Term
| Five elements of all intentional torts |
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Definition
| Elements 1) Voluntary act, 2) Intent, 3) Causation, 4) Harm, + 5) No privilege or defense. |
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Term
| Torts- Intent is established if D either (2) |
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Definition
| 1) desired the consequences or had the purpose to bring them about, or 2) d knew that those consequences were substantially certain to occur. |
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Term
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Definition
| where D intentionally causes a harmful or offensive contact with P or something closely connected with P. |
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Term
To show tort battery intent (2)
Show that D: |
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Definition
| 1) desired contact or 2) D knew contact was substantially likely to occur from her conduct. |
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Term
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Definition
| D intentionally places P in reasonable apprehension of an imminent battery |
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Term
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Definition
| D must have the purpose to create apprehension in P or 2) knew that apprehension was substantially certain to result. |
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Term
| Tort False Imprisonment definition |
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Definition
| Arises where D intentionally confines P to a bounded area against P’s consent, + P is aware of confinement or injured by it. |
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Term
| Tort Intentional Infliction of Emotional Distress |
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Definition
| rises where D intentionally or recklessly engages in extreme + outrageous conduct that causes P severe emotional distress. |
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Term
| Intentional or Reckless Infliction of Emotion Distress on a THIRD PARTY |
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Definition
| to a P who 1) is an immediate family member of the 3rd party, 2) where P is present at the time + 3) D is aware of P’s presence. Recovery is available whether or not such distress results in bodily harm. OR to any other P, regardless of relationship, who is present at the time if such distress causes bodily harm. |
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Term
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Definition
| D intentionally enters or causes something to enter the P’s land, interfering with P’s possessory interest. |
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Term
| Five remedies for Tort Trespass to land |
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Definition
| 1) Legal remedies (damages), 2) restitutionary damages (designed to prevent D’s unjust enrichment), 3) equitable remedies (injunction most prominent), 4) Nominal damages, + 5) Ejectment (P brings action to recover possession of real property). |
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Term
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Definition
| 1) proof of legal title, 2) proof of the P’s right to possession, + 3) wrongful possession by D. Successful P will get property + mesne damages, which compensate for the loss of land use + are measure by the property’s rental value or benefit gained by the wrongful possessor, whichever is greater. |
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Term
| Four elements for Trespass to Chattels |
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Definition
| 1) Intent, 2) Interference, 3) P’s personal property, 4) Harm. |
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Term
| Conversion (torts) definition |
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Definition
| Arises where D intentionally exercises dominion + control over the chattel constituting a serious + substantial interference or destruction. |
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Term
| Intentional Torts Defenses: POPCANS |
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Definition
| Privilege, others, property, consent, authority, necessary, + self-defense |
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Term
| Torts Privilege Defense definition |
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Definition
| exists where the person affected by D’s conduct consents, some important or personal public interest would be protected by conduct/interest justifies conduct, + D must act freely in order to perform an essential function. |
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Term
| Tort Consent may be found as a matter of law where (3) |
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Definition
| P is unable to consent + 1) emergency action is necessary to prevent his death/serious injury, 2) a reasonable person would be expected to consent under the circumstances, + 3) no reason exists to believe P wouldn’t consent. |
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Term
| 5 defenses to consent defense in tort |
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Definition
| 1) Mistake where D is aware of mistake 2) Fraud, it relates to a collateral matter. 3) Duress 4) Incapacity 5) Violation of a criminal statute |
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Term
| You can use the self defense tort defense when you |
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Definition
| honestly + reasonably believe the force used is necessary to avoid imminent harm. |
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Term
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Definition
| If a store owner has reasonable suspicion that someone shoplifted, he may detain suspect for a reasonable amount of time, provided they investigate in a reasonable manner. |
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Term
| FL shopkeeper's privilege |
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Definition
| If a store owner has probable cause that someone shoplifted, he may detain suspect for a reasonable amount of time, provided they investigate in a reasonable manner. In the case of retail/farm theft, must show that the property might be recovered by taking perp into custody. |
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Term
| How to frame negligence actions in essays for torts. 8 |
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Definition
| 1) Duty (ask whether the law imposes a legal obligation on D toward P), 2) Standard of Care (the measure of the duty owed). 3) Breach of Duty (failure to meet the standard of care), 4) Cause in Fact (connect D’s breach to P’s injury), 5) Proximate Cause (ask if there are still policy reasons to cut off liability), 6) Damages (must be proven), + 7) Defenses. 8) Use headings in a negligence question, separating out the elements. |
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Term
| Torts negligence general duty rule |
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Definition
| When D is engaged in affirmative, risk-creating conduct causing personal injury or property damage, a duty is owed to a foreseeable P. |
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Term
| Duty of care for health care workers who rescue in FL (torts) |
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Definition
| duty of doing everything they can without being reckless. |
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Term
| Negligent entrustment/FL dangerous instrumentality |
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Definition
| Where D gives something to a person D knows or should know is incapable of handling the object. In FL, Any instrumentality capable of causing death or destruction, owner liable for anything that happens with it, even if entrusted reasonably. |
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Term
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Definition
| Reckless act (“fire” in a movie theater) + negligent omission. |
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Term
| No tort duty to rescue or aid unless (4) |
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Definition
| 1) D's negligent conduct created the need, 2) where D undertakes to act, 3)Reliance, and 4) relationships of mutual dependence |
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Term
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Definition
| If you serve an addict or a minor, you can be liable. |
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Term
| Duty to protect others from third party criminal acts |
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Definition
| special relationship PLUS a high level of foreseeablility, usually established by proof of prior similar incidents. |
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Term
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Definition
| Govt is liable for negligent conduct of employees, but not for their intentional torts. Separate between planning + operational stage. Can’t hold them liable while acting, just planning. |
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Term
| To recover from negligent infliction of emotional distress or a FL bystander action |
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Definition
| 1) be in the zone of danger/a near miss, or 2) have a physical manifestation due to ED (none if corpse mishandled), 3) in FL, impact. Bystander action: 1) anxiety about the safety of another, 2) exceptionally close connection with injured party, 3) other person’s injury must have occurred within his sensory perception, 4) he suffered a causally connected, clearly discernible physical impairment due to the psychic trauma. |
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Term
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Definition
| One who comes onto the land with possessor’s consent who is there to confer a potential economic benefit or the land was held open to the public at large. Shoppers. Museum patrons. |
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Term
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Definition
| D has a duty to exercise reasonable care to prevent injuries to invitees caused by activities conducted on his land. Only for an invitee does owner have a duty to search out dangers on the property, + then only if a reasonable person would. |
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Term
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Definition
| One on the land with possessor’s consent. Guest. Door-to-door salesmen. |
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Term
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Definition
| to warn of known, concealed dangers. |
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Term
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Definition
| FL has Invited Licensees, which combines invitee + licensee. You have a duty to inspect, warn, + make safe. |
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Term
| Duty owed to trespassers (CL and FL) |
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Definition
| CL- Duty to avoid infliction of willful harm. FL- If discovered, landowner owes a duty to refrain from gross negligence or intentional misconduct injuring trespasser + must warn of dangerous conditions known to owner. No duty to legally drunk or those trying to commit a felony. |
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Term
| FL child trespassers/attractive nuisance doctrine (5) |
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Definition
| Child trespassers will be treated like invited licensees with duty of reasonable care owed if 1) Owner knows/has reason to know kids likely to trespass, 2) knows condition will involve an unreasonable risk of death or serious bodily harm, 3) child unaware of condition or risk it poses, 4) utility is slight compared to risk, 5) owner fails to exercise reasonable care to protect kids, + owner entices the kids upon dangerous premises. |
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Term
| CL Attractive Nuisance/Child trespasser elements |
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Definition
| Child will be treated like an invitee and will be owed reasonable care if 1) Kid too young to appreciate danger, 2) trespassing kids are foreseeable, 3) D knows of dangerous condition on property, 4) Generally only applies to artificial conditions, 5) risk so great that it outweighs the object’s utility. |
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Term
| Duty for things adjacent to, but not on, someone else's land |
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Definition
If there’s an artificial condition on the land, there’s a duty of reasonable care. If the condition is natural, there’s no duty unless it’s a tree in an urban area.
-FL- duty applies to both artificial + natural conditions. |
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Term
| Landlord/Tenant duties to keep property safe |
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Definition
Landlords liable/must use reasonable care if 1) common area, 2) negligent repairs, 3) known hidden + dangerous defect at the time property is leased, + 4) where D knows tenant will hold property open to the public at large.
Lessor must exercise reasonable care to discover + repair dangerous conditions existing at the time of possession transfer. FL- If a lessor surrenders possession/control over to lessee, the lessor won’t be liable for injuries to 3rd persons occurring on the premises. |
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Term
| Tort general standard of care |
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Definition
| Reasonably prudent person under the same or similar circumstances. |
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Term
| The torts negligence liability formula |
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Definition
| D is liable if the burden of avoiding the harm is less than the product of the probability of the harm times the magnitude of the loss. |
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Term
| Child reasonableness standard in torts |
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Definition
| Most of the time, we look at a reasonable child of the same age, experience, + intelligence. |
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Term
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Definition
| When injured in D’s business, P needs to show D was negligent for failing to discover + remedy the dangerous condition. |
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Term
| P must show three things for res ipsa loquitur |
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Definition
| 1) when this thing happens, it’s typically the result of negligence, 2) d is probably responsible/under control, + 3) P didn’t contribute to injury. |
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Term
| Two possible cause in fact tests for torts |
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Definition
| But for and substantial factor |
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Term
| Joint and several liability means |
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Definition
| P can sue one, both, or all Ds + collect from whichever P chooses to sue. D can seek contribution from other negligent parties. |
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Term
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Definition
| P must show more likely than not, but for doctor’s malpractice, P would not have lost the 40% chance at life. |
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Term
| Preponderance of the evidence |
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Definition
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Term
| Torts negligence Alternative Liability Theory |
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Definition
| when you 1) have a small number of Ds, 2) each of whom is negligent, + 3) all are before the court. You don’t know which D actually shot the person in the woods/they both shot at the bush. Burden of proof shifts to Ds to show that they were not the cause, then jointly + severally liable. |
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Term
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Definition
| where there’s a generic product + P, through no fault of his own, can’t show which of a large group of Ds is responsible for the harm. Court uses several liability. Company A had 10% of relevant market, will pay 10% of P’s damages unless it can show it couldn’t have made the product causing P’s harm. |
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Term
| Collateral source rule (CL and FL) |
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Definition
| The fact that P is getting compensation or a gift from a 3rd party source, such as an insurance company/union, doesn’t mean the D doesn’t have to pay. FL- whatever the damages are will be reduced by some collateral sources. Including federal state + local disability payments, social security etc. No reduction for a source for which there is a right of subrogation. |
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Term
| Defenses to tort negligence |
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Definition
| 1) Contributory negligence, 2) comparative fault, 3) Avoidable consequences/failure to mitigate, 4) assumption of risk |
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Term
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Definition
| P can recover no matter how much at fault he is, but you subtract the fault from the damages. Joint and several liability usually survives (not in FL) |
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Term
| FL pure comparative fault |
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Definition
| No joint and several liability. Damages are portioned according to fault. If P is legally drunk + that causes P to be more than 50% responsible for the injury, P gets nothing. |
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Term
| If it's a "contributory negligence" jurisdiction in torts |
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Definition
| any fault barred P from recovery. apply last clear chance doctrine |
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Term
| Modified comparative fault in torts |
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Definition
| Where P is as much or more at fault, then he isn’t entitled to recover anything. (Ex: If P is 60% at fault, no recover; if P is 40% at fault, recovers 60% of damages) |
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Term
| Strict liability (3) tort |
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Definition
| Wild animals and abnormally dangerous activities and strict products liability |
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Term
| Six elements of Strict Products Liability in tort |
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Definition
| 1) Proper P, 2) proper D, 4) proper context for strict products liability, 4) defect, 5) cause in fact, 5) proximate cause, + 6) damages. |
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Term
| Four types of privacy invasion torts |
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Definition
| 1) Intrusion into seclusion 2) false light, 3) commercial misappropriation, and 4) public disclosure of private, true facts |
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Term
| Two types of product defects and what P must prove for each |
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Definition
| 1) Manufacturing defect: product comes out in an unintended condition. P must show Defect existed at the time D put it in the market, + it was in an unintended condition or more dangerous than ordinary consumer would expect. 2) Design defects. Two tests: Ordinary consumer expectation test where design is more dangerous than ordinary consumer would expect. Risk-Utility Balancing test- P shows that risk of design outweighs utility. |
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Term
| 3 strict products liability defenses |
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Definition
| 1) unforeseeable misuse, 2) unforeseeable alteration, 3) assumption or risk. Comparative fault no defense. |
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Term
| Private nuisance definition and 5 factors to balance |
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Definition
| A substantial + unreasonable interference with P’s use + enjoyment of his land. 1) Value of D’s activity, 2) alternatives, 3) nature of locality, 4) extent of P’s injury, + 5) Who was there first. |
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Term
| FL special defamation rules |
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Definition
| A successful defense of privilege to a defamation suit will prevent P from suing for IIED. In FL, defamatory statement must be pure fact. |
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Term
| 4 slander per se categories |
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Definition
| 1) P is unfit to perform in his job, 2) crime of moral turpitude, 3) current loathsome disease or 4) lack of chastity in a woman |
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Term
| 3 ways to lose a qualified defamation privilege |
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Definition
| 1) bad intent, 2) D knows of falsity, 3) D is reckless as to truth or falsity or published out of a context where privilege applies. |
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Term
| defamation actual malice for public official/figure |
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Definition
| Prove by clear + convincing evidence, D knew info was false or was reckless as to falsity. Show D actually entertained doubts or knew it was fake. In FL, it’s prep of evidence |
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Term
| Public disclosure of private, true facts. P must prove 4 |
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Definition
| 1) disclosure, 2) of private facts, 3) disclosure of which is highly offensive to a reasonable person, + is 4) not newsworthy. Just morbid curiosity. |
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Term
| 4 things P must prove for Portrayal in False Light |
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Definition
| 1) publication, 2) of false info, 3) highly offensive to a reasonable person, + 4) some level of fault. |
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Term
| Four elements of intentional misrepresentation (fraud) and omission rules |
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Definition
| 1) intentional, material misrepresentation, 2) of past or present fact, 3) made with scienter, 4) on which P justifiably relies. (Failure to disclose information isn’t a basis unless 1) some fiduciary relationship, 2) where D makes an ambiguous, misleading statement, 3) D subsequently learns a statement isn’t true + fails to correct it, 4) D learns P is relaying on a statement D didn’t expect/intent P to rely on, or 5) where P reasonably expects disclosure.) |
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Term
| Interference with contractual relations 2 |
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Definition
| Prove 1) that D knows there’s a K between P + 3rd party, +2) D acts to breach or make K harder to perform |
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Term
| FL intentional interference with a relationship |
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Definition
| 1) knowledge, 2) doing something to induce one party. |
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Term
| Interference with prospective economic advantage. P must show that D (2) |
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Definition
| 1) knew of the prospective economic advantage + 2) acted to interfere with it for improper motives (more than own competitive interest) |
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Term
| Injurious falsehood/trade disparagement prove 4 things |
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Definition
| 1) false statement, 2) actual malice, 3) made to another/published, 4) causing specific economic injury to P. |
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Term
| FL negligent hiring presumption |
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Definition
| Employer presumed not to have been negligent if he did a background check |
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Term
| Family law rights protected by the Constitution (8) |
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Definition
| 1) Right to marry, 2) procreate, 3) have sex, 4) use contraception, 5) abortion, 6) make family-based decisions, 7) live with family members, and 8) have a meaningful relationship with your child. |
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Term
| Adultery and cohabitation in FL |
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Definition
| Cohabitation is lewd and lascivious behavior and it’s a rarely enforced second-degree misdemeanor. Living in an open state of adultery is a second-degree misdemeanor. |
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Term
| Four types of void marriages |
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Definition
| 1) Bigamy, 2) incest, 3) same sex/domestic partners/civil unions, and 4) common law marriages. |
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Term
| 6 types of voidable marriages/grounds for annulment |
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Definition
| 1) mental incapacity, 2) physical incapacity (impotence), 3) underage party, 4) duress, 5) undue influence, 6) fraud |
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Term
| Three prerequisites to marry |
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Definition
| 1) capacity, 2) consent of both, and 3) intent. |
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Term
| To be competent for marriage |
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Definition
| A person need only be able to understand what a marriage is and what is expected of a married person. |
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Term
| Marriage procedural requirements (7) |
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Definition
| 1) couples apply together, in person, for a marriage license, 2) provide a signed affidavit providing social security numbers, 3) Consist of one male and one female, 4) Show they’ve read the info in the state’s handbook of rights/responsibilities of parties to a marriage, 5) Either compete a premarital preparedness course, be subject to a three-day waiting period (judge may waive these for hardship), 6) Recite their true and correct ages in their affidavit, if they are under 18, 7) solemnize the marriage with a ceremony and have the person solemnizing complete and file the license/application with the appropriate govt agency. |
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Term
| Exceptions to comity/full faith and credit |
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Definition
| 1) natural law exception, 2) positive law exception, and 3) homos (DOMA) |
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Term
| To file for an injunction for domestic violence protection, must (2) |
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Definition
| 1) be a victim of domestic violence or 2) reasonably believe you are in danger of becoming a victim |
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Term
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Definition
| Equitable and include 1) ratification, 2) estoppel, 3) unclean hands and 4) laches. |
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Term
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Definition
| 1) irretrievable breakdown of the marriage, and 2) mental incapacity of one of the parties (must be adjudged incapacitated for the last three years). |
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Term
| When a father can petition to disestablish paternity (5) |
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Definition
| 1) if he discovers he isn’t the father, 2) he didn’t adopt the child, 3) the mother wasn’t artificially inseminated while pregnant, 4) the mother didn’t interfere with his ability to assert parental rights, and 5) the child is younger than 18. |
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Term
| 5 times a court can deny a father's petition to disestablish paternity |
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Definition
| If he, while knowing he wasn’t the dad, 1) married the mother and assumed parental obligations, 2) acknowledge paternity in a sworn statement, 3) consented to be named on the birth certificate, 4) voluntarily promised support and was required to support based on that promise, or 5) received written notice from any state agency or court directing him to submit to testing, which he disregarded. |
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Term
| 2 types of surrogacy and their agreements |
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Definition
| 1) Traditional- involves using the husband’s sperm with the surrogate gestating the child. Use preplanned adoption Ks, which may be terminated by any party at any time. 2) Gestational involves using a surrogate and using an embryo created with h’s sperm and wife’s egg implanted in surrogate’s uterus. Use surrogacy Ks. |
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Term
| Uniform Child Custody Jurisdiction and Enforcement Act |
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Definition
| Governs child custody proceedings and aims to ensure cooperation between states. |
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Term
| hierarchy to determine if FL has jurisdiction over child custody matters (4) |
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Definition
| 1) the child’s home state for the last six months, 2) Significant connections- if at least one parent and the child have significant connection with FL, 3) More Appropriate Forum: If other states decline j due to parent’s unjustifiable conduct or bc the state is inconvenient. 4) Default J (state of last resort)- If no other state has j, FL can take it. |
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Term
| FL can lose its continuing exclusive jurisdiction in child custody cases if (2.5) |
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Definition
| 1) the child and both parents no longer reside in FL, or 2) if the child no longer has a connection with FL and the evidence regarding custody is no longer in FL. |
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Term
| Parenting plan components 2 |
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Definition
| Parental Responsibility and Time Sharing |
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Term
| Parental responsibility components (2) and two types of the first type. |
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Definition
| 1) shared parental responsibility or 2) sole parental responsibility -Two types of parental responsibility that can be ordered under shared 1) ultimate responsibility where one party has ultimate responsibility over specific aspects of the child’s welfare or 2) parallel parenting where the court divides areas of responsibility up between the parents. |
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Term
| Detailed parenting plan must describe |
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Definition
| 1) daily tasks, 2) time-sharing schedule arrangements, 3) health care, school related matters, activities, and 4) communication methods with child |
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Term
| 4 steps to determine an equitable distribution scheme in divorce |
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Definition
| 1) identification, 2) classification, 3) valuation and 4) distribution. |
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Term
| -Six types of alimony allowed before July 10, 2010 |
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Definition
| 1) temporary alimony (during divorce litigation pendency), 2) rehabilitative alimony, 3) bridge-the-gap alimony (usually for short-term marriages), 4) permanent periodic alimony (when needy spouse lacks the ability to become self supporting, usually used in long-term marriages), 5) lump sum (a fixed amount, although it can sometimes be paid in installments), and 6) nominal alimony (court can modify it in the future, usually used when there is a foreseeable but not present circumstances like illness). |
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Term
| -Four types of alimony available on or after July 10, 2010. |
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Definition
| 1) bridge the gap (short term, may not exceed two years, not modifiable), 2) rehabilitative (definite period for education/job training), durational (marriages of 0-17 years), and permanent alimony (only for 7+ year marriages, unless special circumstances. Can be modified). |
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Term
| Child Support calculations- Income Shares Model |
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Definition
| Add the dad and mom’s income together, determine the appropriate child support from the guidelines for that income level and then divide the child support award proportionally based on each parent’s income. There’s a table. Each parent’s actual dollar share is the total minimum child support need multiplied by each parent’s percentage share. Add dental/medical and 75% of reasonable child care to the basic obligation. A court may make a 5% deviation without justifying it, but if more, the court has to make findings. It’s not right for a parent to pay more than 55% of his gross income to child support. |
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Term
| Child support gross-up method |
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Definition
| Where the child spends at least 40% of overnights with both parents, 100% of childcare is divided, not 75%. |
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Term
| Penalties for not paying child support |
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Definition
| 1) contempt, 2) criminal prosecution under state or federal law, 3) denial of licenses, 4) garnishment of wages. |
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Term
| To modify child support due to changes, parents must show the changes are(4) |
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Definition
| Permanent, significant, material, and involuntary. |
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Term
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Definition
| any criminal offense punishable by death or incarceration in a state correctional institution for more than a year. |
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Term
| An indigent D’s atty of record may not withdraw without good cause until (4) |
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Definition
| 1) a notice of appeal is filed, 2) substitute counsel has been obtained or appointed, 3) the D files a request for self-representation with the appellate court, or 4) the time for filing a notice of appeal has expired and no notice of appeal has been filed. |
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Term
| In capital criminal cases, at minimum, attys 3 |
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Definition
| 1) must be skilled in capital case representation, 2) be zealously committed to the case, and 3) dedicate adequate time and resources for case preparation. |
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Term
| First appearance requirements. Judge must (5). |
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Definition
| 5 Cs. Counsel, Charges, Close Your Mouth, Communication, Conditions. Judge must 1) determine if D needs COUNSEL appointed or time to get counsel, 2) inform D of CHARGES/criminal complaint, 3) advise D to CLOSE HIS MOUTH, 4) ensure D can COMMUNICATE with family, friends, and is employer, and 5) determine CONDITIONS of pretrial release |
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Term
| Pretrial probable cause determinations and charges (4 steps) |
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Definition
| 1) Within 48 hours, judge must determine if there was PC for the arrest. 2) If D stays in custody after PC hearing, but isn’t formally charged, pros must file an indictment/information. 3) Within 21 days, D is entitled to an adversary hearing. 4) If PC found, D will be held to answer the charges. If not, D is released until pros files charges, then D is released on his own recognizance. |
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Term
| Scope of immunity when subpoenaed for grand jury proceedings |
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Definition
| Use immunity provides that statements can’t ever be used against him, and derivative use immunity provides that evidence derived from testimony can’t be used. Can’t be used to impeach, but can be used to charge with perjury |
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Term
| Timeline for filing formal criminal charges |
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Definition
| State must file within 30 days for arrest. If not, pros must tell judge within three days that he will charge on pain of releasing D and show good cause why he should get until the 40th day. D must be released after 40 days. |
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Term
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Definition
| 1) Guilty, 2) not guilty, 3) Alford plea: willing to accept consequences, and 4) No contest/nolo contendere (don’t contest the charges + they will put “not guilty”). Neither admits or refuses the charges. |
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Term
| Judge MAY be involved in the plea bargaining process, with the following 3 restrictions: |
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Definition
| 1) the judge may not initiate a plea bargaining discussion, 2) the judge must be invited by both parties, 3) the judge may not suggest to the D that further consequences will result from the outcome of the plea bargaining. |
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Term
| To determine plea voluntariness, judge places D under oath and asks 9 |
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Definition
| 1) if D understands charges + max/min sentences, 2) that D has the right to an atty at every stage of the proceeding, 3) that D has the right to plead not guilty, get a jury trial with rights 4) make sure D understands that he gives up the rights in #3 by pleading guilty, 5) ask if D understands the complete terms of the agreement, including all obligations, 6) that a guilty/nolo plea may result in deportation, 7) that a guilty/nolo plea to a sexual offense may subject him to involuntary civil commitment, 8) that drugs/alcohol related offense could lose him his driver’s license, and 9) if the pros or defense atty is aware of the existence of any evidence that could be testified for DNA. |
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Term
| D entitled to pretrial release? |
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Definition
| A person charged with a capital offense or offense punishable by life in prison, where proof of guilt is evident or the presumption of guilt is great. Unlike the federal system, FL provides an actual, substantive right to bail, unless the case involves death penalty/LI. D may be held if no conditions of bail can meet the three main bail process goals. |
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Term
| three main goals of the bail process |
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Definition
| 1) to assure D’s presence at trial, 2) to protect the community from reasonable danger, and 3) (FL added) to protect the criminal justice system from reasonable risk from D. |
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Term
| Conditions of pretrial release (considered in order) |
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Definition
| 1) personal recognizance of D, 2) execution of an unsecured appearance bond in the amount decided by the court, 3) travel, association, and residence restrictions, 4) placing D in someone else’s custody, 5) Bond to bail bondsman, and 6) any condition reasonably necessary to assure appearance. |
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Term
| Pretrial detention may not last for more than |
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Definition
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Term
| Pros discovery obligations |
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Definition
| Pros must serve a written Discovery Exhibit on D within 15 days of the Notice of Discovery, permitting D to inspect, copy, test, and photograph information and material in the state’s possession or control. |
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Term
| Pros written discovery exhibit due to D includes |
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Definition
| 1) A list of people known to the pros to have info about the case or charges, 2) their statements, 3) statements made by D and co-Ds if there’s a joint trial, 4) recorded grand jury minutes containing the D’s testimony, 5) any tangible papers and objects that came from D, 6) anything provided by a confidential informant, 7) whether there has been electronic surveillance (yes or no), 8) docs obtained through search and seizure, 9) experts reports or statements, including results examinations and tests, and 10) anything tangible pros intends to offer into evidence |
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Term
| Three pros witness categories and when you can depos them |
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Definition
| Category A: Witnesses with material testimony (i.e. eyewitness). Category C: Witnesses with no material testimony (officers who transported D, circled perimeter, or were in chain of custody) Category B Witnesses that don’t fit into categories A or C. (A felony D may take the depos of any Cat A witness, any witness listed by a co-D, and any unlisted witness. Need court permission to depo a cat B witness, and if you want to depo Cat C, you have to convince the court to reclassify them as A. Depos need court permission for misdemeanors.) |
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Term
| D’s discovery obligation. D must make the following disclosures within 15 days of receiving the state’s discover exhibit (4) |
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Definition
| 1) list of witnesses D will actually call, 2) statement of witnesses, 3) reports/statements of experts, and 4) anything tangible D intends to use at trial |
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Term
| If D wants to find out the identity of confidential informants (3) |
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Definition
| 1) D providing a sworn statement identifying the specific defense upon which D intends to rely and 2) showing the informant is material to it. 3) The court will then conduct an in-camera hearing and decide if the information should be disclosed or not. |
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Term
| Standard for discovery admissibility |
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Definition
| If it’s likely to lead to evidence that would be admissible at trial. |
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Term
| To use depositions to perpetuate testimony, must make an affidavit stating (3) |
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Definition
| 1) facts and circumstances of why witness won’t be at trial, 2) allege testimony is material, and 3) failure to have it would result in a failure of justice. |
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Term
| Discovery violations. At a Richardson hearing, the court will consider whether |
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Definition
| the violation was material, willful, or prejudicial/harmful. |
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Term
| Court may entertain a motion to dismiss on the following grounds at any time (even after arraignment, the usual time (4) |
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Definition
| 1) if a D claims he was previously pardoned for this conduct, 2) prior jeopardy, 3) prior grant of immunity, 4) there are no material disputed facts and the undisputed facts don’t establish the prima facie case for guilt or they make out a complete defense |
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Term
| Three possible prosecution responses to criminal D motion to dismiss |
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Definition
| 1) concede, 2) make a traverse motion (sworn pleading that says there are indeed disputed facts. Facts are admitted unless state denies), or 3) submit a demurrer (a memo of law that facts don’t entitle D to judgment as a matter of law.) |
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Term
| Motion for disqualification or substitution of trial judge Must be written and (4) |
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Definition
| 1) state the specific grounds for relief, 2) be made under oath, 3) include a certification of good faith, and 4) be served on the judge and filed in court. |
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Term
| Notice of Alibi: D planning to offer an alibi must, on pros’s demand, |
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Definition
| file and serve a written notice of an intention to claim an alibi in his defense. The notice must be 1) filed no fewer than ten days before trial, 2) state with specificity the place at which D claims to have been, and 3) state the names/addresses of witnesses who will establish alibi. |
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Term
| Notice of intent to rely on insanity defense |
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Definition
| D must provide notice within 15 days of arraignment, if possible. Notice must include statement of the nature of the insanity and names/addresses of witnesses. Upon notice filing, the judge may (and if either party requests, the judge must) appoint either two or three mental health professionals to evaluate D. |
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Term
| Notice of Battered Spouse Syndrome for the purpose of self defense |
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Definition
| D must give written notice 30 days before trial. |
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Term
| Ds must be brought to trial within |
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Definition
| 6 months for felonies, three months for misdemeanors and with demand of a speedy trial, two months |
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Term
| If any of these four conditions has been met, D is not entitled to a speedy trial |
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Definition
| 1) court-ordered extension of time that didn’t yet expire, 2) failure to commence trial that is D’s fault, 3) D is unavailable for trial either because D failed to appear or D’s counsel not ready, or 4) D’s speedy trial demand was procedurally invalid. |
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Term
| Two types of juror challenges and how many you get |
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Definition
| Challenges for cause and peremptory challenges (10 in death/LI cases, 6 in felonies, and three in misdemeanors) |
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Term
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Definition
| Before a confession can be received into evidence, there must be a judicial finding that there exists substantial independent evidence to support the confession. FL no longer follows this CL rule in sex crimes and money laundering crimes. |
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Term
| Motion for judgment of acquittal |
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Definition
| At the close of the prosecution’s case in chief, this motion asks the court to determine whether there exists some evidence of each element of the offense. If there is such a finding of evidence, motion denied, and the defense doesn’t waive anything by presenting a defense case. The defense may renew the motion at the close of all the evidence, and if it should have been granted, conviction will be overturned. |
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Term
| Circumstantial evidence rule |
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Definition
| Where prosecution’s case is circumstantial in ALL its material particulars, the prosecution must not only prove guilt beyond a reasonable doubt, it must negate every reasonable alternative hypothesis. There can’t be two reasonable explanations. Jury will be instructed that, unless an alternative hypothesis is inconsistent with the facts, the jury must return a “not guilty” verdict. |
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Term
| What jury takes in with it for deliberation (4) |
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Definition
| 1) charging doc, 2) verdict forms, 3) a complete set of instructions, and 4) any evidence except contraband. |
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Term
| Two grounds for inquiry into jury verdict |
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Definition
| 1) outside evidence/juror conducted an investigation, 2) conviction due to prejudice (race) or discrimination. |
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Term
| FL law requires a bifurcated proceeding in death penalty cases. Two phases |
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Definition
| 1) Trial phase- jury is aware that death is an option, and 2) Penalty phase Requires jury to weigh aggravating circumstances presented by the state against mitigating circumstances presented by defense. The jury may consider evidence inadmissible in the trial phase, such as the background and criminal record. Judge can reject recommendations. |
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Term
| When can trial court make a sentence reduction or modification |
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Definition
| within 60 days of imposition or final action by the last reviewing court. May not increase sentence |
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Term
| Post conviction relief (something went wrong)- Motion contents |
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Definition
| Must be sworn, include a copy of judgment and identify the court that rendered the sentence, state whether there was a direct appeal and the result of the appeal, state whether any previous motions for post conviction relief were filed, and identify the relief sought and include statements of facts and grounds supporting the motion. |
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