Professor Heilman’s Predictions—February 2012

My predictions are educated guesses. Sometimes I’m right on 5-6 questions. Sometimes I’m only right on 2 ½ -3. The California Bar Exam usually has a balance of multistate and non-multistate subjects. It usually has a subject which requires you to address California law. The exam is intentionally designed to be unpredictable. Based on this, you should study every subject. You should be prepared to write about every subject---especially the subject you hate or fear the most. You can use my predictions (and your own) to help you prioritize in the last days before the exam. I would probably review those subjects I think are more likely to be on the exam right before the exam. If I think something is highly likely and I didn’t see it on Tuesday, I might take one last glance at it on Wednesday night.

Here is what was tested on the last four California Bar Examinations:

Past Bar Subjects

February 2010 Bar Examination SubjectsContracts (Common Law, Modification; Time of the Essence; Repudiation)Business Organizations/Professional Responsibility (Law Partnership)Trusts (Trustee’s Duties; Omitted Child; Abatement)Contracts/Remedies (Service Contract; Statute of Frauds; Specific Performance)Real Property/Constitutional Law (Takings)Community Property (Antenuptials; Transmutation; Van Camp/Pereira; Post-

Separation Debt for Necessary)

July 2010Torts (Negligence, Negligence Per Se, Intentional Torts)Professional Responsibility (Duty of Loyalty-Conflict of Interest, Atty’s Fees

Paid by Third Party, Duty of Competence)Evidence (California Law: Hearsay, Authentication of Phone Call, Character and

Impeachment)Business Associations (Partnership, Authority of Partners, Contract Liability)Criminal Law/Procedure (4th A; Guilty Plea; Attempt)Community Property (Joint Tenancy, Tort Liability, Fiduciary Duty)

February 2011Wills (Revocation; Form Will; Lapse/Anti-Lapse for Adopted Child)Constitutional Law (First Amendment-Free Exercise/Establishment Clause)Real Property (Landlord Tenant; Covenant/Servitude; Easement)

Torts (Negligence)Business Associations/Prof. Resp. (Voting; Self-Dealing; Conflict of Interest)Evidence/Remedies (Hearsay, Legally Operative Statement; Reformation)

July 2011Criminal Law (Burglary, Larceny, Conspiracy, Accomplice Liability)

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Civil Procedure (Discovery, Amendment, Relation Back, Collateral Estoppel)Contracts (Services for Property, Lapse of Offer, Capacity, Statute of Frauds)Professional Responsibility (Conflict of Interest, Competence, Threat of Report to

Gain Advantage in Civil Case)Real Property (Joint Ownership, Right of Entry, Severance, Adverse Possession)Community Property (Premarital Agreement, Settlement of Claim for Wages,

Gambling debt)

Subjects just tested last July are slightly less likely to appear in February, but the examiners can and do repeat subjects tested on the last exam. As you can see, Real Property was tested on three of the last four exams, which probably makes it a little less likely this time around. Professional Responsibility has been tested repeatedly. This is the one subject you should always expect to see on the exam. It is almost always tested as part of the essay portion of the exam.

MORE LIKELY SUBJECTS ON THE UPCOMING BAR EXAM:

Professional ResponsibilityPR is usually tested on every exam. I always expect the exam to include a full-

blown PR essay. I would not be surprised by a question involving joint representation in the criminal context and a client who wants to testify untruthfully. Also, watch out for the scenario where the criminal client turns over evidence to his or her attorney. The examiners haven’t tested the issue of attorney advertising and solicitation for a couple of years so make sure you review those rules. Be on the lookout for the attorney who represents an entity or organization. Remember that the attorney represents the organization, not the individuals who make up the organization. Review who holds the attorney-client privilege in this context. Make sure to review the rules regarding fees, especially contingency fees. Also, the examiners have tested the issue of sexual relations with a client a couple of times so I wouldn’t be surprised to see that issue raised again. PR questions require in-depth factual analysis. Make sure you spend a lot of time incorporating the facts into your answer and explaining the significance of the facts. Also, review some of the key situations where the California Rules deviate from the ABA Rules, especially with regard to splitting fees with other attorneys.

RemediesDon’t be surprised by a either a full Remedies question or a cross-over question

with a Remedies issue. Make sure you review the requirements for injunctive relief. They haven’t tested constructive trust and equitable lien for a while so make sure you review those remedies, including the lowest-intermediate balance rule. I suspect they will test Remedies either as part of a Contracts question or as part of a question involving nuisance. When they do this you may be required to discuss mitigation. Also, understand the requirement that damages be relatively certain and not speculative. Also, make sure you understand remedies designed to prevent unjust enrichment. You should review the requirements for specific performance in case they give you a situation where legal remedies are inadequate.

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ContractsContracts was on the last exam, but I think they might repeat it. They haven’t

asked a UCC question for a while and they can easily cross over Contracts with Professional Responsibility. Make sure you review merchant’s firm offer, UCC 2-207 and the different approach to modifications under the UCC. Review the parol evidence rule as well as impossibility and impracticability. You should also review the perfect tender rule. Pay attention to the issues involving remedies, especially remedies for buyers and sellers under the UCC. Review the requirements for liquidated damages and also the requirements for specific performance. I would not be surprised by a cross-over question involving Contracts and Remedies.

Civil ProcedureCivil Procedure was tested on the last exam. It was previously tested in July 2009.

If there is one subject the Examiners might repeat, Civil Procedure is a good bet. This may be the year that they test on the California distinctions. The question on the last exam did not involve the standard topics of personal and subject matter jurisdiction so I would certainly be ready for those topics. You should review supplemental jurisdiction. Make sure you review the different sanctions for non-compliance with discovery obligations. Make sure you review the work product privilege. Review the rules regarding removal and remand. I wouldn’t be surprised by a question involving res judicata. You are probably thinking that they just tested collateral estoppel so they wouldn’t go back to that issue again, but they have repeated the topic several times in a row. I would be prepared for a question involving joinder, venue and the right to jury trial in a civil case. Also, you should look at the basic requirements for class actions.

EvidenceEvidence is a frequently tested subject. It was not tested on the last bar exam but

it was tested on the two exams before that. I think an Evidence question is at least possible if not likely on this exam. I would expect a question involving a criminal prosecution. Hearsay is always fair game, but they often use a criminal-based question to ask about character and impeachment evidence. I wouldn’t be surprised by a transcript type question with some form problems such as leading questions, assuming facts not in evidence and argumentative questions. If they give you a civil dispute, look out for the policy exclusions like proof of liability insurance, offers to settle, offers to pay medical expenses and subsequent remedial measures. Also, make sure you think about the Best Evidence Rule and authentication. Be prepared to address the California distinctions regarding impeachment. If the Examiners want you to discuss California law, they will ask you to answer according to California law or they will tell you that the dispute is in a California state court.

TortsTorts has been on three of the last five bar examinations. For that reason, I’m

hesitant about this prediction. If it gets tested, be prepared for a question involving defamation with the constitutional defenses. Whenever defamation is raised, you should

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always be on the lookout for the invasion of privacy torts. Be prepared for a question involving products liability. Remember to review all of the different theories under which you can hold a person liable for injuries caused by a defective product. Don’t forget to review the duties of landowners under negligence and the tort of malicious prosecution. Intentional torts haven’t been tested for some time. When they raise intentional torts they often raise issues involving defenses. They might give you a question involving property-related Torts issues, such as a trespass to land and nuisance. This is a frequent cross over topic with Remedies.

Wills/TrustsWills was tested last February. Trusts was tested in February 2010. I don’t think

the Examiners will repeat Community Property and for that reason I expect a Wills/Trusts question because the Examiners like to have at least one California-based subject on the exam. A question involving both Wills and Trusts seems likely to me. The Examiners like to test fiduciary duties so pay attention to the duties owed by trustees. Understand the different types of trusts, and watch out for a secret or semi-secret trust. Also, don’t be surprised by an issue involving a spendthrift trust. Regarding Wills, I would be looking for an interested witness. Also review the requirements for witnesses: the requirement that witnesses both be present when the testator signs the will or acknowledges his signature. They also like revocation by physical act and the testator’s attempt to increase a gift by writing something on the will. Review Dependent Relative Revocation. Also, look at the rules regarding ademption and the differences between specific gifts and general bequests. I would always be ready for an issue involving lapse and anti-lapse.

POSSIBLE SUBJECTS

Business Associations (Corporations, Partnership, Agency)The examiners have tested Business Associations on three of the last four exams

but it wasn’t tested on the last exam. I don’t think a full-blown question is likely, but I’m not willing to rule it out altogether. They have done a number of questions involving Business Associations and Professional Responsibility so a cross over is possible. I wouldn’t be surprised by a Corporations question involving 10b-5 and 16b. Those areas have not been tested for a while. You have to be prepared for the standard corporations question with a duty of care and a duty of loyalty. Review pre-incorporation contracts and the liability of promoters. Watch out for a question involving the different types of partnerships. Review the liability of a partnership for a contract entered into by one of the partners or a tort committed by one of the partners. The examiners could test agency by asking a Corporations question with issues about the authority of board members or officers to enter into contracts on behalf of the corporation.

Criminal Procedure/Criminal LawThe Examiners have tested Criminal Law/Criminal Procedure on the last two July

bar examinations, but not on the last two February exams. They might break the pattern this year and give you a Criminal Law question. On the last bar exam, the question didn’t involve the most commonly tested topic of homicide. If they give you Criminal Law you

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should expect someone to die. Review murder, voluntary and involuntary manslaughter. Pay special attention to the felony murder doctrine. Make sure you review the requirements for the crime of attempt. Make sure you review the tests for insanity. If Crim Pro comes up you always need to be ready to write about the 4th and 5th amendment. You should review your search and seizure approach and also review the different ways a defendant’s statements can be excluded. The examiners haven’t asked a question involving the death penalty for a while so you should look at the basic requirements for a valid death penalty scheme and what criminals are eligible for the death penalty. Also, don’t forget to review when a defendant has a right to jury trial and when a defendant has a right to counsel at trial. These issues haven’t been tested for a while. Pay attention to the rules regarding identifications. Also, review the Confrontation Clause, particularly how it applies when two defendants are tried jointly and one of them has confessed. The Examiners could easily give you a question with a cross over with PR, particularly if they have two criminal defendants being represented jointly by an attorney.

Constitutional LawConstitutional Law was tested in July 2009, February 2010 and February 2011. In

July 2009, it was a Commerce Clause question. In February 2010, it was a Takings question and a cross over with Real Property. In February 2011, it was a First Amendment question involving religion. Many people are predicting a Con Law essay this time but I think there is only a 50-50 chance. They can raise Con Law issues as part of a defamation question involving Torts or a PR question involving attorney advertising. If a full-blown Con Law question is given I’d be on the lookout for something like a straight-forward equal protection challenge. Make sure to review all of the different classifications and the standards of review. Also, review procedural due process because it hasn’t been tested in a while. The First Amendment’s guarantee of free speech is always fair game. Make sure you review the categories of speech which are not protected such as obscenity and advocacy of imminent lawless action. If Commerce Clause is tested it will more likely involve the limitations on state power under the “Dormant” Commerce Clause. For many years the examiners never asked questions involving separation of powers, but this area is now considered a testable area. They are looking for a lot of factual depth in your Con Law essay. Make sure you develop your analysis.

Business Associations (Corporations, Partnership, Agency)The examiners tested Business Associations on three of the last four exams but it

wasn’t tested on the last exam. I don’t think a full-blown question is likely, but I’m not willing to rule it out altogether. They have done a number of questions involving Business Associations and Professional Responsibility so a cross over is possible. I wouldn’t be surprised by a Corporations question involving 10b-5 and 16b. Those areas have not been tested for a while. You have to be prepared for the standard corporations question with a duty of care and a duty of loyalty. Review pre-incorporation contracts and the liability of promoters. Watch out for a question involving the different types of partnerships. Review the liability of a partnership for a contract entered into by one of the partners or a tort committed by one of the partners. The examiners could test agency by asking a Corporations question with issues about the authority of board members or officers to enter into contracts on behalf of the corporation. Don’t be surprised by a

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question involving agency in conjunction with a Contracts question. Also, review the situation where an agency is terminated but a third party is not aware of the termination of the agency.

LESS LIKELY SUBJECTS

Community PropertyCommunity Property was tested on three of the last four exams. I wouldn’t

completely rule it out since the examiners like to test at least one of the subjects which require knowledge of California law. Review the rules regarding proportional ownership when property is acquired partially with SP and partially with CP. Creditors’ rights is a special focus of the examiners, so make sure to review the rules regarding tort liabilities and child support and spousal support obligations. Also, make sure you know the differences between debts incurred before marriage and those incurred during marriage. There hasn’t been a question lately involving gifts by a spouse without the other spouse’s consent. Make sure you understand what rights the non-donor spouse has in this situation. I wouldn’t be surprised by a question involving special classifications like education and training, and the special rules for personal injury awards, disability benefits, pensions and Social Security benefits. Make sure to review the situations where there is preemption. You should review the fiduciary obligations spouses have toward one another. Review the rules regarding quasi-community property.

Real PropertyReal Property was tested on the last two exams and on the exam in February of

2010 with the issue of the Takings Clause. Last February it was a landlord tenant question which also involved a covenant/easement analysis. In July, it was a joint tenancy and adverse possession. Because Real Property was tested on the last two exams, it is less likely this time around. If they do give another Real Property question, I’d be on the lookout for a question involving conveyancing and mortgages. Review easements and the different ways those can be created. Make sure you review the rules for lateral and subjacent support. These get tested about once every 6 or 7 years. Make sure you know the covenants in a general warranty deed. Also, you should be prepared to apply a recording statute to a fact pattern. Watch out for a question involving nuisance and trespass to land. This type of question usually involves Real Property, Torts and Remedies. Make sure you review the requirements for Injunctive Relief.

It has been my pleasure to work with you. Thank you for your questions and your insights. Best wishes to all of you on the bar exam. I look forward to your success not only on the bar exam, but in your future practice of law. As you move forward with your legal career, please remember how fortunate you are to be highly educated. Many people in the world do not have access to education or the resources to obtain it. Whatever path you choose in your legal career, I hope you will find a way to use your abilities and talents to help others who haven’t been as fortunate.

Feel free to email me to let me know how the bar goes for you. My personal email is jheilman90069@aol.com. PROFESSIONAL RESPONSIBILITY (Fact Intensive)

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Joint representation in the criminal context and a client who wants to testify untruthfully. Criminal client turns over evidence to his or her attorneyAttorney advertisingSolicitation Attorney who represents an entity or organization.

a. Remember that the attorney represents the organization, not the individuals who make up the organization.

b. Review who holds the attorney-client privilege in this context. Fees Contingency fees. Sexual relations with a client California Rules especially with regard to splitting fees with other attorneys

REMEDIES (Contracts/Nuisance CO)Requirements for injunctive reliefConstructive trust and Equitable lien including the lowest-intermediate balance ruleDamages be relatively certain and not speculativeRemedies designed to prevent unjust enrichment Specific performance where legal remedies are inadequate

CONTRACTSMerchant’s firm offer

a. Merchant’s offer to sell or buy goods in a signed writing giving assurances that the offer will be held open. Irrevocable for time stated or up to 3 months.

UCC 2-207 and the different approach to modifications under the UCC. a.

Review the parol evidence rule a. Parol evidence rule makes prior or contemporaneous oral or written expressions

inadmissible to vary the terms of a final writing.Impossibility and

a. Impossibility is the objective inability to carry out a contractual duty to perform due to an unforeseen or supervening event that makes it impossible for anyone to perform. Subjective impossibility is insufficient.

Impracticability. a. Impossibility is found when the party with a contractual duty to perform

encounters extreme and unreasonably difficulty that was not anticipated.You should also review the perfect tender rule.

a. Less than perfect tender gives buyers the option of rejecting the goods, accepting, or accepting any commercial units and rejecting the rest.

b. Exceptions: Installment Sale K and Seller’s Right to Cure a. In limited cases, a seller may have the right to cure even after the contract

delivery date if the seller has reasonably grounds for believing the improper tender would be acceptable.

Remedies, especially remedies for buyers and sellers under the UCC. a.

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Liquidated damagesa. A liquidated damages clause is enforceable only if the damages were difficult to

forecast at time K was made and the provision is a reasonable forecast of the damages that would result from a breach.

Specific performancea. SP is an equitable remedy that orders a contract party to perform that which she

has promised to perform. SP requires the existence of a valid contract, certain and definite terms, the satisfaction of contract conditions, an inadequate remedy at law, mutuality of remedies, feasibility of enforcement, and non-applicable defenses.

CIVIL PROCEDURECalifornia distinctionsPersonal and subject matter jurisdictionSupplemental jurisdictionDifferent sanctions for non-compliance with discovery obligationsWork product privilegeRemoval RemandRes judicataCollateral estoppelJoinderVenueRight to jury trial in a civil caseClass actions

EVIDENCECriminal ProsecutionHearsay

a. Out of court statement offered to prove the truth of the matter assertedCharacter

a. Defendant’s bad character is inadmissible unlees offered for a non-character purpose.

b. MIMIC: offered to show motive, intent, lack of mistake, identity, or common scheme or plan.

c. Specific bad acts are inadmissible as character evidence unless the defendant places his character in evidence.

Impeachment a. Bad acts demonstrating moral turpitude can be used to impeach a witness under

the FRE and CA Rules.Transcript Type Question With Some Form Problems

a. Leading Questionsb. Assuming Facts Not In Evidencec. Argumentative Questions

Civil Dispute a. Proof Of Liability Insurance

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b. Offers To Settlec. Offers To Pay Medical Expensesd. Subsequent Remedial Measures

Best Evidence RuleAuthenticationCalifornia Distinctions Regarding Impeachment

TORTSDefamation with the constitutional defenses

a. Defamatory statement concerning P that is published to a third party and results in damages. Damages are presumed with libel or slander per se (statement about business/profession, crime of moral turpitude, woman’s chastity, loathsome disease)

b. If it is a matter of public concern and involves a public figure, P needs to show that D acted with malice, either knowing of the falsity of the statement or acting with reckless disregard for the truth.

c. If it is a matter of public concern involving a private figure, P must show that D acted negligently. If P can also show malice, damage are presumed and punitive damages may also be available.

Invasion of privacy tortsa. Appropriation is when D uses P’s image for a commercial purpose.b. Intrusion upon Seclusion is an invasion of a P’s private life that is objectionable to

a reasonable person. c. False Light is the widespread dissemination of a major falsehood that is

objectionable to a reasonable person.d. Public Disclosure of Private Fact is the widespread dissemination of private

information that is objectionable to a reasonable person.Products liability (defective product).

a. Strict Products Liability. A commercial seller who places a product in the stream of commerce may be strictly liable in tort for injuries caused by a defective product

a. Duty. A commercial seller has a strict duty to sell safe products and any foreseeable plaintiff may sue a commercial seller in the chain of distribution.

b. Breach of this strict duty may be shown by a manufacturing defect, design defect, inadequate warning label, or failure to comply with government safety standards.

i. Manufacturing Defect. If product emerges more dangerous than consumers would expect, it has a manufacturing defect.

ii. Design Defect. If P can show that the product could have been made safer without serious impact on price or utility, it is a design defect.

iii. Inadequate Warning Label. If manufacturer fails to give adequate warnings as to the risks involved in using the goods, the product may be defective.

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iv. Government Safety Standards. A products noncompliance with gov safety standards establishes it is defective although a products compliance is evidence (not conclusive) of no defect.

c. Causationi. Actual Causation. P must show defect existed when it left his

control.ii. Proximate Causation. P must show that the type of injury was

foreseeable at the time the product was placed in commerce. Negligence of land owners

a. Duty to act a reasonable landowner would in similar circumstances.b. Standard of Care

a. Trespassers. Duty to post warnings of known dangers. No duty for undiscovered defects. Must beware of attractive nuisances on the land.

b. Licensee. Duty to warn of known dangers and make conditions safe.c. Invitee. Duty to warn of known dangers and the make reasonable

inspections.c. Breach. Breach occurs when D falls below an applicable standard of care.

a. Res Ipsa Loquitor. The occurrence of an event can establish breach if P can show that 1) the event would not normally occur in the absence of negligence, and 2) the accident is normally associated with someone in P’s position.

Malicious prosecution. a. Occurs when D institute criminal proceedings against Pb. Termination is favorable to Pc. There is an absence of probable caused. Improper purpose of De. Damage

Intentional torts and defenses. a. Battery. D intentionally causes a harmful or offensive contract with P’s person. b. Assault. D intentionally causes a reasonable apprehension of an immediate

harmful or offensive contact with P’s person.c. False Imprisonment. Requires an intentional act or omission confining P to a

bounded area with no reasonable means of escape, and causation,d. IIED. Requires that D intentionally use outrageous conduct to cause serious

emotional distress.e. Trespass to Land. Requires that D intentionally cause a physical invasion of P’s

land.f. Trespass to Chattel. Requires that D intentionally interfere with P’s personal

property interest.g. Conversion Requires that D intentionally seriously interfere with P’s property

interest. h. Defenses.

a. Consenti. Did P have capacity

ii. Did P give express or implied consent?iii. Did D stay within scope of consent?

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b. Self – Defense c. Defense of Othersd. Defense of Propertye. Shopkeepers Privilegef. Private Necessity – D pays actual damagesg. Public Necessity – D does not pay for actual damages

Nuisance. a. Private nuisance. Occurs when P’s use of property has been substantially

interfered with to an unreasonably degree.b. Public nuisance. Occurs when a communities use of land has been substantially

interfered with to an unreasonable degree.

WILLS/TRUSTSFiduciary Duties By Trustees. Different Types Of TrustsSecret Or Semi-Secret Trust. Spendthrift Trust.

Interested Witness. Requirements For Witnesses: When The Testator Signs The Will Or Acknowledges His Signature. Revocation By Physical ActTestator’s Attempt To Increase A Gift By Writing Something On The Will. Dependent Relative RevocationAdemptionDifferences Between Specific Gifts And General Bequests Lapse And Anti-Lapse.

BUSINESS ASSOCIATIONS (CORPORATIONS, PARTNERSHIP, AGENCY)The examiners tested Business Associations on three of the last four exams but it

wasn’t tested on the last exam. I don’t think a full-blown question is likely, but I’m not willing to rule it out altogether. They have done a number of questions involving Business Associations and Professional Responsibility so a cross over is possible. I wouldn’t be surprised by a Corporations question involving 10b-5 and 16b. Those areas have not been tested for a while. You have to be prepared for the standard corporations question with a duty of care and a duty of loyalty. Review pre-incorporation contracts and the liability of promoters. Watch out for a question involving the different types of partnerships. Review the liability of a partnership for a contract entered into by one of the partners or a tort committed by one of the partners. The examiners could test agency by asking a Corporations question with issues about the authority of board members or officers to enter into contracts on behalf of the corporation. Don’t be surprised by a question involving agency in conjunction with a Contracts question. Also, review the situation where an agency is terminated but a third party is not aware of the termination of the agency.

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CRIMINAL PROCEDURE/CRIMINAL LAWMurderVoluntary ManslaughterInvoluntary ManslaughterFelony Murder DoctrineAttemptInsanity

a. McNaughten – Because of mental defect, D does not have the ability to know the wrongfulness of his actions or to appreciate the quality or nature of his acts.

b. Irresistible Impulse – Because of mental defect, D lacks the capacity for self-control or free choice

c. ALI Substantial Capacity – Because of mental defect, D does not have the substantial capacity to appreciate the wrongfulness of his actions or to control his conduct to the requirements of the law.

d. Durham Test – D’s conduct was the product of mental illness.

4th Amendmenta. Search and Seizure (See Approach)b. Arrest and Detention

a. Illegal Detention (Stop and Frisk)i. Was D detained?

ii. Did police have reasonable basis for believing D was engaged or about to be engaged in criminal activity?

iii. Was the stop temporary and no longer than necessary?iv. If D was frisked, did the officer have a reasonable belief that D

was armed?5th Amendment

a. Self-Incrimination (See Approach)b. Right to Attorney (during custodial interrogation)c. Double Jeopardy

6th Amendmenta. Right to Attorney

a. Illegal Line Upsb. D Deprived of Counselc. Was D’s representation by counsel ineffective or impaired by conflict of

interest?b. Confrontation Clausec. Right to Speedy Triald. Right to Jury Trial

Search And Seizure Approach – 4th Amendment Rights Violated?

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a. Standing. The 4th A protects citizens from unreasonable searches and seizures and is applicable to the states via the 14th A. To assert a 4th A challenge, D must show both a government conduct and a reasonable expectation of privacy.

a. Government Conduct. TO establish government conduct, D must show the police/govrermnet were involved in the seizure.

b. Reasonable Expectation of Privacy – To establish REP, D must show he had at least an ownership or possessory right in the place searched or items seized.

b. Warrant. A valid warrant requires issuance based on probable cause stated with specificity and particularity and issued by a neutral and detached magistrate.

a. Good Faith Exception. c. Warrantless or Invalid Warrant. In order for a search and seizure to be valid, the

government must have acted pursuant to a valid warrant. If the warrant is not valid then all the evidence will be deemed inadmissible unless an exception to the warrant applies.

d. Exceptions: SHE PACS PIESa. SILA . Upon lawful arrest based on PC, the police may conduct a search of

a person, areas within their wingspan, and make a protective sweep of the area if they believe accomplices may be present.

b. Hot Pursuit. Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the felon into a private dwelling.

c. Evanescent Evidence . A police may seize without a warrant if evidence is likely to disappear before a warrant can be obtained.

d. Plain View . The police may make a warrantless seizure when they are legitimately on the premises, see such evidence in plain view, and have PC to believe that the evidence is contraband or fruits or instrumentalities of crimes.

e. Automobile Search. If the police have PC to believe that a vehicle is contraband or contains evidence of a crime, they may search the whole vehicle and any container that might reasonably contain the item.

f. Consent . A warrantless search is valid if the police have voluntary and intelligent consent.

i. Knowledge of the right to withhold consent is not a prerequisite to establishing a voluntary and intelligent consent.

ii. The scope of the search generally extends to all areas a reasonable person under the circumstances would believe her consent extends.

g. Search Incident to Incarceration. The police are allowed to conduct an inventory search of arrestees upon being booked pursuant to established department procedure.

h. Police Checkpoint . Police are allowed to set up road blocks to stop cars without individualized suspicion that the driver has violated some law if the roadblocks 1) stop the cars on the basis of a neutral, articulable standard and 2) are designed to serve purposes closely related to a problem pertaining to cars and their mobility.

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i. However, police may not set up a roadblock to check cars for illegal drugs since the purpose is to detect evidence of ordinary criminal wrongdoing unrelated to the use of cars or highway safety.

i. Inventory Search. The police are allowed to conduct an inventory search of impounded cars of arrestees pursuant to established department procedure.

j. Exigent Circumstances. Police may enter premises without a warrant to address ERs that could affect health or safety.

k. Stop and Frisk. A police officer may stop a person without PC if she has a reasonable suspicion of criminal activity. If the officer reasonably believes the person may be armed or dangerous, he may conduct a protective risk of the outer clothing and may reach into the clothing if he reasonably believes it is a weapon or contraband.

Different Ways A Defendant’s Statements Can Be Excludeda. Evidence

a. Exclusionary Rule . Evidence obtained in violation of the 4th A is inadmissible.

b. Fruits of the Poisonous Tree. Both illegally obtained evidence and all evidence derived from the exploitation of that evidence is excluded.

b. Statements – 5 th A Rights Violated? a. The 5 th A prohibits compelled self-incrimination. Once a person is in

custody, he must be read Miranda rights prior to any interrogation. If entitled and none are given, then her subsequent confession will be inadmissible.

i. Custody. One is in custody if he does not feel free to leave.ii. Interrogation . Interrogation is any conduct or words likely to illicit

an incriminating response.iii. Miranda Rights Given iv. If waived , was waiver knowingly and intelligently waived?v. Any other Considerations? (public safety exception)

b. 14 th A. For a self-incriminating statement to be admissible under the Due Process Clause, it must be voluntary as determined by the totality of the circumstances.

i. A statement is involuntary if there is some official compulsion.

Valid Death Penalty Scheme And What Criminals Are Eligible For The Death PenaltyRight To Jury TrialRight To Counsel At TrialIdentificationsConfrontation Clause. 2 Defendants Are Tried Jointly And One Of Them Has ConfessedCross Over With Pr

CONSTITUTIONAL LAW

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Constitutional Law was tested in July 2009, February 2010 and February 2011. In July 2009, it was a Commerce Clause question. In February 2010, it was a Takings question and a cross over with Real Property. In February 2011, it was a First Amendment question involving religion. Many people are predicting a Con Law essay this time but I think there is only a 50-50 chance. They can raise Con Law issues as part of a defamation question involving Torts or a PR question involving attorney advertising. If a full-blown Con Law question is given I’d be on the lookout for something like a straight-forward equal protection challenge. Make sure to review all of the different classifications and the standards of review. Also, review procedural due process because it hasn’t been tested in a while. The First Amendment’s guarantee of free speech is always fair game. Make sure you review the categories of speech which are not protected such as obscenity and advocacy of imminent lawless action. If Commerce Clause is tested it will more likely involve the limitations on state power under the “Dormant” Commerce Clause. For many years the examiners never asked questions involving separation of powers, but this area is now considered a testable area. They are looking for a lot of factual depth in your Con Law essay. Make sure you develop your analysis.

COMMUNITY PROPERTYCommunity Property was tested on three of the last four exams. I wouldn’t

completely rule it out since the examiners like to test at least one of the subjects which require knowledge of California law. Review the rules regarding proportional ownership when property is acquired partially with SP and partially with CP. Creditors’ rights is a special focus of the examiners, so make sure to review the rules regarding tort liabilities and child support and spousal support obligations. Also, make sure you know the differences between debts incurred before marriage and those incurred during marriage. There hasn’t been a question lately involving gifts by a spouse without the other spouse’s consent. Make sure you understand what rights the non-donor spouse has in this situation. I wouldn’t be surprised by a question involving special classifications like education and training, and the special rules for personal injury awards, disability benefits, pensions and Social Security benefits. Make sure to review the situations where there is preemption. You should review the fiduciary obligations spouses have toward one another. Review the rules regarding quasi-community property.

REAL PROPERTYReal Property was tested on the last two exams and on the exam in February of

2010 with the issue of the Takings Clause. Last February it was a landlord tenant question which also involved a covenant/easement analysis. In July, it was a joint tenancy and adverse possession. Because Real Property was tested on the last two exams, it is less likely this time around. If they do give another Real Property question, I’d be on the lookout for a question involving conveyancing and mortgages. Review easements and the different ways those can be created. Make sure you review the rules for lateral and subjacent support. These get tested about once every 6 or 7 years. Make sure you know the covenants in a general warranty deed. Also, you should be prepared to apply a recording statute to a fact pattern. Watch out for a question involving nuisance and trespass to land. This type of question usually involves Real Property, Torts and Remedies. Make sure you review the requirements for Injunctive Relief.

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