Valid Agcy: 1)Capacty (P-full, A-minml); 2)Consnt of both; 3)Wrtg (if reqd) Gen no wrtg reqd EXCPT if K w/in SoF (e.g. land trnsactn)
Principal-Agent relationship requires:
1) assent, 2) benefit, 3) control
Principal-Agent relationship factors:
1) conduct "of kind" hired to perform; 2) occurred on job; 3) A intend to benefit P
Intentional torts generally outside scope unless:
1) conduct authzd by P, or 2) nature of employment, or 3) Motivated to serve P
P liab for Ks entered by A:
P authzd (Actual Express, Actual Implied, Apparent, Ratfctn): AE-words; AI-thru conduct; A-"cloaked w/auth, & A rsnbly relies on apprc of auth; R-Auth grntd aftr K (as is) if P knwlg of K facts/benefits
*P liab on authzd Ks, A liab IF undisclosed P*
Agent duties: 1) care, obey rsnbl instrctns, loyalty (NEVER! Self-dealng, usurp P oppty, or secret profits)
Independent contractor:no control/no vicarious liability for tort UNLESS: IC tort while inherently dangerous activity
CIVIL: Gen INadmssble to prv D acted in conformity. Admissible if character at issue
CRIMINAL: D may intro character pertinent to chgd crime
Char Evid tells type of persn someone is/nature.
THREE TYPES: Reputation, Opinion, Specific conduct (prior crimes, recklssnss, carfulnss, honesty)
Evid. of Prior Similar Occrncs NOT admssbl to show party prob actd same way again @ time of event that gave rise to ligatn.
Evid of Habit IS admssbl to show persn prob actd same way again in event that gave rise to litigtn. Habit = repeated response to a partclr set of circumstcs (every time) "Every"
Subsequent Repair evid excluded if purps to est negligence or Strict Liab in Tort. IF other purps, then Admssbl (E.g. - OWNERSHIP/CONTROL OVER CONDTN THT CAUSD DAMG, POSSBL TO MAKE SAFE IF DEFS WAS THAT IT WAS NOT POSSBL) if inadmssbl usually "rsn of publc polcy"
Rules for Crim (5) & Civil (3) Char Evid:
Crim 1) Prosctr can NOT intro evid of D's bad char if purps to show acted in conformty w/bad char & commtd crime chgd (no bad reputn, bad acts) E.g. "Propensity"
2) D is allwd to present evid of relvnt good char traits thru reptn/opinion that he actd in conformty w/good char & did NOT commit crime (reptn or opin ONLY, no specific acts allwd)
3) IF D presents evid of good char to show prob didn't commit crime, then opend door & Pros allwd to prsnt reptn/opin evid for D bad char (NO spcfc crime) to show sort of prsn to commt crime *TIP: In crim case "honesty" not relvnt to violent crime, Instead "peaceful"*
4) Evid of prior crimes/bad acts NEVER admissbl to prv D commtd crime chgd, MAY be admssbl to prv another pt (MIMIC = Motive, Identity, absence of Mistake, Intent, Commn Scheme) BEWARE--can be kept out if probative value substlly outweighd by potentl prejdc to the D
5) IF D testifies automtcly places char of truthfulnss @ issue, then Pros can present char evid that D is NOT truthful person
Civ 1) Can't intro evid of char trait of party to show tht party actd in conformty w/char trait during the event that gave rise to this litigation (NEITHER SIDE CAN)
2) IF litigant has other purps for the intro of char & its relvnt, then rule prohbtg char evid will not keep it out (Other purpses: TO SHOW NEGLGNT ENTRUSTMENT or DEFAMATION case=Admssbl)
3) IF a party testifies they automtclly plc char trait of truthfulnss @ issue, then other party can present char evid that D is NOT truthful person
To prove the content of a writing, the original writing must be produced. Secondary evidence of the writing (e.g. oral testimony) is only admissible if the original is unavailable.
a. Applies where (1) the writing is a legally operative or dispositive instrument; or (2) a witnesses knowledge of a fact results from having read it in the document.
b. Does NOT apply where (1) facts to be proven exist independently of the writing (witness has personal knowledge), (2) the writing is of minor importance to the controversy (collateral document rule), (3) records are voluminous (can produce summary instead, must provide access to opposing side, and notice that you're presenting a summary); (4) public records.
c. Machine generated duplicates/exact copies of an original are admissible unless (1) the authenticity of the original is challenged or (2) unfairness would result.
d. If proponent can't produce the original, he may offer secondary evidence if a satisfactory explanation is given for non-production of the original. Valid excuses include:
i. Loss or destruction of the original
ii.Original is in possession of a 3rd party outside of the
jurisdiction, and is unobtainable
iii.Original is in possession of an adversary who fails to
produce the original.
e. Judge decides admissibility of duplicates, other copies, etc. But the jury decides:
i. Whether the original ever existed
ii. Whether a writing, etc. produced at trial is an original
iii. Whether the evidence offered correctly reflects the
contents of the original