Must knows from review on 2/22/18

A husband and wife entered into an agreement with a contractor to construct an addition to their home. The couple were to pay $75,000, with $10,000 to be paid upon the signing of the contract, progress payments of $25,000 to be made when the addition was one-third and two-thirds complete, and a final payment of $15,000 when the addition was complete. Immediately after the addition was two-thirds complete, and the contractor had received the payments called for under the contract, the contractor informed the couple that it would be unable to complete the addition. At that time, the contractor had incurred costs of $45,000 out of the $60,000 in costs that the contractor had anticipated incurring to complete the addition. The couple found another contractor to complete the addition at a cost of $35,000. The couple filed a breach of contract action against the first contractor, seeking expectation damages. How much should the couple be awarded in damages?

$35,000, to recover the amount the couple had to pay the second contractor to finish the job. $20,000, to recover the total amount that the couple paid to both contractors less the contract price. $15,000, to deny the first contractor the profit it would have made had it finished the addition. $10,000, based on the amount paid by the couple to the first contractor less two-thirds of the contract price. Answer choice B is correct. Generally, when a contract has been breached, the nonbreaching party is entitled to expectation damages. The general measure of damages for a contractor's failure to begin or to complete the building or other structure is the difference between the contract price and the cost of construction by another builder plus any progress payments made to the builder. Here, the couple paid the first builder $60,000 in progress payments ($10,000 + $25,000 + $25,000) and the second builder $35,000 to complete the addition, for total of $95,000. Because the contract price was $75,000, the couple should be awarded $20,000 in expectation damages. Answer choice A is incorrect because, although the couple did pay the second contractor $35,000 to finish the addition, this amount fails to take into account the contract price and the amount that the couple had already paid the first contractor in progress payments. Answer choice C is incorrect because, although the first contractor did anticipate earning a profit on the contract of $15,000 ($75,000 (contract price) less $60,000 (total anticipated costs)), this amount is not the correct measure of the couple's expectation damages. Answer choice D is incorrect. Although when the first contractor anticipatorily breached the contract to build the addition, the addition was two-thirds completed, and $10,000 does reflect the amount by which the progress payments made by the couple ($60,000) exceeded two-thirds of the contract price ($50,000), this amount is not the correct measure of the couple's expectation damages.

A defendant was convicted of bank robbery in federal court. Subsequently, the defendant was indicted in the state where the bank was located for the crimes of robbery and conspiracy to commit robbery. The defendant moved to dismiss the state prosecution of these offenses on double jeopardy grounds. Should the defendant's motion be granted?

** double jeopardy means that the State can't charge you twice for the same crime & the feds can't charge you twice for the same crime - however, they can both charge you separately for the same crime ** ** also remember, robbery and conspiracy to commit robbery are separate offenses and can both be charged ** Yes, as to both offenses. Yes, as to the robbery offense only. Yes, as to the conspiracy offense only. No, as to either offense. Answer choice D is correct. Under the "Dual Sovereignty" doctrine, prosecution of a defendant by the federal government for a crime arising out of an event does not prevent a state from prosecuting the defendant for a crime arising out of the same event. (Note: Under this doctrine, the reverse is also true.) Under Blockburger, robbery and conspiracy to commit robbery are separate offenses. Each contains an element that the other does not. Consequently, prosecution of the defendant for either robbery or conspiracy to commit robbery by the state is not prohibited by double jeopardy.

A man and his friend attended their 10-year high school reunion party. There, the two struck up a conversation with a woman who had been a classmate. Neither the man nor his friend had seen her since high school. At the end of the reunion party, the three decided to walk to a nearby bar. As they were walking to the bar, the friend suggested a shortcut through an alley. In the alley, the friend grabbed the woman and began making unwanted sexual advances towards her. The man, despite the woman's pleas to help her, continued walking on towards the bar. Once there, the man ordered a beer and watched a sporting event on television, while his friend raped the woman in the alley. The man was charged as an accomplice to rape. Should he be convicted of the crime?

** not a crime to refuse to be a good samaritan ** No, because the man did not commit an actus reus for which he could be criminally liable. No, because there was no agreement between the man and his friend to rape the woman. Yes, because the man's actions aided and abetted the friend in committing the rape. Yes, because the man was aware that the woman did not consent to his friend's sexual advances. Answer choice A is correct. The man owed no duty to the woman, since he had no special relationship with her. Consequently, his failure to act to prevent his friend from raping her does not constitute an actus reus on which criminal liability can be predicated. Answer choice B is incorrect because accomplice liability, unlike conspiracy, does not require an agreement between the parties. Answer choice C is incorrect because, although the man failed to take any action to stop his friend from raping the woman or even to report the crime, he did nothing to encourage or to assist the friend in committing the rape. Answer choice D is incorrect because mere awareness that a crime is occurring is not sufficient to trigger accomplice liability.

A woman took her car to an unscrupulous auto mechanic's garage for a tune-up. The woman's car had a new and expensive set of tires that the mechanic coveted. The woman left her car at the garage overnight. Later that night, after the woman had left the premises, the mechanic took the tires off the woman's car, put them into a back room of his garage, and replaced the tires with a cheap, old set. That same evening, the woman's friend told her about the mechanic's unscrupulous nature, and that he had a habit of stealing tires. The woman went back to the garage the next morning. Noticing that the tires on her vehicle were different, she demanded that the new, expensive tires be put back on the vehicle. The mechanic complied, and the woman left the premises. The woman reported the mechanic to the police, and the mechanic is charged with larceny. Based on the foregoing facts, should he be convicted of the crime?

** note! this was embezzlement!! ** Yes, because the mechanic moved the tires from the car to the back room. Yes, because the mechanic had a present intent to permanently deprive the woman of the tires. No, because the car was left with the mechanic by consent. No, because the tires were returned to the woman before she was permanently deprived of them. Answer choice C is correct. For a larceny, the initial taking and asportation of another's property must be trespassory; that is, the defendant must not be legally entrusted with the property. Here, the woman entrusted the mechanic with her vehicle (and the tires on the vehicle). Thus, the initial taking of the tires was not trespassory, and the mechanic's crime was embezzlement, not larceny.

A retail store that specialized in glass objects entered into a written contract to purchase 100 hand-blown glass ornaments from an artisan. Because of the artisan's popularity, the store paid in full for the ornaments at the time that the contract was executed. The contract specified that the store would pick up the ornaments after notification that they were ready. The contract contained no other terms related to delivery of the ornaments and did not allocate the risk of loss. When the ornaments were ready, the artisan notified the store. The parties arranged for the store to pick up the packaged ornaments no later than 2:00 pm the next day. The employee assigned by the store to make the pickup did not arrive until 6:00 pm. In the late afternoon just before the store employee arrived, a short but intense storm caused a large, healthy tree on the artisan's property to fall over and destroy all the ornaments. Neither party had insured the ornaments against such a loss. Who bears the risk of the loss with respect to the ornaments?

** testing risk of loss when seller is a merchant ** The store, because the artisan had tendered delivery of the ornaments to the store prior to the loss. The store, because the artisan's insurance did not cover the loss. The artisan, because the store had not taken possession of the ornaments. The artisan, because the store was a merchant. Answer choice B is correct. The UCC provides that a merchant seller generally retains the risk of loss in the absence of a contract term to the contrary until the buyer receives the goods. However, if the buyer is in breach of the contract, the risk of loss passes to the buyer to the extent of any deficiency in the seller's insurance coverage. Here, the store, as buyer, was in breach of the contract by failing to pick up the ornaments by 2:00 pm. Although the UCC only requires that the delivery time be "reasonable" in the absence of a specific contract term, the parties here modified the contract in that regard by agreeing that the seller should pick up the ornaments by 2:00 pm Answer choice A is incorrect because, although the risk of loss passes to the buyer upon tender of delivery of the goods when the seller is not a merchant, the artisan here is a merchant (he has specialized knowledge or skill peculiar to glass ornaments). Consequently, the risk of loss does not pass until the buyer receives the goods unless the buyer is in breach of the contract (as was the case here).

A car was parked in front of a man's house for a week without being moved. The man honestly but unreasonably believed that the car had been abandoned. He found a spare key attached to the underside of the car and, using that key, drove the car into his driveway, intending to make it his own. Several days later, the car's owner returned. Seeing his car in the man's driveway, the owner notified the police. The man was charged with larceny. Taking abandoned property is not a crime under the laws of the jurisdiction. Should the man be convicted of larceny?

*** remember - an honest but unreasonable mistake of fact serves as a defense to a specific intent crime. *** No, because taking abandoned property is not a crime. No, because the man's mistake was honestly made. Yes, because an honest mistake of law does not negate the man's mens rea. Yes, because the man's mistake was unreasonable. Answer choice B is correct. The man's mistake was connected with the ownership status of the car, and not the law of larceny in the jurisdiction. Thus, his mistake was one of fact and not of law. Larceny is a specific intent crime, and an honest mistake of fact, whether reasonable or not, serves as a defense to a specific intent crime because such an honest mistake negates the required mens rea.

A plaintiff filed a complaint in state court against a defendant, alleging damages from negligence resulting from an automobile accident. The defendant removed the case to federal district court. The federal district court, finding that there was no subject-matter jurisdiction in federal court, issued an order remanding the case to state court. The defendant believes that the court's remand is improper and wants to appeal the order remanding the case to state court. Which of the following is most accurate regarding the remand order?

Appeal of the remand order is improper. Once a case is removed, remand is improper. Review of a remand order to state court is proper only upon the issuance of a final judgment. The remand order is appealable if the application for review is made no more than 10 days after entry of the order. Answer choice A is correct. A remand order is generally not reviewable on appeal or otherwise (except for an order remanding a civil rights case removed pursuant to § 1443 or a remand order in a class action, if the application for review is made to the court of appeals not more than 10 days after the entry of the order).

During legislative hearings on a new bill promoted by the President, a congressman made a defamatory statement about the President. That evening, the congressman appeared on a television news program, during which he repeated the defamatory statement in an attempt to entice citizens to contact their congresspersons to encourage them to vote against passage of the bill. In response, the President stated that the congressman was uninformed and possibly taking bribes, encouraging the rest of Congress to ignore the congressman's comments and vote in favor of the bill. If a civil suit for money damages is filed against either the President or congressman as a result of the statements, who may properly be held liable?

Both the President and the Congressman, because each exceeded the immunity of his office. Neither the President nor the Congressman, because neither exceeded the immunity of his office. The Congressman only, because he exceeded his legislative immunity. The President only, because he exceeded his executive immunity. Answer choice C is correct. Although members of Congress enjoy immunity for statements made in the regular course of the legislative process (i.e., during legislative hearings on a bill), the immunity will not protect statements made outside of Congress. Accordingly, the immunity will not extend to a "re-publication" of a defamatory statement, even if that statement was originally made in Congress. On the other hand, the president enjoys absolute executive immunity to civil suits for money damages for actions while he is in office.

An individual acquired a newly constructed house with a purchase money mortgage. Although the deed was recorded, through an oversight by the mortgagee, the mortgage was not. Several years later, the individual sold the house at its fair market value to a couple who obtained a purchase money mortgage through another mortgagee. Both the deed and the mortgage were recorded. Neither the couple nor the second mortgagee was aware of the prior mortgage. Shortly thereafter, the couple was killed in an accident, survived by their two young children. The couple did not leave a will. Under the law of intestate succession, the young children are the rightful heirs of their parents. The children's financial guardian, having been contacted by both mortgagees, has filed an appropriate action to determine ownership of the house. The jurisdiction is a lien state with regard to mortgages. In addition, the applicable recording act reads, "No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice unless the same be recorded according to law." Who is entitled to priority with respect to the house?

First mortgagee, second mortgagee, children Second mortgagee, first mortgagee, children Second mortgagee, children, first mortgagee First mortgagee, children, second mortgagee Answer choice C is correct. The recording statute is a notice statute. Since the second mortgage was given by the mortgagee without notice as to the first mortgage, it has priority over the first mortgage. A purchase money mortgagee is treated as having paid value for purposes of the recording act. In addition, since the second mortgage was given by the couple before their deaths, the children's claims to the property as heirs of their parents are junior to the second mortgage. The recording act would not be helpful to the children's claim because the second mortgage was recorded before their interests arose and because as heirs they are not purchasers for value protected by the act. With regard to the first mortgage, while the children as heirs are not protected by the act, they are protected under the shelter rule because their parents were entitled to priority over the first mortgage by virtue of acquiring the property without notice of that mortgage. For all these reasons, answer choices A, B, and D are incorrect.

A man shopping in a department store found a suit that he liked but could not afford. He noticed that the store had a system for identifying sale merchandise: all merchandise with a sticky red label on the tag was 50% off the original price. The man then went to an office supply store and purchased a set of identical labels. He returned to the department store with one of the labels, and placed the label on the suit's price tag. The man then took the suit to the register, paid the reduced price for the suit, and took the suit home. Of which one of the following crimes should the man be convicted?

Forgery Embezzlement Larceny by trick False pretenses Answer choice D is correct. The crime of false pretenses occurs when an individual (i) obtains title to property (ii) of another person (iii) through the reliance of that person (iv) on a known false representation of a material past or present fact (v) and the representation is made with the intent to defraud. All elements of the crime are implicated in the man's conduct of paying the discounted price for the suit—he obtained legal title to the suit through fraudulent means. Answer choice C is incorrect because larceny by trick involves obtaining the mere possession of another's property. Here, the man obtained not only possession of the suit, but full title as well.

Arriving home from work, a husband found his wife engaged in sex with his best friend. The husband flew into a rage and verbally threatened to shoot both of them, although he did not own a gun. The best friend quickly left and the husband eventually calmed down and regained his self-control after his wife promised not to see the best friend again. Nevertheless, the husband left the house to purchase a handgun. After making his purchase, he stopped by a local bar and became inebriated. In the meantime, the best friend returned to drop off the husband's favorite hat, which the husband had left at the best friend's house the day before. Only the wife was home, but as the wife was giving the best friend a goodbye hug, the husband returned home, still inebriated. As both the wife and the best friend attempted to explain the innocent nature of their being together, the husband, his shock over their relationship returning, pulled the trigger. His shot missed the best friend and instead killed the wife. The husband was charged with common-law murder of his wife. Which of the following would be his best argument against the charge?

He didn't intend to kill his wife. His intoxicated state prevented him from forming the intent necessary to commit the crime. The sight of his best friend and his wife together again reignited his feelings regarding his wife's adultery. A reasonable person would not have cooled off from the initial discovery of the adultery. Answer choice C is correct. Adequate provocation reduces common law murder to voluntary manslaughter. Although the discovery of his wife's adultery would likely have been adequate provocation, the husband cooled off long enough to gain his self-control before finding his wife and his best friend together a second time. Merely seeing his wife embrace his best friend would not constitute adequate provocation. However, assuming this second incident rekindled the passions that had been inflamed by the earlier incident, the husband could reclaim the partial defense of adequate provocation. Answer choice A is incorrect because, under the doctrine of transferred intent, the husband's intent to kill his best friend is treated as satisfying the mens rea requirement for his killing of his wife. Answer choice B is incorrect because voluntary intoxication is not a defense to common law murder, which is a malice crime. Answer choice D is incorrect because the husband himself had cooled down and gained his self-control. Consequently, regardless of whether a reasonable person would have done so, the husband cannot rely on his initial discovery of the adultery as an adequate act of provocation.

The guest of a member of a condominium association was injured when he slipped on a wet spot in the front lobby area. This area is owned by each unit owner as a tenant-in-common with the other unit owners. The guest sued the association, and a jury determined that the association was liable for injury to the member's guest. The jury awarded the guest damages. Which of the following best describes the responsibility of each member for the damages?

No member bears any financial responsibility for the damages. Each member is jointly liable for the total amount of the damages. Each member is jointly and severally liable for the total amount of the damages. Each member is liable for her share of the association expenses, which includes payment of the judgment awarded to a tort plaintiff. Answer choice D is correct. Although each member of a condominium association owns the common areas of the condominium as a tenant-in-common with the other members, the member is only indirectly responsible for a tort judgment against the association. Payment of the tort judgment by the association is an expense of the association, and each member is liable for a share of the association's expenses.

A man asked a friend to burn down the man's residence so the man could collect the fire insurance proceeds. The friend stated that she would be willing to set fire to the residence for $20,000. The man offered $10,000, but the friend refused. Later, the man set fire to an office building that he owned in order to collect the fire insurance proceeds. The man honestly, but unreasonably and incorrectly, believed that there was no one in the building when he set the fire. There was a person in the office building at the time of the fire who escaped unharmed. The man is charged with solicitation and arson. The relevant statute defines arson as "the malicious burning of any dwelling or occupied structure." Can the man be convicted of these crimes?

No, as to both solicitation and arson. Yes, as to both solicitation and arson. Yes, as to arson only. Yes, as to solicitation only. Answer choice B is correct. The man can be convicted of solicitation because he asked his friend to commit the crime of arson with the intent that the friend would do so. While solicitation to commit a crime is a completed crime in itself, it merges into the completed crime being solicited.

A defendant entered a guilty plea in state court for conduct stemming from a single incident in which the defendant broke into the victim's apartment with the intent of committing a rape and did so. The judge entered a judgment against the defendant on both the burglary and rape charges. Pursuant to state law, sentences for two or more crimes must run concurrently unless the judge finds that the crime was an indication of the defendant's willingness to commit more than one crime. The judge, making such a finding with respect to burglary, ordered that the sentences for burglary and rape run consecutively. The defendant filed an appeal, challenging the consecutive sentences as unconstitutional. Should the court rule in the defendant's favor?

No, because a judge may determine whether a defendant's sentences run consecutively. No, because, where a defendant enters a guilty plea, the defendant has waived his right to a trial by jury, and the judge may find a fact that results in the enhancement of the defendant's sentence. Yes, because the Double Jeopardy Clause of the Fifth Amendment as applied to the states through the Fourteenth Amendment prohibits punishment for both a crime and its lesser included offense. Yes, because a jury, not a judge, must find any fact essential to a defendant's punishment. Answer choice A is correct. A judge may make the determination of whether sentences for separate crimes may run consecutively. The Sixth Amendment right to a jury trial does not require that a jury, rather than a judge, find any fact necessary to impose consecutive, rather than concurrent sentences.

A defendant was convicted of murder. During the trial, his lawyer made a strategic judgment call to refrain from introducing certain mitigating evidence. The defendant was convicted and sentenced to a long prison term. The lawyer's decision with respect to the mitigating evidence and her overall performance did not fall below an objective standard of competence for attorneys in a similar situation. After the trial, the defendant's lawyer apologized to the defendant for not introducing the evidence, saying that in hindsight she was wrong not to have done so. The defendant now seeks to reverse his conviction on the grounds that he received ineffective assistance of counsel. Will the defendant succeed?

No, because decisions regarding trial strategy rest solely with the lawyer. No, because the defendant's lawyer's performance met the objective standard of care. Yes, because the lawyer's performance fell below the lawyer's subjective standard, and the defendant was actually prejudiced by the result. Yes, because the defendant was actually prejudiced by the result of his lawyer's performance. Answer choice B is correct. In order to reverse a conviction on the grounds of ineffective assistance of counsel, the defendant must prove both that the lawyer's conduct was not objectively reasonable, and that the ineffective counsel actually prejudiced the defendant. Here, the lawyer's conduct was objectively reasonable.

In a civil action being tried before a jury, a party objected to the introduction of evidence on the grounds that disclosure of the evidence was protected by the psychotherapist-patient privilege. In ruling on this objection, the court considered evidence protected by the attorney-client privilege. Has the court acted properly in making its ruling?

No, because the court considered privileged evidence in making its ruling. No, because the issue of the existence of a privilege is a matter for the jury, not the court to decide. Yes, because the court is not bound by the rules of evidence when making determinations as to admissibility. Yes, because the action was a civil action, not a criminal action. Answer choice A is correct. In determining a preliminary question, such as the existence of a privilege, although the court is not generally bound by the rules of evidence, the court cannot consider privileged evidence.

A plaintiff filed a complaint against his former employer in federal court, alleging that the plaintiff had been terminated based on his race in violation of federal law. The complaint included a short and plain statement of the plaintiff's claim and the facts upon which it was based, but not detailed factual allegations. Ten days after the complaint was filed, the defendant filed an answer. The following day, the defendant filed a motion to dismiss the complaint, asserting that the plaintiff had failed to state a claim upon which relief could be granted. The defendant attached to the motion an affidavit from the plaintiff's former supervisor stating that the plaintiff was terminated based upon his performance and described an incident in which the plaintiff made a mistake that caused the employer to lose an important customer. The court granted the motion to dismiss, noting that the facts described in the affidavit undermined the plaintiff's claims. Was the court's ruling granting the motion to dismiss proper?

No, because the defendant waived any objection based on the pleadings by filing an answer. No, because the court considered matters outside the pleadings. Yes, because the plaintiff did not state with particularity the circumstances constituting discrimination. Yes, because the motion included a credible affidavit with facts that undermined the plaintiff's claims. Answer choice B is correct. The court can grant a motion to dismiss if the claim fails to assert a valid legal theory of recovery or fails to allege facts sufficient to support a cognizable claim. However, if the court considers new evidence in its review of a motion to dismiss, as it did with the affidavit here, it should treat the motion as a motion for summary judgment rather than a motion to dismiss. Here, the court was in error because it did not treat the motion as a motion for summary judgment despite considering new evidence.

A grand jury indicted the defendant on drug trafficking charges. A week after his indictment and subsequent arrest, the defendant was brought before a judge to determine bail. The judge denied bail, and refused to hear arguments from the defendant's counsel that there was not probable cause for the defendant's detention. Following the bail hearing, the defendant's counsel filed a motion to dismiss the charges against the defendant, arguing that the defendant was denied his right to a preliminary hearing as to whether there was probable cause for the defendant's detention. The judge promptly denied the defendant's motion, and scheduled the case for trial. Did the judge err in denying the defendant's motion?

No, because the defendant waived his right to a preliminary hearing by failing to request it within 48 hours of his arrest. No, because there was no need for a determination of probable cause by a judge. Yes, because a defendant is entitled to a determination of probable cause by a judge. Yes, because the defendant did not waive his right to a preliminary hearing. Answer choice B is correct. A preliminary hearing to determine whether probable cause exists to hold the defendant (i.e., a Gerstein hearing) generally must be held within 48 hours of the defendant's arrest. There is no need to hold a preliminary hearing if probable cause has already been determined through a grand jury indictment or an arrest warrant.

An indigent defendant was indicted for driving under the influence of alcohol, a misdemeanor. The lawyer who had been appointed to represent the defendant suffered a fatal heart attack on his way to the courthouse on the day scheduled for the trial. In discussing the absence of the defendant's lawyer with the defendant, the trial judge learned from the defendant that he intended to plead guilty. The judge indicated that, in exchange for the defendant's guilty plea, the defendant would not serve time in prison. The defendant agreed and was sentenced to two months in prison, with the sentence suspended. The defendant appealed his conviction, contending that he was denied his Sixth Amendment right to counsel at trial. Should the judge reverse the defendant's conviction?

No, because the defendant was convicted of a misdemeanor. No, because the defendant's prison sentence was suspended. Yes, because the defendant was convicted of a crime for which a sentence of incarceration was imposed. Yes, because the defendant was convicted of a crime that was punishable by imprisonment. Answer choice C is correct. A defendant has the right to the assistance of counsel at any trial that results in a sentence of incarceration, even when that sentence is suspended. . Answer choice B is incorrect because the fact that the sentence was suspended does not eliminate the requirement that defense counsel be provided. Answer choice D is incorrect because assistance of counsel is not required for a crime that is punishable by imprisonment as long as that punishment is not imposed.

A man went to visit his grandfather, who was very ill. The grandfather and grandson reminisced about hunting trips they had taken on property owned by the grandfather. The grandfather told his grandson that he wanted him to have the property after the grandfather died. The grandson was unaware that his grandfather had sold the property earlier that month to a rancher who lived on an adjacent piece of property. Shortly after the grandfather died, the grandson planned a short trip to look over the property. The rancher, spotting the grandson, told the grandson that he now owned the land, and ordered the grandson to leave immediately. The grandson called the rancher a liar and refused to leave. The rancher went back to his house to think over his options. By the time he decided to report the grandson, however, the grandson had left to catch his flight home. The rancher has sued the grandson for trespass. Is the rancher likely to succeed in his claim against the grandson?

No, because the grandson honestly believed he owned the property. No, because the rancher cannot prove he suffered damages. Yes, because the grandson refused to leave after being told he did not own the land. Yes, because mistake of fact is not a defense to a trespass to land claim. Answer choice D is correct. Trespass to land occurs when the defendant's intentional act causes a physical invasion of the land of another. The defendant need only have the intent to enter the land, not the intent to commit a wrongful trespass. Mistake of fact is not a defense because the defendant need not know that the land belongs to another.

An inmate in state prison filed a complaint against a state prosecutor, alleging that the prosecutor had violated the inmate's constitutional rights in obtaining a conviction against him. Ten days after being served with the complaint, the defendant filed a motion to dismiss under Rule 12(b)(6), arguing that he was immune from suit. Five days later, the plaintiff filed an amended pleading, adding certain factual allegations to his original pleading. The judge reviewed the complaint as amended, and determined that the complaint failed to state a claim upon which relief could be granted and that the additional allegations in the proposed amendment did not save the complaint from dismissal. Was the plaintiff entitled to amend his complaint?

No, because the plaintiff lost his right to amend his pleading after the defendant filed a motion to dismiss. No, because the plaintiff's amendment to his complaint would have been futile. Yes, because the plaintiff had the right to amend his complaint once as of right any time before the complaint was dismissed. Yes, because the plaintiff had the right to amend his complaint as of right once within 21 days of being served with the motion. Answer choice D is correct. A party may amend a pleading once as of right if a responsive pleading is required, within 21 days of service of the responsive pleading, or within 21 days of being served with a motion to dismiss under Rule 12(b), whichever is earlier. In this case, the plaintiff sought to amend his pleading within 21 days of being served with a 12(b) motion to dismiss and was thus entitled to amend

An employee sued her former employer, claiming that she was fired due to age discrimination. The employer asserted that the employee was fired because she did not meet her sales quota. At trial, the employee sought to introduce testimony from a senior manager in the employer's human resources department. The senior manager would testify that three female employees had filed sexual harassment claims against the employer during the previous year. The employer objected to introduction of the testimony. Is the testimony likely to be admitted?

No, because the testimony is not probative and material. BNo, because specific instances of conduct are not admissible in civil trials. CYes, character evidence may be used to prove conforming conduct in a civil case. DYes, because the manager has personal knowledge of the facts contained within her testimony. Answer choice A is correct. Evidence must be relevant to be admissible. Evidence is relevant if it has a tendency to make a fact more or less probable than it would be without the evidence (i.e., probative) and the fact is of consequence in determining the action (i.e., material). In this case, any sexual harassment claims made against the employer would not be relevant to the employee's claim of age discrimination.

During a personal injury trial, the plaintiff called an eyewitness to testify. On cross-examination, the defense attorney asked the witness about a previous conviction. Seven years ago, when the witness was 16 years old, she was tried as a juvenile and convicted of check fraud. The plaintiff objected to the introduction of evidence of this conviction, but the defense attorney maintained that he could introduce it for impeachment purposes. Is evidence of the witness's conviction admissible?

No, because the witness is testifying in a civil trial. No, because the conviction constitutes a prior bad act. Yes, because it was a conviction of a crime involving fraud or deceit. Yes, because the conviction is less than 10 years old. Answer choice A is correct. Evidence of juvenile adjudications is not admissible in civil cases. The court may occasionally permit evidence of a juvenile adjudication of a witness other than the accused under certain circumstances, but only in a criminal trial.

A homeowner entered into a written contract with a furniture maker to construct ten identical custom-made chairs for her kitchen at a cost of $500 per chair. The chairs were to be paid for upon delivery. After the furniture maker had made three of the chairs at a cost to the furniture maker of $300 per chair, the homeowner cancelled the contract. The furniture maker sold the three chairs to a third party for a total of $700. The furniture maker then sued the homeowner for restitution. What is the maximum monetary award to which the furniture maker is entitled in this action?

Nothing $800 $900 $1,500 Answer choice A is correct. An action in restitution is based on the restoration to the plaintiff of the benefit conferred on the defendant. Here, the homeowner did not receive a benefit from the furniture maker; the chairs had not been delivered to the homeowner. Consequently, in a suit seeking restitution, the furniture maker is not entitled to any recovery. Note that a real-world plaintiff would likely sue for the legal remedy of breach of contract and demand damages. Answer choice B is incorrect because $800 represents the difference between the contract price for the three chairs ($1,500) and the amount received from selling those chairs ($700), not the amount of the benefit received by the homeowner from the furniture maker. Answer choice C is incorrect because $900 represents the amount that the furniture maker expended in reliance on the contract, not the amount of the benefit received by the homeowner from the furniture maker. Answer choice D is incorrect because $1,500 represents the pro rata contract price of the three chairs that the furniture maker did construct, not the amount of the benefit received by the homeowner from the furniture maker.

A defendant is on trial for murder. The statute under which the defendant has been charged requires the prosecution to prove that the accused "knowingly or recklessly caused the death of another." The defendant admits to killing the victim but he has raised insanity as a defense, asserting that he could not have "knowingly or recklessly" killed the victim. The defendant's attorney calls a psychologist as an expert witness on the insanity defense to testify on the defendant's behalf. After the psychologist is qualified as an expert and sworn, the defendant's attorney asks him the following question: "In your opinion, did the defendant act to kill the victim knowingly or recklessly?" The prosecutor objects. How should the judge rule on the objection?

Overrule the objection, because the expert witness's opinion is helpful to the trier of fact on this issue. Overrule the objection, because the assertion of an insanity defense puts the defendant's mental state at issue. Sustain the objection, because an expert may not testify as to his opinion of whether a defendant had the requisite mental state of any element of the crime charged. Sustain the objection, because an expert may not testify as to the ultimate issue in a case. Rationale: Answer choice C is correct. An expert witness may not testify as to his opinion about whether a criminal defendant had the requisite mental state of any element of a crime charged or of a defense. The determination of whether the defendant had the requisite mental state is the province of the trier of fact. In this case, the defense attorney is seeking to have an expert witness testify as to whether his client had the requisite mental state for the crime changed. This is an inadmissible question and the objection should be sustained. He could testify as to whether the defendant has the capability or forming the requisite mental state. Answer choice A is incorrect, because even if the psychologist's opinion is helpful to the trier of fact, an expert may not testify as to whether a criminal defendant had the requisite mental state. Answer choice B is incorrect, because the general rule stated above does not change simply because the defendant has pled an insanity defense. Answer choice D is incorrect, because an expert may testify as to the ultimate issue in a case, other than whether the criminal defendant had the requisite mental state.

A buyer purchased a newly constructed house from a builder for use as a residence. The buyer did not perform an inspection of the house prior to the purchase. Neither the contract nor the deed contained any warranties as to the condition of the house. Six months later, during a heavy downpour, the basement flooded. Since that time, whenever there has been a substantial rain, there has been water in the basement. The source of the problem has been identified as several cracks in the foundation wall that surrounds the basement. An expert hired by the buyer has opined that the cracks formed due to settling after the home was built and could have been prevented by adherence to proper construction methods. The builder has repeatedly refused to address the problem. Just before the first anniversary of the purchase, the buyer filed suit against the builder for the defective foundation wall and the resulting damages. There are no applicable state statutes that address the issue. Who will prevail?

The builder, because the builder did not give the buyer a written warranty as to the condition of the house. The builder, because the buyer failed to conduct a home inspection. The buyer, because the builder of a residence is liable for any material defects in the house. The buyer, because the builder breached the implied warranty of fitness or suitability. Answer choice D is correct. A builder or other commercial seller of a newly constructed residence gives a warranty of fitness or suitability to the buyer. When this warranty is not mandated by statute, the courts have implied such a warranty. The warranty covers material defects that could not have been uncovered by the buyer through a reasonable inspection prior to purchase. Here, the cracks are material in that they are the cause of the buyer's wet basement and, since they formed after the house was constructed, could not have been uncovered by the buyer prior to the purchase.

A customer at a restaurant ordered a dessert from the menu, which stated that the desserts were made by an independent third party. The restaurant had priced the dessert below its cost in order to attract customers to the restaurant. The dessert contained small slivers of glass. The glass was not detected by the restaurant, even though the restaurant conducted a reasonable inspection of the dessert and otherwise had no reason to suspect that the dessert contained the glass. The customer ate the dessert and incurred serious injuries from the glass slivers. If the customer brings suit against the restaurant based on strict products liability for injuries suffered from eating the dessert, who will prevail?

The customer, because the restaurant was a commercial supplier of the dessert. The customer, because the restaurant failed to warn the customer of the glass in the dessert. The restaurant, because the dessert was not produced by the restaurant. The restaurant, because the restaurant did not make a profit from the sale of the dessert. Answer choice A is correct. As a commercial supplier of a defective product, the restaurant is strictly liable for personal or property injury cause by the product. Because the product was defectively manufactured (i.e., the dessert contained slivers of glass), the restaurant is strictly liable for the harm suffered by its customer in eating the dessert.

A defendant was unaware that he had been charged with conspiring to distribute cocaine in violation of federal law. Prior to his arrest, he traveled to a foreign country. He returned to the United States a year later, and lived in the United States under his own name for more than seven years before he was arrested on the cocaine conspiracy charge of which he had been unaware. Shortly after his arrest, he filed a motion to dismiss the charge against him on the grounds that his right to a speedy trial granted by the Sixth Amendment had been violated. Upon which date is the time period for measuring the defendant's Sixth Amendment right commenced?

The date on which he was charged. The date on which he returned to the United States. The date on which he was arrested. The date on which he asserted his Sixth Amendment right. Answer choice A is correct. Under the Sixth Amendment's right to a speedy trial, the time period for measuring this right commences at the time of arrest or formal charge, whichever comes first. The defendant need not know about the charges against him for the right to attach.

A child was injured by a neighbor's dog after the dog attacked her in her own backyard in State A. The child was so traumatized by the event that her mother relocated her to State B to gain a new start. After two years, the child was still experiencing mental anguish over the attack, resulting in expensive medical bills. The mother therefore sued the dog owner, a resident of State A, in an appropriate federal district court in State B based on diversity jurisdiction. The court had subject-matter jurisdiction over the matter and the dog owner waived any objection as to personal jurisdiction. State B, the forum state, required an additional element to establish a negligence claim and had a slightly different burden of proof than most states. It also had a short statute of limitations and stringent limitations on the awarding of attorney's fees. Under State B's approach to conflicts of law, State B applies its own negligence rules when a State B citizen is injured in another state. Which of the following provisions of State B's law would the federal district court in State B not have to apply?

The elements of the negligence claim Burden of proof Limitations on the awarding of attorney's fees Statute of limitations Answer choice C is correct. The elements of a claim or defense, statutes of limitations, and burdens of proof are all considered substantive and are controlled by the law of the state in which the district court is located in a federal diversity action. The federal district court must apply State B's law as to these substantive issues. However, the awarding of attorney's fees is considered procedural.

A parking garage attendant found a necklace beside a car in the garage. Both the owner of the car and the owner of the garage claim ownership of the necklace, which has been valued at $73,000. The car owner has filed an action to gain possession of the necklace in state court naming the attendant as defendant. The attendant filed a federal statutory interpleader action in federal district court. The garage owner and the car owner are citizens of the same state and the attendant is a citizen of a neighboring state. The attendant has posted a bond with the federal court, but retains possession of the necklace. The car owner has filed a motion to dismiss the interpleader action for lack of subject matter jurisdiction. For which of the following reasons should the court grant the car owner's motion?

The garage owner and the car owner are citizens of the same state. The value of the necklace does not exceed $75,000. The attendant has retained possession of the necklace. The car owner had already filed an action in state court. Answer choice A is correct. Under the federal interpleader statute, diversity jurisdiction is met if any two adverse claimants are citizens of different states. Here, the two claimants, the garage owner and the car owner, are both citizens of the same state. Therefore, the court lacks subject matter jurisdiction over the action.

A plaintiff brought an action in federal court based on diversity jurisdiction to rescind a contract to transfer real property to the defendant. The plaintiff contended that the defendant's conduct with regard to the contract constituted duress. Upon the death of the plaintiff, the personal representative of the plaintiff's estate continued the action. The applicable state law, which otherwise follows the Federal Rules of Evidence, contains a Dead Man's statute, which reads: In any civil proceeding, where any party to a contract in action is dead and his right thereto has passed to a party who represents his interest in the subject in controversy, any surviving party to the contract shall not be a competent witness to any matter occurring before the death of said party. As part of the case-in-chief, the personal representative introduced an email written by the defendant and sent to the decedent that was relevant to the issue of duress. Immediately thereafter, the defendant, noting that the email was written in response to a letter written by the decedent to the defendant, sought to introduce that letter into evidence. The personal representative objected. Which of the following is the strongest ground upon which the personal representative can base this objection?

The introduction of the letter violates the state's Dead Man's statute. The letter constitutes inadmissible hearsay. The rule of completeness does not apply because the letter was a separate writing. Fairness does not require introduction of the letter during the presentation of the personal representative's case-in-chief. Answer choice D is correct. The rule of completeness (i.e., Federal Rule 106) permits a party to compel the introduction of a statement that in fairness should be considered at the same time as an admitted writing or recorded statement. Consequently, if fairness does not require the immediate introduction of the prior letter, the defendant will have to wait until the defendant can present evidence in order to introduce this letter.

A homebuyer was discussing the purchase of a house with the seller. Of particular concern to the buyer was whether the house had a termite problem. The seller, aware of the buyer's concern, ordered an inspection from a licensed inspection company. The company issued a report stating that the house was free of termites. In fact, the company's inspector was negligent, and the house's foundation had a modest termite problem. Relying on the report, the seller told the buyer that the house was free of termites. The buyer is seeking to avoid the contract. Will he prevail?

Yes, because the buyer reasonably relied on the misrepresentation. or No, because the inspector, not the seller, was negligent. A is right because any material misrepresentation lets the buyer off the hook. It doesn't have to be fraudulent.

One summer night, a man attended a party at one of the most lavish homes in town. Midway through the party, the man asked the host if he could use the restroom, and the host directed him to a restroom on the second floor of the house. After using the restroom, the man became curious about the other rooms upstairs, and wondered if they were as beautiful as the rest of the house. His curiosity got the best of him, and he turned the handle and opened a door, which turned out to be the master bedroom. He stepped inside the room and immediately saw a large pearl necklace on the vanity table. He walked over to the table, grabbed the pearls, put them in his pocket, left the room, and went downstairs. Later in the evening, the party host saw the pearls slip out of the man's pocket. She immediately confronted the man and called the police. If the man is later charged with common-law burglary, what is the man's best defense to the charge?

The man did not break and enter the home. The man did not intend to steal anything when he entered the room. The man did not use any force to enter the bedroom. The man did not leave the premises with the pearls. Answer choice B is correct. At common law, burglary is defined as the breaking and entering of the dwelling of another at nighttime with the specific intent to commit a felony therein. When the man opened the door to the bedroom, he was merely curious to see the room, and did not intend to steal anything. Thus, a required element of burglary is lacking and he cannot be convicted of the crime.

A movie director entered into a two-year rental agreement with the CEO of a production company to rent one of the company's 20 studios for $3,000 a month. The agreement also included an option that stated in its entirety, "At his option, [the director] may purchase one of the company's studios prior to the end of the rental agreement." Prior to signing the agreement, the CEO made a promise to add new editing equipment to the rented studio, but did not follow through on the promise. Before the rental agreement expired, the director refurbished the studio he was renting in order to enhance its editing quality. The director then attempted to pay $100,000 in order to exercise his option and purchase the studio. The CEO refused to sell the studio to the director. What is the strongest argument in favor of the CEO if the director sues him for specific performance?

The terms of the option to purchase a studio are too indefinite. The CEO's oral promise to add editing equipment was a condition precedent to his duty to perform. The option to purchase the studio by the director violates the parol evidence rule. There is no consideration to support the option to purchase a studio at the production company. Answer choice A is correct. Under common law, all essential terms (i.e., the parties, subject matter, price, and quantity) must be covered in an agreement. Here, the rental agreement did not describe the essential terms of the option to purchase, including the cost of the studio or the specific studio that was for sale. Answer choice D is incorrect. If an option is within an existing contract, no separate consideration is required for the option to be enforceable.

A plaintiff brought suit in federal district court against her former employer for damages resulting from alleged employment discrimination. By agreement of the parties, the matter was heard without a jury. The trial judge held for the plaintiff and the employer timely and properly appealed to the appropriate court of appeals. Which of the following is most accurate with regard to the appellate court's review of the case?

The trial court's conclusions of law cannot be set aside unless clearly erroneous. The trial court's findings of fact cannot be set aside unless clearly erroneous. Both the trial court's findings of fact and conclusions of law are subject to de novo review by the appellate court. The appellate court must defer to both the trial judge's findings of fact and conclusions of law. Answer choice B is correct. A trial judge's findings of fact, whether based on oral or documentary evidence, cannot be set aside unless clearly erroneous. Answer choice A is incorrect. A trial court's conclusions of law are not subject to the "clearly erroneous" rule. The appeals court considers conclusions of law de novo. Answer choice C is incorrect. Only a trial court's conclusions of law, and not findings of fact, are subject to de novo review by an appellate court. Answer choice D is incorrect. The appellate court need not defer to the trial judge's conclusions of law, only findings of fact, unless they are clearly erroneous.

A buyer purchased a residence and financed the purchase with a loan of $500,000 from a bank. As a condition of the loan, the buyer granted the bank a mortgage on the residence. Through an oversight by one of its employees, the bank failed to record the mortgage. Subsequently, the buyer, who ran a business, borrowed $75,000 from her uncle to enable the buyer to meet the financial needs of the business. Several months later, when the buyer had not repaid her uncle, the uncle demanded and the buyer granted the uncle a mortgage on the buyer's residence after telling the uncle about the bank's mortgage. The uncle promptly and properly recorded the mortgage. The recording act of the applicable jurisdiction provides, "No conveyance or mortgage of real property shall be good against subsequent purchasers for value unless the same be first recorded according to law." Which of the following is the bank's best argument that its mortgage has priority over the uncle's mortgage?

The uncle had notice of the bank's mortgage before obtaining his mortgage. The bank's mortgage is a purchase-money mortgage. The value of the bank's mortgage is greater than the uncle's mortgage. The bank obtained its mortgage from the buyer before the uncle obtained his mortgage. Answer choice D is correct. Mortgagees are considered to have "paid value" and are protected by the recording acts, unless the mortgage is not given simultaneously with a loan (such as when the mortgage is given after the loan is created). Unless the recording act governs the priority of real property interests, the common law rule of "first in time, first in right" applies. Answer choice B is incorrect. A purchase-money mortgage (i.e., a mortgage granted to a person, such as a seller or a lender, used to finance the purchase of the mortgaged property that is executed at the time of the sale) has priority over earlier mortgages and liens. This rule applies to mortgages and liens created by or that arose against the purchaser-mortgagor prior to the purchaser mortgagor's acquisition of the property, whether or not recorded. Here, because the uncle's mortgage arose after the bank's mortgage, this special rule does not apply.

A plaintiff initiated a negligence suit in federal district court against a defendant based on an automobile accident. The accident occurred as the defendant, tired from a long trip, was driving through a state to reach his home in a neighboring state. The forum court, in a state with two federal districts, was located in the eastern district. The accident occurred in the western district of this state. The defendant, who is a citizen of a foreign country but is also a lawful, permanent resident of the United States, filed a timely motion to dismiss the action for lack of subject-matter jurisdiction. The court properly rejected the motion. In his answer, the defendant raised the defense of improper venue. The plaintiff contemplates making the following replies; which correctly reflects the law?

Venue is proper because an alien may be sued in any judicial district. Venue is proper because the accident occurred in the forum state. Because the court has ruled that it has subject-matter jurisdiction over the suit, venue is also proper. The defendant waived this defense by failing to assert it in his motion to dismiss. Answer choice D is correct. An objection to venue is waived by a defendant if not asserted in a pre-answer motion to dismiss if the defendant chooses to file one. Here, because the defendant failed to assert this objection in his motion to dismiss, he has waived his objection to the improper venue.

A witness who was not a defendant invoked his Fifth Amendment right to remain silent during a federal criminal trial for insider trading. After being given derivative-use immunity, the witness testified. Several weeks later, the witness was a defendant in a state-law civil fraud proceeding based on his previous testimony in the federal trial. He moved to dismiss the case on the grounds that the previous grant of immunity protected him against a future action against him. Will the defendant's motion be granted?

Yes, because a grant of immunity can be given to a witness who is not a defendant. Yes, because the defendant was given derivative-use immunity. No, because the defendant's immunity was limited to federal prosecution. No, because the defendant's immunity does not extend to a subsequent civil trial. Answer choice D is correct. Derivative-use immunity protects a witness from the use of the witness's own testimony, or any evidence derived from that testimony, against the witness in a subsequent prosecution, but does not protect him from its use in a civil suit. The immunity extends to all criminal prosecutions, federal or not. But can not protect the witness from a civil suit.

Despite being served with a warrant, the defendant objected to having his blood drawn to determine whether it matched blood found at the scene of a robbery. Nevertheless, the police properly executed the warrant to perform the procedure, and a doctor drew the defendant's blood. The defendant was later charged with robbery, a felony. The blood at the scene matched the sample obtained from the defendant. At his robbery trial, the defendant moved to suppress this evidence. Should the judge grant this motion?

Yes, because obtaining evidence through a forced medical procedure shocks the conscience. Yes, because the procedure violated the defendant's Fifth Amendment privilege against self-incrimination. No, because the blood was obtained pursuant to a warrant and drawing blood is a reasonable, minimally invasive medical procedure. No, because the defendant was charged with a felony. Answer choice C is correct. Drawing blood is not considered a major medical procedure; little intrusion or pain is involved. Consequently, the procedure is reasonable in light of the Fourth Amendment.

A hospital placed an order to purchase scalpel blades from a medical supply company. The hospital specified that the blades were to be shipped immediately. Upon receipt of the order, the supply company discovered that it did not have the type of blade ordered by the hospital, and shipped instead a different type of blade, along with a note that these blades were not the type ordered by the hospital but were sent as an accommodation. The hospital rejected and returned the shipped blades, then sued the supply company for breach of contract. Will the hospital be successful in its suit?

Yes, because of the perfect tender rule. Yes, because acceptance of the hospital's order could be made by shipment as well as by a promise. No, because the hospital order could only be accepted by shipment of the type of scalpel blades ordered. No, because the medical supply company did not accept the hospital's offer. Answer choice D is correct. Normally a shipment of goods by a seller made in response to an order placed by the buyer constitutes acceptance of the buyer's offer. Such a shipment does not constitute acceptance, however, if the seller indicates that the shipped goods are made as accommodation. Since the supply company so designated the blades that it sent, the shipment did not constitute acceptance. Consequently, no contract was formed, so there can be no breach. Answer choice A is incorrect because, although the perfect tender rule does apply to a sale of goods, such as scalpel blades, it applies only when a contract exists between the buyer and seller.

A high school teacher played on a hockey team in a local recreational league. During a league game, the teacher was involved in a fight with another hockey player. That player sued the teacher in a battery action to recover for injuries inflicted during the fight. The teacher contended that he had acted in self-defense. The teacher called his principal to testify that the teacher had a reputation within the school community for peacefulness. The plaintiff, who had not introduced evidence of the teacher's character for violence, objected to this testimony. Should the court admit this testimony?

Yes, because the defendant is entitled to introduce evidence of a pertinent good character trait. Yes, because character evidence may be introduced through reputation testimony. No, because the plaintiff had not introduced evidence of the teacher's character for violence. No, because such evidence is not admissible in a civil action. Answer choice D is correct. Evidence of a defendant's character is inadmissible in a civil case to prove that the defendant acted in conformity with that character trait unless the defendant's character is an essential element of a claim or defense. Since the defendant's character for peacefulness is not an element of either battery or self-defense, the principal's testimony is not admissible. Answer choice A is incorrect because, although a defendant is permitted to introduce evidence of a pertinent good character trait in a criminal case, such evidence is not admissible in a civil case.

A defendant is on trial for cocaine possession. The cocaine was found during a warrantless search of the defendant's car by a police officer. The search occurred immediately after the defendant was arrested for driving a car with an inoperative taillight, a misdemeanor punishable only by a fine. The defendant had been placed in a police car prior to the search. The cocaine was found inside a closed bag on the back seat of the passenger compartment of the defendant's car. The defendant now moves to suppress the cocaine. Will the defendant's motion be granted?

Yes, because the defendant was in the police car at the time of the search. Yes, because the arrest was unreasonable and the cocaine seized was a fruit of the poisonous tree. No, because the police may search a car without a warrant under the automobile exception. No, because the search was a lawful search incident to arrest. Answer choice A is correct. In order to qualify as a lawful search incident to arrest, a search of a car in which the defendant was an occupant must be made at the time that the defendant has access to the car or to uncover evidence of the crime for which the defendant was arrested. Here, neither of those circumstances is applicable. *The automobile exception permits a police officer to search a car without a warrant, the exception only applies when the police officer has probable cause to conduct the search.

A plaintiff is pursuing a civil suit for intentional infliction of emotional distress against her ex-girlfriend. The suit arises out of an alleged sexual assault of the plaintiff by the defendant for which the defendant is currently facing criminal charges. In the civil case, the plaintiff moves to introduce evidence t that the defendant was accused of sexual assault by two women twenty years ago when the defendant was in college. The sexual assault claims against the defendant were investigated by the university's police department, but she was not prosecuted. The defendant has introduced opinion testimony showing that she has a reputation as a peaceful person and faithful partner. The defendant objects to the introduction by the plaintiff of evidence of the defendant's college sexual assault allegations in the civil case. Must the court exclude this evidence?

Yes, because the defendant was never charged or prosecuted for sexual assault allegations from college. Yes, because a ten-year-old allegation of the defendant's prior bad acts is not admissible to prove that she acted in conformity with that character in this instance. No, because the defendant "opened the door" to the introduction of evidence of her bad character by introducing evidence of her good character. No, because evidence concerning a defendant's past sexual assault is admissible in a civil case where the claims are based on the defendant's sexual misconduct. Answer choice D is correct. Generally, in a civil case, evidence of a person's character (or character trait) is not admissible to prove that a person acted in accordance with that character (or character trait) on a particular occasion. However, evidence concerning past sexual assault or child molestation by a defendant is admissible in a civil case where the claim for relief is based on a defendant's sexual misconduct. In this case, the plaintiff's claim for intentional infliction of emotional distress is based on the ex-girlfriend's alleged sexual misconduct. Therefore, evidence concerning the defendant's past sexual misconduct may be admissible (although the court does have the discretion to suppress such evidence under Rule 403 if the probative value is substantially outweighed by the danger of unfair prejudice). Answer choice A is incorrect. Evidence of the ex-girlfriend's past sexual misconduct may be admissible even if she was never charged or prosecuted for that misconduct. Answer choice B is incorrect. The evidence of the ex-girlfriend's past sexual misconduct may be admissible because the plaintiff's claim concerns the ex-girlfriend's sexual assault of the plaintiff, and the ten-year restriction on criminal convictions does not apply. Answer choice C is incorrect. The evidence could be admissible, even if the ex-girlfriend had not introduced evidence of her good character in the civil suit.

A defendant was charged with fraud in a state-law civil proceeding. During cross-examination, he was asked to state whether a note being entered into evidence was in his handwriting. Since the note contained a material false statement on which the plaintiff had relied, the defendant invoked his Fifth Amendment privilege against self-incrimination to avoid answering the question. The judge upheld the defendant's assertion of the privilege. Was the judge correct in permitting the defendant to invoke his Fifth Amendment privilege against self-incrimination?

Yes, because the defendant's answer is testimonial evidence.

A defendant is on trial for robbery. A witness picked the defendant's picture out of a photo array that was conducted by a police officer at the police station after the defendant's arrest. The photo array was impermissibly suggestive. No counsel was present for the defendant at the photo array. Later, at trial, the witness identified the defendant. Because of the witness's extended opportunity to view the defendant at the time of the crime, this identification was reliable. The defendant moves to suppress the identification. Should the court grant this motion?

Yes, because the defendant's right to counsel was violated. Yes, because the identification procedure was impermissibly suggestive. No, because the identification was reliable. No, because the photo array was conducted by a police officer at a police station. Answer choice C is correct. In order for a witness to be prevented from identifying the defendant in court due to a previous impermissibly suggestive photo array, the defendant must demonstrate that there was a substantial likelihood of misidentification, which is not the case here.

A defendant in a federal securities case introduced the testimony of a witness who had claimed on direct examination that the defendant had no prior knowledge of a change within a corporation's executive board; the defendant's knowledge of this fact was a central issue in the case. The prosecutor did not cross-examine the witness. On rebuttal, the prosecutor called a witness who claimed to have been with both the defendant's witness and the defendant when the defendant learned of the change in question, and had heard the defendant's witness say, on more than one occasion, that the defendant knew of the change. Further, the prosecutor introduced a properly authenticated email that the defendant's witness had sent to the witness containing the same information. The defendant's attorney objects on the grounds that the testimony of the prosecutor's witness and the email are inadmissible. Should the court admit the testimony of the prosecutor's witness and the email?

Yes, because the defendant's witness may be properly impeached with them. Yes as to the testimony, but no as to the email, because the prosecutor did not present the email to the defendant's witness on her cross-examination of him. No, because the defendant's witness was not given an opportunity to explain the evidence before introduction of the prosecutor's witness. No, because the testimony and email are immaterial. Answer choice A is correct. A witness may be impeached by showing that the witness has made statements that are inconsistent with some material part of the witness's testimony. Note that because these statements are being used to impeach the witness and not to prove the truth of the matter asserted, they are not hearsay. Note also that because the statements were not made under oath in a prior proceeding, they may not be considered as substantive evidence.

A uniformed police officer learned about a possible burglary of a home and went to investigate. When the officer arrived, she attempted to get into the home through the front door, but found it locked. Going to the back of the home, the officer found a door slightly open. Drawing her gun, she entered the home and announced that she was a police officer. The homeowner, honestly but unreasonably fearing that the officer was the person who had broken into the home earlier, shot and killed the officer. The homeowner was charged with murder of the police officer. The jurisdiction recognizes "imperfect" self-defense. Can the homeowner be convicted of this crime?

Yes, because the homeowner killed the police officer. Yes, because the homeowner's use of deadly force was unreasonable. No, because the homeowner had no duty to retreat before using deadly force. No, because the homeowner honestly believed that the police officer threatened him with death or serious bodily injury. Answer choice D is correct. Although a defendant who is not the aggressor is justified in using reasonable force in self-defense against another person to prevent immediate unlawful harm to himself, the defendant's belief that the other person's actions represent an immediate threat must be reasonable. When such belief is unreasonable but honest, the defendant is entitled to assert "imperfect self-defense," which reduces his crime from murder to voluntary manslaughter. Consequently, the homeowner cannot be convicted of murder, since he acted in self-defense on his honest but unreasonable belief that the officer threatened him with death or serious bodily harm.

A grand jury indicted a politician on charges of corruption. After the indictment, the politician learned that the prosecutor had tried to indict the politician the previous year on the same charges, but that the first grand jury had refused to return an indictment. The prosecutor had gathered new evidence before attempting the second indictment, and this evidence was presented to the second grand jury. The new evidence included physical evidence seized in violation of the politician's Fourth Amendment rights, as well as hearsay testimony from the politician's chief-of-staff. The politician has moved to dismiss the charges. Is the politician likely to succeed in having the charges against him dismissed?

Yes, because the prosecutor presented hearsay evidence to the grand jury. Yes, because the prosecutor presented illegally obtained evidence to the grand jury. No, because a grand jury indictment may not be dismissed by a judge. No, because there are no grounds upon which to dismiss the indictment. Answer choice D is correct. The grand jury is not restricted to hearing evidence that would be admissible at trial; rather, an indictment may generally be based on hearsay or illegally obtained evidence. Moreover, because jeopardy does not attach until a trial begins, the Double Jeopardy Clause does not apply to grand jury proceedings.

A 14-year-old girl suffered from pelvic pain, but did not want to go to a gynecologist. Her 19-year-old boyfriend, who reasonably believed that the girl was 16 years old, told her that having sexual intercourse with him would cure the problem. The boyfriend knew that his statement was false. Relying on his statement, the girl gave her consent, and the two had sexual intercourse. Later, the girl learned that intercourse could not and did not cure her problem, and notified the police. Rape is defined by statute as "sexual intercourse with a person against that person's will or with a person under the age of 14 years old." Rape is a second-degree felony unless (i) in the course thereof the actor inflicts serious bodily injury upon anyone, (ii) the victim is under the age of 14, or (iii) the victim is 14 or 15 years old and the actor is at least four years older, in which cases the offense is a first-degree felony. The boyfriend was convicted of first-degree rape of the girl. The boyfriend has appealed the conviction, contending that he is not guilty of the crime of rape. Should the appellate court overturn the conviction?

Yes, because the intercourse was not against the girl's will and she was 14 years old. Yes, because the boyfriend was at least four years older than the girl was. No, because the boyfriend obtained the girl's consent through fraudulent means. No, because lack of knowledge as to the age of the victim is not a defense. Answer choice A is correct. Since the girl was 14 years old, sexual intercourse with her is rape only if it is against her will. Fraudulent conduct does not negate consent in most situations. Here, the boyfriend induced the girl to consent to sexual intercourse through false promises but that, standing alone, does not negate consent. The boyfriend did not conceal the actual nature of the act. Consequently, the fraud was in the inducement, not in the factum.

After a simple drug possession case, which was tried over a two-day period, was submitted to a jury, the jury, after a day of deliberations, informed the trial judge that it was unable to reach a unanimous decision. After an attempt by the trial judge to persuade the jury to reach a verdict did not result in a verdict by the end of the following day, the prosecution moved for a mistrial. Despite the defendant's objection to the motion, the trial judge declared a mistrial. The prosecutor seeks to retry the defendant on the original charge. The defendant objects to retrial on the grounds that it is improper under the Double Jeopardy Clause. Should the court permit the retrial?

Yes, because the mistrial was the result of a manifest necessity. Yes, because the court declared the mistrial. No, because the defendant objected to the mistrial. No, because the prosecution, not the defendant, sought the mistrial. Answer choice A is correct. Where a mistrial is declared despite the defendant's opposition, the defendant cannot be retried unless the mistrial is due to a manifest necessity. A hung jury constitutes a manifest necessity.

A daughter successfully petitioned a court to have her father declared incompetent to manage his affairs and to have herself appointed as guardian of his property. Subsequently, the father ordered furniture totaling $3,500 from a local store. The store, unaware of the guardianship and not otherwise having a reason from the father's behavior to learn of his incompetency, delivered the furniture to the father's residence where he received and accepted it. The next day a flood destroyed the furniture before the daughter had the opportunity to contact the store. Is the store entitled to enforce the contract for the sale of the furniture?

Yes, because the risk of loss had passed to the father, as buyer of the furniture, upon its delivery. Yes, because the store was unaware of the guardianship and the father's incompetency. No, because the daughter did not have the opportunity to contact the store. No, because the father had been adjudicated incompetent. Answer choice D is correct. An individual who is the subject of a court-ordered guardianship over that individual's property lacks the capacity to enter into a contract. Consequently, any contract purportedly entered into by such an individual is void.

A recidivism statute calls for a mandatory life sentence for a defendant who is convicted of three felonies. The defendant was convicted of felony theft three separate times and was sentenced to life in prison after his conviction for the third theft. In each case, the defendant stole the items from stores when nobody was watching. He did not use any weapons, nor was he violent. The defendant challenges the sentence on constitutional grounds. Will the defendant succeed?

Yes, because the sentence violates the Eighth Amendment prohibition on cruel and unusual punishment because the defendant's crimes were non-violent. Yes, because the sentence violates the Double Jeopardy Clause. No, because the Eighth Amendment prohibition on cruel and unusual punishment only applies to degrading or painful sentences involving the use of force. No, because the recidivism statute is constitutional even when applied to non-violent offenders. D

A mother, upon learning that her son had been assaulted by his middle school teacher, filed a suit on behalf of her son against the school district, claiming that it had negligently hired the teacher. At trial, the mother sought to introduce the testimony of one of the teacher's former students from when the teacher had worked in a different school district. The witness would testify that the teacher had beaten her. The mother had further evidence that this incident had been included in the teacher's personnel file. Is the former student's testimony likely to be admitted?

Yes, because the teacher's character is an essential element of the mother's claim. Answer choice C is correct. Evidence of a person's character (or character trait) generally is inadmissible to prove that the person acted in accordance with that character (or character trait) on a particular occasion. Character evidence is admissible if it is an essential element of a claim, such as in the case of negligent hiring or entrustment. In this case, the mother asserted a negligent hiring claim against the school district, and thus, the teacher's character as violent toward his students and the school district's knowledge of that character is an essential element of the claim.

An elderly couple was walking down a street in a busy shopping and business district. The husband crossed the street to buy a bottle of water from a convenience store for his wife. While the wife waited across the street, she noticed a construction worker standing on scaffolding directly above the entrance to the convenience store. As the husband exited the convenience store, the construction worker and the scaffolding suddenly crashed down on top of the husband, seriously injuring him. The wife immediately fainted and hit her head on the sidewalk. As a result, she sustained a severe concussion. The wife filed suit against the construction worker for damages resulting from her emotional distress. At trial, it was established that the scaffolding collapsed due to the construction worker's negligence. Is the wife likely to prevail?

Yes, because the wife fainted and suffered a concussion after watching the scaffolding seriously injure her husband. No, because the harm to the wife was not reasonably foreseeable. No, because there was no threat of physical impact to the wife when the scaffolding fell across the street. No, because the construction worker did not intend to cause any harm to the wife. Answer choice A is correct. A plaintiff can recover for negligent infliction of emotional distress from a defendant whose tortious conduct placed the defendant in harm's way if the plaintiff demonstrates that: (i) he was within the "zone of danger" of the threatened physical impact—that he feared for his own safety because of the defendant's negligence; and (ii) the threat of physical impact caused emotional distress. However, a bystander plaintiff who is outside the zone of danger can still recover if she is closely related to the person injured by the defendant, she was present at the scene of the injury, and she personally observed (or otherwise perceived) it. Here, the wife suffered physical injury when she fainted and suffered a concussion after the scaffolding fell on top of her husband. Although the wife was not within the zone of danger, as she was across the street, she was present at the scene of the injury, closely related to the injured party, and personally observed her husband being injured by the scaffolding. Thus, she can recover as a bystander under a theory of NIED.

A woman met a man at a party at the home of a third person. The woman noticed that the man was wearing an expensive gold watch. As the party was winding down and the woman and man were alone, the woman slipped a sedative into the man's drink. Waiting until the man passed out, the woman then removed the watch from the man's wrist and left the party. Later, the party's host discovered the man asleep, and revived him. When the man discovered that his watch was missing, the man called the police. The man, who lived at home with his parents, had taken the watch from his father's dresser for the evening, without his father's permission. The woman was arrested and charged with robbery. Can she be convicted of the crime?

Yes, because the woman used force to permanently deprive the man of the watch he was wearing. Yes, because the taking took place at a dwelling. No, because the watch belonged to the man's father and the man did not have permission to use it. No, because the man was unconscious when his watch was taken. Answer choice A is correct. Robbery is defined as (i) larceny, (ii) from the person or presence of the victim, (iii) by force or intimidation. The force used by a defendant must be more than the amount necessary to effectuate taking and carrying away the property. Force can include giving a victim drugs in order to induce unconsciousness and thereby permit the larceny to occur. Answer choice B is incorrect because, unlike common law arson and burglary, which both require a link between an act and a dwelling, robbery does not have such a requirement; it may occur anywhere. Answer choice C is incorrect because a victim need not own the stolen item at the time of the robbery; the item need only be in the victim's possession and the victim's right to possess the item must be superior to the thief's. Answer choice D is incorrect because, although the man was unconscious during the theft of his watch, the larceny nonetheless occurred by force.

A middle-aged farmer who lived by himself in a rural area had surgery to correct an orthopedic problem. Since his recovery would take about a year, he contacted a retired nurse about serving as his caretaker. While the farmer was still in the hospital, the two reached an agreement, the terms of which were specified in two letters. The letter written by the nurse identified the farmer by name and stated, "I agree to take care of your medical needs for a period of one year, starting when you leave the hospital." The letter written by the man identified the nurse by name and stated, "I agree to pay you $10,000 per month." Each letter was signed by its drafter. Before his discharge from the hospital, the man found out that the hospital had a less expensive program for home care, and cancelled the contract. Unable to find other employment, the nurse brought a breach of contract action against the man. Based solely on the letters, will the nurse be able to establish the existence of a contract?

Yes, because this agreement can be performed within one year. Yes, because the writings, taken together, sufficiently state the essential terms of the agreement. No, because the Statute of Frauds precludes enforcement. No, because the writings do not evidence a valid offer and acceptance. Answer choice C is correct. Since the contract cannot be performed within one year from the time of the contract's making, it is subject to the Statute of Frauds. The writings are not sufficient under the Statute of Frauds because, although together they state the essential terms of the bargain and each is signed by the promisor, neither writing references the other. In order to satisfy the Statute of Frauds, at least one of the writings must reference the other. Because the farmer's letter does not indicate the subject matter of the contract (i.e., why the farmer is paying the nurse $10,000 a month), the nurse will be unable to enforce the agreement against the farmer.

A woman sought to kill her husband by poisoning his coffee. She went to her physician and claimed that she was having terrible insomnia. She asked the physician for some pills to help her sleep. The doctor prescribed ten pills of a very mild form of sedative. To be lethal, a person would need to consume a large dose of more than one hundred pills. The woman, believing that spiking her husband's coffee with the pills would be lethal, put all ten of the pills in the coffee and then gave it to her husband. The husband drank the coffee, but suffered only mild nausea and drowsiness. When the husband saw the empty bottle, he called police. Can the woman be found guilty of attempted murder?

Yes, because, if the facts had been what the woman believed them to be, there would have been a crime. Yes, because mistake of fact is a defense to a specific intent crime. No, because it was factually impossible for the woman to kill her husband by giving him the ten sleeping pills. No, because of legal impossibility. Answer choice A is correct. Impossibility is not a defense to a charge of attempt if the crime attempted is factually impossible to commit due to circumstances unknown to the defendant. In other words, if the facts were what the woman here believed them to be, there would have been a crime. Answer choice C is therefore incorrect. Answer choice B is incorrect because, while mistake of fact is a defense to specific intent crimes, that defense does not apply in this situation. Mistake of fact might negate the element of mens rea (for example, if the woman had drugged the man's coffee with what she believed was a mild sedative but was actually a fatal drug), but in this situation, the woman's mistake actually prevented the man from being killed. Accordingly, mistake would not be a defense for this woman. Answer choice D is incorrect because legal impossibility does not apply here. Under legal impossibility, if the act intended is not a crime, the defendant cannot be guilty of attempt. Here, though, the act intended by the woman, murder, is a crime, so legal impossibility would not apply.

A defendant on trial for forging checks took the stand in his own defense. On direct examination, the defendant denied having forged any checks; he stated that before he graduated from college the year before, he worked in his university's academic records office, indicating that he was "a trustworthy person." On cross-examination, the prosecutor asked the defendant if he had falsified records while working in the academic records office. The defendant denied that he had done so. The prosecutor then wanted to call to the stand his former supervisor from the university to testify that she had to investigate the defendant after allegations of misconduct, and that when questioned, he had admitted to her that he had falsified records. The defendant was removed from his position, but no formal charges had been brought against him. Should the prosecutor be allowed to call the defendant's former supervisor to the stand to testify as to the falsified records?

Yes, in order to impeach the defendant and to present propensity evidence. Yes, but only to impeach the defendant. No, because the testimony would contain hearsay. No, because the testimony would be extrinsic. Answer choice D is correct. The former supervisor may not testify about the falsified records because it would be impeachment by extrinsic evidence of a specific instance of conduct. A specific instance of conduct, if used to impeach the credibility of a testifying witness, may not be proved by the introduction of extrinsic evidence. The adverse party may cross-examine the witness about the conduct, but must take his answer as he gives it. Since the evidence about the falsification of records is only admissible, if at all, to impeach the witness, extrinsic evidence (such as the supervisor's testimony) may not be used to refute the defendant's denial. Answer choice A is incorrect because when a person is charged with one crime, extrinsic evidence of a specific instance of conduct is inadmissible to establish that the defendant had a propensity to commit that crime. Since the facts do not indicate that the prior bad act is being used as evidence for something circumstantial and relevant, such as motive, common plan or scheme, or identity, the supervisor's testimony is not admissible as substantive evidence. Answer choice B is incorrect because, for the reasons listed above, extrinsic evidence is not admissible to prove a witness's specific instance of conduct. Answer choice C is incorrect because the alleged hearsay statement is a statement by an opposing party, and therefore nonhearsay; further, it would constitute a prior inconsistent statement.

As permitted by State A law, a decedent's only heir personally filed a wrongful death action against a defendant. The decedent was domiciled in State A at the time of his death, which occurred in State A. The decedent's heir (the plaintiff) is domiciled in State B. The action was filed in the State A federal court for the district in which the defendant is domiciled. The complaint seeks damages of $250,000, excluding interest and court costs, and alleges that, "Jurisdiction is founded upon diversity, the plaintiff being a resident of State B, and the defendant a resident of State A." On these facts, is there any basis on which the defendant could properly challenge the plaintiff's complaint?

Yes, the complaint fails to properly allege the subject matter jurisdiction of the court. Yes, the personal representative of a decedent's estate is deemed a citizen of the same state as the decedent. No, the plaintiff and the defendant are domiciled in different states and the jurisdictional threshold has been met. No, the complaint satisfies the Federal Rules of Civil Procedure requirements of notice pleading. Answer choice A is correct. In order for a federal trial court to have jurisdiction based on diversity of citizenship, no plaintiff can be a citizen of the same state as any defendant. The complaint must contain a statement of the grounds for the court's jurisdiction. Because citizenship, not residency, is the basis for diversity jurisdiction, the complaint here fails to allege the court's subject matter jurisdiction and could properly be challenged by the defendant. Accordingly, answer choice D is incorrect. Answer choice B is incorrect because the facts state that the plaintiff, the decedent's only heir, filed the action not as a representative of the decedent's estate, but personally (i.e., on his own behalf) as permitted by State A law.