Master of Laws (LLM) Evidence and Property Law Syllabus

Under FRE 601, what is the modern rule on witness competency?

Every person is presumed competent to be a witness. The witness need only have personal knowledge (FRE 602) and take an oath/affirmation to testify truthfully (FRE 603).

List the major methods of impeaching a witness's credibility.

Prior inconsistent statements, bias/interest/motive, sensory/mental defect, bad character for truthfulness (reputation/opinion or specific acts), prior convictions, and contradiction.

Under FRE 609, when may a prior conviction be used to impeach?

Any crime involving a dishonest act/false statement is automatically admissible (no balancing). Other felonies: admissible subject to FRE 403 balancing (or a special heightened test if the witness is the criminal defendant). Convictions older than 10 years are generally inadmissible.

Under FRE 608(b), how may specific instances of a witness's conduct be used to attack character for truthfulness?

They may be inquired into on cross-examination (in the court's discretion) if probative of truthfulness, but extrinsic evidence is not admissible to prove them—the cross-examiner is stuck with the answer.

How may a witness's credibility be rehabilitated after impeachment?

By showing good character for truthfulness (FRE 608(a)) only after the witness's character was attacked, by prior consistent statements (FRE 801(d)(1)(B)) to rebut a charge of recent fabrication/improper motive, or by explanation/redirect.

Under FRE 701, what limits lay opinion testimony?

Lay opinion must be rationally based on the witness's perception, helpful to understanding testimony or determining a fact, and not based on scientific/technical/specialized knowledge.

What are the four reliability factors articulated in Daubert v. Merrell Dow for expert scientific testimony?

(1) Whether the theory/technique can be and has been tested; (2) peer review and publication; (3) known or potential error rate (and standards controlling operation); (4) general acceptance in the relevant scientific community.

State the FRE 702 requirements for admitting expert testimony.

The expert must be qualified by knowledge, skill, experience, training, or education; the testimony must help the trier of fact; be based on sufficient facts/data; be the product of reliable principles and methods; and reliably apply those methods to the facts.

How does Daubert differ from the older Frye standard, and what did Kumho Tire add?

Frye required only 'general acceptance.' Daubert makes the trial judge a flexible gatekeeper assessing reliability via multiple factors. Kumho Tire extended Daubert's gatekeeping to all expert testimony, including technical and experience-based.

What are the elements of the attorney-client privilege?

A confidential communication between a client (or prospective client) and an attorney (or their representatives) made for the purpose of obtaining legal advice; the privilege belongs to and is asserted by the client, and survives the client's death.

Name the crime-fraud exception and two other limits on the attorney-client privilege.

Crime-fraud exception: no privilege where the client sought advice to further a future crime or fraud. Also lost by waiver (voluntary disclosure to third parties) and inapplicable to communications relevant to attorney-client fee disputes or where the communication was not confidential.

Under FRE 901, what is required to authenticate evidence?

Proof sufficient to support a finding that the item is what the proponent claims it is. Methods include witness testimony, distinctive characteristics, comparison by expert/trier, voice/handwriting identification, and the chain of custody.

Which items are self-authenticating under FRE 902 (give three examples)?

Domestic/foreign public documents under seal, certified copies of public records, official publications, newspapers/periodicals, trade inscriptions/labels, acknowledged (notarized) documents, and certified business records.

Define a fee simple absolute and the words traditionally used to create it.

The largest possible estate in land—of potentially infinite duration, fully alienable, devisable, and inheritable. Modern: 'to A.' Common law required 'to A and his heirs.'

Compare a fee simple determinable with a fee simple subject to a condition subsequent.

Determinable: created by durational language ('so long as,' 'until'); automatically reverts to grantor via a possibility of reverter. Condition subsequent: created by conditional language ('but if,' 'provided that'); grantor must exercise a right of entry/power of termination—not automatic.

Distinguish a remainder from an executory interest.

A remainder is a future interest in a third party that becomes possessory naturally at the end of a prior estate (no cutting short). An executory interest cuts short a prior estate or the grantor's interest (springing from grantor or shifting from another transferee).

Distinguish a vested remainder from a contingent remainder.

A vested remainder is held by an ascertained person with no condition precedent. A contingent remainder is given to an unascertained person OR subject to a condition precedent.

State the Rule Against Perpetuities.

No interest is valid unless it must vest, if at all, no later than 21 years after the death of some life in being at the creation of the interest. Applies to contingent remainders, executory interests, vested remainders subject to open, options, and rights of first refusal.

What are the three concurrent estates and their key distinguishing feature?

Joint tenancy (right of survivorship), tenancy in common (no survivorship; freely transferable separate shares), and tenancy by the entirety (survivorship between married spouses with creditor/transfer protections).

What are the four unities required to create a joint tenancy?

Time, Title, Interest, and Possession (mnemonic: T-TIP). All joint tenants must take their interests at the same time, by the same instrument, with equal interests, and with an equal right to possess the whole.

What severs a joint tenancy, and what is the result?

An inter vivos conveyance by one joint tenant (or in many states a mortgage in title-theory states, or a contract of sale) severs as to that share, destroying the right of survivorship; the new owner holds as a tenant in common with the remaining co-owners.

Define a tenancy in common and its default presumption.

Two or more owners with separate but undivided interests, each with the right to possess the whole; no right of survivorship; shares are devisable, descendible, and alienable. It is the modern default presumption for multiple grantees.

List and distinguish the four leasehold (nonfreehold) estates.

Tenancy for years (fixed term, ends automatically), periodic tenancy (renews until proper notice), tenancy at will (no fixed period, terminable by either party), and tenancy at sufferance (holdover tenant wrongfully remaining).

Compare the implied warranty of habitability with the covenant of quiet enjoyment.

Implied warranty of habitability (residential, nonwaivable) requires premises fit for human habitation; tenant may withhold rent, repair-and-deduct, or terminate. Quiet enjoyment (residential and commercial) protects against actual or constructive eviction interfering with the tenant's use.

Distinguish an assignment from a sublease.

Assignment: tenant transfers the entire remaining lease interest; assignee is in privity of estate with the landlord and liable for rent. Sublease: tenant transfers less than the entire interest, retaining a reversion; subtenant is not in privity with the landlord.

What are the two implied covenants in every land-sale contract regarding the condition of title and disclosure?

An implied covenant of marketable title (title free from reasonable doubt of litigation—no significant encumbrances/defects at closing) and, in most states, a duty to disclose known latent material defects.

List the three types of deeds and the title assurance each provides.

General warranty deed (warrants against all defects, including those of prior owners—six covenants of title). Special/limited warranty deed (warrants only against defects arising during the grantor's ownership). Quitclaim deed (no warranties—conveys whatever interest the grantor has).

What are the requirements for a valid delivery of a deed?

The grantor must have present intent to make the deed immediately effective (pass title now). Delivery is presumed by physical handover, recording, or notarization; it cannot be conditioned orally on the grantor's death (would be a void oral condition).

Compare race, notice, and race-notice recording statutes.

Race: first to record wins (notice irrelevant). Notice: a subsequent bona fide purchaser without notice prevails over a prior unrecorded interest. Race-notice: a subsequent BFP prevails only if without notice AND records first.

Distinguish an easement appurtenant from an easement in gross.

Appurtenant: benefits the holder in use of a particular parcel (dominant estate); runs with the land to successors. In gross: benefits a person/entity regardless of land ownership (e.g., utility lines); historically not transferable unless commercial.

How is an easement by implication (prior use) created, versus an easement by necessity?

Implication by prior use: at severance of commonly owned land there was a prior apparent, continuous use reasonably necessary to enjoyment of the dominant parcel. By necessity: severance leaves a parcel landlocked (strict necessity for access).

What are the requirements for the burden of a real covenant to run with the land at law?

Writing, intent to bind successors, touch and concern the land, horizontal privity (shared interest at the covenant's creation) AND vertical privity (succession to the entire estate), and notice to the burdened successor.

Compare a real covenant with an equitable servitude.

A real covenant is enforced at law by money damages and requires horizontal and vertical privity. An equitable servitude is enforced in equity by injunction, requires only intent, touch and concern, and notice (no privity required); it can arise from a common scheme.

Distinguish lien-theory from title-theory states regarding mortgages.

Lien theory (majority): the mortgagee holds only a lien; the mortgagor retains title and right to possession until foreclosure. Title theory (minority): the mortgagee holds legal title and may take possession; a mortgage by one joint tenant can sever the joint tenancy.

What is an equity of redemption and a statutory right of redemption?

Equity of redemption: the mortgagor's right to redeem the property by paying the full debt before the foreclosure sale (cannot be clogged). Statutory redemption: in some states, the right to redeem for a set period AFTER the foreclosure sale by paying the sale price.

How are proceeds and priorities handled in a mortgage foreclosure?

Foreclosure sale proceeds pay foreclosure costs, then the foreclosing lien, then junior interests in priority order; surplus goes to the mortgagor. Junior interests are extinguished; senior interests survive. Priority generally follows 'first in time, first in right,' subject to recording acts and purchase-money mortgage priority.

What are the elements of adverse possession?

Possession that is (1) actual, (2) open and notorious, (3) hostile/adverse (without owner's permission), (4) exclusive, and (5) continuous for the statutory period. (Some states add a claim of right or payment of taxes.)

What is tacking in adverse possession, and what tolls the statutory period?

Tacking allows successive adverse possessors in privity (deed, will, descent) to combine their possession periods. The statute is tolled (paused) by disabilities of the true owner existing at the start—e.g., minority, insanity, imprisonment.

What is the distinction between Euclidean zoning and a variance, and what is a nonconforming use?

Euclidean zoning divides land into use districts (residential/commercial/industrial). A variance permits a use that deviates from zoning (showing undue hardship and no harm to the public). A nonconforming use is a lawful use predating the zoning ordinance that is allowed to continue (vested right).