ILLINOIS DISTINCTIONS
ILLINOIS DISTINCTIONS PROFESSOR WILLIAM BIRDTHISTLE CHICAGO-KENT COLLEGE OF LAW CHAPTER 1:
ILLINOIS CONTRACTS DISTINCTIONS
A. Types of Contracts 1. Promises of marriage o o o o
Consideration—Must be something of substance; does not have to be economic—promise of marriage is adequate. The breach of the promise to marry is a viable cause of action in Illinois Only ______________________________________________________ are recoverable. Gifts are considered __________________________ upon the marriage (e.g., the ring).
2. Reciprocal Wills o
The mutual promise to make a reciprocal will is sufficient consideration.
B. Promissory Estoppel •
Even when there is no consideration, promises may still be enforced, IF: o o o
The promisor should reasonably expect the promise to ___________________________ action or forbearance The promise does in fact induce such action or forbearance Injustice can be avoided only by _________________________________________________ Example 1:
Your uncle promises to pay you $100,000 upon your completion
of law school. Dependent on this promise, you enroll. As you study for the bar exam, your uncle refuses to pay. You can recover under promissory estoppel.
•
You don’t recover all damages, just ______________________________ damages.
•
Can be pled as a _____________________ and as a ____________________________________.
C. Parol Evidence Rule •
What is included in the final contract?
•
In Illinois, extrinsic evidence is permitted in disputes related to _____________________.
D. Actual Damages on Real Estate Contracts •
When determining whether or not actual damages would be uncertain, courts look at moment ______________________________, not to the moment of breach.
CHAPTER 2:
ILLINOIS CRIMINAL LAW DISTINCTIONS
A. Criminal Liability 1. Strict Liability o
Also referred to as ________________________________________ crimes (e.g., misdemeanors without prison time; statutory crimes)
2. Parties to a Crime o o
Some jurisdictions focus on principals and accessories; IL discusses ____________________. Illinois specifically permits prosecution of ________________ and individuals who aid them.
3. Withdrawal o
Illinois requires that an accomplice do one of the following in order to withdraw effectively:
________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________
4. Insanity o o
Classically, four tests: M'Naghten, Irresistible Impulse, Durham Rule, Model Penal Code Illinois uses the ______________________________________________________________:
A person is not criminally responsible for conduct if at the time of the conduct the person lacked the ___________________________________________ to appreciate the criminality of the act. Burden of proof: _________________________________________________________.
5. Intoxication—By any substance o
In Illinois, a person who is intoxicated or drugged is criminally responsible UNLESS:
The intoxication was _________________________________________ AND The intoxication rises to the level of the _______________________________________.
6. Infancy o
No child can be convicted of a crime until he reaches the age of ______________________.
B. Felonies and Misdemeanors 1. Felonies: Five categories (Class X, 1, 2, 3, 4)—higher the number, the less serious o o o o o
Class X – 6-30 years 1—4-15 years 2—3-7 years 3—2-5 years 4—1-3 years
2 | © 2016 Themis Bar Review, LLC | IL MBE Distinctions
2. Misdemeanors: Three categories o o o
A—Up to one year B—Up to six months C—30 days or less
C. Homicide •
Unborn child—Illinois criminalizes the intentional homicide of an unborn child.
•
Assisted suicide—In Illinois, inducement, coercion, or providing with means of suicide does not make you guilty of murder as an accomplice, it’s a lesser crime called “_____________________ _______________________________________________________.”
•
First-degree murder—When a person kills another while: o o o
Acting with the ________________________________________; __________________________ that acts will create a strong probability of causing death; or Committing or intending to commit a ____________________________________________.
•
Second-degree murder—First-degree murder committed when one of the following mitigating circumstances is present: o o
Unreasonable belief or justification; or Sudden and intense passion resulting from a serious provocation from the victim.
•
A forcible felony is an inherently dangerous felony (criminal sexual assault, robbery, burglary, arson, kidnapping, or any aggravated version of the above.)
Defendant has burden of proving these mitigating circumstances by a _______________ ______________________________________________________.
Reckless homicide—The cause of death is by recklessly driving a vehicle
D. Theft crimes •
Consolidated theft statute—An individual is guilty of a theft crime when he does one of the following three things: 1) Obtains or exerts _________________________________ over the property of another; 2) Obtains by _____________________________________ unauthorized control over the property of another; or 3) Obtains property ____________________________________________ (if over $500 or a handgun, felony).
•
Robbery: Taking of property of another by ____________________________________________ o o
Armed robbery—same as above, using a __________________________________________ Aggravated robbery—takes property through the use of force while indicating he is armed, even if he isn’t; or if the victim is drugged.
IL MBE Distinctions | © 2016 Themis Bar Review, LLC | 3
•
Burglary: Intentional entering of a _________________________________ of another with the specific intent to ________________________________________ therein. o o
Need not be a dwelling, though there is a specific crime of “residential burglary.” Tools—Illinois criminalizes the possession of _______________________________________
E. Battery, Assault, Mayhem •
Battery and Assault are __________________________________________________________.
•
Both can be increased to “aggravated” (as described below)
1. Battery o o o o o
The intentional application of force; Without justification; that Causes bodily harm; or Causes physical contact that is insulting. Can be aggravated:
o
If the victim is in some particular class (a police officer, child, elderly, disabled) If the perpetrator is hooded, masked, or concealed in some other way
Battery (and assault) can be committed against an unborn child.
2. Assault o o o
An attempt to commit a battery; or Intentionally placing another in fear of imminent bodily harm. Can be aggravated by use of a deadly weapon, and the same way as battery.
3. Home Invasion o
Unlawful entry of a dwelling of another and use of force or threat of force with a weapon.
4. Intimidation and Stalking o o o
Intimidation: Threats intended to cause a person to act in a certain way. Stalking: Knowingly following or keeping under close view at least twice, with the intent to cause fear. Cyber stalking—using e-communications more than twice
F. Criminal Sexual Assault (Illinois rape) •
Gender ____________________________________.
•
Elements: o o o o
Sexual penetration; By force or threat of force; Without consent; or Against a minor
4 | © 2016 Themis Bar Review, LLC | IL MBE Distinctions
1. Aggravated—When one of the following factors exists: o o o o o
Display, threat, or use of a _____________________________________________________; The assault occurs during the commission of a _____________________________________; The victim is __________________, _____________________, or _____________________; The defendant is under 17 and the victim is under 9; or The defendant is under 17, the victim is between 13 and 9 years old, and threat or use of force occurred.
G. Criminal Sexual Abuse (Illinois statutory rape) •
Strict liability
•
Sexual conduct with a person under 17
•
If the defendant is more than 5 years older than the victim, it’s a felony.
H. Unlawful Restraint
I.
•
Detaining an individual without authority
•
Aggravated if committed with a ____________________________________________________
Arson •
Elements: o o o o
J.
A person by means of fire or explosive; Knowingly damages; _____________________________ (worth over $____________________________); Of another, or their own with an intent __________________________________________.
•
Aggravated—The person knew or should have known that the building was ________________, or caused injury to a ___________________________________.
•
Arson of a Residence or Place of Worship—another crime
Inchoate Crimes 1. Conspiracy o
To withdraw or terminate a conspiracy:
Do all that is possible to ___________________________________________________, ____________________________________________________________, or ________________________________________________________________________
2. Attempt o
In Illinois, an attempt does not occur unless the defendant’s act results in dangerous proximity to the _____________________________________________________________.
3. Resisting Arrest o
Defendant may not use _________________________________ to resist an unlawful arrest.
IL MBE Distinctions | © 2016 Themis Bar Review, LLC | 5
CHAPTER 3:
ILLINOIS CRIMINAL PROCEDURE DISTINCTIONS
A. Fourth Amendment 1. Warrantless Arrests o o
A police officer may arrest without a warrant if the officer has ______________________ __________________ to believe that the person is committing or has committed a crime. A private person may arrest if he has reasonable grounds to believe the person is committing an offense other than an ordinance violation, and is doing it ________________ _______________________________________________.
2. Dog Sniffs o
The Fourth Amendment does not require a ____________________ to justify using a drugsniffing dog during an otherwise legitimate traffic stop.
3. Search Warrants o
Can be used:
To find contraband To find fruits of a crime To find a person who has been kidnapped To look for fetuses and corpses
4. Search Incident to a Lawful Arrest o
After a lawful arrest, a police officer may reasonably search, without a warrant, the arrested person and the area within the immediate presence to:
Protect the officer from attack Prevent the person from escaping Discover the fruits of the crime Discover instrumentalities that may have been used in the commission of a crime
5. Exigency o o
An in-home arrest made without a warrant can be made under exigent circumstances. There are three requirements: 1) Police have reasonable grounds to believe there is an emergency, and that immediate action is needed to protect _________________________________________________; 2) Search can’t be motivated by an attempt to ___________________________________; 3) There must be a reasonable basis, nearing ______________________________, to associate the emergency with the place to be searched.
6 | © 2016 Themis Bar Review, LLC | IL MBE Distinctions
6. Hot Pursuit o
If police have probable cause to believe that a person has committed a _________________ ____________________, they can enter a private building during pursuit without a warrant.
7. Temporary Questioning o
A peace officer can stop any person in public for a reasonable time to ask:
The person’s name, Address, and Explanation of actions if: The officer has reasonably infers from the circumstances that the person has committed, is committing, or is about to commit a crime.
8. Community Caretaking o
There is no requirement of probable cause or reasonable suspicion if an officer encounters a person to check on his well being.
9. Searches During Temporary Questioning o o
If the officer reasonably believes that some person is about to be attacked, that person can be searched for weapons. If a weapon is found, police officer may take it during questioning, but must return it after questioning, if ______________________________________________________________.
B. Custodial Interrogation 1. “Reasonableness Test” o
A custodial interrogation is an encounter with police in which a _____________________ ________________________ in the same position would consider herself to be in custody.
2. Electronic Recording Equipment o o
All statements made as a result of custodial interrogation for certain crimes at a place of detention must be electronically recorded, and it cannot be intentionally altered. Otherwise, any statements not recorded are presumptively inadmissible (though they may be used for impeachment purposes).
C. Trial 1. Bringing a Complaint o o o
Prosecution is commenced with a complaint, information, or indictment. If a felony charge, must be an ______________________ or _________________________. No felony prosecution that can be pursued by information unless there is a preliminary hearing to determine _________________________________________________________.
IL MBE Distinctions | © 2016 Themis Bar Review, LLC | 7
2. Bail o
Almost offenses all are bailable, except for:
Death sentence Life imprisonment Imprisonment without release if release would pose a present or real risk Stalking or aggravated stalking Weapons on school grounds Terrorist threats
3. Competency o o
Distinction—In Illinois, defendant is presumed ___________________________________. The defendant is unfit if because of mental or physical condition he is unable to understand the nature of the proceedings against him. This can be raised by:
o
_____________________________________________________, _____________________________________________________, and _____________________________________________________.
Once the issue is raised, it must be proven by preponderance of the evidence
4. Right to Counsel in Grand Jury Proceedings o
Any person already charged with an offense who is then subpoenaed to testify is entitled to counsel, who can only __________________________________________. Also applies to witnesses in grand jury.
5. Juries o o o
No right to jury trial if only punishment is a _______________________________________. No right to a jury trial if the defendant fails to request it or pay the fee. Unanimous decisions required for verdicts of:
Guilty Guilty but mentally ill Not guilty Not guilty by reason of insanity
6. Guilty but Mentally Ill o
In Illinois, to enter this plea, the defendant must:
Be examined by a clinical psychologist, Have waived right to trial, and There must be an adjudicated court hearing that defendant was mentally ill at the time of the offense.
8 | © 2016 Themis Bar Review, LLC | IL MBE Distinctions
7. Speedy Trial o
Every person in custody must be tried within ______________________ of when he was taken into custody unless:
The delay is caused or agreed to by the defendant, or There is a fitness hearing and the determination is ordered, or The defendant is adjudicated unfit, or There is an interlocutory appeal by the defendant.
8. Substitution of a Judge o
A criminal defendant and the prosecution can move in writing that the judge is so prejudiced he can’t have a fair trial. The judge accused of prejudice won’t continue the case until another judge has ruled on the prejudice issue.
IL MBE Distinctions | © 2016 Themis Bar Review, LLC | 9
CHAPTER 4:
ILLINOIS REAL PROPERTY DISTINCTIONS
A. Concurrent Estates •
Property is held by more than one person at the same time.
1. Tenancy by the Entirety o o o
Joint tenancy between ____________________________________ with a right of ____________________________. Neither party can sell or encumber the property without ____________ of the other spouse. In Illinois, tenancy by the entirety isn’t created automatically if two married people enter a joint tenancy.
The parties _______________________________________________, AND Must explicitly state ______________________________________________________
B. Future Interests •
Interests in currently existing property, given by a gift or trust, that begin in the future.
•
Three primary types: 1) Reverter—Future interest held by the grantor of ________________________________ 2) Possibility of reverter—An interest automatically retained by a grantor of a ________________________. The property may never come back, but it might. Example 2:
Owner grants Purpleacre to Bill, so long as Bill doesn't Tweet. If
Bill Tweets, the land will automatically come back to the Owner.
3) Right of reentry—A right retained after a fee simple is conveyed with a _____________ ________________________. If the condition is broken, the right of reentry will occur. Example 3:
•
If Bill Tweets, the Owner has the right to reenter the land.
In Illinois, the possibility of reverter and right of reentry are limited: o o
Neither is ________________________________________________________ , and They can last only for _____________________ (after that, goes to the holder in fee simple).
C. Adverse Possession •
The doctrine that allows ownership to transfer to someone who has: o o o
•
Exclusive physical possession For a period of time Openly and notoriously (and hostilely!)
Two Illinois distinctions: 1) Duration—An adverse possessor has to wait _____________________ if adversely possessed ______________________________ (pay taxes, etc.). Otherwise, 20 years.
10 | © 2016 Themis Bar Review, LLC | IL MBE Distinctions
2) Disability of true owner—SOL does not run if the true owner is afflicted with a disability (insanity, infancy, imprisonment). When the disability is no longer present, the true owner has _______________________________ to challenge the adverse possession. D. Equitable Conversion •
In any real estate deal, when any party is selling to another, there are two stages: 1) A _____________________________________ (when contract is executed) 2) A _____________________________________ (where money and title change hands)
•
If something happens between signing and closing in a contract for the sale of land, in MOST states, the risk of loss is on the ____________________________________________________.
•
In Illinois, the risk of loss is on the ________________________________________ until either the buyer takes actual possession or the title is transferred.
E. Mortgage Interests •
Mortgaging can affect a concurrent estate.
•
Majority rule—_____________________________________—mortgage is simply a lien and does not affect joint tenancy.
•
Minority rule—_____________________________________—mortgage severs joint tenancy and turns it into a tenancy in common.
•
Illinois—Neither one. Has an ______________________________________________________. o
The borrower still owns the property, the lender has a lien on the property, and when the debt is paid, the title is released to the borrower/owner.
IL MBE Distinctions | © 2016 Themis Bar Review, LLC | 11
CHAPTER 5:
ILLINOIS TORTS DISTINCTIONS
A. Intentional Torts 1. False Imprisonment o o o o
In Illinois, there is a __________________________________________________________. To avoid liability, detention must be reasonable in ________________ and _____________. A shopkeeper’s detention of a shoplifter will not lead to liability if there is _______________ ____________________________________ that someone stole merchandise. In the event of theft, the shopkeeper can recover the item and a civil penalty double the item’s price.
B. Negligence 1. Duties o o
Fetuses—A duty of care is owed if they are _______________________ at the time of injury. Illinois recognized claims for:
Wrongful pregnancy—a failure to perform a contraceptive procedure. Wrongful birth—the child was allowed to come to term when there was a negligent failure to discover a defect. Illinois does NOT recognize a claim for “wrongful life.”
2. Standards of Care o
Attractive nuisance—A landowner’s traditional liability for injuries to children who trespass.
o
Not technically recognized in Illinois, but a landowner can be liable to a child for failing to take a __________________________________ if the landowner knew or could have known that a reasonable child would likely come on to the land and suffer an injury. Not as broad as traditional attractive nuisance.
Licensees (social guests) and invitees (enter land by specific invitation)
Premises Liability Act abolishes the duty to licensees and applies the duty owed to _____________________________ to all. Now, the standard for both is “reasonable care under the circumstances” with regard to the premises or acts on the premises.
C. Damages •
Caps on damages—Illinois has no _________________ on compensatory or punitive damages.
D. Other Liability Issues and Immunities 1. Vicarious Liability with Respect to Cars o
Many states have a “family use doctrine” (owner of an automobile may be liable for tortious acts of any family member using the car with permission).
12 | © 2016 Themis Bar Review, LLC | IL MBE Distinctions
o
Illinois doesn’t follow it, but there is a ____________________________________ that the driver of a car was ______________________________________ to drive the car.
2. Immunities a. Sovereign immunity
Liability of state and municipal governments is very limited in Illinois.
b. Intra-familial immunity
No immunity between _____________________________________________________. Parents are generally immune from lawsuits by ________________________________.
c. Charitable immunity
Charities are generally immune if acting in furtherance of ________________________.
E. Multiple Defendants 1. Contribution o
Illinois follows modern trend—Apportion costs among tortfeasors according to their amount of fault.
2. Contributory Negligence o o
o
Not an Illinois defense to __________________________________, gross negligence, or recklessness. Illinois ____________________________________________ the doctrine of contributory negligence (which typically says that a plaintiff's failure to exercise reasonable care will be a bar to recovery). Instead, Illinois uses a comparative analysis (see below).
3. Comparative Negligence o o o
Evaluates the parties’ amounts of fault. In actions based on negligence, products liability, or strict liability, an Illinois plaintiff will be barred from recovery if she is more than _______________________________ responsible. Damages reduced proportionately by amount of fault.
F. Business Torts 1. Wrongful Discharge o
Does exist in Illinois if employer terminated employee contrary to clear public policy.
Violation of specific guarantee or right against a class or group OR Firing someone because they refuse to _______________________________________.
[END OF HANDOUT]
IL MBE Distinctions | © 2016 Themis Bar Review, LLC | 13
14 | © 2016 Themis Bar Review, LLC | IL MBE Distinctions
ILLINOIS CONTRACTS DISTINCTIONS
A. Types of Contracts 1. Promises of marriage o o o o
Consideration—Must be something of substance; does not have to be economic—promise of marriage is adequate. The breach of the promise to marry is a viable cause of action in Illinois Only ______________________________________________________ are recoverable. Gifts are considered __________________________ upon the marriage (e.g., the ring).
2. Reciprocal Wills o
The mutual promise to make a reciprocal will is sufficient consideration.
B. Promissory Estoppel •
Even when there is no consideration, promises may still be enforced, IF: o o o
The promisor should reasonably expect the promise to ___________________________ action or forbearance The promise does in fact induce such action or forbearance Injustice can be avoided only by _________________________________________________ Example 1:
Your uncle promises to pay you $100,000 upon your completion
of law school. Dependent on this promise, you enroll. As you study for the bar exam, your uncle refuses to pay. You can recover under promissory estoppel.
•
You don’t recover all damages, just ______________________________ damages.
•
Can be pled as a _____________________ and as a ____________________________________.
C. Parol Evidence Rule •
What is included in the final contract?
•
In Illinois, extrinsic evidence is permitted in disputes related to _____________________.
D. Actual Damages on Real Estate Contracts •
When determining whether or not actual damages would be uncertain, courts look at moment ______________________________, not to the moment of breach.
CHAPTER 2:
ILLINOIS CRIMINAL LAW DISTINCTIONS
A. Criminal Liability 1. Strict Liability o
Also referred to as ________________________________________ crimes (e.g., misdemeanors without prison time; statutory crimes)
2. Parties to a Crime o o
Some jurisdictions focus on principals and accessories; IL discusses ____________________. Illinois specifically permits prosecution of ________________ and individuals who aid them.
3. Withdrawal o
Illinois requires that an accomplice do one of the following in order to withdraw effectively:
________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________
4. Insanity o o
Classically, four tests: M'Naghten, Irresistible Impulse, Durham Rule, Model Penal Code Illinois uses the ______________________________________________________________:
A person is not criminally responsible for conduct if at the time of the conduct the person lacked the ___________________________________________ to appreciate the criminality of the act. Burden of proof: _________________________________________________________.
5. Intoxication—By any substance o
In Illinois, a person who is intoxicated or drugged is criminally responsible UNLESS:
The intoxication was _________________________________________ AND The intoxication rises to the level of the _______________________________________.
6. Infancy o
No child can be convicted of a crime until he reaches the age of ______________________.
B. Felonies and Misdemeanors 1. Felonies: Five categories (Class X, 1, 2, 3, 4)—higher the number, the less serious o o o o o
Class X – 6-30 years 1—4-15 years 2—3-7 years 3—2-5 years 4—1-3 years
2 | © 2016 Themis Bar Review, LLC | IL MBE Distinctions
2. Misdemeanors: Three categories o o o
A—Up to one year B—Up to six months C—30 days or less
C. Homicide •
Unborn child—Illinois criminalizes the intentional homicide of an unborn child.
•
Assisted suicide—In Illinois, inducement, coercion, or providing with means of suicide does not make you guilty of murder as an accomplice, it’s a lesser crime called “_____________________ _______________________________________________________.”
•
First-degree murder—When a person kills another while: o o o
Acting with the ________________________________________; __________________________ that acts will create a strong probability of causing death; or Committing or intending to commit a ____________________________________________.
•
Second-degree murder—First-degree murder committed when one of the following mitigating circumstances is present: o o
Unreasonable belief or justification; or Sudden and intense passion resulting from a serious provocation from the victim.
•
A forcible felony is an inherently dangerous felony (criminal sexual assault, robbery, burglary, arson, kidnapping, or any aggravated version of the above.)
Defendant has burden of proving these mitigating circumstances by a _______________ ______________________________________________________.
Reckless homicide—The cause of death is by recklessly driving a vehicle
D. Theft crimes •
Consolidated theft statute—An individual is guilty of a theft crime when he does one of the following three things: 1) Obtains or exerts _________________________________ over the property of another; 2) Obtains by _____________________________________ unauthorized control over the property of another; or 3) Obtains property ____________________________________________ (if over $500 or a handgun, felony).
•
Robbery: Taking of property of another by ____________________________________________ o o
Armed robbery—same as above, using a __________________________________________ Aggravated robbery—takes property through the use of force while indicating he is armed, even if he isn’t; or if the victim is drugged.
IL MBE Distinctions | © 2016 Themis Bar Review, LLC | 3
•
Burglary: Intentional entering of a _________________________________ of another with the specific intent to ________________________________________ therein. o o
Need not be a dwelling, though there is a specific crime of “residential burglary.” Tools—Illinois criminalizes the possession of _______________________________________
E. Battery, Assault, Mayhem •
Battery and Assault are __________________________________________________________.
•
Both can be increased to “aggravated” (as described below)
1. Battery o o o o o
The intentional application of force; Without justification; that Causes bodily harm; or Causes physical contact that is insulting. Can be aggravated:
o
If the victim is in some particular class (a police officer, child, elderly, disabled) If the perpetrator is hooded, masked, or concealed in some other way
Battery (and assault) can be committed against an unborn child.
2. Assault o o o
An attempt to commit a battery; or Intentionally placing another in fear of imminent bodily harm. Can be aggravated by use of a deadly weapon, and the same way as battery.
3. Home Invasion o
Unlawful entry of a dwelling of another and use of force or threat of force with a weapon.
4. Intimidation and Stalking o o o
Intimidation: Threats intended to cause a person to act in a certain way. Stalking: Knowingly following or keeping under close view at least twice, with the intent to cause fear. Cyber stalking—using e-communications more than twice
F. Criminal Sexual Assault (Illinois rape) •
Gender ____________________________________.
•
Elements: o o o o
Sexual penetration; By force or threat of force; Without consent; or Against a minor
4 | © 2016 Themis Bar Review, LLC | IL MBE Distinctions
1. Aggravated—When one of the following factors exists: o o o o o
Display, threat, or use of a _____________________________________________________; The assault occurs during the commission of a _____________________________________; The victim is __________________, _____________________, or _____________________; The defendant is under 17 and the victim is under 9; or The defendant is under 17, the victim is between 13 and 9 years old, and threat or use of force occurred.
G. Criminal Sexual Abuse (Illinois statutory rape) •
Strict liability
•
Sexual conduct with a person under 17
•
If the defendant is more than 5 years older than the victim, it’s a felony.
H. Unlawful Restraint
I.
•
Detaining an individual without authority
•
Aggravated if committed with a ____________________________________________________
Arson •
Elements: o o o o
J.
A person by means of fire or explosive; Knowingly damages; _____________________________ (worth over $____________________________); Of another, or their own with an intent __________________________________________.
•
Aggravated—The person knew or should have known that the building was ________________, or caused injury to a ___________________________________.
•
Arson of a Residence or Place of Worship—another crime
Inchoate Crimes 1. Conspiracy o
To withdraw or terminate a conspiracy:
Do all that is possible to ___________________________________________________, ____________________________________________________________, or ________________________________________________________________________
2. Attempt o
In Illinois, an attempt does not occur unless the defendant’s act results in dangerous proximity to the _____________________________________________________________.
3. Resisting Arrest o
Defendant may not use _________________________________ to resist an unlawful arrest.
IL MBE Distinctions | © 2016 Themis Bar Review, LLC | 5
CHAPTER 3:
ILLINOIS CRIMINAL PROCEDURE DISTINCTIONS
A. Fourth Amendment 1. Warrantless Arrests o o
A police officer may arrest without a warrant if the officer has ______________________ __________________ to believe that the person is committing or has committed a crime. A private person may arrest if he has reasonable grounds to believe the person is committing an offense other than an ordinance violation, and is doing it ________________ _______________________________________________.
2. Dog Sniffs o
The Fourth Amendment does not require a ____________________ to justify using a drugsniffing dog during an otherwise legitimate traffic stop.
3. Search Warrants o
Can be used:
To find contraband To find fruits of a crime To find a person who has been kidnapped To look for fetuses and corpses
4. Search Incident to a Lawful Arrest o
After a lawful arrest, a police officer may reasonably search, without a warrant, the arrested person and the area within the immediate presence to:
Protect the officer from attack Prevent the person from escaping Discover the fruits of the crime Discover instrumentalities that may have been used in the commission of a crime
5. Exigency o o
An in-home arrest made without a warrant can be made under exigent circumstances. There are three requirements: 1) Police have reasonable grounds to believe there is an emergency, and that immediate action is needed to protect _________________________________________________; 2) Search can’t be motivated by an attempt to ___________________________________; 3) There must be a reasonable basis, nearing ______________________________, to associate the emergency with the place to be searched.
6 | © 2016 Themis Bar Review, LLC | IL MBE Distinctions
6. Hot Pursuit o
If police have probable cause to believe that a person has committed a _________________ ____________________, they can enter a private building during pursuit without a warrant.
7. Temporary Questioning o
A peace officer can stop any person in public for a reasonable time to ask:
The person’s name, Address, and Explanation of actions if: The officer has reasonably infers from the circumstances that the person has committed, is committing, or is about to commit a crime.
8. Community Caretaking o
There is no requirement of probable cause or reasonable suspicion if an officer encounters a person to check on his well being.
9. Searches During Temporary Questioning o o
If the officer reasonably believes that some person is about to be attacked, that person can be searched for weapons. If a weapon is found, police officer may take it during questioning, but must return it after questioning, if ______________________________________________________________.
B. Custodial Interrogation 1. “Reasonableness Test” o
A custodial interrogation is an encounter with police in which a _____________________ ________________________ in the same position would consider herself to be in custody.
2. Electronic Recording Equipment o o
All statements made as a result of custodial interrogation for certain crimes at a place of detention must be electronically recorded, and it cannot be intentionally altered. Otherwise, any statements not recorded are presumptively inadmissible (though they may be used for impeachment purposes).
C. Trial 1. Bringing a Complaint o o o
Prosecution is commenced with a complaint, information, or indictment. If a felony charge, must be an ______________________ or _________________________. No felony prosecution that can be pursued by information unless there is a preliminary hearing to determine _________________________________________________________.
IL MBE Distinctions | © 2016 Themis Bar Review, LLC | 7
2. Bail o
Almost offenses all are bailable, except for:
Death sentence Life imprisonment Imprisonment without release if release would pose a present or real risk Stalking or aggravated stalking Weapons on school grounds Terrorist threats
3. Competency o o
Distinction—In Illinois, defendant is presumed ___________________________________. The defendant is unfit if because of mental or physical condition he is unable to understand the nature of the proceedings against him. This can be raised by:
o
_____________________________________________________, _____________________________________________________, and _____________________________________________________.
Once the issue is raised, it must be proven by preponderance of the evidence
4. Right to Counsel in Grand Jury Proceedings o
Any person already charged with an offense who is then subpoenaed to testify is entitled to counsel, who can only __________________________________________. Also applies to witnesses in grand jury.
5. Juries o o o
No right to jury trial if only punishment is a _______________________________________. No right to a jury trial if the defendant fails to request it or pay the fee. Unanimous decisions required for verdicts of:
Guilty Guilty but mentally ill Not guilty Not guilty by reason of insanity
6. Guilty but Mentally Ill o
In Illinois, to enter this plea, the defendant must:
Be examined by a clinical psychologist, Have waived right to trial, and There must be an adjudicated court hearing that defendant was mentally ill at the time of the offense.
8 | © 2016 Themis Bar Review, LLC | IL MBE Distinctions
7. Speedy Trial o
Every person in custody must be tried within ______________________ of when he was taken into custody unless:
The delay is caused or agreed to by the defendant, or There is a fitness hearing and the determination is ordered, or The defendant is adjudicated unfit, or There is an interlocutory appeal by the defendant.
8. Substitution of a Judge o
A criminal defendant and the prosecution can move in writing that the judge is so prejudiced he can’t have a fair trial. The judge accused of prejudice won’t continue the case until another judge has ruled on the prejudice issue.
IL MBE Distinctions | © 2016 Themis Bar Review, LLC | 9
CHAPTER 4:
ILLINOIS REAL PROPERTY DISTINCTIONS
A. Concurrent Estates •
Property is held by more than one person at the same time.
1. Tenancy by the Entirety o o o
Joint tenancy between ____________________________________ with a right of ____________________________. Neither party can sell or encumber the property without ____________ of the other spouse. In Illinois, tenancy by the entirety isn’t created automatically if two married people enter a joint tenancy.
The parties _______________________________________________, AND Must explicitly state ______________________________________________________
B. Future Interests •
Interests in currently existing property, given by a gift or trust, that begin in the future.
•
Three primary types: 1) Reverter—Future interest held by the grantor of ________________________________ 2) Possibility of reverter—An interest automatically retained by a grantor of a ________________________. The property may never come back, but it might. Example 2:
Owner grants Purpleacre to Bill, so long as Bill doesn't Tweet. If
Bill Tweets, the land will automatically come back to the Owner.
3) Right of reentry—A right retained after a fee simple is conveyed with a _____________ ________________________. If the condition is broken, the right of reentry will occur. Example 3:
•
If Bill Tweets, the Owner has the right to reenter the land.
In Illinois, the possibility of reverter and right of reentry are limited: o o
Neither is ________________________________________________________ , and They can last only for _____________________ (after that, goes to the holder in fee simple).
C. Adverse Possession •
The doctrine that allows ownership to transfer to someone who has: o o o
•
Exclusive physical possession For a period of time Openly and notoriously (and hostilely!)
Two Illinois distinctions: 1) Duration—An adverse possessor has to wait _____________________ if adversely possessed ______________________________ (pay taxes, etc.). Otherwise, 20 years.
10 | © 2016 Themis Bar Review, LLC | IL MBE Distinctions
2) Disability of true owner—SOL does not run if the true owner is afflicted with a disability (insanity, infancy, imprisonment). When the disability is no longer present, the true owner has _______________________________ to challenge the adverse possession. D. Equitable Conversion •
In any real estate deal, when any party is selling to another, there are two stages: 1) A _____________________________________ (when contract is executed) 2) A _____________________________________ (where money and title change hands)
•
If something happens between signing and closing in a contract for the sale of land, in MOST states, the risk of loss is on the ____________________________________________________.
•
In Illinois, the risk of loss is on the ________________________________________ until either the buyer takes actual possession or the title is transferred.
E. Mortgage Interests •
Mortgaging can affect a concurrent estate.
•
Majority rule—_____________________________________—mortgage is simply a lien and does not affect joint tenancy.
•
Minority rule—_____________________________________—mortgage severs joint tenancy and turns it into a tenancy in common.
•
Illinois—Neither one. Has an ______________________________________________________. o
The borrower still owns the property, the lender has a lien on the property, and when the debt is paid, the title is released to the borrower/owner.
IL MBE Distinctions | © 2016 Themis Bar Review, LLC | 11
CHAPTER 5:
ILLINOIS TORTS DISTINCTIONS
A. Intentional Torts 1. False Imprisonment o o o o
In Illinois, there is a __________________________________________________________. To avoid liability, detention must be reasonable in ________________ and _____________. A shopkeeper’s detention of a shoplifter will not lead to liability if there is _______________ ____________________________________ that someone stole merchandise. In the event of theft, the shopkeeper can recover the item and a civil penalty double the item’s price.
B. Negligence 1. Duties o o
Fetuses—A duty of care is owed if they are _______________________ at the time of injury. Illinois recognized claims for:
Wrongful pregnancy—a failure to perform a contraceptive procedure. Wrongful birth—the child was allowed to come to term when there was a negligent failure to discover a defect. Illinois does NOT recognize a claim for “wrongful life.”
2. Standards of Care o
Attractive nuisance—A landowner’s traditional liability for injuries to children who trespass.
o
Not technically recognized in Illinois, but a landowner can be liable to a child for failing to take a __________________________________ if the landowner knew or could have known that a reasonable child would likely come on to the land and suffer an injury. Not as broad as traditional attractive nuisance.
Licensees (social guests) and invitees (enter land by specific invitation)
Premises Liability Act abolishes the duty to licensees and applies the duty owed to _____________________________ to all. Now, the standard for both is “reasonable care under the circumstances” with regard to the premises or acts on the premises.
C. Damages •
Caps on damages—Illinois has no _________________ on compensatory or punitive damages.
D. Other Liability Issues and Immunities 1. Vicarious Liability with Respect to Cars o
Many states have a “family use doctrine” (owner of an automobile may be liable for tortious acts of any family member using the car with permission).
12 | © 2016 Themis Bar Review, LLC | IL MBE Distinctions
o
Illinois doesn’t follow it, but there is a ____________________________________ that the driver of a car was ______________________________________ to drive the car.
2. Immunities a. Sovereign immunity
Liability of state and municipal governments is very limited in Illinois.
b. Intra-familial immunity
No immunity between _____________________________________________________. Parents are generally immune from lawsuits by ________________________________.
c. Charitable immunity
Charities are generally immune if acting in furtherance of ________________________.
E. Multiple Defendants 1. Contribution o
Illinois follows modern trend—Apportion costs among tortfeasors according to their amount of fault.
2. Contributory Negligence o o
o
Not an Illinois defense to __________________________________, gross negligence, or recklessness. Illinois ____________________________________________ the doctrine of contributory negligence (which typically says that a plaintiff's failure to exercise reasonable care will be a bar to recovery). Instead, Illinois uses a comparative analysis (see below).
3. Comparative Negligence o o o
Evaluates the parties’ amounts of fault. In actions based on negligence, products liability, or strict liability, an Illinois plaintiff will be barred from recovery if she is more than _______________________________ responsible. Damages reduced proportionately by amount of fault.
F. Business Torts 1. Wrongful Discharge o
Does exist in Illinois if employer terminated employee contrary to clear public policy.
Violation of specific guarantee or right against a class or group OR Firing someone because they refuse to _______________________________________.
[END OF HANDOUT]
IL MBE Distinctions | © 2016 Themis Bar Review, LLC | 13
14 | © 2016 Themis Bar Review, LLC | IL MBE Distinctions
