PARA 86 SEOND HALF STUDY GUIDE

You will need to be familiar with the cases we have studied; the format will be the same as the midterm.

PARA 86 COMMUNITY PROPERTY LECTURE

NOTE: I will NOT be testing you on Van Camp/Periera, or Lucas/Anti Lucas.

SPOUSAL SUPPORT

Reciprocal obligation to support each other CP; SP; and QCP – later Not just for post dissolution Dissolution

o Earning cap to maintain standardo Earning capacities

Marketable skills How domestic life dimished earning cap of skills

Or increased cap of working spouseo Ecuation, etc.

Goal to make each party independent within reasonable period of time

One half length of marriage- guideline only Ten years = lengthy marriage

o Court can still deny support Here, new cohabitation DOES affect support

o Dies with either partyo Dies with remarriage

Putative spouseo Significant changeo Error in expectations

Community property

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o Presumption: All property acquired during marriage, except by descent, devise, or gift, is CP

o Equal management and control SP

o All prop owned prior to marriageo Gift, devise, descent, bequesto Profits of SP

QCPo Property that would be CP if it had been purchased in CAo Divided as CP upon dissolution

Source That which flows from SP is SP; vice versa What funds were used to acquire

Tracingo To overcome presumption

PROPERTY

Real

Personal

Tangible/ intangible

Estates in property

o Tenancy in common

Percentage irrelevant; No right of Survivorship

To heirs

o JTWROS

Possession, interest, title, and time

ROS: interest to surviving spoouse

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o TBE

Only for H and W

Not in CA

Community property

o Acquired during existence of MEC

o Except

Gift, bequest, devise, descent

Rents, issues, and profits of SP

Property acquired in exchange for SP

o Tracing can overcome presumption

o Problematic

Personal injury recovery; 3d P tortfeasor

If injury caused during marriage = CP

Injury Post separation = SP

Against other spouse = injured spouses SP

Retirement pensions

CA: CP to extent earned during MEC

CA ignores wage replacement; sees as savings for old age

Vested

o Minimum met to qualify for benefit

o Unvested if not yet completed

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CA treats both as CP

Stock options

o Time rule again

o Education and training

Default: not CP

But CA has “equitable right of reimbursement, if:

CP funds are used to pay for education, or are used to repay loan; AND

Ed/training substantially enhances the earning capacity of the educated spouse

Also applies if CP funds were used to pay off pre-maritally acquired student loans

If loan is still outstanding at divorce, payments are assigned solely to the educated spouse

Dissipation

o One party intentionally depletes MEC

o Equitable remedy

Separation

o After date of, is SP

o Date: when marriage is truly over, with intent to remain single

Subjective: date shown by evidence

Objective: outward appearance

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Presumptions: title in joint form; disproportionate contributiono [[SKIP]]o [[Presumption of gift

1980 Lucas resolution Act of taking as joint tenants creates presumption of gift

to community; Can overcome only by agreement between parties of

intent to maintain SP interest; no writing required When marriage ends in death, Lucas still applies

Post Lucas 1984-1987: if in JT = presumption, writing required to rebut

Anti Lucas legislation; 1987 on Title in any joint form creates presumption of CP;

however, writing required]]o Title creates presumption:

Howard and Wilma as JT = CP Wilma, as married woman, sole and SP = SP

o Title can be transmuted during marriage To CP; one spouse From CP to SP: both spouses

o SP funds contributed to CP and proof if SP inent: Right of reimbursement; no interest Includes improvements to other’s SP, or CP

Tracingo To prove source

Business and valuationo Goodwill

Likelihood of repeat business Is expected earnings

o Valuation of business Professional assessment

o Dates

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At marriage; at dissolution

When community funds or labor enhance value of SP businesso To apportion the SP component of the business the managing spouse

brought in to the marriage and the CP value added by her labor Two methods:

Van Campo Manager’s services at going market rate for those

serviceso Subtract amount of family expenses paid from

business earningso Remainder, if any is CP; rest of value is SP

Pereirao Start with SP value at marriageo At 10% a year (changes with interest rate)o Do not subtract family expenses

Which to useo Pereira when managing spouse was reason for

increase in valueo Van Camp when market rose on its own

QDRO (Qual. Dom. Rel. Order)o To secure interest in retirement income of ex spouse

Liability of community estateo All debts of either spouse, before or after marriageo Unless

Separate earnings are kept out of reach of debtor spouse; wall between, no comingling

o Reimbursement If CP funds pay support from former marriage, and SP funds

were available, Community estate has right of reimbursement Liability of SP

o for all debts self incurred

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o Not for debts of other spouse Except for Necessities of life

Debts at dissolutiono Divided equally as with propertyo SP of non-debtor spouse not liable for pre-marriage debts

Tort liabilityo Was tort committed for benefit of community?o If so, CP funds satisfyo If not CP funds do not

Quasi marital propertyo Marriage was ultimately not valid; innocent spouse is protectedo However, property treated at CP and QCP

SOURCES OF rightso Constitution(s)o Court decisions ( case law)o Statutes

1st Am 2nd Am 4th amemdment

o Search and Seizure 5th am

o DP 6th am

o Open trials; issue 8th am 14th am

substantive DP no arbitrary or unreasonable action by state officials

procedural DP Life, lib, prop

o Incorporation Selective won

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Grand jury indictment Terry v. ohio

o Reasonable suspicion v. probable cause PC: reasonable ground for suspicion that a person….; or that a

place contains specific items connected with a crime RS: a specific and articulable facts … suspecting a person…

Subjective v. Objectiveo Subjective reasonableness:

Conduct that would be considered reasonable by that officer engaged in that conduct (the, the)

Based on an individual’s perceptions and feelings, as opposed to externally verifiable phenomena

o Objective reasonableness What (any) reasonable person would do or feel under the

circumstances Based on externally verifiable phenomena; w/out bias or

prejudice- disinterested Good faith exception to exclusionary rule Pretrial

o Arrest on warranto If w/out warrant: PC hearing to determine PC to arrest* (not always

done)o Prelim is hearing to decide if there is PC to hold over for trial

Adjudicationo Plea bargainingo Discovery

Brady material Sentencing

o Low, middle, higho Misdoo Felonyo wobbler

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Appealo No constitutional right to appealo All states have a statutory right to appeal, once

Habeus Corpuso Collateral attack, as opposed to direct appealo Very difficulto Must be constitutional basiso Loser can appeal

Exclusionary ruleo Remedy to avoid future violations

Mapp v. Ohioo Exclusionary applies to stateso …it is the law that sets him free. Nothing can destroy a gv’t more

quickly than its failure to observe its own law, or worse, its disregard of eth charter of its own existence

Exclusionary rule does not apply to:o GJ proceedingso HC proceedingso Parole Revocation

Advisory not adversarialo IRSo INS

Good faith exceptiono Warrant cannot be facially deficient

Impeachment exceptiono Crim defendant only

FPT doctrineo That found purely, but indirectly as a result of improper searcho Exceptions

Purged taint

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Ev found: big Q:o Was derivative ev found via original violation or

some other means that are purged of the primary taint

o Wong Sun: D was illegally arrested, but later came back, of his own free will to the station house and confessed: attenuated to dissipate taint

Independent source Entered apartment illegally; then, after that, obtained

search warrant from other info- independent of original search

Inevitable discovery If it would have been discovered by lawful means

4th am analysiso Government actor

Regulators/inspectors too PS in gov cap

o Instrument or agent of the state

Private cit: purely on own initiative But if PS gives to state, and state does more to search,

then is gov actor( the film canisters): substantially more intrusive

o Reasonable expectation of privacy Now, subjective and objective combined Seeks to preserve as private

o Justification for seizure/search

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Undercover/ false friendo Information conveyed voluntarily to a false friend

Abandoned propertyo Garbage on the street: children and snoops

One’s physical characteristicso No REP

Open fields and cartilageo Curt.= area to which extends the intimate acvitivy associated with

the sanctity of a man’s home 4th am applies

o V.= open fields 4th am does not apply

o To distinguish Proximity to house Is area within fence surrounding the house Nature of use Steps to ensure privacy

o Naked eye flyover = no search Dow: even enhanced photos = no search

But: must be lawful Kyllo: thermal imaging

o Not in general use by publico Get a warranto Dog outside apartment

Helicopter = ok sans warrant Seizure

o Property If removed from actual or constructive possession

o Person Reasonable belief… By pursuit

But, must submit to police authority

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Hodari Do No PC to arrest: chased, tossed, no 4th am

So, if 4th am applies, what does it requireo A priori justificationo Reasonableo For warrantless search and seizure, need PCo Scale

PC RS Admin justification

PCo Beck v. ohio

Above reasonable suspicion, less than for conviction Reasonable ground to suspect that a person has committed (is

committing) a crime, or that a place contains specific items connected with a crime

o Always required for: Arrests: w or w/out warrant Searches and seizures of prop w/ or w/out warrants

o Informants Sufficient info of how CI reached conclusion

Specific detail Establish reliability Totality of circumstances

o Reasonable but mistaken First hand knowledge

o Before arresto Ybarra: warrant for tavern, not the patrons

Challenging the warranto Show:

Cop lied, delib, or reckless disregard Specific part of warrant that is false

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Supporting reasoning Affidavits Only to cops, not CI’s

RSo Below PC, above hunch

Admin searcheso Reasonable standardso Non arbitraryo Can not be searching for evidenceo Highly regulated industries

Standing: no vicarious assertiono Need standingo Must be the ‘victim of the search’o More than prejudiceo Third person’s property…

Anyone legitimately on the premises→ reasonable expectation of privacy by TOC

Right to exclude others Continuing access with possessory interest Legitimately on premises and a possessory interest in

the thing seized First excuses

o Exigent circo Administrative

Warrant componentso Neutral and detached

Officer engaged in the often competitive enterprise of ferreting out crime

No bonus for signing No personal interest

o PC To arrest

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Pc that person arrested committed the crime

o Particularity Person = easy Place

With enough description that officer can ascertain place Reasonable mistake

Thing Reasonable basis for mistaken belief, seizure will be

upheld Plain view In complex cases, can be more general

Arrest with warrant’o Illegal arrest: remedy is release

But FPT doctrine applieso Arrest req’s PC: stop only RSo Stop or arrest?

Weigh: (purpose, manner, location, duration) Duration of stop Degree of intrusion Officer’s intentions Custodial interrogation must be supported by PC

o Stop can become arrest- escalation At border, lower standard

16 hours for nature to run its course did not equal arrest In home:

Beware IRS Detained can become arrest

o Btu, detained while searching per warrant, does not equal arrest

Arrest warrant required:o In home, sans exigent circ

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o In 3d party home, need two warrants Knock and announce

o Unless dangerous or futile: RS standard (exigent circ)o Time to wait_ facts driveno Damage:

Reasonable = no issue for police Extreme cases: 14th am comes into play

Sacrmeento: shock the conscience standard- leads to liability

Amount of forceo Reasonable necessaryo Remember lethal force from before

Wrong persono Reasonable mistake

Searches with warrantso Knock and announceo Lacking will not lead to exclusiono Reasonable mistake

Time Promptly Time of day

Scope/ manner Reasonable based on object of search Detain people on premises, but do not search them

o ybarra Procedure

inventory Presence of media

Violation of 4th amo Bodily intrusions

Shock the conscience Surgery

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o Case by case- very touchyo Civil asset forfeiture

Used to facilitate commission of the crime Real estate: prior haering Personal prop

Hearing after Technology

o Private or public

HEARSAY

NOTE: I will NOT test you on all the exceptions: I will let you know which to memorize early next week. It will only be three.

Hearsay introo An out of court statement, offered into evidence, to prove the truth

of the matter assertedo Rationale

Party against whom testimony is offered has a (constitutional) right to cross examine the declarant

To test:o perceptiono Memoryo Articulatenesso Veracity

Contemporaneous cross examination The witness could be offering his own statement:

o I do not remember the accident, but I remember saying to my wife: wow, what a crash – the red car ran the light

o Statement was out of court, is for the proof, and its content cannot be challenged

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o Truth of matter asserted: Witness testifies: “on April 2nd, Debbie said to me, ‘I was in

Buffalo yesterday” If issue is whether Debbie was in Buffalo on the 1st, it is

hearsay; If issue is whether Debbie was able to speak on the April 2nd, it

is NOT hearsay.

FRE 801 (a)-(c), 805, 806 Exceptions

o §803: whether or not declarant is unavailable 23 exceptions

o §804: Only if declarant is unavailable 5 exceptions

o §801(d) Exemptions

Prior statements of a witness Admissions of a party opponent

Declaranto Person who makes a statemento Implied assertionso Assertive conducto Not

Radar, tracking dogs Not hearsay

o To show effect on listenero Verbal acts

FED Exemptions o Prior inconsistent statements

Declarant must be testifying Inconsistent with current testimony

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If former statement made under oath;o Prior statement if ID

Allows in statements made at line-upso Admission by party opponent

Admission that amounts to a prior acknowledgment of a relevant fact

Party cannot object that he does not have opportunity to explain; covers cross exam need, = not hearsay

Can be individual, adoptive (silence too), authorized, agent, or co-conspirator

Judicial: Judicial: conclusive: verdict Evidentiary: can be explained: testimony at prior trial

EXCEPTIONS; DECLARANT UNAVAILABLEo Privilegeo Refusing to testifyo Lack of memoryo Death, illnesso Absent, unable to procure with reasonable meanso Former testimony

Of now unavailable witness; as long as there is/was Sufficient similarity of parties and issues; Opportunity to cross was meaningful

GJ testimony does not fit: no chance to crosso Statements against interest

Unavailable declarant: statement against own pecuniary, proprietary, or penal interest, when made

Unlike admission: this must have been against interest when made

o Dying declarations In prosecution for homicide, or in civil trial; Declaration of now unavailable declarant;

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Believing death was imminent; Concerns cause or circumstances of death

o Statements of personal or family history EXCEPTIONS, AVAILABILITY IMMATERIAL

o Present state of mind I am gonna shoot you; I intend to leave next week; I love living

in Coloradoo Excited utterances

During or soon after startling event; Under stress; About immediate facts – no time to reflect

o Present sense impressionso Declarations of physical condition

Present bodily condition Made to anyone;

Past bodily condition – if to assist treatment Made to doctor

o Business records Any writing or record; Kept in normal course of business; Not for litigation Under duty to record

o Past recollection recorded Keep apart from “present recollection revived” Made by observer when facts were fresh in memory

o Public records and reports Matters observed pursuant to a duty imposed by law

Excluding police reports in criminal cases Civil cases

Manuals, duty logs, etc. Police reports: Can use the reports, but not the

statements told to the officer

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Judgments Copy of judgment always admissible Prior criminal convictions

o Only felonies Judgment in civil case

Inadmissible in criminal trial Usually inadmissible in subsequent civil as well

o Ancient documents Over 20 years old = admissible

o Reputation Character Family history Land boundaries

o Family records In bibles, crypts, jewelry engravings

o Market reports Generally relied upon

o Catch-all Trustworthiness Necessity

Material and more probative than any other evidence Notice to adversary

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