refers to the
relationship between the original covenanting parties.
Grant or grantee, landlord, tenant, shared interest.
Vertical privity refers to the relationship between an original
party and their successor. Successor must take the entire
state. Like fee simple to fee simple.
The requirements for the benefit to run are often slightly
looser, sometimes not requiring horizontal privity.
Like that Ronaldo's promise example in the deed, a promise
that Ronaldo and future owners must only use the property
residentially. Exactly.
If all the elements are met, a successor who breaches could be
sued for damages by the party holding the benefit of the
covenant for exams. Knowing the difference between a
real covenant, money damages, stricter privity and an
equitable servitude, injunctive relief, often looser privity.
Main focus on intent, touch and concern.
Notice is absolutely key. OK, finally, in land use
controls we must cover takings, the government's inherent power
to take private property. 2 main forms.
Right right First is eminent domain.
This is the state's direct action to seize private property
for public use through a formal legal process called
condemnation. This can be for the whole
property, a fee simple estate, or just a part or even just an
easement. And they have to pay absolutely.
The Fifth Amendment applied to states fee, the 14th requires
just compensation. This is generally defined as the
fair market value of the property at the time of the
taking, often based on the whole parcel rule, valuing the
property as a whole, not potential subdivided lots.
Economically whole mean. The government pays what makes
the owner economically whole for the property actually taken, but
importantly, it isn't obligated to pay for damages to adjacent
tracks not taken. Severance damages might apply to
the remainder of a partially taken parcel though, or for
business losses or sentimental value.
And the time of plan often sets the compensation value, meaning
the value is assessed based on market conditions before the
government project artificially inflated values, not the value
after the plan was announced. What does the government need to
show to exercise eminent domain? They need both statutory
authority. The government entity must have
been delegated the power for this type of project and the
taking must be reasonably necessary to complete it and
constitutional compliance. It must be for a public use and
involve just compensation. There are also administrative
due process requirements, including proper notice to the
owner and an opportunity for a hearing.
Public use seems broad. Does it have to be literally
used by the public? Not necessarily.
It's been broadly interpreted by the Supreme Court, especially in
the Kilo case, as meaning public purpose or public advantage.
So it can be private property transferred to public ownership,
like for a road or military base, or private property
transferred to another private party, if that transfer serves a
public purpose, like economic development to revitalize a
blighted area. Controversial very The policy
reason often given for allowing this power even for private
redevelopment is to overcome high transaction costs and
potential holdouts by individual owners that could prevent
necessary or beneficial public projects.
OK, that's direct taking. What's the other type?
The other type is regulatory takings.
This is where government regulation impacts a property's
value or use so severely that it's considered tantamount to a
physical appropriation. Even though the government
hasn't physically seized anything, the owner still has
title. But the regulation took away too
much economic value or use. How do courts decide if a
regulation goes too far? It's complex.
We distinguish between per SE regulatory takings, also called
categorical takings, and partial non categorical regulatory
takings. Per SE 1st.
Per SE regulatory takings are automatic takings. 2 main types
1A regulation that causes a permanent physical occupation of
the property, no matter how small.
This was famously established in the Loreto case involving that
tiny cable TV box installation required by law.
That physical invasion, even minor, was a per SE taking
requiring compensation. OK.
Physical occupation. What's the other per SE type?
2A regulation that deprives the owner of all economically
beneficial or productive use of their land.
A total wipeout unless the regulation is simply prohibiting
a use that was already considered a nuisance under
background principles of state property law.
That was the Lucas case. If it leaves no economic value,
it's usually a person taking. And if it's not a per SE, taking
a partial wipeout. For partial or non categorical
regulatory takings, where the regulation diminishes value but
doesn't cause a physical occupation or a total economic
wipeout, courts apply different, more nuanced ad hoc balancing
tests. The classic early test involved
the pen Cole factors. 1. The diminution in value.
How much did the regulation decrease the property value was
its fear. 2 whether the regulation is preventing a
public nuisance. If it is, it's much less likely
to be a taking. And three, average reciprocity
of advantage is the burden on this landowner offset by
benefits they receive from the same regulation or the general.
Scheme and the more modern Test. Penn Central.
Exactly. The Supreme Court later
elaborated on this, particularly in the landmark Penn Central
case involving Grand Central Terminal.
This test provides A broader ad hoc factual inquiry, looking
primarily at three factors. One, the economic impact of the
regulation on the claimant. How severe is the economic loss
considering the property as a whole to the extent to which the
regulation interferes with distinct investment backed
expectations, Could the owner reasonably anticipate this kind
of regulation when they invested in the property?
And three, the character or nature of the government action.
Is it more like a physical invasion or just adjusting
economic benefits and burdens? Does it serve a significant
public purpose? Is there reciprocity of
advantage? This last set of factors is
critical on your bar exam for analyzing those complex
regulatory taking scenarios where there isn't a clear
physical occupation or total wipeout.
You have to balance these factors.
All right, let's shift gears now completely from property rights
and land use, big shift to the state's power to punish.
We're diving into criminal law, starting with the general
principles of criminal liability.
One key distinction right off the bat from civil law, like
toward or contract, is this concept of social harm.
Right. In criminal law, the offense
isn't just seen as harming a particular victim, it's seen as
damaging society as a whole. So the state prosecutes.
Exactly. Society, through its prosecutors
like the District Attorney or US attorney, is responsible for
bringing the case and carrying out the sentence representing
the collective interest. OK, this leaves us directly to
Mens Rea, the guilty mind, the mental state required.
Crucial concept Mens Rea describes the expected mental
state of the accused for a particular crime.
We have general intent where awareness of the factors
constituting the crime is sufficient.
The intent can often be inferred from the ACT itself.
For example, for battery, you generally only need the intent
to do the physical act that results in the harmful or
offensive touching. OK, intent inferred from the
ACT, but then there are specific intent crimes and these are a
big deal in the bar exam, right? Huge deal.
These require the prosecution to prove the defendant performed
the criminal act, actus Reus plus had a particular purpose or
objective in mind when doing it. Crucially, this specific intent
cannot be inferred from the ACT alone.
The prosecution must prove it explicitly.
Examples. Think of the inchoate crimes
like conspiracy, attempt, and solicitation.
They all require the specific intent to complete the
underlying target crime. Other key examples include
embezzlement, intent to defraud, first degree premeditated
murder, premeditation and deliberation require specific
intent to kill, false pretenses, intent to defraud, forgery,
intent to defraud, larceny, and robbery.
The specific intent to permanently deprive the owner.
Assault when defined as an intent to commit battery and
burglary Intent at the time of entry to commit a felony inside.
And certain defenses only apply to these.
Exactly. Specific defenses like voluntary
intoxication or an unreasonable mistake of fact often apply only
to negate the specific intent element of these crimes.
They generally don't work for general intent crimes.
What about crimes with no mental state?
Right. In contrast, strict liability
crimes require no Mens Rea at all.
The ACT itself is sufficient for conviction regardless of the
defendant's mental state knowledge.
Common examples include statutory rape, where mistake
about the victim's age is usually no defense, or selling
alcohol to minors. Public welfare offenses often
fall here. And the Model Penal Code MPC,
how does it handle Mens Rea? The Model Penal Code MPC, which
is very influential in law schools and has been adopted in
part by many states, tried to standardize culpability terms.
It uses a hierarchy in descending order of culpability.
Purposely conscious objective to engage in conduct or cause
result. Knowingly aware that conduct is
of a particular nature or that certain circumstances exist.
A where result is practically certain.
Recklessly conscious disregard of a substantial and
unjustifiable risk. Negligently should have been
aware of a substantial and unjustifiable risk, a gross
deviation from reasonable care, and then, if specified, strict
liability. And each element needs a mental
state. Under the MPC, unless otherwise
specified, the prosecution must prove at least recklessness for
each material element of a crime crime, and if a statute
specifies one level of culpability, it often applies to
all material elements unless clearly stated otherwise.
OK, causation is another critical principle, especially
in result crimes, right where the law punishes a particular
outcome like homicide or battery.
Absolutely. The prosecution must prove the
Defendants Act caused the prohibited result.
There are two forms of causation.
You need actual cause, often called but for causation,
meaning but for the defendant's conduct, the result would not
have occurred. If you remove the defendant's
action from the chain of events, the harmful outcome doesn't
happen. Simple enough, usually.
And the other one proximate cause?
And then proximate cause, also called legal cause, which is
often the trickier one on exams. This is about fairness and
foreseeability. It means the harmful result must
be a reasonably foreseeable consequence of the defendant's
actions. Was the link between the act and
the result to remote or accidental?
What about intervening acts? Exactly.
Intervening acts, things that happen after the defendants act
but before the harmful result, can break the chain of proximate
causation if they are unforeseeable and abnormal.
For example, simple medical negligence and treating a victim
is often considered foreseeable and usually doesn't break the
chain. But gross medical malpractice or
the victim doing something incredibly reckless and
unforeseeable might break the chain, relieving the original
defendant of liability for the ultimate result.
It's very fact dependent. OK, now let's get into specific
crimes against the person, starting with the most serious
murder. At common law, murder is the
unlawful killing of another human being with malice
aforethought. Malice aforethought is the key
legal term distinguishing murder from manslaughter.
And how is malice shown? Malice can be shown in four
crucial ways for your exams. One intent to kill.
This is express malice. 2 Intent to inflict great bodily harm or
serious bodily injury. This is implied malice. 3
Depraved heart or extreme recklessness.
Acting with reckless indifference to an unjustifiably
high risk to human life. Also implied malice, like
shooting into a crowd. 4 Felony murder, A killing that occurs
during the Commission or attempted Commission of an
inherently dangerous felony. Also considered implied ballast.
And the degrees of murder, 1st and 2nd.
Right. Most jurisdictions divide murder
into degrees by statute. First degree murder usually
requires premeditation and deliberation, meaning the
defendant thought about it beforehand, however briefly, and
acted deliberately. Or it occurs during certain
statutorily enumerated dangerous felonies like robbery, burglary,
arson, rape, kidnapping. This is the statutory felony
murder rule. So planning makes it first
degree. Some level of reflection, yes.
Second degree murder typically covers all other murders
committed with malice, like intent to inflict great bodily
harm murders, depraved heart murders, and sometimes non
enumerated felony murders. That felony murder rule is
incredibly important and often tested.
Remind us again. It applies when someone dies,
even accidentally, during the Commission or attempted
Commission of an inherently dangerous or statutorily listed
felony. The intent required is only the
intent to commit the underlying felony.
The prosecution doesn't need to prove a separate intent to kill.
It transfers the intent. Harsh.
Are there limits? Yes, there are limitations.
The felony must usually be inherently dangerous.
The killing must be in furtherance of the felony and be
aware of the red line rule or agency theory which is an
important limitation adopted by many states.
It excludes liability for felony murder when the person killed is
a Co felon who was killed by a non felon like the victim
resisting or the police. The idea is the felons weren't
the agents of the death. And the MPC approach to murder.
It's worth noting the MPC does not categorize murder by
degrees. It defines murder more simply as
a killing committed purposely or knowingly or recklessly under
circumstances manifesting extreme indifference to the
value of human life, which resembles depraved heart.
Felony murder is presumed under the ladder if it occurs during
certain felonies. OK, moving to a lesser homicide,
manslaughter. This is killing without malice
aforethought. Right. 2 main types, voluntary
and involuntary. Voluntary manslaughter is an
intentional homicide that would be murder, but it's mitigated
down due to heat of passion resulting from adequate legal
provocation. Heat of passion meaning.
Meaning the defendant acted under primal aggression or rage
that overwhelmed their reason caused by a provocation that
would arouse sudden and intense passion in the mind of an
ordinary person. And crucially, there must not
have been a cooling off period between the provocation and the
killing. So it has to be immediate.
Essentially, yes. The provocation must be
adequate. Historically, things like
aggravated assault, mutual combat, serious crime against
relatives, sometimes adultery, the killing must happen in the
heat of passion caused by it. There must not have been
sufficient time for a reasonable person to cool off, and the
defendant must not have actually cooled off.
A classic example of someone immediately killing their spouse
and rival upon finding them in bed together.
That immediate enraged reaction? What about involuntary
manslaughter? Involuntary manslaughter covers
unintentional killings. It usually involves either 1
criminal negligence, a gross deviation from reasonable care
causing death, or two a killing during the Commission of an
unlawful act that is not a felony qualifying for felony
murder, the misdemeanor manslaughter rule.
OK, Assault and Battery are often paired, but they're
distinct times. Let's start with battery.
Right battery is simply the unlawful application of force to
the person of another, resulting in either bodily harm or an
offensive touching. No actual injury is required.
Contact alone suffices if it's considered offensive to a
reasonable person. And it can be aggravated.
Yes, battery can be aggravated if committed with a deadly
weapon or if it results in serious bodily injury or
disfigurement, or if directed at certain categories of victims
like police officers, children or the elderly, or sometimes if
done with the intent to commit another serious crime like
murder or rape. Aggravated battery carries
higher penalties. Assault than is.
Assault has two common definitions depending on the
jurisdiction. It's either one, an attempted
battery for G swinging a punch and missing, which requires the
specific intent to commit battery, or two, the intentional
placing of another in reasonable apprehension of imminent bodily
harm. Big AG raising a fist certainly
causing the victim reasonable fear of immediate battery.
Note that for the second type, the victim must be aware of the
threat. OK.
And Mayhem. A related crime, mayhem at
common law, involved intentionally dismembering or
disabling a part of someone's body considered useful for
fighting. Modern statutes often define it
as intentional disfiguring. Stalking involves a pattern of
conduct, repeated observation following, threatening or
harassing another person which engenders a reasonable fear in
the victim of death or serious bodily harm.
Most states now have specific anti stalking laws.
Next, kidnapping and false imprisonment.
How are they different? Kidnapping is generally the more
serious offense. It typically involves the
unlawful confinement of a person that involves either one some
significant movement as portation of the victim, or two
secreting the victim in a hidden place.
Often requires intent to hold for ransom or as a hostage, or
for some other legal purpose like facilitating another crime.
And parental kidnapping. Parental kidnapping is
specifically when a parent who does not have legal custody
takes or keeps the child in violation of a custody order.
Note the federal Lindbergh Act creates A rebuttable presumption
of Interstate commerce, giving federal jurisdiction if the
victim isn't released within 24 hours.
And false imprisonment. False imprisonment is simpler
the unlawful confinement of a person without their consent and
without legal authority. No movement is required, just
unlawful restraint of liberty. It's a lesser included offense
of kidnapping. And statutory rape.
Statutory rape involves sexual intercourse or sometimes other
sexual contact with a person who is under the statutory age of
consent. Crucially, the victim's lack of
consent is not an element because by law they are deemed
incapable of consenting. It's often a strict liability
crime regarding the victim's age, meaning the defendant's
reasonable mistake about the victim being older is usually
not a defense. Punishment may increase with a
greater age gap between the defendant and the minor.
OK, let's shift to property crimes, diving into more detail
now. Larceny first.
Right. The classic common law theft
crime larceny is defined as A1 trespassery without consent, 2
taking and three carrying away aspiration.
Even slight movement counts four of the tangible personal
property, not real estate or services. 5 of another six with
the intent to permanently deprive them of it or for an
unreasonable time. That intent to permanently
deprive is key. Absolutely.
If you just intend to borrow it temporarily and return it, it's
generally not larceny, though it might be another crime.
Also, that distinction between custody versus possession is
critical. If the defendant only has
temporary custody of a property, like an employee using a company
tool, and then decides to keep it, that's larceny because the
initial taking of possession from the owner is trespassery.
But if the defendant already has lawful possession.
And it's something else, right? Then it might be embezzlement.
Let's talk about larceny by trick first though.
This specifically involves obtaining possession, not title
of another's property, through fraud or deceit.
Still with the intent to permanently deprive, the victim
consents to the taking of possession, but the consent is
void due to the fraud. OK, now embezzlement.
Embezzlement is the one fraudulent 2 conversion using it
in a way inconsistent with the owner's rights.
Three of the personal property, 4 of another 5 by a person
already in lawful possession of that property, like an employee
entrusted with company funds or a trustee.
The key difference from larceny is that initial lawful
possession. The defendant didn't take it
trespass early. They already had it legally, but
then misused it with fraudulent intent.
Got it. Lawful possession first.
What about false pretenses? False pretenses occurs when the
defendant obtains title, not just possession to the property
of another. Three by means of an intentional
or knowing false representation. Misrepresentation 4 of a
material past or present fact, not a future promise.
Five with the intent to defraud the other person.
So here they get ownership, not just possession.
Exactly. The victim intends to pass title
based on the lie. This misrepresentation can be
oral, written, or sometimes even implied by conduct.
The critical element distinguishing it from larceny
by trick is the transfer title. OK, robbery.
Robbery is essentially A larceny committed with two additional
elements. One, the taking must be from the
victim's person or presence, and two, it must be accomplished by
means of force or threat of immediate harm, putting the
victim in fear. The force or threat must be used
to obtain the property or prevent the victim from
regaining it immediately after the taking.
Its larceny plus assault battery.
And burglary. Common law versus modern.
Burglary at common law was very strictly defined. 1 breaking,
creating or enlarging an opening and two entering any part of the
body across the threshold 3 of a dwelling house where someone
sleeps 4 of another 5 at night time.
Six, with the intent at the time of entry to commit a felony
therein. Wow, lots of Elmus.
How have modern statutes changed it?
Modern statutes have brought in this considerably often they
eliminate the breaking requirement unlawful entries,
enough expand dwelling to include almost any structure,
offices, stores, cars, remove the nighttime element, and
sometimes change the required intent.
To include intent to commit any crime, even a misdemeanor, you
need to check the specific statute.
And finally, arson. Arson at common law was the one
malicious, intentional, or with reckless disregard. 2 Burning
required actual charring of the structure itself, not just
contents. Mere scorching was insufficient.
3 of the dwelling house, 4 of another.
Again, very specific modern changes.
Modern statutes have greatly expanded this, too.
Burning often includes damage by fire or explosion, not just
charring. It applies to many kinds of
structures beyond dwellings, commercial buildings, vehicles,
and sometimes includes burning one's own property if done with
intent to defraud insurance. OK, that covers a lot of Major
Crimes. Lastly, for substantive crimes,
let's quickly cover incoate crimes.
These are. Incoate means incomplete or just
beginning. These are crimes of preparing
for or seeking to commit another crime, the target crime.
They are punished even if the target crime isn't successfully
completed. And they usually merge.
Right. They typically merge into the
completed offense if it is successful, meaning you can't be
convicted of both attempt and the completed crime.
The major exception is conspiracy.
You can be convicted of both conspiracy to commit a crime and
the crime itself. Conspiracy doesn't merge.
OK, first in coate crime solicitation.
Solicitation is when a person in sites, counsels, advises,
requests or encourages another person to engage in criminal
conduct with the specific intent of the crime be committed.
The crime of solicitation is complete once the request or
encouragement is made, regardless of whether the other
person agrees, refuses or does nothing.
Just asking is enough. Next conspiracy?
Conspiracy requires 1 an agreement between two or more
persons 2 to commit a crime or sometimes an unlawful objective
by criminal means, plus in most jurisdictions now three an overt
act committed by any conspirator in furtherance of the agreement.
The overt act can be very minor, even just preparation.
The agreement part bilateral versus unilateral.
Good point. The traditional bilateral
approach requires a true meeting of the minds.
Both parties must genuinely agree to commit the crime.
If one person is faking agreement like an undercover
cop, there's no conspiracy under this perch.
And the other way. In contrast, the MPC's
unilateral approach, followed by many states, says only one
conspirator needs to have a genuine criminal intent and
agree. So you can conspire with an
undercover officer under the unilateral approach.
You need to know which approach the jurisdiction follows.
And liability extends. Yes.
Under the Pinkerton rule, common law conspiracy liability extends
to other crimes committed by Co conspirators if those crimes
were committed in furtherance of the conspiracies objective and
were reasonably foreseeable consequences of the agreement
and withdrawal. Generally, withdrawal must occur
before the overt act is committed.
Effective withdrawal might limit liability for future crimes of
Co conspirators, but it typically does not absolve the
defendant of the original conspiracy charge itself.
OK last in Co a crime attempt. Attempt involves 1A specific
intent to commit the target crime and two, an overt act in
furtherance of that intent that goes beyond mere preparation.
This overt act must be a substantial step towards
Commission of the crime, strongly corroborative of the
actor's criminal purpose. Under the MPC and modern trend,
older tests looked for dangerous proximity to completion.
Drawing that line between preparation and substantial
steps seems hard. It is.
It's where judges and juries often struggle.
Did the defendant get close enough to actually completing
the crime? And remember the key distinction
regarding defenses. Legal impossibility is a valid
defense to attempt, for example, trying to receive goods you
believe are stolen, but they aren't actually stolen.
The ACT itself isn't criminal, but factual impossibility, like
attempting to pick an empty pocket because you mistakenly
believe it contains money or shooting a stuffed dummy you
think is a person is not a defense.
The defendant had the intent and took the substantial step.
The fact the crime couldn't succeed due to some unknown
external factor doesn't negate the attempt.
OK, now that we've covered the elements of various crimes,
let's discuss defenses. A defendant isn't necessarily
guilty just because the prosecution proves all the
elements. Defendants can raise various
defenses to avoid or mitigate liability.
How do defenses work? They work in different ways.
Some defenses might negate an element of the offense, like
mistake of fact negating Mens Rea.
Others justify the conduct, making it lawful under the
circumstances despite appearing criminal, like self-defense.
And others excuse the actor due to some personal disability or
condition like insanity or duress.
Examples. Common defenses you'll study
include automatism, acting unconsciously, duress, coerced
to commit crime, entrapment, improper inducement by law
enforcement, infancy, too young, insanity, mental disease,
negating responsibility, intoxication, voluntary or
involuntary affecting, Mens Rea, necessity, choosing lesser evil,
provocation, mitigating murder to manslaughter, defense of
property, and of course, the big one we'll dive into now.
Self-defense a justification defense, right?
Meaning the ACT was considered lawful.
The general principle is that a person is justified in using
force, even deadly force, upon another if they reasonably
believe such force is necessary to protect themselves from
imminent unlawful force or death or serious bodily harm if using
deadly force. That reasonable belief component
sounds absolutely crucial for exams.
It is, It often determines the outcome and it has two parts you
must analyze. 1A subjective part.
Did the defendant personally and honestly believe they needed to
use force or deadly force? 2 An objective part was that
belief, one that a reasonable person in the same situation,
with the defendant's knowledge and experience, would have
possessed. So even if they were wrong, like
the person wasn't actually a threat.
Importantly, yes, self-defense can be justified even if
appearances proved to be false, as long as the defendant's
belief was subjectively genuine and objectively reasonable under
the circumstances as they appeared at that moment.
This was a key issue in the controversial case of People V
Gets the subway vigilante case. Was his fear reasonable?
What counts as deadly force? When can you use it?
Deadly force is generally force intended or likely to cause
death or serious bodily injury. State definitions vary slightly.
Some focus on the likelihood of the force causing death or
serious bodily injury regardless of the actor's specific intent.
For example, if you stab someone, it's deadly force, even
if you only intended to wound slightly.
Because of the high risk, others might focus more on the actor's
subjective intent to cause death or serious bodily injury.
Generally, though, deadly force is broadly defined to include
force likely to cause serious bodily injury, not just death.
You can only use deadly force if you reasonably believe you are
facing an imminent threat of death or serious bodily injury
yourself. Proportionality is key.
OK, what about the initial aggressor rule if you start the
fight? Right.
Generally the initial aggressor, the person who first uses
unlawful force, cannot claim self-defense.
However, there's a nuance. The majority rule today is that
an initial non deadly aggressor, say someone who just throws a
punch, can regain the right to use self-defense, even deadly
force, if the person they initially attacked responds with
disproportionate deadly force. OK, what's the minority view?
A minority or earlier common law position is stricter.
It says the initial non deadly aggressor does not automatically
regain the right to self-defense just because the victim
escalates to deadly force. Under this view, the initial
aggressor must first try to withdraw from the confrontation
and communicate that withdrawal, or avail themselves of any
obviously safe retreat before they can use deadly force and
self-defense. If they don't retreat when safe,
even if facing deadly force they provoked, they might only be
guilty of manslaughter rather than murder, but they don't get
full justification. This leads us directly to that
highly tested distinction on the bar exam.
Duty to retreat versus stand your ground loss.
Absolutely critical distinction. The traditional common law
imposed a retreat rule specifically for the use of
deadly force. It stated that an innocent
person, not the initial aggressor threatened with deadly
force, must retreat rather than use deadly force if they are
aware that they can do so in complete safety.
So if you could safely run away, you had to.
Yes. Under that rule, defenders
argued, this placed the highest value on preserving human life,
even the aggressor's life, above a perceived manly right to stand
and fight. There was always an exception
for being in your own home, the castle doctrine.
But that's changed in many places.
The stand your ground laws. Exactly the No Retreat position
embodied in Stand Your Ground laws has gained significant
support, spreading rapidly since Florida's 2005 legislation.
Many states, perhaps a majority now, have adopted laws like
this. What do they generally say?
They generally state that a person who is not engaged in an
unlawful activity and is in any place where he or she has a
right to be, has no duty to retreat before using force,
including deadly force, if they reasonably believe it is
necessary to prevent death or great bodily harm to themselves
or another, or to prevent the Commission of a forcible felony
like robbery or rape. And the arguments for these
laws? Argument supporting them often
focus on the idea that innocent victims shouldn't have to
retreat from criminals and that allowing people to stand their
ground might deter criminals. Give crooks second thoughts.
It emphasizes the defenders right to be where they are and
protect themselves. Very different philosophies.
Another crucial element in self-defense is imminence.
What does that mean? The danger justifying the use of
force must be imminent, meaning it's happening right now or just
about to happen. A threat of future harm isn't
enough to justify using force now.
This seems like a tricky element in practice.
It is. It's a critical point in many
self-defense cases. The traditional view requires
the threat to be immediate. However, cases involving
battered women's syndrome, where a victim of long term abuse
might use force against an abuser not during an immediate
physical attack but perhaps when he's asleep anticipating the
next inevitable potentially lethal attack, have challenged
and sometimes broadened the traditional strict view of
imminence. Some jurisdictions allow
consideration of the history of abuse in assessing imminence.
OK, finally, the distinction between perfect and imperfect
self-defense. Right.
Perfect self-defense means all the elements of a valid
self-defense claim are met. Reasonable belief, necessary
force, imminence, proportionality, not the
aggressor, etcetera. This results in a full
justification and leads to complete acquittal.
And imperfect. Imperfect self-defense,
recognized in some jurisdictions, occurs when the
defendant had an honest, subjective belief in the need to
use force but that belief was unreasonable, or sometimes when
they were the initial aggressor but used force under
circumstances that don't fully justify it.
This is not a full justification, but it can
mitigate murder down to voluntary manslaughter, reducing
the charge and penalty. Though some courts and scholars
find the terminology imperfect self-defense a bit misleading,
preferring to view it simply as a basis for mitigation, not a
true defense. And can you defend others?
Yes, defense of others is generally permitted under
similar principles. You can use force, including
deadly force, to defend a third person if you reasonably believe
that the third person has the legal right to use self-defense
themselves. You essentially step into the
shoes of the person you're defending and your right to use
force is usually coextensive with theirs under the
circumstances as they reason U here to you.
OK, that covers the black letter law, but here's where it gets
really interesting, and it's a critical insight for
understanding the broader legal landscape beyond just memorizing
rules, the role of values in self-defense decisions.
Yes, this is important context. While the law often presents
self-defense as a straightforward application of
rules, reasonable belief, imminence, et cetera, in
reality, everyone of these cases requires the criminal justice
system, judges, prosecutors, juries to resolve challenging
questions that blend law, fact, and often deeply held underlying
moral and societal values. Things not explicitly in the
statutes. Exactly.
We as humans rely on these complex belief patterns, these
norms, to decide what the right and just answers are, especially
in Gray areas. Yet much of legal scholarship
and judicial decisions often fail to transparently
acknowledge these nuanced value judgments.
So the argument is we should be more open about them.
Our source suggests that a value centric framework would improve
transparency and the quality of decision making.
It could reduce the corrosive and undemocratic role of hidden
normativity, meaning those unstated biases or values that
subtly influence outcomes without open discussion, and
potentially enhance public trust in the legal system by making
the reasoning clearer. We definitely see this play out
dramatically in high profile cases.
Take the George Zimmerman, Trayvon Martin case.
Public sentiment was so deeply divided.
Absolutely. It highlighted the complexities
of stand your ground laws, the subjective nature, reasonable
fear, and unfortunately, the stark racial divide and public
perception of the facts and reasonableness.
The argument here is that juries often apply a nuanced jury
instructions that don't fully surface these underlying value
conflicts. Right?
Suggesting that maybe a more transparent value assessment
should happen at the legislative level when drafting these laws,
and perhaps should be more openly acknowledged by juries
during deliberation. Or consider the case of Bernhard
Goats, the subway vigilante. Back in the 80s, when some
people argued for more permissive self-defense laws
after his case, they implicitly seemed to suggest such laws
would deter criminal attacks. But that argument often
sidestepped explicitly stating the underlying value judgments
may be a higher value placed on personal security over the life
of a perceived aggressor or a belief in the efficacy of self
help. Right.
Or the case of Tony Martin, the English farmer whose attacker
had a criminal record. The public and political
discussion after he shot intruders often frame the debate
around punishment or societal vengeance against criminals,
rather than sticking strictly to a nuanced self-defense analysis
focused only on the immediate threat.
This also points to that hidden normativity, other values
leaking into the self-defense framework.
So our sources identify seven key values that often seem to be
in tension and serve as these deep seated decision grounds for
self-defense outcomes. Understanding these helps you
see the bigger picture, the constant balancing act.
What are they? OK, here are the seven often
pulling in different directions 1 protecting the state's
monopoly on legitimate force. Collectivist view society's
overarching interest in reducing violence.
Overall. This value often pushes against
private use of force, favoring resolution through legal process
and police. OK, state control.
Two, protecting the attacker's individual presumptive right to
life. Individualist view.
Even for culpable attackers, This right is recognized by
universal limitations on self-defense, like necessity,
imminence, and proportionality. But how much weight this value
gets varies hugely among people in legal systems.
Right to life, even for the aggressor. 3 Maintaining equal
standing among people. This is based on reciprocal
obligations. My demand not to be harmed
implies I don't harm others. The idea is that culpable
attackers, by their actions, deny victims their right to
respect and forfeit some of their own standing.
Innocent attackers acting without malice don't break this
relationship in the same way. Equality and reciprocity.
For protecting the autonomy of the defender, self-defense
inherently implies a right to protect one's bodily integrity
and personal space. However, modern society requires
us to tolerate some minor intrusions on our autonomy for
broader welfarist objectives. Where do we draw the line?
Defenders. Economy. 5 Ensuring the primacy
of the legal process. This value encourages deferring
to public authorities like the police for protection when
possible. Emphasizing the importance of
seeking help rather than resorting to immediate self
help, especially if the threat isn't truly imminent.
Connected to the state monopoly idea.
Trust the system. 6 Maintaining the legitimacy of the legal
order. This is about the law's moral
credibility in the eyes of the public.
It aims to avoid outcomes so at odds with the fully expressed
public morality that they erode public respect for the law.
For instance, allowing deadly force for very minor property
interests might seem obscene. Or conversely, not allowing
deadly force to prevent a serious culpable attack like
rape, might also erode legitimacy.
This value tries to avoid obscene outcomes.
Public trust in the law. Seven general and specific
deterrence. This is the theory often
underlying arguments for more permissive self-defense laws
that allowing citizens to defend themselves forcefully will
generally deter crime, making potential criminals think twice.
Though it's important to concede, as the source notes,
this proposition has not been empirically verified with
reliable or conclusive results. It's more of a belief or hope.
Wow. OK, so as you study for your
exams, understanding these underlying tensions in
self-defense will help you not just apply the black letter
rules, but also analyze the policy arguments that often
shape those rules and their application.
It adds another layer. Definitely adds depth.
So if substantive criminal law tells us what acts are crimes
and what defenses exist, criminal procedure tells us how
how the system is supposed to work, from investigation and
arrest through trial and appeal. It's all about process and
ensuring fairness, protecting individual liberties along the
way. Right.
This segment is all about safeguarding rights,
particularly the constitutional foundations that underpin our
entire criminal justice system. Criminal procedure outlines the
mandated stages and decisions meticulously designed to ensure
correct guilt. Tennyson's decisions and,
crucially, respect for defendants rights.
The bedrock for all of this is the US Constitution, especially
the Bill of Rights, Amendments 456 and Eight, as applied to the
states through the 14th Amendment's Due Process Clause.
Let's start with the 4th Amendment.
The 4th protects against unreasonable searches and
seizures. This generally means law
enforcement needs a warrant issued by a neutral magistrate
based upon probable cause, supported by Oath or
affirmation, and specifically describing the place to be
searched and the persons or things to be seized.
Warrantless searches are presumptively unreasonable,
though there are many exceptions.
And seizures. Includes arrests.
Yes, arrests are seizures of the person.
The Supreme Court has also clarified that even if an arrest
is made without a warrant, which is allowed for felonies based on
probable cause or misdemeanors committed in the officer's
presence, the arrested person must be brought promptly before
a magistrate for an initial hearing, usually within 48
hours, to determine if there was probable cause for the arrest.
That's the County of Riverside V McLaughlin rule from 1991.
OK, Fifth Amendment, huge one. Huge for criminal procedure.
It requires a grand jury indictment for serious federal
charges, though this right hasn't been fully incorporated
against the state, so many states use prosecutors
informations instead. More famously, it protects
against compelled self incrimination, the right to
remain silent. Miranda, Exactly.
This is the basis for the famous Miranda V Arizona ruling in
1966, which requires police to inform suspects of their right
to remain silent and right to counsel before engaging in
custodial interrogation. And the Fifth Amendment also
protects against double jeopardy, meaning you cannot be
tried twice by the same sovereign for the same offense
after an acquittal or conviction.
Then the 6th Amendment guarantees trial rights.
Yes, a whole suite of rights critical to a fair trial.
The right to a speedy and public trial by an impartial jury in
the location where the crime occurred.
It also includes the right to be informed of the specific charges
against you. The right to confront and cross
examine witnesses against you. The right to compel favorable
witnesses to testify, subpoena power, and crucially, the right
to have the assistance of counsel for your defense.
And that applies even if you can't afford a lawyer.
Yes, this right was famously extended to indigent defendants
in state felony cases and later many misdemeanors in getting in
view Wainwright in 1963. The state has to provide a
lawyer if you can't afford one. 8th Amendment.
The 8th Amendment prohibits excessive bail and fines, though
the right to bail isn't absolute and perhaps most importantly,
bans cruel and unusual punishments.
This is the basis for challenges to the death penalty and
conditions of confinement. And the 14th Amendment ties it
all together for the states. Essentially, yes.
Ratified in 1868, it's due process clause has been
interpreted to incorporate most of the Bill of Rights
protections, making them applicable to state and local
governments and not just the federal government.
It also provides its own independent guarantee of
fundamental fairness, and it's equal protection clause
prohibits states from denying any person within their
jurisdiction the equal protection of the laws
preventing arbitrary discrimination.
These provisions collectively define suspects and defendants
rights and severely limit governmental authority at every
stage. OK, let's walk through the
pretrial proceedings, the early stages after an arrest.
First major issue is usually bail right release pending
trial. Yes, bail determines whether a
defendant is released from custody while the case is
ongoing. For minor charges, police might
have discretion to release suspects after booking
fingerprinting photo on their own recognizance, a written
promise to appear, or after posting a preset amount of cash
bail. And for serious crimes.
For more serious crimes, a judge sets bail conditions at an
initial court appearance, arraignment or bail hearing.
The judge considers factors like the severity of the crime, the
defendants ties to the community, flight risk, and
potential danger to the community.
Bail might involve posting money, property or getting a
bail bond. Or the judge might deny bail
altogether in certain capital cases or if the defendant poses
an extreme flight risk or danger.
Connected to this is the right to an attorney.
When does that kick in? As we mentioned, police must
inform suspects of this right before any custodial
interrogation. Miranda and for indigent
defendants, the government must provide an attorney.
Gideon, while an attorney isn't always required immediately upon
arrest unless questioning is intended, the right definitely
attaches at formal proceedings like arraignments, preliminary
hearings, and, of course, trial. An attorney appointed early can
also argue for bail reduction. The arraignment itself, what
happens there? The arraignment is a formal
hearing where the defendant is brought before a judge,
officially informed of the charges listed in the indictment
or information, and asked to enter a plea.
Guilty, not guilty or sometimes no.
Low contender, no contest. Do most people plead guilty
then? Few felony defendants plead
guilty at this early stage. Usually, they plead not guilty
to preserve their rights while their attorney investigates.
It's more common to see guilty pleas for misdemeanors or
traffic offenses at arraignment. What about preliminary hearings?
Preliminary hearings, or sometimes grand jury proceedings
occur in many jurisdictions after arraignment for felonies.
Here, the prosecutor must present enough evidence to
persuade a judge or grand jury that there is probable cause to
believe that a crime was committed and that the defendant
committed it. It acts as a check on the
prosecution's decision to charge, ensuring there's
sufficient evidence to proceed to trial.
The defense can cross examine witnesses.
If the case proceeds, eventually we get to the trial process
itself, starting with jury selection.
Right war dire. This is where potential jurors
are questioned by the judge and or attorneys to determine their
suitability to serve. Jurors must be drawn from a fair
cross section of the community and they cannot be excluded
based solely on race or gender. Batson challenges.
And the goal is to find bias. Exactly.
Attorneys question potential jurors to identify bias or
prejudice that would prevent them from being fair and
impartial. They can challenge jurors for
'cause if bias is shown, or use a limited number of peremptory
challenges to strike jurors without needing to state a
reason, though these cannot be used discriminatorily based on
race or gender. What about jury size and
verdicts? Are they always 12 people and
unanimous? Not necessarily, and this has
tricky rules for exams. While the federal system in many
states use 12 member juries for criminal cases, the Supreme
Court has allowed states to use smaller juries down to six
members even for serious non capital felonies.
Many states use 6 to 8 member juries for misdemeanors, and
some use smaller juries for certain felonies.
However, the Court has ruled that 6 member juries must reach
unanimous verdicts to convict. Birch V Louisiana, 1979.
But 12 member juries don't have to be unanimous.
Interestingly, for 12 member juries, the Supreme Court has
held that non anonymous verdicts are constitutionally permissible
if allowed by state law. Apoda Govi, Oregon, 1972, though
this was recently revisited and limited in Ramos V.
Louisiana for future cases requiring unanimity now in
federal and state courts for serious crimes.
But historically and still in some contexts, non unanimous
verdicts by larger juries were allowed by some states.
You need to know the rule for your jurisdiction.
Wow, complex during the trial presentation itself.
During the trial, both the prosecutor and defense attorney
present their cases. They give opening statements,
present evidence, testimony, documents, physical objects,
call and question witnesses, direct examination, cross
examination, and raise objections based on rules of
evidence and procedure. Each side attempts to persuade
the jury or the judge in a bench trial if the defendant waives a
jury of the defendants guilt or innocence.
And the standard for conviction. The conviction standard in all
US criminal cases is incredibly high.
The prosecution must prove every element of the crime beyond a
reasonable doubt. This is the highest burden of
proof in the legal system. Jurors must follow the judges
instructions on the relevant law and apply that law to the facts
as they find them, based only on the admitted evidence.
Where do these laws and procedures come from?
The governing laws for trials, both substantive criminal law
and criminal procedure, are created primarily by state
legislatures or the US Congress. These statutes are then
interpreted and refined by appellate courts, including
state supreme courts and ultimately the US Supreme Court.
US Supreme Court decisions interpreting the Constitution
serve as the ultimate guideposts, telling trial judges
in lower courts how to apply constitutional rights throughout
the entire criminal process. Mastering these procedural rules
is just as vital as understanding the substantive
crimes themselves. For a complete picture of the
justice system, and of course, for exam success.
Absolutely critical. Hashtag tag tag tag outro.
So we've navigated A tremendous amount of ground today.
Haven't we really covered a lot? We certainly have.
From the foundational bundle of sticks concept and property law,
dissecting complex estates, transactions, land use controls,
all the way through to the core elements of criminal liability,
exploring those nuanced inco it crimes and then delving deep
into the crucial constitutional safeguards of criminal procedure
that protect individual rights at every step.
It's truly a testament to the interconnectedness and frankly,
the sheer intellectual depth of these legal fields for your law
school exams and definitely for the bar exam.
Mastering these areas isn't just about, you know, memorizing
rules. This is more than that.
It's about identifying those recurring patterns,
understanding the subtle yet critical distinctions between
concepts like larceny versus embezzlement or joint tenancy
versus tenancy in common, and most importantly, connecting all
these legal principles to real world scenarios and the fact
patterns you'll inevitably face on exams.
Those analytical skills. Exactly.
These are the analytical skills essential not just for passing
your exams, but honestly for building a truly successful and
competent legal career. Absolutely.
So as you continue to deepen your understanding of these core
legal fields, maybe consider this final thought.
How did the fundamental rights of property ownership, the
state's legitimate need for order and safety, and an
individual's inherent right to defend themselves?
How do these truly balance in a just society, especially when
those deeply held, often unexamined values we talked
about inevitably clash? That's a great question to
ponder. A lot to think about.
There, keep pondering that as you continue your journey
through the law, and we'll see you next time on the Deep dive.