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random86
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Re: THEMIS BAR REVIEW Hangout.

Postby random86 » Sat Jul 27, 2013 9:58 pm

Randomly jumping in

automobile search confuses me too w/out warrant:

in the outline it says that in the context of search incident to arrest it's only basically in their wingspan, for weapons, or where evidence of that specific crime likely to be (reasonable suspicion requirement) e.g. arrest and remove from car on speeding, can't search for weapons or for drugs (not that specific crime)

but then it also has automobile exception to warrant too - probable cause and you can search it for evidence of "a crime" including the trunk, and closed containers.

So, if you arrest somebody which requires probable cause you can only search for weapons etc if they are reachable basically or evidence of that specific crime if you reasonably believe it to be there.
But, if it's the automobile exception as opposed to search incident to arrest in a vehicle, then you can search wherever you like with probable cause.
So, does that mean if you arrest someone for crime x with probable cause, you can search it if you have reasonable suspicion there is evidence of the crime you just arrested them for in the vehicle, AND if you have probable cause to suspect evidence of "a crime" is in the car then you can just look wherever you want inc. trunk? But if you have probable cause there is evidence of a crime in the car is there not also probable cause to arrest, or would that be the stage before: once you find the evidence then you have the p.cause to arrest? Really not sure how they interact but maybes too pedantic anyway. Though it has def made me get MCQs wrong.
So i guess: prob cause to arrest -- search incident to arrest -- reasonable suspicion evidence to that crime and then probable cause to believe evidence of a crime -- search in that area..inc trunk or closed containers if you believe so.. -- probable cause to arrest -- search for evidence of the specific crime if reasonable suspicion? confusing.

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Bronx Bum
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Re: THEMIS BAR REVIEW Hangout.

Postby Bronx Bum » Sat Jul 27, 2013 10:07 pm

Wait... Fuck... So does the felony murder merge with a robbery? See this is the problem with Themis's weakness strategy. I haven't had a question like this since June.

locusdelicti
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Re: THEMIS BAR REVIEW Hangout.

Postby locusdelicti » Sat Jul 27, 2013 10:13 pm

Bronx Bum wrote:Wait... Fuck... So does the felony murder merge with a robbery? See this is the problem with Themis's weakness strategy. I haven't had a question like this since June.


The underlying felony merges with the felony murder.

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Bronx Bum
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Re: THEMIS BAR REVIEW Hangout.

Postby Bronx Bum » Sat Jul 27, 2013 10:16 pm

locusdelicti wrote:
Bronx Bum wrote:Wait... Fuck... So does the felony murder merge with a robbery? See this is the problem with Themis's weakness strategy. I haven't had a question like this since June.


The underlying felony merges with the felony murder.

Good thanks.

releasethehounds
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Re: THEMIS BAR REVIEW Hangout.

Postby releasethehounds » Sat Jul 27, 2013 10:18 pm

Bronx Bum wrote:Wait... Fuck... So does the felony murder merge with a robbery? See this is the problem with Themis's weakness strategy. I haven't had a question like this since June.


If it's a felony that gives rise to application of felony murder rule, then yes. the underlying felony will merge with the murder. The underlying felonies that will give rise to the application of the felony murder rule are the "violent felonies". I believe Themis used the acronym BARRK: Burglary, Arson, Robbery, Rape, Kidnapping. All of these will cause application of felony murder and merge.

TheBeard
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Re: THEMIS BAR REVIEW Hangout.

Postby TheBeard » Sat Jul 27, 2013 10:20 pm

random86 wrote:Randomly jumping in

automobile search confuses me too w/out warrant:

in the outline it says that in the context of search incident to arrest it's only basically in their wingspan, for weapons, or where evidence of that specific crime likely to be (reasonable suspicion requirement) e.g. arrest and remove from car on speeding, can't search for weapons or for drugs (not that specific crime)

but then it also has automobile exception to warrant too - probable cause and you can search it for evidence of "a crime" including the trunk, and closed containers.

So, if you arrest somebody which requires probable cause you can only search for weapons etc if they are reachable basically or evidence of that specific crime if you reasonably believe it to be there.
But, if it's the automobile exception as opposed to search incident to arrest in a vehicle, then you can search wherever you like with probable cause.
So, does that mean if you arrest someone for crime x with probable cause, you can search it if you have reasonable suspicion there is evidence of the crime you just arrested them for in the vehicle, AND if you have probable cause to suspect evidence of "a crime" is in the car then you can just look wherever you want inc. trunk? But if you have probable cause there is evidence of a crime in the car is there not also probable cause to arrest, or would that be the stage before: once you find the evidence then you have the p.cause to arrest? Really not sure how they interact but maybes too pedantic anyway. Though it has def made me get MCQs wrong.
So i guess: prob cause to arrest -- search incident to arrest -- reasonable suspicion evidence to that crime and then probable cause to believe evidence of a crime -- search in that area..inc trunk or closed containers if you believe so.. -- probable cause to arrest -- search for evidence of the specific crime if reasonable suspicion? confusing.


Search incident to arrest allows the popo to search the person and the passenger compartment, provided that Gant doesn't apply (meaning the person that was driving is now outside the car and under the police's control because, i.e., he's in the backseat of the patrol car). The automobile exception is a pure warrant exception. That is, if you have PC that evidence of a crime is in a car, you can search anywhere in the car where that evidence may be without a warrant. This exception is rooted in the idea that cars are highly regulated (i.e. you have register and pass inspection) and that they can be moved in and out of a jurisdiction rather easily, making a warrant difficult to attain. Thus, to answer your question, if the person has committed the crime and he is in the backseat of the police car, the fact that he committed a crime does not supply PC to search the car under the automobile exception because, if the driver is under control, the car can't be removed beyond the reach of the jurisdiction, and the cops have plenty of time to get a warrant. In other words, the underpinnings of the automobile exceptions don't support the search.

Let me know if this makes sense.

Edit because my brain is fried.
Last edited by TheBeard on Sat Jul 27, 2013 10:22 pm, edited 1 time in total.

locusdelicti
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Re: THEMIS BAR REVIEW Hangout.

Postby locusdelicti » Sat Jul 27, 2013 10:22 pm

Bronx Bum wrote:
locusdelicti wrote:
Bronx Bum wrote:Wait... Fuck... So does the felony murder merge with a robbery? See this is the problem with Themis's weakness strategy. I haven't had a question like this since June.


The underlying felony merges with the felony murder.

Good thanks.


Although I feel like there's more to it. I feel like we've seen fact patterns on the MBE where someone is convicted of both robbery and felony murder, but then in other questions, it's just felony murder because of merger. Does it have to do with separate trials? Double jeopardy? I know that you must be guilty of the underlying felony in order to be guilty of felony murder. (Not in PA, though! In PA, you can be convicted of felony murder even if you are not found guilty of the underlying felony... weird.)

releasethehounds
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Re: THEMIS BAR REVIEW Hangout.

Postby releasethehounds » Sat Jul 27, 2013 10:23 pm

So...Not sure what the point of Themis' flex study 'here choose how many questions you want to take' thing ever was, if you can't ever go back and access the fucking things later. I wasn't thinking in sleep deprivation and said I wanted to do one of the three available real property essays. Can't access the other 2 now. Forgot all about their warning.

random86
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Re: THEMIS BAR REVIEW Hangout.

Postby random86 » Sat Jul 27, 2013 10:29 pm

thebeard - thanks yeah makes sense !

locusdelicti
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Re: THEMIS BAR REVIEW Hangout.

Postby locusdelicti » Sat Jul 27, 2013 10:37 pm

releasethehounds wrote:So...Not sure what the point of Themis' flex study 'here choose how many questions you want to take' thing ever was, if you can't ever go back and access the fucking things later. I wasn't thinking in sleep deprivation and said I wanted to do one of the three available real property essays. Can't access the other 2 now. Forgot all about their warning.


I did that with the last 100-question MBE set. I wanted to do 50 and then do the rest later, and then it was done and I couldn't take the rest. Pissed me off.

lionelhutz123
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Re: THEMIS BAR REVIEW Hangout.

Postby lionelhutz123 » Sat Jul 27, 2013 10:39 pm

forza wrote:God damn it, New York multiple choice set 5 was fucking hard. I feel like I didn't learn over 90% of that shit. 25/50, straight up guessing on a lot of them.

:evil:


I feel you. I wen 23/50, just a day after going 19/25 on NY Q set 4.

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forza
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Re: THEMIS BAR REVIEW Hangout.

Postby forza » Sat Jul 27, 2013 10:54 pm

Ks gurus, I want to confirm something about the pre-existing duty rule and consideration.

As I understand it, a pre-existing duty is not valid consideration at common law, but can become valid if someone gives something in addition to what she's already obligated to give, or alters the consideration somehow. On this last point, can the alteration seriously be anything? E.g., I have a pre-existing duty to deliver a blue shirt with silver buttons to you. We agree that I'll give you a blue shirt with gold buttons on it instead and you now pay me more money. That's all copacetic, right? Even if it's just the tiniest alteration in the pre-existing performance obligation?

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Reinhardt
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Re: THEMIS BAR REVIEW Hangout.

Postby Reinhardt » Sat Jul 27, 2013 11:07 pm

forza wrote:Ks gurus, I want to confirm something about the pre-existing duty rule and consideration.

As I understand it, a pre-existing duty is not valid consideration at common law, but can become valid if someone gives something in addition to what she's already obligated to give, or alters the consideration somehow. On this last point, can the alteration seriously be anything? E.g., I have a pre-existing duty to deliver a blue shirt with silver buttons to you. We agree that I'll give you a blue shirt with gold buttons on it instead and you now pay me more money. That's all copacetic, right? Even if it's just the tiniest alteration in the pre-existing performance obligation?


Seems to be based on one of the MBE problems. Don't know if you've seen the one where the guy orders an animal trainer to put on a show with a lion for $100k. Animal trainer makes the K, but then the lion is unavailable for a non-excusable reason. She offers to put on a show with a white tiger instead, but demands 125k or she will not perform. The correct answer was that this was a valid modification supported by consideration.

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Bikeflip
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Re: THEMIS BAR REVIEW Hangout.

Postby Bikeflip » Sat Jul 27, 2013 11:13 pm

Evidence bros

In a crim case where there is a coconspirator--plea bargained conspirator and defendant, and plea bargained coconspirator takes the stand--can the defendant, on cross, admit plea bargained conspirator's plea bargain negotiation to show bias? I thought plea bargain negotiations were inadmissible, or does the plea bargain rule only apply if defendant was negotiating a plea?

releasethehounds
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Re: THEMIS BAR REVIEW Hangout.

Postby releasethehounds » Sat Jul 27, 2013 11:14 pm

forza wrote:Ks gurus, I want to confirm something about the pre-existing duty rule and consideration.

As I understand it, a pre-existing duty is not valid consideration at common law, but can become valid if someone gives something in addition to what she's already obligated to give, or alters the consideration somehow. On this last point, can the alteration seriously be anything? E.g., I have a pre-existing duty to deliver a blue shirt with silver buttons to you. We agree that I'll give you a blue shirt with gold buttons on it instead and you now pay me more money. That's all copacetic, right? Even if it's just the tiniest alteration in the pre-existing performance obligation?



Should be good. You're giving me something you weren't legally obligated to give me (because you were legally obligated to give me a blue shirt with silver buttons) in exchange for something I wasn't legally obligated to give you (mas dinero).

yeff
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Re: THEMIS BAR REVIEW Hangout.

Postby yeff » Sat Jul 27, 2013 11:18 pm

forza wrote:Ks gurus, I want to confirm something about the pre-existing duty rule and consideration.

As I understand it, a pre-existing duty is not valid consideration at common law, but can become valid if someone gives something in addition to what she's already obligated to give, or alters the consideration somehow. On this last point, can the alteration seriously be anything? E.g., I have a pre-existing duty to deliver a blue shirt with silver buttons to you. We agree that I'll give you a blue shirt with gold buttons on it instead and you now pay me more money. That's all copacetic, right? Even if it's just the tiniest alteration in the pre-existing performance obligation?


yes but also there's the UCC variation, right? If under the UCC, ok without consideration so long as good faith.

E.g., silver button cost me more than I expected because of the unexpected shortage following the big silver heist, mind paying more for me to deliver goods? yes, ok, fine, even though no consideration from seller.

right?

EDIT because forgot UCC applies to all goods sales. time for bed.
Last edited by yeff on Sat Jul 27, 2013 11:26 pm, edited 1 time in total.

releasethehounds
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Re: THEMIS BAR REVIEW Hangout.

Postby releasethehounds » Sat Jul 27, 2013 11:18 pm

Bikeflip wrote:Evidence bros

In a crim case where there is a coconspirator--plea bargained conspirator and defendant, and plea bargained coconspirator takes the stand--can the defendant, on cross, admit plea bargained conspirator's plea bargain negotiation to show bias? I thought plea bargain negotiations were inadmissible, or does the plea bargain rule only apply if defendant was negotiating a plea?


You can introduce it to show bias. Just can't introduce it against the defendant. If it helps, think of it in terms of the policy behind it: The witness isn't on trial, because the witness plea bargained so they're done. So there's no prejudice against them in revealing the bias. However, we do care about prejudice against the defendant: the fact that they tried to negotiate a plea bargain but failed or said something during a plea negotiation is pretty prejudicial to the average juror, and so we don't allow that to be admitted against them.

It's sort of on par with the other policy exceptions for offers of settlement, subsequent remedial measures. that kind of thing. Too afraid jurors will read into it, but we want to encourage the behavior behind it.

releasethehounds
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Re: THEMIS BAR REVIEW Hangout.

Postby releasethehounds » Sat Jul 27, 2013 11:19 pm

yeff wrote:
forza wrote:Ks gurus, I want to confirm something about the pre-existing duty rule and consideration.

As I understand it, a pre-existing duty is not valid consideration at common law, but can become valid if someone gives something in addition to what she's already obligated to give, or alters the consideration somehow. On this last point, can the alteration seriously be anything? E.g., I have a pre-existing duty to deliver a blue shirt with silver buttons to you. We agree that I'll give you a blue shirt with gold buttons on it instead and you now pay me more money. That's all copacetic, right? Even if it's just the tiniest alteration in the pre-existing performance obligation?


yes but also there's the UCC variation, right? If that shirt(s) cost > $500 and fall under the UCC, ok without consideration so long as good faith.

E.g., silver button cost me more than I expected because of the unexpected shortage following the big silver heist, mind paying more for me to deliver goods? yes, ok, fine, even though no consideration from seller.

right?


UCC requires only good faith, that's correct. So if it's a sale of goods, good faith modifications not supported by consideration will be valid.

Torts Illustrated
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Re: THEMIS BAR REVIEW Hangout.

Postby Torts Illustrated » Sat Jul 27, 2013 11:22 pm

yeff wrote:s but also there's the UCC variation, right? If that shirt(s) cost > $500 and fall under the UCC


The shirts don't need to cost more than $500 for the UCC to apply. Any sale of goods is covered by the UCC. But if the goods cost more than $500, that triggers the Statute of Frauds.

(Right? Someone please, for God's sake, correct me if I'm wrong.)

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Reinhardt
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Re: THEMIS BAR REVIEW Hangout.

Postby Reinhardt » Sat Jul 27, 2013 11:23 pm

releasethehounds wrote:
Bikeflip wrote:Evidence bros

In a crim case where there is a coconspirator--plea bargained conspirator and defendant, and plea bargained coconspirator takes the stand--can the defendant, on cross, admit plea bargained conspirator's plea bargain negotiation to show bias? I thought plea bargain negotiations were inadmissible, or does the plea bargain rule only apply if defendant was negotiating a plea?


You can introduce it to show bias. Just can't introduce it against the defendant. If it helps, think of it in terms of the policy behind it: The witness isn't on trial, because the witness plea bargained so they're done. So there's no prejudice against them in revealing the bias. However, we do care about prejudice against the defendant: the fact that they tried to negotiate a plea bargain but failed or said something during a plea negotiation is pretty prejudicial to the average juror, and so we don't allow that to be admitted against them.

It's sort of on par with the other policy exceptions for offers of settlement, subsequent remedial measures. that kind of thing. Too afraid jurors will read into it, but we want to encourage the behavior behind it.


Evidently (har har), you can also admit things the defendant said in plea bargaining in order to impeach the defendant if he testifies afterwards (only at a subsequent trial??).

yeff
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Re: THEMIS BAR REVIEW Hangout.

Postby yeff » Sat Jul 27, 2013 11:27 pm

Torts Illustrated wrote:
yeff wrote:s but also there's the UCC variation, right? If that shirt(s) cost > $500 and fall under the UCC


The shirts don't need to cost more than $500 for the UCC to apply. Any sale of goods is covered by the UCC. But if the goods cost more than $500, that triggers the Statute of Frauds.

(Right? Someone please, for God's sake, correct me if I'm wrong.)


yes, oy. Time to stop studying, I think. Contracts chapter 1 is falling out the other ear.

releasethehounds
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Re: THEMIS BAR REVIEW Hangout.

Postby releasethehounds » Sat Jul 27, 2013 11:27 pm

Torts Illustrated wrote:
yeff wrote:s but also there's the UCC variation, right? If that shirt(s) cost > $500 and fall under the UCC


The shirts don't need to cost more than $500 for the UCC to apply. Any sale of goods is covered by the UCC. But if the goods cost more than $500, that triggers the Statute of Frauds.

(Right? Someone please, for God's sake, correct me if I'm wrong.)


You're correct. The only reason $500 matters is because now you need a writing to be able to enforce the contract under Statute of Frauds if one party breaches*. If both parties perform fully and there's no writing, statute of frauds was satisfied by full performance. Also keep in mind EXACTLY 500 doesn't need a writing, but $500.01 will.

If it's a sale of goods and you want to modify it, ANY cost is fine. If I want to sell you a fake rolex for 10 dollars then in good faith we agree I should sell it to you for 12, that's kosher.

The one area those will overlap is if you want to modify the contract and the modification is in the realm of statute of frauds, you'll need a writing to be able to enforce the contract against a breaching* party. Example: I sell you a TV for $499. We don't need a writing, statute of frauds doesn't care. But I encounter unexpected difficulties in getting the TV supplied and we agree you will now pay $510 dollars. The contract AS MODIFIED is in the statute of frauds. So we need a writing to enforce the contract if one of us breaches*.


Edit: * = or claims there isn't a contract
Last edited by releasethehounds on Sat Jul 27, 2013 11:35 pm, edited 1 time in total.

releasethehounds
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Re: THEMIS BAR REVIEW Hangout.

Postby releasethehounds » Sat Jul 27, 2013 11:31 pm

Reinhardt wrote:
releasethehounds wrote:
Bikeflip wrote:Evidence bros

In a crim case where there is a coconspirator--plea bargained conspirator and defendant, and plea bargained coconspirator takes the stand--can the defendant, on cross, admit plea bargained conspirator's plea bargain negotiation to show bias? I thought plea bargain negotiations were inadmissible, or does the plea bargain rule only apply if defendant was negotiating a plea?


You can introduce it to show bias. Just can't introduce it against the defendant. If it helps, think of it in terms of the policy behind it: The witness isn't on trial, because the witness plea bargained so they're done. So there's no prejudice against them in revealing the bias. However, we do care about prejudice against the defendant: the fact that they tried to negotiate a plea bargain but failed or said something during a plea negotiation is pretty prejudicial to the average juror, and so we don't allow that to be admitted against them.

It's sort of on par with the other policy exceptions for offers of settlement, subsequent remedial measures. that kind of thing. Too afraid jurors will read into it, but we want to encourage the behavior behind it.


Evidently (har har), you can also admit things the defendant said in plea bargaining in order to impeach the defendant if he testifies afterwards (only at a subsequent trial??).


Well the rule is that the prosecution can't introduce statements against the defendant, but the defendant can introduce statements made in the plea bargain. But if the defendant opens the door, then the prosecution can now introduce statements from the plea bargain too, because the defendant shouldn't get the benefit of the public policy exception and not have to shoulder the burden. I believe the exception is that in the case the defendant opens the door the prosecution can introduce statements that "fairness requires" also be admitted.

False statements made in plea negotiations are also admissible in a later perjury prosecution if they were made under oath with their counsel present (Sixth Amendment shenanigans, I imagine)

releasethehounds
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Re: THEMIS BAR REVIEW Hangout.

Postby releasethehounds » Sat Jul 27, 2013 11:33 pm

Also I swear I love all of you asking questions right now. This is actually how I learn best, by explaining to someone. So thank you.

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Reinhardt
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Re: THEMIS BAR REVIEW Hangout.

Postby Reinhardt » Sat Jul 27, 2013 11:35 pm

Yeah I mean I just picked that up from here:
http://legal-dictionary.thefreedictiona ... Bargaining

"When a prosecutor or defendant revokes a plea agreement, the statements made during the bargaining period are not admissible against the defendant in a subsequent trial. This rule is designed to foster free and open negotiations. There are, however, notable exceptions. The rule applies only to prosecutors: a defendant's statements to government agents are admissible. Furthermore, a prosecutor may use statements made by the defendant during plea negotiations at a subsequent trial to impeach the defendant's credibility after the defendant testifies."

Have no idea if it's even correct




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