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BAR MBE 2022 – EVIDENCE QUESTIONS AND ANSWERS WITH COMPLETE SOLUTION & BAR MBE 2022 - CONSTITUTIONAL LAW QUESTIONS AND ANSWERS WITH ACTUAL TEST. BUNDLE SOLUTION SCORE AN A+
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Bar MBE 2022 – Evidence Questions And Answers With Complete Solution
Bar MBE 2022 – Evidence Questions And Answers With Complete Solution 1) each party is then entitled to cross-examine a witness called by the court 2)... [Show More] party may object to the court's examining or calling of a witness either at the time or at the next available opportunity when the jury is not present Correct Answers: What can each party do when a court calls or examines its own witness? Despite a juvenile conviction being GENERALLY INADMISSIBLE, a judge in a criminal case has DISCRETION to admit a juvenile conviction committed by a witness (NOT DEFENDANT) if evidence would be admissible to attack the credibility of an adult AND if the evidence is necessary to determine the DEFENDANT's guilt or innocence. Correct Answers: When is a juvenile conviction admissible? Through cross-examination and extrinsic evidence. To impeach a witness by extrinsic evidence of bias/interest, they must be asked about the facts that show bias/interest on a cross-examination. Note: The court has discretion to permit or not permit extrinsic evidence EVEN IF witness admits bias. Correct Answers: How can a witness be impeached because of their bias or interest? -Upon party's request, a trial judge must order witnesses excluded from courtroom -judge may also do this on their own -judge must NOT exclude: 1) a party or designated officer or employee of a party 2) a person whose presence is essential to the presentation of party's claim or defense 3) a person statutorily authorized to be present Correct Answers: When can a judge exclude or sequestrate a witness? Through cross-examination or extrinsic evidence that show that their perceptive senses and recollection were so impaired as to make it doubtful that they could have perceived those fact.s No foundation requirement for proving sensory deficiency with extrinsic evidence. Correct Answers: How can a witness be impeached because of their sensory deficiencies (i.e. bad eyesight/hearing, alcohol or drug use, poor memory)? Through cross-examination and extrinsic evidence. Cross-examination: make the witness admit they lied or were mistaken about some fact that they testified to during direct examination 1) if the witness admits, then impeached 2) if the witness denies, then can use extrinsic evidence Extrinsic Evidence: permitted UNLESS contradictory fact is collateral (meaning no significant relevant to the case or to witness's credibility Correct Answers: How can a witness be impeached because of their contradictory facts? 1) Court's determination of a preliminary question of fact relating to admissibility 2) grand jury proceedings 3) other miscellaneous proceedings (sentencing, extradition, bail, probation) Correct Answers: When does the Federal Rules of Evidence NOT apply? If it has ANY TENDENCY to make the existence of any fact that is OF CONSEQUENCE to the determination of the action MORE OR LESS PROBABLY than it would be without the evidence. Correct Answers: When is evidence relevant? Unfair prejudice; confusion of issues; misleading jury; wasting time; undue delay; needless presentation of cumulative (repetitive) evidence > (substantially outweighs) probative value Correct Answers: What is the FRE 403 Discretion to Exclude Relevant Evidence? In certain cases, a party may offer evidence that the witness made a timely complaint or prior statement of identification (prior consistent statement) and such prior identification can serve as substantive evidence (even when witness credibility not attacked). Example: identifying defendant as the perpetrator of the crime being charged Correct Answers: When can you bolster witness credibility without the purpose of impeachment/attacking witness credibility? No. Hearsay statements can only be made by a person. What a radar gun "said" or what a drug-sniffing dog did is NOT hearsay, but could be admissible under other rules of evidence. Correct Answers: Can hearsay derive from an animal or machine? misleading, compound, argumentative, narrative answers, calls for speculation, assume facts not in a evidence, conclusions, cumulative, non responsive, unduly harassing or embarrassing, lack of foundation Correct Answers: What are objections to improper questions and answers in direct and cross examinations of witnesses? Call a character witness to testify about the target witness's bad reputation or their low opinion of the target witness. Correct Answers: How can a witness be impeached because of their opinion or reputation evidence as a witness? If cross-examiner has good faith basis to believe the witness committed the misconduct, witness may be interrogated upon cross-examination with respect to misconduct if probative of truthfulness. Extrinsic evidence is NOT permitted. Cross-examination cannot refer to any consequences the witness may have suffered as as result of their bad act. (considered extrinsic evidence) Correct Answers: How can a witness be impeached by bad acts involving untruthfulness? Foundation is not needed if prior inconsistent statement is the opposing party's statement, inconsistent statements is by the hearsay declarant, or the court chooses to disregard where justice so requires. Prior inconsistent statements are hearsay unless they were made under oath (prior hearing, deposition, etc.). If made under oath, then ADMISSIBLE, NONHEARSAY and may be admitted as substantive evidence. Prior statement that omits a fact asserted during current testimony may be inconsistent if it would have been natural for the witness to include the fact if they believed it to be true. However, lack of memory is not the same as an inconsistent statement (unless lack of memory is fake) Prior inconsistent statements are admissible only for impeachment purposes. Extrinsic evidence can be introduced if NOT collateral AND witness has been given the opportunity explain or deny AND the adverse opportunity to examine the witness Correct Answers: How can a witness be impeached by prior inconsistent statements? Witness testimony or extrinsic evidence can both be used. No foundation is necessary. DISHONESTY & FALSE STATEMENT CRIMES: court has not discretion to bar impeachment by these crimes; does not include theft; can be felony or misdemeanor FELONY (NOT dishonesty or false statement): court has discretion to exclude these convictions balancing test required: 1) is the witness a criminal defendant? court excludes the conviction if prosecution has not shown that probative value OUTWEIGHS prejudicial effect 2) is the witness someone other than a criminal defendant? If so, court can exclude if prejudicial effect SUBSTANTIALLY OUTWEIGHS probative value If the conviction is from more than 10 years ago, it is not admissible UNLESS 1) probative value substantially outweighs prejudicial effect AND 2) reasonable written notice is given to the adverse party pending review or appeal does NOT affect use of conviction for impeachment purposes NOTE: Pardons because of innocence or rehabilitation and constitutionally defective convictions are NOT admissible. Correct Answers: How can a witness be impeached by prior convictions of crime? No. If a witness who makes a statement NOT directly relevant to an issue in the case, a party CANNOT prove the statement is untrue by extrinsic evidence or prior inconsistent statement. Correct Answers: Can a witness making a statement on a collateral matter be impeached? 1) evidence of a person's specific acts 2) opinion testimony of a witness who knows the person 3) testimony as to the person's general reputation in the community Correct Answers: What methods can be used to prove character? Witness is allowed to testify even if they have an interest in the outcome of the litigation (i.e. beneficiary) Correct Answers: What is the Dead Man Act? 1) must be limited to the scope of direct examination, including all reasonable inferences that may be drawn from it 2) matters that test credibility of the witness Correct Answers: What is the scope of a crossexamination? Generally yes. However, in a CRIMINAL CASE, in which the defendant's mental state constitutes an element of the crime or defense, the expert witness may NOT state an opinion as to whether the accused did or did not have the mental state at issue. Correct Answers: Can an expert witness render an opinion on an ultimate issue? In a CRIMINAL CASE, when the witness-spouse can refuse to testify against party-spouse DURING MARRIAGE ONLY about information learned before or during marriage. Party-spouse cannot prevent witness-spouse from testifying if they choose to. Correct Answers: What is spousal immunity privilege? In CIVIL OR CRIMINAL PROCEEDING, both spouses have privilege not to disclose confidential marital communications made during marriage either DURING OR AFTER MARRIAGE. Either spouse can prevent the other spouse from testifying. Correct Answers: What is confidential marital communications privilege? 1) communication or acts in furtherance of future joint crime or fraud 2) in legal actions between spouses 3) in cases where spouse is charged with a crime against testifying spouse or either spouse's children Correct Answers: When does neither marital privilege apply? 1) whether any extraneous prejudicial information was improperly brought to the jury's attention 2) whether any outside influence was improperly brought to bear on any juror 3) whether there is a mistake on the verdict form 4) whether any juror made a clear statement that they relied on racial stereotypes or animus to convict a criminal defendant (in this case, court must find that the racial animus was a significantly motivating factor in juror's vote to convict) Correct Answers: What can jurors testify about? Facts generally known within the court's jurisdiction or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned Courts can only take judicial notice of adjudicative facts. Courts CANNOT take judicial notice of legislative facts (legal reasoning, lawmaking, etc.) Courts MUST take judicial notice of federal and state law and official regulations of forum state and federal government. Courts MAY take judicial notice of local municipal ordinances, private acts by Congress or local state legislatures, laws of foreign countries. Correct Answers: What can courts take judicial notice of? Hearsay that is admissible Correct Answers: What is a hearsay exception? Admissible, but NOT hearsay; nonhearsay Correct Answers: What is a hearsay exclusion? In civil cases, judicial notice taken is conclusive. In criminal cases, judicial notice taken is NOT conclusive. Judge must tell jury that they have discretion. Correct Answers: Is judicial notice conclusive? Rules that require a particular inference to be drawn from an ascertained set of facts and doesn't require additional proof. Common ones: 1) properly addressed, stamped, and mailed letters are presumed to be delivered 2) Someone who has been absent and unable to be located for 7 years or more is presumed dead 3) When cause of death is in dispute, the presumption is NOT suicide 4) Everyone is presumed to be born to legally married parents 5) Everyone is presumed to be solvent (able to pay off debts) and every debt is deemed collectible 6) People acting in an official office are presumed to be able to properly perform their duties 7) When ownership of a motor vehicle is established, it is presumed that the owner (or owner's agent) of the vehicle was the driver. Correct Answers: What are presumptions? Burden of production is shifted. (burden of persuasion never shifts in a case) Correct Answers: When presumption established, what kind of burden is shifted? In a CIVIL CASE, presumption can be overcome or destroyed when the adversary produces evidence contradicting the presumed fact. In a CRIMINAL CASE, a judge cannot instruct the jury to find a presumed fact against accused conclusive. The judge can only instruct jury that they MAY regard basic facts as sufficient evidence of presumed fact. (This is because in criminal cases, presumed facts that show guilty must be established beyond a reasonable doubt) Correct Answers: When is presumption rebutted? When part or all of a writing or recorded statement is introduced into evidence, adverse party may require proponent of evidence to introduce any other part or related writing or recorded statement that should in fairness be considered at the same time. (Ex. if a party only shows a clip from a tape recording, adverse party may request that the rest of the recording or another part of the recording be presented for additional relevant context) Correct Answers: What is the Rule of Completeness? To prove the content of a writing, recording, or photograph (including X-rays), the original must be produced IF its terms are MATERIAL. Secondary evidence (like oral testimony) are admissible ONLY IF proponent provides a satisfactory excuse for the original's absence. The original is MATERIAL if: 1) the document is legally operative or dispositive (i.e. contract, will, deed) 2) knowledge of a witness results from reading the document or looking at a photo (or x-ray) Originals and duplicates of documents are generally both admissible to satisfy this rule. Correct Answers: What is the Best Evidence Rule? 1) when the hearing involves admissibility of a confession 2) the defendant in a criminal case testifying at the hearing and requests the jury be excused 3) justice so requires Otherwise, judges have discretion whether or not to excuse the jury during the preliminary fact determination. Correct Answers: When MUST a jury be excused? When the absence of the original is justified: 1) loss or destruction (buy only when not in bad faith) 2) Cannot be obtained by any judicial process (in the hands of a third party outside of the court's jurisdiction and cannot be obtained with any reasonable effort) 3) In the hands of the adversary, but adversary fails to produce it after due notice Examples of secondary evidence: handwritten copies, notes, oral testimony, etc. Correct Answers: When is secondary evidence of contents admissible? When it is relevant and authenticated either by testimony of a witness that can say they recognize the object (such as the weapon found at the crime scene) or by evidence that the object has been held in a substantially unbroken chain of custody. And if the condition of the object is significant, it must be signboard it be in the substantially same condition at trial. Correct Answers: When is real evidence admissible? When the patient puts their mental condition at issue Correct Answers: When does psychotherapist/social worker-patient privilege NOT apply? 1) Copies of certified public records or public records testified to as correct 2) Writing is collateral (minor importance) to the controversy/issue being litigated 3) opponent's testimony, deposition, or written admission about writing's contents 4) When it would be inconvenient to produce voluminous records, a summary or chart of those records is acceptable; however, proponent must make originals/duplicates available for inspection and copying and court may still order proponent to produce the records in court Correct Answers: What are exceptions to the Best Evidence Rule? Confidential communications between attorney (or someone client reasonably believes to be an attorney) and their client. It does not apply to underlying information, pre-existing documents, and physical evidence. Applies indefinitely even after client's death. Privilege is preserved if representatives of attorneys or clients communicate. Confidential communications to third persons (i.e. administrative assistant) privileged if necessary to transmit information between attorney and client. Professional legal consult with the purpose of obtaining or rendering legal services also counts. Joint clients who share the same attorney - the joint clients don't have attorney-client privilege between each other, but privilege still applies as to third parties. Correct Answers: When does attorney-client privilege apply? No privilege if: 1) attorney's services were sought to aid in the planning or commission of the act that the client should have known was a crime or fraud 2) for a communication relevant to an issue of breach of in a dispute between attorney and client 3) where the client has put the legal services at issue in the case 4) regarding a communication relevant to an issue between parties claiming through the same deceased client Correct Answers: What are the exceptions to the attorney-client privilege? Generally, only the disclosed material is waived (intentionally). No waiver if the disclosure of inadvertent and holder took reasonable steps to rectify. Undisclosed privileged material is only subject to the waiver IF 1) waiver is intentional 2) disclosed and undisclosed material contain the same subject matter AND 3) the material should be considered together to avoid unfairness Correct Answers: What are the limitations on attorney-client privilege and attorney work product waivers? Defendant's other acts of sexual assault or child molestation is admissible in a criminal or civil case where defendant is accused of committing an act of sexual assault or child molestation. Relevant and admissible for any purpose including defendant's propensity to commit sex crimes. Party intending to offer this evidence must disclose it to the defendant 15 days before trial or later with good cause. Correct Answers: When is a defendant's similar misconduct admissible in sex crime cases? 1) by pleading or stipulation 2) opponent's admission 3) eyewitness testimony 4) handwriting verifications, lay or expert witness or jury comparison 5) reply letter doctrine - evidence that it was written in response to communication sent to alleged author 6) ancient documents ( at least 20 years old, in a condition that seems authentic found in a place where it would likely be kept) 7) photographs IF identified by witness as portrayal of certain facts relevant to issue and verified by witness 8) x-ray, ECGs, etc. - cannot be authenticated by witness testimony, must establish custodial chain, working machine, process used was accurate, and operator was qualified Correct Answers: What are methods for authenticating documents? INADMISSIBLE: insurance or lack of insurance NOT admissible to prove negligence or wrongful action ADMISSIBLE: to prove anything else - ownership or control (if disputed) - impeach witness (show bias) - admission of liability where reference to insurance coverage cannot be severed without lessening its probative value (ex: "don't worry, my surname will pay for it") Correct Answers: When is liability insurance admissible and when is it inadmissible? INADMISSIBLE: repairs and precautionary measures following injury is NOT admissible to prove negligence, culpable conduct, defect in product/design, need for warning or instruction ADMISSIBLE: to prove ownership or control in dispute; to prove opposing party has destroyed evidence; to rebut claim that precaution was not feasible Correct Answers: When are subsequent remedial measures admissible and when are they inadmissible? INADMISSIBLE: compromise (settlement) or offer to compromise/settle civil claim NOT admissible to 1) prove or disprove validity or amount of disputed claim 2) impeach witness witness by prior inconsistent statement or contradiction (this also includes conduct and statements made during the course of negotiations) ADMISSIBLE: Can be used to impeach witness on grounds of bias; requires a claim or indication that party was going to make a claim and claim must have be in dispute regarding liability or amount In criminal cases, compromises/negotiations regarding civil disputes with government agencies/institutions are admissible (ex: SEC investigation negotiation can be brought into a DOJ trial) Correct Answers: When are civil settlement and settlement negotiations admissible and when are they inadmissible? INADMISSIBLE: in civil and criminal cases against defendant who made the plea/participated in plea discussions, the following are NOT admissible: 1) offers to plead guilty 2) withdrawn guilty pleas 3) actual pleas of nolo contendre (no contest) 4) statements of fact made during any of the above plea discussions ADMISSIBLE: actual guilty pleas (that are not withdrawn) are generally admissible in related litigation as a statement of an opposing party Correct Answers: When are plea discussions admissible and when are they inadmissible? 1) similar accidents/injuries caused by the same condition/event AND under SUBSTANTIALLY SIMILAR circumstances admissible to prove: a) existence of dangerous condition b) dangerous condition cause of present injury c) Defendant had notice of dangerous conditions 2) Plaintiff's prior accident admissible to show plaintiff's condition attributable (in whole or part) to prior accident 3) Evidence of plaintiff's prior false claims admissible to show likelihood that current claim is false 4) Similar conduct committed by party before may be admissible to prove party's present motive/intent in current cafe 5) Similar occurrences can rebut claim of impossibility 6) Sale price of similar property is admissible if it is in the same area and sold around the same time 7) industry and trade customs admissible to show the appropriate standard of care 8) habit & routine evidence Correct Answers: What are exceptions to the general rule that similar occurrences are NOT admissible? 1) to elicit preliminary/introductory matter 2) witness needs help responding because of loss of memory , immaturity, physical or mental weakness 3) witness is hostile, an adverse party, or a witness affiliated with an adverse party Correct Answers: When are leading questions allowed on direct examinations? A hearsay declarant is not a witness on the stand, but their out-of-court statement is admitted in evidence. Correct Answers: Who is considered a hearsay declarant? A hearsay declarant's credibility can be attacked using evidence that would have been admissible if they were an actual in-court witness. A hearsay declarant does NOT need to be given the opportunity to explain or deny their prior inconsistent statement. An adverse party CAN call a hearsay declarant as a witness and conduct a cross-examination. Correct Answers: How can a hearsay declarant be impeached? Yes, courts have the broad discretion to appoint their own expert witnesses. On a party's motion or it's own, the court may order the parties to show cause why the expert should not be appointed and may ask the parties to submit nominations. Any party may depose the court-appointed expert witnesses, call them as a witness, or crossexamine the expert witness Correct Answers: Can the court appoint its own expert witness? Balance the following factors: 1) whether the expert's theory or methodology has been tested 2) whether it has been subject to peer review and publication 3) its known or potential error rate 4) existence and maintenance of standards controlling its operation 5) whether it is generally accepted in the relevant field Correct Answers: What are the Daubert factors for establishing reliability of scientific testimony?... [Show Less]
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Bar MBE 2022 - Constitutional Law Questions And Answers With Actual Test
Bar MBE 2022 - Constitutional Law Questions And Answers With Actual Test A party has standing when they have CONCRETE STAKE in the outcome of a case at ... [Show More] all stages of litigation, including on appeal. Must establish: 1) Injury - Plaintiffs may only assert injuries they have PERSONALLY suffered or will IMMINENTLY suffer, but the injury does not have to be economic. 2) Causal Connection - Plaintiffs must allege and prove that the defendant caused the injury so that a favorable court decision is likely to remedy the injury (redressability). Article III prohibits courts from issuing advisory opinions. Correct Answers: When does a party have standing to bring a matter to court for adjudication? Generally no. EXCEPTIONS: 1) a claimant with standing in their own right may also assert the rights of a third party if a) there is a close relationship between the plaintiff and the injured third party OR b) the injured third party is UNLIKELY to be able to assert their own rights 2) An organization may sue for its members, if a) the members would have standing to sue b) the interests are germane to the organization's purpose c) neither the claim nor the relief requires the participation of individual members Correct Answers: Can a plaintiff assert claims of third parties not before the court? No, a plaintiff must NOT be suing SOLELY as a citizen or taxpayer interested in having the government follow the law. Citizenship and taxpayer standing are NOT sufficient unless an exception applies. Correct Answers: Can a citizen or taxpayer sue the government for generalized grievances? 1) Taxpayers have standing to challenge government expenditures made pursuant to federal (or state and local) statutes as violating the ESTABLISHMENT CLAUSE. 2) Taxpayers have standing to litigate their tax bill (ex: whether they really owe X dollars) Correct Answers: When does a taxpayer have standing to challenge government expenditures? Ripeness is the question of whether a federal court may grant pre-enforcement review of a statute or regulation. 1) hardship that will be suffered without pre-enforcement review (the greater the hardship, the more likely the court will hear the case) 2) fitness of the issues and the record for judicial review (does the court have all that it needs to effectively decide the issue?) Correct Answers: What factors does the court consider to determine ripeness? They must show a likelihood of future harm Correct Answers: What must plaintiffs show when seeking injunctive or declaratory relief? 1) wrongs capable of repetition but evading review 2) defendant voluntarily halts the offending conduct, but is free to resume at any time 3) a class action will not be dismissed if the named plaintiff's claim becomes moot AS LONG AS one member of the class has an ongoing injury Correct Answers: What are exceptions to the general rule of dismissing a case that is moot (plaintiff's injury has ended)? The political question doctrine refers to constitutional violations that the federal courts will not adjudicate. Political questions involve: 1) issues constitutionally committed to another branch of government 2) issues inherently incapable of judicial resolution Examples: 1) challenges based on the "Republican Form of Government" Clause of Article IV 2) challenges to the President's conduct of foreign policy 3) challenges to the impeachment and removal process 4) challenges to partisan gerrymandering Correct Answers: What is the political question doctrine? 1) Most cases go to SCOTUS by WRIT OF CERTIORARI. SCOTUS has COMPLETE DISCRETION to hear these cases a) cases from state courts where 1) the constitutionality fo a federal statute, federal treaty, or state statute is in issue OR b) from federal courts of appeals 2) Appeal - SCOTUS MUST hear cases that come to it by appeal a) this only applies to 3-JUDGE FEDERAL DISTRICT COURT PANEL that grant or deny injunctive relief (usually this situation results from statute) Correct Answers: What are the ways a case can go to the Supreme Court of the United States for review? 1) cases and controversies between states 2) cases and controversies where 1 party is a state 3) cases and controversies affecting ambassadors, public ministers, and consuls (federal courts have concurrent jurisdiction) Correct Answers: When does the Supreme Court of the United States have original and exclusive jurisdiction? Generally, SCOTUS may hear cases only after there has been a final judgment from the highest state court, a federal court of appeal, or a three-judge federal district court. Correct Answers: What is the final judgments rule? SCOTUS will review a state court decision only if they decision is NOT supported by an independent and adequate state law ground. If a state court decision rests on two grounds, one that's state law and one that's federal law, and if the Supreme Court's reversal of the federal law ground will not change the result in the case (because state law is still applicable), then SCOTUS can't hear the case. Correct Answers: What is the rule on adequate and independent state grounds for SCOTUS to hear a case? Eleventh Amendment: bars suits against states in federal court Sovereign Immunity: bars suits against states in state courts or federal agencies Not applicable to local governments (they can be sued). Correct Answers: What is the difference between the Eleventh Amendment and Sovereign Immunity? 1) States may WAIVE this protection and consent to be sued, but the waiver must be explicit 2) Congress explicitly removes the protection - example: States MAY BE sued pursuant to federal laws adopted under Section 5 of the Fourteenth Amendment (note: Congress can't authorize suits against states under other constitutional provisions) 3) Federal government may sue state governments 4) other states can also sue state governments 5) States are not protected from proceedings filed in federal bankruptcy courts Correct Answers: When can states be sued? 1) for injunctive relief 2) for money damages to be paid out of the officer's own pockets State officers may NOT be sued if the state treasury will be paying retroactive damages for the suit. Correct Answers: When are suits against state officers allowed? Federal courts may not enjoying pending state court proceedings. Correct Answers: What is the main abstention doctrine? No, Congress may act only pursuant to an express or implied power. General police power = adopting laws for health, safety, and welfare of citizens Correct Answers: Does Congress usually have general police power? Congress has police power type powers over District of Columbia, federal lands and territories, military bases, and Indian reservations based on its power over the capital and its property power. Correct Answers: Under what limited circumstances does Congress have police power-type powers? The Clause states that Congress has the power to make all laws necessary and proper (appropriate) for executing any power granted to any branch of the federal government. By itself, this Clause cannot support the constitutionality of a federal law. It MUST work in conjunction with another federal law. NOTE: any answer choice is INCORRECT if it states that a law is supported by the Necessary and Proper Clause or is valid under Congress's power to enact legislation necessary and proper Correct Answers: What does the Necessary and Proper Clause state? Congress has the power to tax and spend for the GENERAL WELFARE. It cannot directly legislate general welfare. Taxing and spending may be for any public purpose not prohibited by the Constitution. Most taxes will be upheld if they bear SOME REASONABLE RELATIONSHIP to REVENUE PRODUCTION or if Congress has the power to regulate the activity taxed. Correct Answers: What does Congress's taxing and spending power entail? Congress has the power to regulate all foreign and interstate commerce. To be within Congress's Commerce Clause power, a federal law regulating interstate commerce must either: 1) regulate channels of interstate commerce (ex: roads, air traffic routes, etc.) 2) regulate the instrumentalities of interstate commerce and persons and things in interstate commerce (ex: planes, trains, shipping containers, trucks, etc.) OR 3) Regulate activities (even though local) that have a substantial effect on interstate commerce NOTE: when the activity is NONECONOMIC, the court will not base the substantial effect on cumulative impact, and will UNLIKELY uphold the law NOTE: Congress cannot regulate inactivity. It can only regulate existing activities. Correct Answers: What does Congress's Commerce Power entail? When the regulation is of ECONOMIC or COMMERCIAL activity and the court can conceive of a RATIONAL BASIS on which Congress could conclude that the activity in AGGREGATE SUBSTANTIALLY affects interstate commerce. However, if the regulated intrastate activity is NONCOMMERCIAL and NONECONOMIC, courts generally will not aggregate the effects and the regulation will be UPHELD ONLY IF Congress can show a DIRECT SUBSTANTIAL ECONOMIC effect on INTERSTATE commerce, which it generally will not be able to do. Correct Answers: When will courts uphold Congress's attempt to regulate intrastate activity? The Tenth Amendment states that all power not granted to the United States, nor prohibited to the states, are reserved to the states or the people. Congress may prohibit harmful commercial activities by state governments WITHOUT violating the Tenth Amendment. Correct Answers: What does the Tenth Amendment state? Congress cannot compel state regulatory or legislative action. Correct Answers: What is the AntiCommandeering Principle? By placing conditions on the grant of money to those governments Such grants won't violate the Tenth Amendment, if the conditions 1) are expressly state, 2) relate to the purpose of the program, and 3) are not unduly coercive. Correct Answers: How can Congress induce state and local government action under its spending power? Section 5 of the Fourteen Amendment gives Congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the Fourteenth Amendment. Congress may NOT create new rights or expand the scope of rights under this provision. It may act only to prevent or remedy violations of rights recognized by courts. Such laws must be PROPORTIONATE AND CONGRUENT to remedy in constitutional violations. Correct Answers: What is the scope of powers that Section 5 of the Fourteenth Amendment gives to Congress? There must always be bicameralism (passage by both House and Senate). There must also always be presentment (giving President bill to sign or veto)? President must sign or veto the bill in its ENTIRETY. It is unconstitutional for the President to veto part of a bill. NOTE: it is unconstitutional for Congress to attempt to overturn an executive action without bicameralism or presentment Correct Answers: What must happen for Congress to pass a legislative bill? No Correct Answers: Can Congress delegate executive power to itself or others? 1) power to declare war, raise and support armies, and provide for and maintain a navy 2) implied power to investigate to secure information as a basis for potential legislation or other official action 3) power to dispose of and make rules for territories and other properties of the U.S. 4) power to establish uniform rules for bankruptcy 5) exclusive power to establish postal services 6) power to establish uniform rules of naturalization 7) plenary and exclusive power over admiralty issues (Congress leave maritime matters to state jurisdiction) 8) power to coin money and fix standards for weights and measures 9) power to control issuance of patents and copyrights Correct Answers: What miscellaneous powers does the Constitution give to Congress? Yes, however resident aliens are entitled to NOTICE AND HEARING before they can be deported. Correct Answers: Can aliens be refused entry because of their political beliefs? Treaties between U.S. and foreign countries are negotiated by President and ratified by two-thirds of the Senate. Treaties prevail over conflicting state laws. Treaties do NOT prevail over the U.S. Constitution. If a treaty conflicts with a federal statute, the one adopted last in time controls. Correct Answers: How is a treaty ratified and what happens when treaties conflict with other existing laws? Federal laws supersede contradictory state laws, but federal regulations may NOT commandeer state officials. Correct Answers: What is the relationship between federal and state laws in regards to the Supremacy Clause and Tenth Amendment? An executive agreement between the U.S. and a foreign county that is effective when signed by the President and the head of the foreign nation. They can be used for any purpose. Executive Agreements prevail over existing state laws, but NEVER over conflicting federal laws or the Constitution. Correct Answers: How does an executive agreement become effective and what happens when treaties conflict with other existing laws? Presidents have the exclusive power to recognize foreign states and what is included in a foreign state. President has broad discretion in determining whether to admit individuals to the U.S. President has broad powers as Commander-in-Chief to use American troops in foreign countries. Correct Answers: What is the scope of the President's powers in regards to foreign affairs? President appoints ambassadors, federal judge, and officers of the U.S. (with approval of the appointment coming from the Senate). Congress may vest the appointment of inferior officers in the President, the heads of departments, or the lower federal courts. Congress may NOT give itself or its officers the appointment powers. President may NOT make recess appointments (which don't require Senate approval) during intrasession recesses that are less than 10 days. President may fire any executive branch officer (unless removal is limited by statute). Correct Answers: What is the scope of the President's powers in regards to domestic affairs? 1) The removal must be from an office where independence from the President is desirable 2) Congress can't prohibit removal (though it can limit removal to where there is good cause) AND 3) the removal can't be of a single person who heads an agency and exercises substantial discretion Correct Answers: What requirements must be met in order for Congress to limit the President's removal powers when it comes to executive branch officers? The President, the Vice President, federal judges, and U.S. officers can be impeached and removed from the office for treason, bribery, or for high crimes and misdemeanors. Impeachment doesn't remove a person from office (a conviction is required). Impeachment by the house of Representatives requires a majority vote; conviction in the Senate requires a two-thirds vote Correct Answers: How does impeachment work? Executive immunity means the President has absolute immunity to civil suits for money damages for any actions WHILE in office. The President does NOT have immunity for actions that occurred PRIOR to taking office. Correct Answers: What is executive immunity? The President has executive privilege over presidential papers and conversations (the right to keep that information confidential). The privilege must yield to other important government interests. Correct Answers: What is executive privilege? The President has NO immunity to keep the President's financial records from being subpoenaed by a state grand jury, but if the financial records are subpoenaed by a congressional committee, the court must balance the competing interests. Correct Answers: Can the President's financial records be subpoenaed? The President has the power to pardon those accused or convicted of federal crimes. Pardons can ONLY be for federal crimes, not for state crimes or for civil liability. The Pardon power cannot be limited by Congress. Correct Answers: What is the scope of the President's pardon power? Yes, if the veto is overridden by a two-thirds vote of each house. Correct Answers: Can an act still become law if it is vetoed by the President? President's powers over internal affairs are unsettled. They have some power to direct subordinate executive officers and issue executive orders. 1) If the President acts with the express or implied authority of Congress, the President's authority is at its maximum and the President's actions likely are valid. 2) If the President acts where Congress is silent, the action will be upheld unless it usurps the power of another governmental branch or prevents another branch from carrying out its tasks 3) If the President cats against the express will of Congress, the president has little authority, and the action likely is invalid Correct Answers: What is the scope of the President's power over internal affairs? It provides that the Constitution, and the laws and treaties made pursuant to it, are the supreme law of the land. Therefore, if there's conflict between federal law and state and local law, the federal law will preempt the state law. Correct Answers: What does the Supremacy Clause of Article VI state? When a federal and state law are mutually exclusive, the federal law will impliedly preempt the state law. However, states may set environmental standards stricter than federal law unless Congress clearly prohibits this. If as state law impedes the achievement of a federal objective, the federal law will preempt the state law. If Congress evidence a clear intent to preempt state law in a certain field, the federal law will preempt the state law even if a state law does NOT conflict with the federal scheme. The courts will look at the federal regulatory scheme to deduce whether Congress intended to preempt the entire field. If federal laws on a topic are comprehensive or an agency was created to oversee this area, field preemption may be found. Correct Answers: What is implied preemption? Courts will start with the presumption that the historic state police powers are not to be superseded unless that was the clear and manifest purpose of Congress Correct Answers: Wha is the presumption against preemption rule? State and local laws are unconstitutional violations of the Commerce Clause if they place an undue burden on interstate commerce. States may not favor local economic interests or unduly burden interstate commerce. Correct Answers: What is the Dormant Commerce Clause? States may not deprive citizens other states of privileges and immunities it accords its own citizens. Correct Answers: What is the Privileges and Immunities Clause of Article IV? Laws state that interfere with the right to travel are unconstitutional. Correct Answers: What is the Privileges and Immunities Clause of Fourteenth Amendment? 1) Dormant Commerce Clause; UNLESS it is necessary to achieve an IMPORTANT GOVERNMENT PURPOSE a) State or local regulations that discriminate against interstate commerce to protect local economic interests are almost ALWAYS invalid b) To be valid, state and local government must show that no less discriminatory alternatives are available and that it furthers an important, noneconomic state interest 2) Privilege and Immunities Clause of Article IV - if the law discriminates against out-of-staters with regard to their ability to earn their livelihood, it violates this clause UNLESS it is necessary to achieve an IMPORTANT GOVERNMENT PURPOSE. a) law discriminates against out-of-staters b) the discrimination is with regard to fundamental rights or important economic activities c) party is proper; corporations and aliens cannot use the privileges and immunities clause d) discrimination is necessary to achieve an important government purpose Correct Answers: What laws are violated when a law discriminates against out-of-staters AND burdens interstate commerce? 1) congressional approval 2) State as a market participant - state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses 3) favoring government performing traditional government functions (such as a waste disposal); discrimination against interstate commerce in such a case is permissible because it is likely motivated by legitimate objectives rather than by economic protection 4) furthers an important, noneconomic state interest and there are no reasonable non discriminatory alternatives Correct Answers: What are exceptions to the Dormant Commerce Clause? Rational basis Because the states have a history of regulating the internal governance of corporations that they create and have a strong interest in doing so, even a corporate governance statute that heavily impacts interstate commerce may be upheld. Correct Answers: What standard applies to statutes adopted by the state of incorporation regulating the internal governance of a corporation? Dormant Commerce Clause IF the law burdens interstate commerce AND the burdens exceed the state's interest in the action/benefits. The court will consider whether less restrictive alternative are available. Correct Answers: What law might be violated even if a law does not discriminate against out-of-staters? Commerce Clause - yes. Privileges and Immunities Clause of Article IV - no. Correct Answers: Under the Commerce Clause and the Privileges and Immunities Clause of Article IV, may an aliens or a corporation be a plaintiff? Congress has complete power to authorize or forbid state taxation that affects interstate commerce. Correct Answers: What is the scope of Congress's power over state taxation? States may NOT use their tax systems to help in-state businesses. A state may tax activities if there is a SUBSTANTIAL NEXUS to the state. A substantial nexus exists when a business avails itself of the privilege of doing business in the state. Physical presence in the state is not necessary. State taxation of interstate businesses must be fairly apportioned. The taxpayer has the burden of proving unfair apportionment. Correct Answers: What is the scope of the state's taxation powers? Use taxes are imposed on goods purchased outside the state but used within it. Valid under the Commerce Clause unless they are higher than sales taxes. Correct Answers: What are use taxes? No. Commodities in interstate transit are entirely exempt from state taxation. a) Interstate transportation begins when the cargo is delivered to an interstate carrier OR actually starts its interstate journey. b) A BREAK in the continuity of transit does NOT destroy the interstate character of the shipment unless the break was intended to end or suspend the shipment. c) the interstate shipment usually ends when the cargo reaches its destination; thereafter the goods are subject to local tax Correct Answers: Are commodities in the course of interstate commerce taxed? An interstate seller may be required to collect a use tax if the seller has a SUBSTANTIAL NEXUS with the taxing state. A physical presence is NOT required to establish a substantial nexus. Correct Answers: When can a state force sellers to collect use taxes? Usually valid. They key issues is whether there is a substantial nexus between the taxpayer and the taxing state or whether the tax is properly apportioned. Correct Answers: How do you determine the validity of a state's sales tax? They are based on the assessed value of the property in question. Commodities: valid under the Commerce Clause only if property is not longer in interstate commerce Instrumentalities: valid if instrumentality has taxable situs in state and tax is fairly apportioned. Full tax by domiciliary state valid unless taxpayer can prove a defined part has acquired taxable situs elsewhere - taxable situs = whether there are sufficient contacts with the taxing state to justify the tax; basically if the instrumentality receives benefits or protections from the state - tax apportioned on the value of the instrumentality will be upheld if it fairly approximates the average physical presence of the instrumentality in the taxing state Correct Answers: What are ad valorem property taxes? They are generally permitted. Such taxes may be measured by a flat amount or by a proportional rate based on contact with the taxing state. Basic requirements must be met: 1) activity must have a substantial nexus with the taxing state 2) tax must be fairly apportioned 3) tax must not discriminate against interstate commerce 4) tax must fairly relate to services provided by the state Correct Answers: Are privilege, licensed franchises, or occupational taxes. permitted? Like the Commerce Clause, it greatly limits the states' power to tax foreign commerce. Correct Answers: What is the effect of the Import-Export Clause? State governments have wide latitude over the importation of liquor and the conditions under which it is sold or used within the state. However, regulations that constitute only an economic preference for local liquor manufactures may violate the Commerce Clause. Liquor in interstate commerce is subject to the Commerce Clause. Congress may regulate economic transactions involving liquor through the federal commerce power. Correct Answers: What is the scope of state and Congress taxation power under the Twenty-First Amendment? State action includes action taken by the government and government officers at all levels (local, state, or federal). Activities that are traditionally the exclusive prerogative of the state are state action no matter who performs them. State action exists wherever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens. The state must be SIGNIFICANTLY involved in the private entity. Mere acquiescence by the state in private conduct is not enough. States are NOT constitutionally required to outlaw discrimination. Correct Answers: What is considered state action? Third Amendment right to not have a soldier quartered in a person's home. Fifth Amendment's prohibition of criminal trials without a grand jury indictment. The Seventh Amendment's right to a jury trial in civil cases. Correct Answers: Which Bill of Rights are not incorporated and do not apply to the states? The Thirteenth Amendment prohibits slavery and involuntary servitude. Under its Enabling Clause, Congress can prohibit racially discriminatory action by anyone (government or a private citizen). Correct Answers: What is the Thirteenth Amendment? It prevents states from depriving any person of life, liberty, or property without due process and equal protection of law. Private conduct is generally not prohibited. Applies only when som e state action is involved. Correct Answers: What is the Fourteenth Amendment? Section 5 of the Fourteenth Amendment gives congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the Fourteenth Amendment. Congress may NOT expand existing constitutional rights or create new ones. It may only enact laws to PREVENT OR REMEDY violations of rights already recognized by the courts. To adopt a valid law, Congress must point to a history or pattern of state violation of such rights and adopt legislation that is CONGRUENT AND PROPORTIONAL to solving the identified violation. Correct Answers: What is the scope of Congress's power under the Fourteenth Amendment? It prevents federal, state, and local governments from denying a citizen the right to vote on account of race or color. Private conduct is generally not prohibited. Applies only when som e state action is involved. Correct Answers: What is the Fifteenth Amendment? Congress may prohibit PRIVATE racial discrimination in activities that might have a SUBSTANTIAL EFFECT on interstate commerce. Correct Answers: What power does the Commerce Clause grant Congress in regards to address racial discrimination? congress has internet power to protect rights of citizenship (interstate travel, assembly, and the right to petition Congress for redress) Correct Answers: What is the scope of Congress's power with regards to rights of national citizenship? INTENTIONAL and RECKLESS government action that deprives life, liberty, or property without following adequate procedures Government negligence is NOT enough to form a basis for a process urea law due process claim. Government's failure to protect people from privately inflicted harms is NOT a denial of due process. Correct Answers: What is required for a successful procedural due process claim? 1) the importance of the interest to the individual 2) the ability of additional procedures to improve the accuracy of the fact-finding against 3) the government interest, which is usually focused on fiscal and administrative efficiency Notice and chance to respond are USUALLY required BEFORE the termination of a liberty or property interest. Fair procedures and an unbiased decision maker are always required. Correct Answers: What are the factors balancing test under the Due Process Clause? When there is an ENTITLEMENT that is not fulfilled. An entitlement exists if there is a REASONABLE EXPECTATION that a benefit will continue. examples of property interests: continued attendance in public school, welfare benefits, government employment (in some cases Correct Answers: When is property considered deprived? 1) Real property - generally the government must provide the owner notice and an opportunity for some type of hearing prior to seizing it 2) Personal property - government may be able to seize it prior to providing the owner a hearing, since personal property can be hidden or destroyed Correct Answers: What happens when government seizes property allegedly subject to forfeiture? Due process rights are generally subject to waiver if waiver is VOLUNTARY and made KNOWINGLY. Correct Answers: Are due process rights subject to waiver? Government fees must be waived when the imposition of a fee would deny a FUNDAMENTAL RIGHT to the indigent. However, fees can be imposed when non fundamental rights are involved. Correct Answers: When are government fees REQUIRED to be waived? CONTINUES... [Show Less]
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