8/27-Mixed-subject MBE PQs 4

Question 5886 A 13 year-old girl is the quarterback for her junior high school football team, and is the only girl on the team. Recently, a Congressional committee released recommendations on safety guidelines for various sports played in junior high schools. These recommendations will be used to develop new federal mandates, though not all of the recommendations will necessarily become law. The committee recommends that a junior high school football player must weigh at least 100 pounds to avoid sustaining certain serious injuries. The girl currently weighs 95 pounds. The junior high school football season commences in two months. In anticipation of this start date, the girl's parents have filed suit in federal court requesting a declaratory judgment that the weight requirement is unconstitutional. How is the court likely to proceed with the suit? Answers: Dismiss the complaint, because the weight requirement controversy is inherently not one that the judiciary can decide. Dismiss the complaint, because the girl's claim has not fully developed and any potential injury would be speculative at this time. Declare the recommendation unconstitutional, because the weight requirement deprives the girl of her liberty without due process of law. Declare the recommendation unconstitutional, because the weight requirement discriminates against females.

Answer choice B is correct. Ripeness refers to the readiness of a case for litigation. A federal court will not consider a claim before it has fully developed; to do so would be premature, and any potential injury would be speculative. For a case to be ripe for litigation, the plaintiff must have experienced a real injury (or imminent threat thereof). In this case, the girl has not yet experienced a real injury because the recommendations have not yet been made law, and the girl has not yet been prohibited from playing football due to her current weight. Answer choice A is incorrect. A federal court will not rule on a matter in controversy if the matter is a political question to be resolved by one or both of the other two branches of government. A political question not subject to judicial review arises when (i) the Constitution has assigned decision making on the subject to a different branch of the government, or (ii) the matter is inherently not one that the judiciary can decide. In this case, there is no political question. The judiciary can decide whether a specific weight-based safety regulation is unconstitutional. However, because the girl's claim is not ripe, a federal court should not yet consider it. Answer choice C is incorrect. The Due Process Clause of the Fifth Amendment, which applies against the federal government, provides that "[n]o person shall be...deprived of life, liberty, or property, without due process of law." At the most basic level, this clause ensures that the federal and state governments must follow certain procedures before depriving any person of "life, liberty, or property." The standard of review in substantive due process cases is generally twofold: a governmental action that infringes upon a fundamental right is generally subject to strict scrutiny. If the interest infringed upon is not fundamental, then there need be only a rational basis for the regulation. In this case, the girl may have a claim that the federal law weight requirement is not rationally related to the basis of the regulation—the safety of children playing junior high school sports. However, because the girl's claim is not ripe, a federal court should not yet consider it. Answer choice D is incorrect. To trigger strict or intermediate scrutiny under the Equal Protection Clause, there must be discriminatory intent on the part of the government, not simply a disparate effect. Legislation is discriminatory on its face if it creates distinctions between classes of persons by its very language. This hypothetical law would not discriminate on the basis of gender but on the basis of weight. Since there is no evidence that the congressional committee, in making this recommendation, had the intent to prevent females from playing junior high football, a resulting law would not on its face be unconstitutional.

Question 4184 In response to several violent and fatal confrontations, Congress enacted a law prohibiting all public speeches related to gun control inside government offices. Shortly thereafter, a protestor was arrested after displaying a large placard in a government office that said "GUNS ARE NOT THE PROBLEM; GOVERNMENT IS." At trial, the protestor challenged the law as a violation of his free speech rights. The government replied by stating that the law served the legitimate government interest of preventing violence in government offices. Is the protestor likely to prevail in his challenge? Answers: No, because the statute was viewpoint-neutral and reasonably related to a legitimate government interest. No, because First Amendment restrictions apply only to public forums. Yes, because the statute regulated speech that was not content-neutral and was not narrowly tailored to serve a significant government purpose. Yes, because government offices are public forums.

Answer choice A is correct. A "public forum" may be traditional—those that are historically associated with expression, such as sidewalks, streets, and parks—or designated—those that the government has opened for public use, such as civic auditoriums. In such public forums, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are content-neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels for communication. A nonpublic forum is essentially any public property that is not a traditional or designated public forum, such as government offices, schools, jails, and military bases. The government may regulate speech-related activities in nonpublic forums as long as the regulation is (i) viewpoint-neutral and (ii) reasonably related to a legitimate governmental interest. In this case, the regulation concerns a nonpublic forum, the law is viewpoint-neutral in that it prohibits all gun-control speech, and it is reasonably related to the legitimate interest of preventing violence inside government offices. Therefore, the protestor's constitutional challenge will fail. Answer choice B is incorrect because the First Amendment applies in a nonpublic forum, and requires that a regulation be viewpoint neutral and reasonably related to a government interest. Answer choice C is incorrect because it describes the strict scrutiny standard for regulating time, place, and manner of speech in a public forum. Because government offices are nonpublic forums, the standard does not apply. Answer choice D is incorrect because government offices are not public forums.

Question 7266 After extensive safety testing, a manufacturer of tempered glass products created a new line of tempered glass bowls that were microwave safe. The bowls were designed to be heated safely for up to six minutes in microwaves that fell within the range of 700 to 1,200 watts in power. These limitations were clearly stated on the packaging of the bowls. The manufacturer sold its bowls to a cookware supplier. The supplier inspected each of the bowls before putting them out for sale. The supplier subsequently sold one of the bowls to a food truck cook. On the first day he had it, the cook put meat in the bowl and placed it into a refrigerator overnight. The next day, the cook took the very cold bowl of meat out of the refrigerator and microwaved it in a 1,000 watt microwave for three minutes. The bowl exploded after two minutes, causing the microwave door to burst open and shards of glass to injure the cook. The cook sued the supplier under a strict products liability theory for failure to warn. At trial, it was established that although the bowls could withstand six minutes in microwaves that fell within the range of 700 to 1,200 watts in power, the bowls could not safely withstand extreme changes in temperature over a short period of time. Will the cook prevail in his suit against the supplier? Answers: Yes, because there was no warning on the packaging that the bowls could not be subjected to extreme fluctuations in temperature. Yes, because the cook purchased the bowl from the supplier. No, because the supplier is not liable for the manufacturer's failure to warn about the danger of extreme temperature fluctuation. No, because the supplier exercised reasonable care by inspecting the bowls prior to sale.

Answer choice A is correct. A failure to warn defect exists if there were foreseeable risks of harm, not obvious to an ordinary user of the product, which could have been reduced or avoided by providing reasonable instructions or warnings. For the action to succeed, the failure to include the instructions or warnings must render the product not reasonably safe. Here, there was a foreseeable risk of the bowls bursting because it is foreseeable that someone would take a bowl directly from the fridge and put it into the microwave. However, this risk would not be obvious to an ordinary user of the bowl, and could have easily been avoided if a warning as to this issue had also been added to the bowl's packaging. Answer choice B is incorrect. To bring a strict-liability action, a plaintiff is not required to be in privity of contract with the defendant. Anyone foreseeably injured by a defective product or whose property is harmed by the product may bring a strict-liability action. Appropriate plaintiffs include not only purchasers, but also other users of the product. Here, the cook could have recovered from the supplier regardless of whether he purchased the bowl from the supplier because the cook was injured when using the bowl. Answer choice C is incorrect because, as a commercial supplier of the bowl, the cookware supplier is also strictly liable for personal injury caused by a defective product it sold. Answer choice D is incorrect. Under a strict liability theory, the reasonable care exercised by the supplier in inspecting the bowls prior to sale is not relevant; it would only be relevant if the cook had sued the supplier under a negligence theory.

Question 5149 A plaintiff properly filed an action in federal district court against a defendant for injuries suffered by the plaintiff in a car accident. The plaintiff alleged that the defendant was liable under a respondeat superior theory for the negligent driving of the defendant's employee. The defendant properly impleaded the employee, asserting a claim against the employee based on indemnification. At trial, the jury reached a general verdict in favor of the defendant. Subsequently, the employee filed an action in federal district court against the defendant, seeking to recover for injuries suffered as a consequence of the accident. The employee has asserted that the accident was caused by the defendant's failure to properly maintain the car that the employee was driving. Is the employee barred from pursuing this action? Answers: Yes, because the employee's claim arises out of the same occurrence that was the subject matter of the defendant's indemnification claim. Yes, because the employee failed to assert a cross-claim against the defendant in the prior action. No, because the employee was not the original defendant in the prior action. No, because the prior action was decided by a general jury verdict.

Answer choice A is correct. By impleading the employee, the employer became a third-party plaintiff and the employee a third-party defendant. Since the employee's claim against the employer (a negligence claim based on the employer's failure to properly maintain the brakes on the car involved in the accident) arose out of the same occurrence or transaction as the claim that the employer had brought against the employee's claim was a compulsory counterclaim. Since the employee failed to assert this claim in the first action, the employee is barred from asserting the claim in a subsequent action. Answer choice B is incorrect. The employee's claim for damages arising from the defendant's negligence would not be a proper cross-claim. Because the employee was not an original defendant, this claim does not assert that the defendant is liable to the employee for all or part of a claim made by the plaintiff against the employee. In addition, were the employee's claim to be characterized as a cross-claim, a cross-claim is never mandatory. Answer choice C is incorrect. Although the employee was a third-party defendant in the prior action, the original defendant in that action, the employer, asserted a cross-claim against the employee. As a consequence, the employee was required to plead any claim that the employee had that arose out of the same occurrence that was the subject matter of the defendant's indemnification claim. Answer choice D is incorrect because the type of jury verdict in the prior action is irrelevant. The employee is barred from raising the issue of the defendant's own negligence not because the jury necessarily decided this issue, but because the employee failed to raise it by way of a counterclaim in the prior action.

Question 7301 A woman approached an officer on patrol in a busy area and told him that she had seen a young man in a red cap smoking marijuana alone in an alley less than a block away. It did not sound like the man was selling drugs, but the officer hurried to the alley. There he saw a young man in a red cap; although the young man was not smoking at the time, the officer arrested him for misdemeanor possession and consumption of marijuana. The officer then searched the man's pockets by turning them inside out. He discovered no marijuana, but he did discover a small quantity of methamphetamine in one of the man's pockets. At the man's subsequent felony trial for possession of methamphetamine, the prosecution seeks to admit the methamphetamine. The man objects. Should the methamphetamine be admitted into evidence in this trial? Answers: No, because the methamphetamine was seized pursuant to an unlawful arrest. No, because the officer lacked probable cause to believe that the man had committed a misdemeanor. Yes, because the officer was permitted to search the man's pockets. Yes, because the man matched the description given to the officer by the woman.

Answer choice A is correct. Evidence that is obtained from an unlawful arrest will be considered fruit of the poisonous tree and should be suppressed. Here, the man was searched pursuant to an arrest for a misdemeanor that occurred outside the officer's presence. Therefore, the methamphetamine will be inadmissible as fruit of the poisonous tree. Answer choice B is incorrect. Probable cause to believe that a misdemeanor was committed, without actually witnessing the crime, is not sufficient for a valid warrantless arrest. Therefore, even if this officer had probable cause to believe the man had committed a misdemeanor, this warrantless arrest would be invalid. Answer choice C is incorrect. An officer who does not have probable cause to arrest may make a limited search of the person, such as a pat-down of the outer clothing, if he has reasonable suspicion that the suspect was or is involved in criminal activity and that the frisk is necessary for the preservation of his safety or the safety of others. Here, pursuant to an unlawful warrantless arrest, the officer flipped the man's pockets inside out rather than feeling for obvious weapons or contraband. On these facts, this search was more than a frisk, and the evidence seized must be excluded. Answer choice D is incorrect because even if this information had given the officer probable cause to believe a misdemeanor was taking place, probable cause to believe that a misdemeanor was committed, without actually witnessing the crime, is not sufficient for a valid warrantless arrest.

Question 7195 A wine connoisseur visited a local winery for a tour. While he was in the winery's storage room, he leaned on a rack of wine bottles. The rack broke and dozens of bottles of expensive wine shattered on the floor. The connoisseur told the owner of the winery, "I am so sorry for this damage, and I know this wine was expensive. But court is expensive too, so if you want to settle this issue outside of court, I'll pay $5,000 to cover your damages." It was later revealed that the wine rack only broke because the winery had negligently built the rack with fragile materials. After learning this, the connoisseur refused to pay the damages he promised. In an action against the connoisseur to collect damages for the broken bottles of wine, the winery seeks to admit the connoisseur's offer to pay $5,000 to the winery to prove the validity of the amount of damages requested. Is the connoisseur's offer admissible? Answers: No, because the connoisseur made the statement before learning that the winery's negligence had caused the damages. No, because it was an offer to compromise a disputed claim. Yes, because it is a statement by a party opponent. Yes, because it is relevant to the amount of damages sought.

Answer choice B is correct. Compromise offers made by any party, as well as any conduct or statements made during compromise negotiations, are not admissible to prove or disprove the validity or amount of a disputed claim, nor may they be admitted for impeachment by prior inconsistent statement or contradiction. Here, the only time the connoisseur made this statement was during a negotiation to settle the claim. Therefore, it is inadmissible to prove the validity or amount of a disputed claim. Answer choice A is incorrect because a compromise offer made during a settlement negotiation is not admissible to prove the validity or amount of the disputed claim, regardless of who was actually at fault or when the parties learned this information. Answer choice C is incorrect. Although an opposing party's statement is nonhearsay when offered by the opposing party, it is not made admissible simply because it is nonhearsay. Here, even though this statement is not hearsay, a public policy exclusion applies to prevent its admission to prove the validity or amount of a disputed claim. Answer choice D is incorrect. Although the offer is certainly relevant to the amount of damages sought, it must nevertheless be excluded for public policy reasons because it was an offer to compromise a disputed claim.

Question 8605 At an airport baggage carrousel, a man identified his suitcase to a police officer. The police officer picked the suitcase up off of the carousel and legally searched it, finding a small package of synthetic cathinone (illegal "bath salts") in it. The man was charged with misdemeanor possession of illegal drugs. The applicable statute does not contain a mens rea requirement. At trial, the man testified that his suitcase did not contain the package when he checked it in with the airline and that he was not aware that synthetic cathinone was an illegal drug. If the jury believes his testimony, can the man be convicted of the crime of possession? Answers: No, because he never regained possession of his suitcase after surrendering it to the airline. No, because he was not aware that synthetic cathinone was an illegal drug. Yes, because the applicable statute does not contain a mens rea requirement. Yes, because the police officer's search of the suitcase was legal.

Answer choice A is correct. In order to be found guilty of possession, the defendant must exhibit dominion and control over the prohibited object. Dominion and control must exist for a period long enough to have provided the defendant with an opportunity to cease such dominion and control. Here, the prosecution failed to establish the necessary actus reus (i.e., possession) for this crime. If the man's testimony is believed, the drugs were not in the suitcase when he surrendered it to the airline. The man had not regained possession of the suitcase at the time it was seized and searched by the police officer. Therefore, he never exhibited dominion and control over the prohibited substance. Answer choice B is incorrect because a defendant who is charged with possession of an illegal drug is not required to be aware that possession of the substance is illegal. Answer choice C is incorrect. A crime that does not require mens rea is a strict-liability crime; proof of the actus reus is sufficient for a conviction. Possession of a prohibited object (e.g., drug paraphernalia, burglar's tools) or a substance (e.g., illegal narcotics) is unlawful if the defendant exercises control over such object or substance. The defendant is not required to be aware that possession of the object or substance is illegal. However, a defendant must have dominion and control over the illegal object or substance for a period long enough to provide the defendant with an opportunity to cease such dominion and control. Here, if the jury believes the man that his suitcase did not contain the package of illegal drugs when he surrendered it to the airline, then he had not regained possession of the suitcase or the illegal drugs inside it before the police officer seized the suitcase. Answer choice D is incorrect. Although the legality of the police officer's search eliminates a violation of the man's Fourth Amendment rights as a means of preventing the introduction of the illegal drugs into evidence, it does not preclude the man from avoiding conviction for this crime due to lack of possession of the illegal drugs.

Question 8359 In state court, a potential buyer of a residence filed a complaint that contained two claims. One claim was based on an alleged violation of the federal fair-housing laws by the real estate agent who listed the residence. The potential buyer sought damages of $5,000 for this federal claim. The second claim was based on an alleged violation of the state fair-housing laws by the seller of the residence as well as the real estate agent. The potential buyer sought damages of $5,000 from each defendant for this claim under state law. The real estate agent, acting alone, timely filed a notice of removal with the appropriate federal district court. What is the immediate effect of this notice? Answers: The action is automatically transferred to federal court. The action remains in state court because the seller did not join in the filing of the removal notice. The federal court has discretion regarding whether to accept the transfer of the action since the court's original jurisdiction over the federal claim is not exclusive. Only the federal claim is transferred to federal court; the state-law claim remains with the state court.

Answer choice A is correct. Once a defendant files a notice of removal, the case is automatically transferred to federal court. Subsequently, the court may remand a claim to the state court if the court determines that it lacks subject matter jurisdiction over the claim, or the defendant failed to follow proper procedures in removing the action to federal court. Answer choice B is incorrect because, in cases of removal based on federal question jurisdiction, only those defendants against whom the federal claim is asserted must join in or consent to the removal. Answer choice C is incorrect. While a claim based on a violation of the federal fair-housing laws may be brought in either state or federal court, the federal court does not have discretion as to whether to accept the transfer of this action. The case is automatically transferred to the federal court upon the filing of the notice of removal by the defendant. Answer choice D is incorrect. While subject matter jurisdiction for removing an action to federal court is determined by examining the individual claims raised by the plaintiff in her complaint, a notice of removal effects the removal of the action brought in state court. Removal is not limited to those claims over which the federal court would have subject matter jurisdiction had they initially been brought in the federal court. Only after the action is transferred to federal court must the federal court remand claims to the state court if the court determines that it lacks subject matter jurisdiction over certain claims. (Note: Since the claim based on a violation of the state fair-housing laws presumably arose out of the same transaction as the federal-law based claim, the court would have supplemental jurisdiction over the state-law claim.)

Question 6705 After being indicted for attempted murder, an indigent defendant was brought into the police station. While at the police station, the victim identified the defendant in a lineup. After the lineup but prior to trial, the defendant was appointed counsel. The lineup identification was admitted and used as evidence at trial. The jury found the defendant guilty of attempted murder. The defendant appealed this conviction, arguing that he was denied his right to counsel in the lineup. Can the court reverse the conviction? Answers: Yes, because the defendant had a right to counsel upon indictment. Yes, because a violation of the right to counsel warrants an automatic reversal of a conviction. No, because the defendant waived his right to counsel by not invoking it. No, because the right to counsel does not attach until trial.

Answer choice A is correct. The Sixth Amendment right to counsel applies at all critical stages of a prosecution, after formal proceedings have begun. The right automatically attaches when formal judicial proceedings have begun, whether that be at a post-arrest initial appearance before a judicial officer, or by way of formal charge, preliminary hearing, indictment, information, or arraignment. When a defendant is indigent, he is entitled to appointment of counsel. Here, the Sixth Amendment right to counsel attached immediately upon the defendant's indictment for attempted murder. As a result, the indigent defendant was entitled to the presence of appointed counsel at the post-indictment lineup. Answer choice B is incorrect. While the court can reverse this conviction, only the failure to provide counsel at trial results in automatic reversal of a conviction. At other non-trial stages, the denial of counsel is subject to the harmless-error test. Answer choice C is incorrect. Unlike the Fifth Amendment right to counsel, the defendant does not need to invoke the Sixth Amendment right to counsel. Answer choice D is incorrect. The Sixth Amendment right to counsel automatically attaches when the State initiates prosecution with an indictment or formal charge.

Question 6168 A seven-year-old child was taking guitar lessons from a music teacher. The child's parent accompanied the child to the guitar lessons on a weekly basis and sat in the rehearsal room with the child and the music teacher. During one lesson, the child was practicing a difficult chord, and the music teacher helped the child place his fingers in the correct position on the guitar. Suddenly, one of the guitar strings broke and poked the music teacher in the eye. If the music teacher brings a negligence action against the child, what is the child's best defense? Answers: The child exercised the care of a reasonable person of similar age, intelligence, and experience. The child was under the supervision of his parent at the time of the incident. The child, who is a minor, is incapable of negligent conduct. The music teacher assumed the risk that the guitar string might break and hit him in the eye.

Answer choice A is correct. The standard of care imposed upon a child, like the seven-year-old child in this case, is that of a reasonable child of similar age, intelligence, and experience. Thus, the child's best defense is that he met this standard of care. Answer choice B is incorrect because parental supervision does not negate a child's duty to meet the applicable standard of care. Answer choice C is incorrect. A minor child is generally capable of negligent conduct, although some states deem minor children under a certain age to be incapable of such conduct. Answer choice D is incorrect because, even if the music teacher's actions constituted an assumption of the risk, it is a defense (which would reduce, but not bar recovery) that would be unnecessary if the child establishes that he exercised due care, negating an element of the music teacher's prima facie case.

Question 7848 When she found out that a manufacturer was contaminating the ground water on which she relied, the owner of a tract of real property formed a class with 100 other property owners who also depended on the ground water supply. The owner, a resident of State B, filed the lawsuit in federal court in State A, where the manufacturer was incorporated and has its principal place of business. The complaint demanded injunctive relief in the form of abatement of a private nuisance as well as individualized monetary damages of at least $100,000 for each member of the class. The owner seeks certification as a class under Rule 23(b)(2). Should the court certify this class? Answers: No, because the class members are seeking individualized monetary damages. No, because the complaint is based on the existence of a private nuisance, which is a matter of state law. Yes, because the amount in controversy exceeds $5 million. Yes, because the complainant is a resident of a different state than the manufacturer.

Answer choice A is correct. Under Rule 23(b)(2), a class seeking final injunctive or declaratory relief may be certified if the class shares a general claim against the opposing party. An additional claim for monetary damages may not be sought, at least where the monetary relief is not incidental to the injunctive or declaratory relief. Moreover, a claim for individualized monetary relief is not available because a claim under Rule 23(b)(2) is only available when a single, indivisible remedy would provide relief to each class member. Answer choice B is incorrect because, although the complaint is based on state law, diversity jurisdiction exists. Consequently, the court has subject matter jurisdiction to hear this complaint. However, even though the court does have subject matter jurisdiction, the court cannot certify this class under Rule 23(b)(2) because the class members are seeking individualized monetary damages in addition to injunctive relief. Answer choice C is incorrect because the plaintiff is seeking certification under Rule 23, not the Class Action Fairness Act of 2005 ("CAFA"). Under CAFA, among the requirements for a federal court to have diversity jurisdiction over a class action based on state causes of action is that the amount in controversy exceed $5 million. Since the amount of damages sought by each class member exceeds $100,000 and there are over 100 class members, the amount in controversy is $10 million. While this requirement is met, the court cannot certify the class under Rule 23(b)(2). Answer choice D is incorrect. Under CAFA, among the requirements for a federal court to have diversity jurisdiction over a class action based on state causes of action is that minimum diversity exist. Here, since the class representative lives in State B and the manufacturer is incorporated in State A where it also has its principal place of business, this requirement is satisfied. Regardless, the court cannot certify the class under Rule 23(b)(2).

Question 6350 Over the past three years, the number of drunk-driving accidents has tripled in a city. As a result, police officers set up a sobriety checkpoint on a different street every Saturday evening. During these checks, the officers usually stop every car. However, this week, due to the need for police officers the following day to staff a parade route, the officers stopped every tenth car. The officers stopped the tenth car that approached the checkpoint. The car was driven by a woman who was slurring her speech and had glassy eyes. After admitting that she had been drinking, the woman was arrested and charged with driving while intoxicated. Did the stop violate the woman's constitutional protection from an unreasonable governmental search and seizure? Answers: No, because the woman was visibly intoxicated. No, because stopping every tenth car satisfies the requirement of a neutral and articulable standard. Yes, because every car must be stopped at a sobriety checkpoint. Yes, because each sobriety checkpoint must be subject to the same neutral, articulable standard.

Answer choice B is correct. A roadblock to perform sobriety checks has been upheld. Police may stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law if the stop is based on neutral, articulable standards, and its purpose is closely related to an issue affecting automobiles. Here, drunk driving is an issue affecting automobiles. Further, setting a standard of "every tenth car" has been clearly articulated and can be applied neutrally, or in an unbiased manner. Answer choice A is incorrect because the officers were not aware of the woman's intoxication until after the stop. Thus, this information could not serve as justification for her stop. Answer choice C is incorrect because the officers may stop cars based on any articulable, neutral standard. They are not required to stop every car at a sobriety checkpoint. Answer choice D is incorrect. Although each sobriety checkpoint must articulate a neutral standard by which vehicles are stopped, the standards do not have to be the same for each checkpoint.

Question 7461 A police officer observed an individual leaving a residence where the officer had reasonable suspicion that illegal drugs were being sold. Although the officer lacked reasonable suspicion that the individual had purchased drugs at the residence, he wanted to question the individual to discover whether his suspicions were correct. He stopped the individual's car, requested the individual's identification, and upon being presented with the individual's driver's license, ran a check to see if he had any outstanding warrants. When the check, which took only several minutes, revealed that there was an outstanding arrest warrant for the individual for a minor traffic infraction, the officer arrested him. During a search of the individual's person immediately following the arrest, the officer found methamphetamine. The individual was charged with possession of a controlled substance. The individual has filed a motion in limine to suppress the evidence of the methamphetamine found on his person. How should the court rule on this motion? Answers: Deny the motion, because the officer's detention of the individual was constitutional. Deny the motion, because the arrest warrant attenuated the illegal stop. Grant the motion, because the evidence did not relate to the reason for the individual's arrest. Grant the motion, under the "fruit of the poisonous tree" doctrine.

Answer choice B is correct. Although evidence of the individual's possession of an illegal drug was directly linked to the illegal stop of the individual and therefore a "fruit of the poisonous tree" to which the exclusionary rule would usually apply, here the seizure of this evidence was attenuated by the existence of a valid warrant for the individual's arrest. The illegal stop was not effected for the purpose of arresting the individual, and the length of the stop did not constitute flagrant police misconduct. Answer choice A is incorrect because, while the police officer did have reasonable suspicion that illegal drug activity was taking place at the residence, the police officer lacked reasonable suspicion that the individual was involved in that activity. Consequently, the officer's stop of the individual was illegal. Answer choice C is incorrect because, while the illegal drugs found on the individual in no way related to the warrant for the arrest of the individual for a minor traffic offense, evidence seized pursuant to a search incident to a valid arrest is admissible. There is no requirement for a connection (or lack thereof) between the evidence seized during the search and the reason for the person's arrest. Answer choice D is incorrect because, although the temporal proximity of the illegal stop and the seizure of the methamphetamine indicates that the seizure was a fruit of the poisonous tree, the existence of the valid arrest warrant served to attenuate the illegal stop sufficiently to justify the evidence's admission.

Question 6515 The owner of land improved with a residence enjoyed an express, duly recorded easement appurtenant to use a neighbor's driveway. This driveway was part of a larger driveway that looped from the street to the owner's residence and back to the street via the driveway on the neighbor's property. The owner sold the property. The purchaser, in his first face-to-face conversation with his new neighbor after moving in, stated that he had no intention of using the portion of the driveway that ran through his neighbor's property. Acting in reliance on the purchaser's words, the neighbor shortly thereafter entered into a contract to have a wall constructed across the driveway at the point it entered onto her property and before it joined the portion of driveway that she continued to use for access to her own residence. When the contractor began to build the wall, the purchaser, having doubts about foregoing use of the private driveway, demanded that the neighbor stop building the wall and return the driveway to its former condition. Of the following, which is the neighbor's best defense to the purchaser's demand? Answers: Abandonment Estoppel Prescriptive easement Release

Answer choice B is correct. An easement holder may be estopped from asserting an easement if the owner of the servient estate changes position to his detriment in reliance on statements or conduct of the easement holder that the easement is abandoned. Here, the neighbor has entered into a contract to build a wall and construction of the wall has begun based on the purchaser's statement that he planned to abandon use of the easement. Answer choice A is incorrect. As a property right, an easement cannot be abandoned by a statement of intent to do so without affirmative conduct by the easement holder. The facts do not indicate whether the purchaser made use of the easement in the relatively short time between his statement to the neighbor and the neighbor's entering into a contract for the construction of the wall across the driveway, but even if the purchaser did not use the driveway for this time period, this period of nonuse, even coupled with the purchaser's statement, would not likely constitute abandonment of the easement. Answer choice C is incorrect. Although the neighbor continued to use the driveway on her property, her use is not adverse to the purchaser's easement. Since the easement also recognized her use of the driveway, the easement was non-exclusive. Answer choice D is incorrect. In order for the owner of the dominant estate to release an easement, the owner must comply with the same formalities required by the Statute of Frauds to create an easement. An oral statement by the purchaser does not meet these requirements.

Question 7170 The Senate passed a resolution authorizing and directing a committee of seven senators to investigate officials in the Department of Justice for the alleged failure to prosecute violators of a recently enacted federal statute concerning unlawful restraint of trade. Pursuant to the resolution, the Senate committee subpoenaed a lower-level official in the Department of Justice to appear before the committee to give testimony regarding the alleged improper actions of higher-ranking officials in the Department in enforcing the federal statute. The lower-level official refused to appear, claiming that the Senate committee lacked the constitutional authority to conduct such an investigation. Were the actions of the Senate committee constitutional? Answers: Yes, because Congress may conduct investigations pursuant to the General Welfare Clause. Yes, because the testimony sought is related to Congress's legislative function. No, because there is no express power granted to Congress to conduct investigations. No, because Congress does not have the power to subpoena witnesses.

Answer choice B is correct. Congress does not have an express power to investigate, but the Necessary and Proper Clause allows Congress broad authority to conduct investigations incident to its power to legislate. The investigatory power may extend to any matter within a "legitimate legislative sphere." In this case, the Senate committee's investigation concerned the failure to prosecute under a federal statute covering unlawful restraint of trade. The enforcement, or lack thereof, of a federal statute covering trade and commerce certainly constitutes a matter within a legitimate legislative sphere of Congress. Therefore, the Senate committee had the power to investigate this issue incident to its power to legislate. Answer choice A is incorrect. Congress has the power to tax and spend for the general welfare. This power does not also authorize Congress to conduct investigations. Answer choice C is incorrect. Although the Constitution does not confer upon Congress an express power to investigate, the Necessary and Proper Clause allows Congress broad authority to conduct investigations incident to its power to legislate. Answer choice D is incorrect because Congress does have the power to issue subpoenas when investigating any matter within a "legitimate legislative sphere."

Question 7547 A customer is suing the owner of a restaurant for negligence after her son became ill when he was served a dish containing peanuts. Before ordering their meal, the customer informed the owner of her son's allergy. The owner assured the customer that her son could safely eat at the restaurant. At trial, the customer wants to introduce testimony from one of the restaurant's former waiters about his current suit against the restaurant for wrongfully dismissing him for alerting local authorities to minimum wage violations by the owner. The owner's attorney objects to the waiter's testimony. What is the best basis for this objection? Answers: The details of the waiter's suit is likely to confuse the jury. The fact that the restaurant is being sued in an employment action is not probative or material to this negligence case. This lawsuit is ongoing and therefore its details cannot be entered into evidence in the negligence action. The waiter is biased against the owner because the owner fired him.

Answer choice B is correct. For evidence to be admissible, it must be relevant. Evidence is relevant if it meets two criteria; (i) it is probative (e.g. it has a tendency to make a fact more or less probable than it would be without the evidence), and (ii) it is material to the litigation (e.g. it is a fact of consequence in determining the action). In this case, evidence of the waiter's wrongful dismissal suit against the restaurant is not relevant to the instant action concerning negligent preparation of food. Answer choice A is incorrect. The potential to confuse the jury is typically the basis for an objection when the evidence involves several issues, only one of which is relevant to the case at issue. Here, the evidence of the other lawsuit is not relevant at all to the instant action. Answer choice c is incorrect. Even if the evidence of the wrongful dismissal suit was otherwise relevant and admissible, the fact that it is still in litigation would not prevent the introduction of evidence of its existence in this negligence action. Answer D is incorrect. The issue of bias of witness goes to the issue of the witness's credibility, not the admissibility of the witness's testimony.

Question 8369 The owner of a parcel of land in State A, the owner's state of residence, entered into a contract with a company to construct a residence on the land. The contract called for any dispute arising from the contract to be brought in a state court in State A. When a contract dispute did arise, the land owner filed suit in federal court in State B, where the company was incorporated. The company has challenged the venue of this court. Of the following, which option is most likely to be available to the court? Answers: Dismissal of the action for improper venue. Dismissal of the action under the doctrine of forum non conveniens. Remand of the action to a state court in State A. Transfer of the action to a state court in State A.

Answer choice B is correct. Forum non conveniens is a common-law doctrine that allows a court to dismiss an action—even if personal jurisdiction and venue are otherwise proper—if the court finds that the forum would be too inconvenient for parties and witnesses, and that another more convenient venue is available. The appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is to seek dismissal through the doctrine of forum non conveniens. Therefore, this is the most likely remedy available to the court in this case. Answer choice A is incorrect because venue is still legally proper in the federal court in State B, even if a forum selection clause points to another forum. The company-defendant is a resident of State B because it is incorporated there, and it is therefore subject to personal jurisdiction in that state. Answer choice C is incorrect because, since the case was neither originally brought in a state court in State A nor removed to the federal court in State B from a state court, the federal court in State B cannot remand the case to the state court in State A. Answer choice D is incorrect because, although a federal court may transfer an action to another federal court in accordance with the Federal Rules of Civil Procedure, a federal court does not have the power to transfer an action to a state court. Therefore, when a forum selection clause specifies a state forum, transfer will be unavailable, and the common-law doctrine of forum non conveniens may instead require the action to be dismissed.

Question 7542 A defendant is on trial for burglary. The perpetrator is alleged to have tied up the occupants of a home with bright green rope before stealing their gold jewelry. At trial, the prosecution seeks to introduce evidence of the defendant's two prior convictions for burglary. In both of the defendant's prior convictions, the court found that the defendant had tied up the occupants of the homes with bright green rope and had stolen only gold jewelry. The defendant pleaded not guilty to the burglary charge and will not testify at the trial. Which of the following is most likely an acceptable basis for the prosecution to seek the admission of the defendant's two prior convictions into evidence? Answers: As habit evidence to prove that the defendant routinely commits crimes in a certain manner. As evidence to prove the defendant's identity as the person who committed the burglary for which he is on trial. As character evidence to show the defendant's propensity to commit residential burglaries. As impeachment evidence to attack the veracity of the defendant's "not guilty" plea.

Answer choice B is correct. In criminal cases, evidence of prior bad acts by a defendant can be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of accident. Such evidence is sometimes referred to as "MIMIC" evidence. In this case, since the similarities between the crimes for which the defendant has been convicted and the crime with which the defendant has been charged are such that it is extremely unlikely that someone other than the defendant committed all three crimes, the prosecution can introduce evidence of the defendant's prior convictions to prove his identity as the person who committed the crime for which he is on trial. Answer choice A is incorrect. Evidence of a person's habit is admissible to prove that the person acted in accordance with that habit on a particular occasion. Habit evidence is more specific than character evidence—a habit is something that a person "always" does. In this case, two previous instances of conduct are unlikely to be found to constitute a habit. Answer choice C is incorrect. In criminal cases, evidence of a defendant's prior bad acts is not admissible to show that defendant's propensity to commit bad acts. Answer choice D is incorrect. Impeachment evidence calls the veracity or accuracy of a witness's testimony into question. In this case, the defendant will not take the stand at trial and his "not guilty" plea does not qualify as testimony. Therefore, the evidence is not admissible as impeachment evidence.

Question 7185 A state senator was on a committee reviewing the compliance of all state government buildings with federal wheelchair accessibility policies. The senator headed the committee, and as such, delivered multiple speeches during committee meetings about the importance of having not only all government buildings, but also private buildings, comply with the federal wheelchair guidelines regarding accessibility. One day as he was leaving his office, a reporter asked the senator about his views on wheelchair accessibility. The senator repeated verbatim a speech he gave during one of his committee meetings, including a comment that, unless protected by immunity or privilege, would expose him to liability for defamation of another senator. Can the senator be subject to civil liability for the statements he made to the reporter? Answers: Yes, because the Speech or Debate Clause does not apply to state legislators. Yes, because his statements were outside the sphere of legitimate legislative activity. No, because the Speech or Debate Clause protects him from civil liability. No, because the senator is immune from liability under the principles of federalism.

Answer choice B is correct. State legislators are immune from liability for actions within the sphere of legitimate legislative activity. Here, the senator's comments made during committee meetings were within the sphere of legitimate legislative activity. However, the comments he made to the reporter, despite the fact that they were verbatim of what he said in a committee meeting, are not. Thus, he is not immune from civil liability arising from his comments. Answer choice A is incorrect. The Speech or Debate Clause does not apply to state legislators, but under the principles of federalism, state legislators are immune from liability for actions within the sphere of legitimate legislative activity. Therefore, the inapplicability of the Speech and Debate Clause is not determinative here. Answer choice C is incorrect because the Speech and Debate Clause does not apply to state senators. Answer choice D is incorrect. The state senator would only be immune from liability due to the principles of federalism if his actions were within the sphere of legitimate legislative activity, which in this case they were not.

Question 2020 In order to purchase undeveloped land, the buyer sought a 10-year loan from a third-party lender. The buyer executed a promissory note and mortgage on the property. The lender promptly and properly recorded the mortgage. As part of the transaction, the lender also required the buyer to execute a quitclaim deed to the property to the lender, which the buyer was to give to an independent escrow agent. Under the terms of the escrow arrangement, the agent was to record the quitclaim deed to the lender upon notification that the buyer had defaulted on the loan. The escrow agreement also provided that, upon recording, the buyer's rights in the property would cease. The buyer made installment payments on the loan, as required by its terms, for two years, but subsequently was unable to make the required loan payments. The lender notified the escrow agent of the buyer's default and the escrow agent recorded the quitclaim deed. The lender, choosing not to foreclose on the mortgage, has advertised the property for sale at an amount significantly higher than the outstanding balance in the mortgage. Shortly thereafter, the buyer, receiving a sizeable inheritance, offered to pay the lender the full amount of the outstanding mortgage debt, which was more than 85% of the original mortgage loan. The lender refused to accept the buyer's payment. The buyer has filed an action to compel the lender to accept the payment, release the mortgage, and to void the quitclaim deed. The applicable jurisdiction has the following statute: "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 should prevail? Answers: Buyer, because the lender had notice of the previously recorded mortgage. Buyer, because the escrow arrangement has clogged the buyer's equity of redemption. Lender, because, as owner of the property pursuant to the quitclaim deed, the lender is free to sell the property. Lender, because the buyer had not paid at least half of the original mortgage loan.

Answer choice B is correct. The escrow arrangement seeks to circumvent the buyer-mortgagor's equitable right to redeem the mortgaged property. The court will strike down the escrow arrangement and permit the buyer to redeem the mortgaged property. Answer choice A is incorrect because the lender's knowledge and the applicability of the recording statute are irrelevant. Although the lender obviously had notice of the prior mortgage since the lender was the mortgagee, the lender did not challenge the priority of the mortgage, but merely refused to foreclose on the property based on the mortgage. Answer choice C is incorrect because the lender has obtained title to the property by means of an arrangement that seeks to prevent the buyer-mortgagor from exercising the equitable right of redemption. As a consequence, the court will void the lender's title. Answer choice D is incorrect because a mortgagor's equitable right of redemption does not depend on the amount of the original mortgage loan that the mortgagor has paid.

Question 7269 A dog owner was walking his dog down a residential street. The dog was on a sturdy leash, and the dog owner had a firm hold of it. Suddenly, a car swerved onto the sidewalk. The dog owner dived out of the way so that he would not get hit by the car, but in doing so, he lost control of the dog. The dog immediately jumped over a fence and ran into a homeowner's backyard. The dog owner saw two small children playing in the backyard. The dog owner knew that the dog loved children, but that in his playful enthusiasm, he sometimes jumped and accidentally knocked smaller children down. To prevent the dog from unintentionally harming the children, the dog owner jumped the fence and dove for the dog's leash, catching it just before the dog reached the children. As he leapt over the fence, the dog owner broke one slat of the picket fence and landed in a small vegetable garden, destroying it. The homeowner came outside upon hearing the noise and told the dog owner to get off his property. If the homeowner sues the dog owner for trespass to land, can he recover damages? Answers: Yes, because the dog caused an unreasonable interference with the homeowner's land. Yes, because the homeowner's fence was broken and his vegetable garden was destroyed. No, because the dog owner was trying to prevent the dog from injuring the children. No, because the dog owner's trespass was proximately caused by the swerving car.

Answer choice B 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. No proof of actual damages is required. However, the privilege of necessity is available to a person who enters or remains on the land of another (or interferes with another's personal property) to prevent serious harm, which typically is substantially more serious than the invasion or interference itself. Private necessity is a qualified privilege to protect an interest of the defendant or a limited number of other persons from serious harm. The privilege applies if the interference was reasonably necessary to prevent a serious injury from nature or another force not connected with the property owner. Despite this privilege, the property owner is entitled to recover actual damages, but cannot recover nominal or punitive damages nor use force to eject the defendant. Here, because the dog owner entered the homeowner's property to prevent his dog from injuring the children, the homeowner is entitled to recover actual damages based on the damage to his garden and fence, but he cannot recover nominal or punitive damages. Answer choice A is incorrect because it refers to the standard for a private nuisance, not the rule for trespass to land. Moreover, the dog owner did not cause the dog to invade the homeowner's property and the facts do not indicate the dog caused any damages. Answer choice C is incorrect. Although the dog owner can assert the qualified privilege of private necessity because he trespassed to prevent injury to the children, the homeowner can still recover actual damages caused by the dog owner's trespass. Answer choice D is incorrect because it is irrelevant that the swerving car proximately caused the dog owner to enter onto the homeowner's property. The dog owner still intentionally entered the homeowner's property, which is enough to establish trespass to land, even though the dog owner did not have the intent to commit a wrongful trespass. Although he can assert the privilege of private necessity, the dog owner is still liable for actual damages.

Question 8610 A father came home from work to learn that his daughter had been attacked on her way home from school. The attack resulted in her overnight hospitalization. The following day, the father learned the identity of his daughter's attacker. Still enraged by the incident, the father shot and killed the individual whom he thought was the attacker. However, instead of the attacker, the victim was the attacker's twin brother who was not involved in the attack. The father was charged with murder. Could the father be found guilty of the reduced crime of voluntary manslaughter? Answers: Yes, because a killing committed in the heat of passion will be mitigated to the lesser crime of voluntary manslaughter, regardless of the identity of the victim. Yes, because the doctrine of transferred provocation applies. No, because there was not adequate provocation to reduce the killing from a murder to a manslaughter. No, because he wanted to kill his daughter's attacker, not the victim.

Answer choice B is correct. Voluntary manslaughter is murder committed in response to adequate provocation (i.e., in the "heat of passion"); that is, the defendant was provoked by a situation that could inflame the passion of a reasonable person to the extent that it could cause that person to momentarily act out of passion rather than reason. Generally, a serious battery constitutes adequate provocation. Here, the attack on the father's daughter, which resulted in her overnight hospitalization, constitutes a serious battery. Under the doctrine of transferred provocation, when a defendant accidentally kills the wrong person, he will be guilty of voluntary manslaughter if that would have been his crime had he killed the provoker. Therefore, it is possible that the father's crime could be mitigated to voluntary manslaughter, and if that is the case, that mitigation will extend to the victim, even though the father was mistaken as to his identity. Answer choice A is incorrect. Although the doctrine of transferred provocation allows for mitigation even when the killer is mistaken as to the identity of his victim, this does not extend to anyone killed while the killer is operating in the heat of passion. If the defendant, in his passion, intentionally kills another person known to her to be an innocent bystander, then there will be no mitigation, and murder, rather than voluntary manslaughter, will apply. Answer choice C is incorrect. A serious battery constitutes adequate provocation. The attack on the daughter most likely does qualify. Answer choice D is incorrect. The doctrine of transferred provocation allows the defendant to be found guilty of voluntary manslaughter of a mistaken victim, if that would have been the appropriate charge had the defendant killed the provoker.

Question 2958 A small town is well known for its abundance of silver, and many residents of the town are employed as underground miners. Warning signs are posted in various locations outside of and within the mines, including in front of dangerous equipment, warning of the dangerous nature of the work. The mines use the most current methods of extracting the silver, including modern conveyor equipment, and they recently passed an inspection conducted by engineers and mining experts to ensure the silver extraction is completed as safely as possible. One day, a journalist sneaked into the mine to investigate a local news station's allegations of labor violations at the mines. After being at the mine for a few hours, the journalist realized all miners are adequately trained, and all equipment and practices seemed to follow the most accepted safety standards. Instead of walking back the length of the tunnels to return to ground level, he decided to ride on a moving conveyor belt used to return silver and equipment to the surface. When he did so, his shoelace got caught in the conveyor belt, which then caught his foot. His foot was so severely mangled that it had to be amputated. He sued the company that owns the mines for his injury. Will the mining company be strictly liable for this accident? Answers: Yes, because mining is an abnormally dangerous activity. Yes, because the mining company knows or should have known that non-employees might be present at the mines. No, because this is not the type of possible harm that made the activity subject to strict liability. No, because the mines recently passed safety inspections.

Answer choice C is correct. A defendant engaged in an abnormally dangerous activity may be held strictly liable for personal injuries and property damage caused by the activity, regardless of the precautions taken to prevent the harm. An abnormally dangerous activity is one that (i) creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised; and (ii) is not commonly engaged in. Strict liability for an abnormally dangerous activity exists only if harm that actually occurs results from the risk that made the activity abnormally dangerous in the first place. As is the case with superseding causes in negligence, the defendant's liability can be cut off by unforeseeable intervening causes. Here, the harm expected by mining might include damage resulting from the use of explosives, equipment used in a customary way, or even the caving in of mines. The unforeseeable use of the conveyor equipment as a means of human transport of an unauthorized and unforeseeable trespasser, along with the resulting injury, would likely absolve the company of liability. Answer choice A is incorrect because although strict liability is generally imposed when applied to dangerous activities, such liability is limited to the harm expected by the activity, and only to foreseeable plaintiffs. Here, an accident due to an uninvited guest running onto a conveyor belt meant to transport equipment and materials is unforeseeable. Answer choice B is incorrect because the journalist was an unforeseeable plaintiff and was using the conveyor equipment in an unforeseeable manner. It is not reasonable to assume the company could foresee every type of situation that might occur if someone trespasses into the mines and engages in a dangerous activity. Answer choice D is incorrect because even if the company had passed safety inspections, it would still be strictly liable if not for the unforeseeable nature of this accident, which also occurred to an unforeseeable plaintiff. The violation of safety regulations might demonstrate a violation of a certain standard, but passing safety inspections would not necessarily absolve a company of liability.

Question 1428 The president of a closely held corporation personally purchased an inn from a seller. In addition to a small down payment, the president executed a note for the remainder of the purchase price. The note was secured by a mortgage on the property. The mortgage and related deed were timely and properly recorded. The note contained a due-on-sale clause, which required the president to obtain the seller's consent in order to transfer the inn. The president deeded the inn to her corporation without the seller's permission or knowledge, and promptly recorded the deed. For several years, the president continued to make timely payments on the note from her personal bank account in order to conceal the transfer from the seller, until shortly before the president filed for personal bankruptcy, at which time the seller learned of the transfer. In the bankruptcy proceeding, the note is subject to discharge unless the seller's failure to exercise his rights under the due-on-sale clause is due to intentional misrepresentation by the president. The current value of the inn is less than the outstanding balance owed on the note. Does the president's conduct constitute intentional misrepresentation? Answers: No, because the president's statement was not in writing. No, because the recorded deed gave the seller constructive knowledge of the transfer. Yes, because the president, who was under a duty to disclose the transfer, failed to do so and the seller justifiably relied on that failure to his detriment. Yes, because the transaction involved the sale of land rather than goods.

Answer choice C is correct. A misrepresentation can arise from nondisclosure by a person who is under a duty to disclose. A misrepresentation can also arise from conduct and from the concealment of a fact. A person may generally rely on a misstatement unless the falsity of the misstatement is obvious. Here, the president had a duty to disclose based on the terms of the due-on-sale clause. Answer choice A is incorrect because, as noted, a misrepresentation need not be in writing. Answer choice B is incorrect because a person is not under a duty to investigate the truthfulness of a misrepresentation. Answer choice D is incorrect because intentional misrepresentation is not confined to real property transactions, but can arise in any type of transaction in which the plaintiff suffers actual economic loss due to the defendant's misrepresentation.

Question 8397 An accident at an intersection left the driver of one of the automobiles dead. His personal representative sued the driver of the other automobile in a wrongful-death action. The defendant driver, who was the only surviving eyewitness to the accident, testified that the deceased driver was going at least 10 mph above the 50 mph speed limit when he struck her automobile. A passerby who came upon the scene of the accident shortly afterward testified that, based on his observations of the positions of the automobiles, the damage done to each, and the skid marks left by the deceased driver's car, the deceased driver was traveling at the speed limit when the accident occurred. Neither the defendant nor the passerby qualified as an expert witness. Did the court properly permit each to testify? Answers: Yes, as to each, because a lay witness may testify as to common-sense impressions such as the speed of a vehicle. Yes, as to each, because each based his or her testimony on personal perceptions. Yes, as to the defendant only, because only her testimony did not require specialized knowledge. Yes, as to the passerby only, because only his testimony was not self-serving.

Answer choice C is correct. Although a lay (non-expert) witness is generally not permitted to testify as to his opinion, a lay opinion can be admissible with respect to common-sense impressions such as the speed of a vehicle. To be admissible, the opinion must (i) be rationally based on the perception of the witness; (ii) be helpful to a clear understanding of the witness's testimony or the determination of a fact in issue; and (iii) not be based on scientific, technical, or specialized knowledge. Here, while both the defendant and passerby are lay witnesses, only the defendant's testimony as to the speed at which the deceased driver was going is based on her personal observations made immediately before the accident took place. By contrast, although the passerby's testimony was made based on his personal observations of the accident scene after the fact, the precision of his testimony (i.e., that the deceased's automobile was traveling at the 50 mph speed limit) is an opinion that only someone with specialized knowledge, such as an accident expert, could reasonably offer at trial. Answer choices A and B are incorrect because the precision of the passerby's opinion is not an opinion that a lay witness could reasonably arrive at without specialized knowledge. Answer choice D is incorrect because there is no restriction on the introduction of testimony based on its self-serving nature. Instead, such testimony is merely subject to impeachment due to its self-serving nature.

Question 7126 A carpenter entered into a valid contract with a man to build a treehouse on the man's property on a particular day for $3,000. The particular date was chosen so that the treehouse would be completed for his son's birthday, which was the day after the agreed-upon building date. Because the carpenter had outstanding debt with a local bank, the carpenter asked the man to deliver his payment for the treehouse directly to the bank to pay off his debt. The man agreed, and the carpenter informed the bank that they should soon expect payment from the man to satisfy the carpenter's debt. However, when the carpenter showed up at the agreed-upon time to build the treehouse, he was so intoxicated that he was incapable of completing the treehouse safely and competently. After it became clear that the carpenter could not complete the work that day, the man ordered the carpenter off of his property. The bank has now brought an action against the man to recover the $3,000 owed to it under the contract with the carpenter. Which of the following is the man's strongest defense? Answers: The bank is not a party to the contract. The bank's rights under the contract have not vested. The carpenter failed to perform under the contract. The carpenter impermissibly assigned his right under the contract to the bank.

Answer choice C is correct. An intended beneficiary to whom the promisee owed money (i.e., a creditor beneficiary) or an intended beneficiary to whom the promisee is under a legal obligation, may sue either the promisor to enforce his contractual promise, or the promisee on the underlying obligation, but only one recovery is allowed. Here, the bank is the creditor of the carpenter (i.e., the promisee) and an intended beneficiary. Therefore, the bank is permitted to sue the man (i.e., the promisor) under the contract. However, the promisor can raise any defense against the third-party beneficiary that the promisor has against the original promisee. Because the original promisee here, the carpenter, failed to perform under the contract, the man, as promisor, can raise this failure to perform as a defense against an action by the bank to enforce the contract. Answer choice A is incorrect. Even if the bank was not a party to the original contract, it is an intended beneficiary with a vested right in the contract. Therefore, the bank is permitted to bring this action against the man. Answer choice B is incorrect. The rights of an intended beneficiary vest when the beneficiary materially relies on the rights created, manifests assent to the contract at one party's request, or files a lawsuit to enforce the contract. Here, because the bank has filed a lawsuit, its rights have vested. Answer choice D is incorrect because contract rights generally can be assigned.

Question 7032 In February, a vendor and a manufacturer entered a written contract under which the manufacturer would supply the vendor with a shipment of widgets each month for sale in the vendor's business. The contract provided that the manufacturer would "deliver 100 units of widgets on the last business day of each month until the end of the year." The manufacturer made satisfactory deliveries for seven months, and the vendor accepted each shipment. However, the vendor rejected the shipment delivered at the end of September. The manufacturer has sued the vendor for breach of contract. The vendor seeks to admit evidence from the pre-contract negotiations between the parties that the term "year" in the contract was understood by both parties to mean the end of the vendor's "fiscal year" in August, and therefore the vendor was under no further obligation to accept shipments from the manufacturer. The court has found that the term "year" in the contract is ambiguous. If the court finds that the February written contract is completely integrated, is the vendor's proffered evidence admissible? Answers: No, because the "four-corners" rule requires that the objective definitions of ambiguous contract terms control the meaning of the contract. No, because the parol evidence rule makes this evidence inadmissible. Yes, because the court has found that the term "year" is ambiguous. Yes, because the UCC permits the admission of this evidence even if the term was unambiguous.

Answer choice C is correct. Evidence may be admitted for the purpose of interpreting or clarifying an ambiguity in the agreement. This can include evidence of trade usage or even local custom to show that a particular word or phrase had a particular meaning. Here, because the court has found that the term "year" is ambiguous, the court will admit the vendor's evidence that the word "year" should be interpreted to mean "fiscal year." Answer choice A is incorrect because the common-law "four-corners" rule applies when extrinsic evidence is being offered to prove a contract term, not to interpret contract language. Answer choice B is incorrect because the parol evidence rule does not apply when extrinsic evidence is offered to determine the correct interpretation of a word in a contract. Answer choice D is incorrect. Even if the terms of a written contract for the sale of goods appear to be unambiguous, a party may explain or supplement the terms with evidence of trade usage, course of dealings, or course of performance. Here, the vendor is not offering evidence of trade usage, course of dealing, or course of performance. Therefore, the UCC would not allow the admission of this evidence if the contract were unambiguous.

Question 7096 A woman asked her best friend if she could use her friend's kitchen to cook a holiday dinner while the friend was out of town. The best friend agreed. While cooking, the woman accidentally left a metal spoon in a bowl of food that she was heating up in the microwave. As a result, the microwave short-circuited and caught on fire. When the best friend returned, she had to replace the microwave. The best friend then sued the woman for conversion. Is the best friend likely to recover under a theory of conversion? Answers: Yes, because the microwave needed to be replaced with a new one. No, because the woman did not remove the microwave from the friend's kitchen. No, because the woman did not intentionally deprive the friend of the microwave. No, because the best friend gave the woman permission to use the kitchen.

Answer choice C is correct. For conversion there must be intent to convert—to take or exercise dominion over personal property. In this case, although the defendant did deprive the friend of her microwave, she did so unintentionally. Accidentally damaging the plaintiff's chattel is not conversion if the defendant had permission to use the property. Answer choice A is incorrect. A defendant is liable for conversion if she intentionally commits an act depriving the plaintiff of possession of her chattel or interfering with the plaintiff's chattel in a manner so serious as to deprive the plaintiff of the use of the chattel. In this case, even though the defendant deprived her friend of the microwave, she accidentally committed the act that led to the microwave's destruction. Answer choice B is incorrect because the tort of conversion does not require the carrying away of property; it is sufficient that the defendant's interference with the chattel is sufficient to permanently deprive the owner of its use. Answer choice D is incorrect because the friend's permission to use the kitchen does not excuse the woman's destruction of the friend's property. Therefore, this will not serve as a defense to the friend's action for conversion.

Question 7364 A lessee operated a dry cleaning business when the city changed its zoning ordinance to prohibit businesses such as hers in her area. The lessee continued to operate her business from the same property. In fact, she increased the number of days that the business was open and purchased more efficient dry cleaning equipment, both of which have resulted in her serving more customers than she did before the zoning change. After a neighbor complained to the city about the operation of the dry cleaning business, a city inspector told the lessee that she could no longer operate on the property. Her lease does not prohibit her from operating a dry cleaning business on the premises. If the lessee appeals the inspector's decision, is she likely to be successful? Answers: No, because her operation of a dry cleaning business on the property does not conform to the zoning ordinance. No, because she is servicing more customers than she did before the zoning ordinance was changed. Yes, because she has not expanded her nonconforming use of the property. Yes, because the terms of her lease allow her to operate a dry cleaning business on the premises and shield her from zoning violations.

Answer choice C is correct. Generally, a zoning ordinance must make provisions for property with an existing nonconforming use. The right of the person currently entitled to possess the property (in this case, a lessee) can be lost in various ways, including enlargement of the nonconforming use. However, conduct by a business owner that leads to more consumers typically does not constitute an enlargement when the conduct does not involve a physical expansion of the property or the buildings on the property. Acts such as increasing the number of days that the business is open, or modernizing equipment involved in the nonconforming use, usually is not sufficient to constitute an enlargement of the nonconforming use. Answer choice A is incorrect because a zoning ordinance is generally not enforced against the holder of the property interest entitled to current possession who is using the property in a nonconforming manner when the ordinance becomes effective. Here, the lessee's operation of the dry cleaning business is a nonconforming use that is entitled to continue. Answer choice B is incorrect because conduct by a business owner that leads to more consumers typically does not constitute an enlargement when the conduct does not involve a physical expansion of the property or the buildings on the property. Here, the additional customers have not been garnered through such acts. Answer choice D is incorrect because, while a lessee is required to adhere to the terms of her lease, doing so does not shield a lessee from violation of a zoning ordinance. A lessee must comply with any applicable zoning ordinances even if her lease does not place a similar restriction on her use of the property.

Question 6453 The driver of an automobile that was involved in an accident with a truck sued the truck driver in state court for property damages to the automobile. Although the court had personal jurisdiction over the truck driver and she received adequate notice of the lawsuit, she failed to appear. The court entered a default judgment against the truck driver. Shortly thereafter, the automobile driver died. The personal representative of the automobile driver's estate has brought an action in the same state court against the truck driver for personal injuries suffered by the automobile driver as a consequence of the accident. A state survival statute recognizes the right of the personal representative of a decedent's estate to bring an action that the decedent could have brought had she lived. Can the truck driver successfully plead claim preclusion as an affirmative defense to this action? Answers: No, because the judgment in the prior lawsuit was a default judgment. No, because the plaintiff in the current action is not the same as the plaintiff in the prior action. Yes, because the automobile driver's claim for personal injury damages merged with her successful claim for property damages. Yes, because the lawsuits were both brought in the same state court.

Answer choice C is correct. One aspect of claim preclusion is that when a judgment is in a party's favor, the entire claim merges with the judgment and is extinguished. Under the transactional approach, a subsequent claim with respect to all or any part of the transaction, or series of connected transactions, out of which the original action arose is barred. In this case, because the current claim for personal injury damages and prior claim for property damages arose out of the same accident, the claim for personal injury damages merged with the claim for property damages, even though damages for personal injury were not sought in the prior suit. Thus, under the doctrine of claim preclusion, the truck driver has an affirmative defense to the current lawsuit, even though the judgment in the first lawsuit was in favor of the automobile driver. Answer choice A is incorrect. For purposes of claim preclusion, a default judgment is a final judgment even though the losing party, in this case the truck driver, did not litigate the issue of liability. Answer choice B is incorrect. Although claim preclusion generally requires that the same persons be parties in both lawsuits, a party who is in privity with a person who was a party in the prior lawsuit can satisfy this requirement. Here, the personal representative of the automobile driver's estate is in privity with the truck driver. However, because the automobile driver could not have brought the current lawsuit, neither can her estate. Answer choice D is incorrect. Although both lawsuits in this case were brought in the same state court, claim preclusion can apply with respect to a state court judgment because of the Full Faith and Credit Clause even if the current lawsuit is brought in the court of a different state. Therefore, this answer is not determinative of the issue of claim preclusion here.

Question 7841 An employee sued her employer for violation of the Americans with Disabilities Act. At trial there was a dispute over whether the employee's supervisor told her in a conversation that she was being dismissed because of her Tourette's syndrome. The jury found for the employee and awarded her damages. Six months after the entry of the judgment in this case, the employer learned that the employee, without her supervisor's knowledge, had recorded the conversation in question. Obtaining a copy of the recording, the employer learned that the employee had lied about the content of the conversation. Which of the following motions with respect to this judgment can the employer now make to the district court? Answers: A motion to alter or amend the judgment under Rule 59(e) A motion to correct the judgment under Rule 60(a) A motion for relief from the judgment under Rule 60(b) A motion to set aside the judgment for fraud on the court under Rule 60(d)

Answer choice C is correct. Rule 60(b) allows a court to relieve a party from a final judgment or order for a motion filed, within a reasonable time, and no later than one year following the entry of the judgment for fraud by an opposing party. Here, the employee's fraudulent testimony at trial would serve as grounds for the employer to file this motion. Answer choice A is incorrect because, while a party may make a motion for the court to alter or amend a judgment under Rule 59(e), this motion must be made within 28 days of the entry of the judgment. Consequently, the time for making this motion has passed. Answer choice B is incorrect. Rule 60(a) allows a party to move a court to correct a clerical or other mistake resulting from an oversight or omission whenever one is found in a judgment, order, or other part of the record. Since the employer is not seeking to correct a mistake due to an oversight or omission, this motion is not the appropriate means for challenging the judgment due to the employee's perjury. Answer choice D is incorrect because a motion to set aside a judgment for fraud on the court is available only for fraud that seriously affects the integrity of the normal process of adjudication, such as bribery of a judge or a juror or the fabrication of evidence by a party in which an attorney is implicated. Mere perjury by a witness does not itself constitute a fraud on the court.

Question 8383 A clothing retailer sued a supplier for the failure to deliver dresses as called for under an alleged installment contract. The supplier contended that a contract was never formed. In a bench trial, the court entered a judgment for the retailer and awarded the retailer $10,000 in damages. Several months later, the retailer, seeking damages of $5,000, sued the supplier for a later delivery of alleged defective dresses under the same installment contract. The supplier, contending again that the installment contract was never formed and that, even if it was formed, the dresses were not defective, timely requested a jury trial. The retailer has moved for a partial summary judgment on the issue of the existence of an installment contract. Is the court likely to grant this motion? Answers: No, because the current action involves a shipment of allegedly defective dresses, rather than the failure to ship dresses. No, because the supplier's liability in the first action was not decided by a jury. Yes, because collateral estoppel precludes the supplier from re-litigating the issue of the formation of the installment contract. Yes, because res judicata precludes the supplier from re-litigating the issue of the formation of the installment contract.

Answer choice C is correct. The doctrine of issue preclusion, often called "collateral estoppel," precludes the re litigation of issues of fact or law that have already been necessarily determined by a judge or jury in an earlier action. For this doctrine to apply, the issue sought to be precluded must be the same as that involved in the prior action, must have been actually litigated in the prior action, and must have been essential to the prior valid, final judgment. In the prior action, the court found for the retailer, which necessarily required the court to find that the installment contract between the retailer and the supplier existed. Consequently, the court should grant the retailer's partial summary judgment motion regarding the existence of this contract. Answer choice A is incorrect. While the current action does involve a different claim than the prior action, the issue of the formation of a contract was an issue in the prior action that was contested by the supplier, and the court's resolution of the issue was essential to the court's judgment in the prior action. Therefore, the supplier's defense based on the lack of a contract is barred by issue preclusion. Answer choice B is incorrect because, in general, a judgment by the court, rather than a jury, can still have preclusive effect in a subsequent action tried before a jury. Answer choice D is incorrect because res judicata precludes a party from successive litigation of an identical claim in a subsequent action. Here, as noted, the retailer's claim in the current action arises from a later shipment of allegedly defective dresses, which is a different claim from the retailer's claim in the prior action that arose from the non-shipment of dresses.

Question 7446 A state prosecutor charged a defendant by information with felony theft for stealing merchandise worth $500. The defendant's trial ended in a hung jury. After several months, the prosecutor seeks to retry on the felony theft charge. By that time, the court-appointed attorney who represented the defendant at the first trial had become unavailable. Although another attorney was appointed to represent the defendant, the defendant does not want to move forward without his initial attorney. Which of the following constitutional provisions as made applicable to the states via the Due Process Clause of the Fourteenth Amendment would provide the best defense to defendant? Answers: The Grand Jury Clause of the Fifth Amendment The Double Jeopardy Clause of the Fifth Amendment The Speedy Trial Clause of the Sixth Amendment The Right to Counsel Clause of the Sixth Amendment

Answer choice C is correct. While it is unclear whether the prosecutor's delay of several months in retrying the defendant would be sufficient to violate the defendant's Speedy Trial Right, this right represents the best constitutional defense available to the defendant of the four alternatives. If the prosecutor's delay is without sufficient justification or has resulted in prejudice to the defendant, a violation of the defendant's Speedy Trial Right mandates that the court dismiss the case with prejudice, which would prevent the retrial of the defendant on the theft charges. Answer choice A is incorrect. Although the Grand Jury Clause of the Fifth Amendment requires that a defendant to be indicted by a grand jury for any "capital or otherwise infamous crime" and the defendant was charged with felony theft by a prosecutor's information rather than a grand jury indictment, the Fourteenth Amendment's Due Process Clause did not incorporate the Grand Jury Clause and therefore it is not applicable to the states. Answer choice B is incorrect because the Double Jeopardy Clause, while applicable to the states via the Fourteenth Amendment, generally does not prevent the retrial of a defendant after a jury has been unable to reach a verdict. Answer choice D is incorrect because the Sixth Amendment does guarantee the right to a court-appointed attorney, but it does not guarantee the appointment of counsel of the defendant's choosing.

Question 7165 A local university kept a pet hog, its mascot, to use during its halftime shows at home football games. One day, the university discovered that the hog was missing. Twice a day for the next month, the university made an announcement on its popular student-operated radio station offering a $5,000 reward to anyone who could "identify who stole the hog." After that month, a coach from a rival college discovered that his team had stolen the hog as a prank. The coach immediately returned the hog. The university posted a bulletin on its website explaining that the hog had been located and that the reward offer had been revoked. Because the website did not have as wide of an audience as the radio station, many students never learned that the hog had been located. Two days after the bulletin was posted on the website, a student at the university, who did not know that the hog had been returned, heard a rumor about the rival college's prank. Because he had never visited the university's website, the student called the university to identify who stole the hog. The university's representative thanked the student but explained to him that the reward offer had been revoked. Can the student successfully sue to enforce a contract with the university? Answers: No, because the coach at the rival college had already returned the hog. No, because the revocation on the website was effective as to the student. Yes, because the student had not yet visited the university's website. Yes, because the university's radio station had a wider audience than its website.

Answer choice D is correct. A "general offer" is an offer made to a large number of people, generally through an advertisement. A general offer can be revoked only by notice that is given at least the same level of publicity as the offer. So long as the appropriate level of publicity is met, the revocation will be effective even if a potential offeree does not learn of the revocation and acts in reliance on the offer. Here, the revocation on the website did not meet the same level of publicity as the initial offer on the radio station. Therefore, this revocation was ineffective, and the student still has the ability to accept the outstanding offer to identify who stole the hog. Because the student called the university and identified who stole the hog, the student has properly accepted the university's offer and an enforceable contract exists. Answer choice A is incorrect. Even when another party accepts and performs a contractual duty, if the offer was made to multiple parties, that offer remains open until it is either terminated or revoked. Because the university did not effectively revoke the offer as discussed above, the offer remained outstanding and the student could still accept it after the rival college coach had returned the hog. Answer choice B is incorrect because the website was not as popular as the radio station. Therefore, the appropriate level of publicity was not met and the attempted revocation was ineffective. Answer choice C is incorrect. If the website had the same level of publicity as the radio station, a revocation on the website would have been effective as to the student, even if the student never saw the website bulletin.

Question 1450 A man and his neighbor were involved in an increasingly serious dispute. One afternoon, the man backed his car out of his driveway, and headed down the street past the neighbor's house. Suddenly, the man heard two "pop" sounds coming from his right. Looking in that direction, the man saw his neighbor standing on his porch, tossing a gun into the bushes. The man drove away as quickly as possible. Once he was a safe distance away, he got out of his car and surveyed the damage. He immediately noticed a bullet hole in the front right fender. Later, he repaired his vehicle, at a substantial cost. Based on the foregoing facts, which intentional tort claim by the man is most likely to result in the greatest monetary recovery? Answers: Intentional infliction of emotional distress Conversion Assault Trespass to chattels

Answer choice D is correct. A defendant is liable for trespass to chattels if he intentionally interferes with the plaintiff's right of possession by either dispossessing the plaintiff of the chattel or using or intermeddling with the plaintiff's chattel, and causes damage. Here, the neighbor intermeddled with the man's chattel (i.e., his car) by firing shots that caused damage to the car. Furthermore, punitive damages may be available, as the neighbor's conduct was willful and wanton. Answer choice A is incorrect because the facts do not indicate that the man suffered severe emotional distress as a result of the incident. Answer choice B is incorrect because the man was able to repair the car, and thus he wasn't totally deprived of the benefit of the property. Answer choice C is incorrect because an assault requires the plaintiff to experience reasonable apprehension of an imminent harmful or offensive bodily contact. The plaintiff must be aware of or have knowledge of the defendant's act. Here, the man did not see the neighbor until after the shooting had occurred.

Question 634 In a murder trial, the prosecutor planned to call an eyewitness to the stand to testify that he saw the defendant kill the victim. However, the witness recently suffered a severe head injury that seriously affected his memory. The witness can no longer remember witnessing the murder. Prior to the witness's injury, he testified to what he saw before the grand jury. The prosecutor would like to introduce the witness's grand jury testimony as substantive evidence that the defendant committed the murder. The defendant objects to the introduction of the evidence. Should the court admit the witness's grand jury testimony into evidence? Answers: Yes, because the witness is unavailable to testify. Yes, if used to refresh the witness's recollection. No, because the witness does not meet the "unavailability" standard. No, because the former testimony exception does not apply to these facts.

Answer choice D is correct. Although the witness is "unavailable" for the purposes of the hearsay rules (as will be discussed below), and there is a "former testimony" exception to the hearsay rule, the former testimony exception does not apply to grand jury testimony. Although grand jury testimony could be admissible as a prior inconsistent statement, because the witness is not testifying here, there is no statement that is "inconsistent" with a prior statement. To be admissible, the former testimony of an unavailable witness must be given under oath in a hearing or deposition, and the party against whom the testimony is being offered must have had an opportunity and similar motive to develop the testimony by direct or cross-examination; grand jury testimony does not meet this standard because the defendant does not have the opportunity to cross-examine grand jury witnesses. Answer choice A is incorrect because, as discussed above, even though the witness is unavailable to testify, grand jury testimony does not fall within the former testimony exception. Answer choice B is incorrect because items used to refresh the witness's recollection are not admitted into evidence and also because the witness has no recollection that can be refreshed. Answer choice C is incorrect because the witness does meet the standard for "unavailability." A witness is considered unavailable if that person is exempt on the grounds of privilege, refuses to testify, lacks memory of the subject matter of the statement, is unable to testify due to death or physical or mental disability, or is absent and cannot be subpoenaed or otherwise made to appear. The witness's lack of ability to remember the subject of his testimony due to a brain injury qualifies the witness as unavailable.

Question 7388 A resident of a state brought a common law action in federal district court against a car dealer in the same state after the car she purchased from the car dealer malfunctioned and caused an accident. The resident seeks to recover $80,000 in damages from the car dealer. The car dealer has moved to dismiss the suit on constitutional grounds. Should the court grant the car dealer's motion to dismiss? Answers: No, because the court has jurisdiction over cases arising under the common law. No, because the court has jurisdiction over products in the stream of commerce. Yes, because the resident's suit is not a case or controversy as defined by Article III. Yes, because the resident's suit is not within the jurisdictional scope of Article III.

Answer choice D is correct. Article III, Section 2 delineates the jurisdiction of federal courts as limited to cases or controversies (i) arising under the Constitution, laws, and treaties of the United States; (ii) affecting foreign countries' ambassadors, public ministers, and consuls; (iii) involving admiralty and maritime jurisdiction; (iv) when the United States is a party; (v) between two or more states, or between a state and citizens of another state; (vi) between citizens of different states or between citizens of the same state claiming lands under grants of different states; or (vii) between a state, or its citizens, and foreign states, citizens, or subjects. None of these conditions are met here. Therefore, this claim is not within this federal court's original jurisdiction, and it should be dismissed. Answer choice A is incorrect because Article III does not vest federal courts with original jurisdiction over cases arising under the common law. Answer choice B is incorrect because Article III does not vest federal courts with original jurisdiction over cases involving products in the stream of commerce unless the case or controversy otherwise falls within the scope of jurisdiction of the federal courts (e.g., a suit between citizens of different states). Answer choice C is incorrect because this claim does present a case or controversy, but it is a controversy within the original jurisdiction of the state courts, not the federal courts.

Question 4238 After a defendant was arrested and charged with robbery but before he had met with his court-appointed attorney, the police brought him in to question him about the robbery. After being read his Miranda warnings, the defendant asked, "shouldn't my lawyer be here?" but said nothing further. For the next hour, the police questioned the defendant, and he continued to remain silent. Unbeknownst to the defendant, his attorney had been trying to reach him throughout the course of the interrogation; the police specifically withheld this information from the defendant. Finally, one officer mentioned that the defendant's mother was going to be miserable sitting through his trial, and the defendant broke down. He admitted that he had been the driver for the robbery, but that it had been a mistake, and he did not want to make his mother sit through a trial. The defendant later sought to suppress his statement as a violation of his Sixth Amendment rights. If the defendant is successful, what is the most likely reason why? Answers: The circumstances indicate that the defendant's statement was not voluntary. The defendant specifically invoked his right to counsel. The defendant's statement could not constitute a valid waiver of his Miranda rights unless his counsel was present. The defendant was entitled to the presence of counsel, and the police interfered with that right.

Answer choice D is correct. The police are under no obligation to inform a suspect that an attorney has been trying to reach him, and may even withhold that information intentionally, so long as the Sixth Amendment right to counsel has not yet attached. The Sixth Amendment right to counsel applies at all critical stages of a prosecution, after formal judicial proceedings have begun. The right automatically attaches when formal judicial proceedings have begun, whether that be at a post-arrest initial appearance before a judicial officer, or by way of formal charge, preliminary hearing, indictment, information, or arraignment. In this case, the defendant's Sixth Amendment right to counsel had attached because he was formally charged with robbery, and thus he was entitled to the presence of counsel during the interrogation. This type of police interference with that right most likely constitutes a violation of the Sixth Amendment right, and this is therefore the defendant's best argument. Answer choice A is incorrect because the facts do not indicate that the statement was involuntary. The police officer's statement about the defendant's mother does not elevate the circumstances to a level of making the statement involuntary. Answer choice B is incorrect because generally wondering if an attorney should be present is not a sufficient invocation of the right to counsel, at least in a Fifth Amendment context. In any event, although a defendant is required to specifically invoke his right to counsel under the Fifth Amendment, there is no such requirement under the Sixth Amendment. Thus, the defendant was entitled to counsel even if he did not make a specific request. Answer choice C is incorrect. In the Fifth Amendment context, once an individual in custody asserts the Fifth Amendment right to counsel, no subsequent waiver of that right is valid in a police-initiated interrogation unless counsel is present. However, the Sixth Amendment right to counsel can be waived at any time so long as relinquishment of the right is voluntary, knowing and intelligent. Therefore, the presence or absence of the defendant's attorney is not determinative of whether any waiver of his Sixth Amendment right to counsel would be valid.

Question 5989 A defendant operated a warehouse, next to which he set up a wooden ramp to assist in loading supplies. The plaintiff, a 13-year-old boy, asked if he could enter the defendant's property during the weekend to ride his skateboard on the ramp. The defendant told the plaintiff, "No you may not enter the property. Besides, skateboarding here would be too dangerous. This ramp is not smooth enough." The plaintiff asked again, saying, "Please. I know how dangerous skateboarding is. I do it all the time." The defendant still refused. That weekend, the plaintiff climbed the fence and rode his skateboard on the ramp. The plaintiff's skateboard hit an uneven patch and he was thrown off the board, suffering serious injury. The plaintiff subsequently brought an action against the defendant under the attractive nuisance doctrine. If the plaintiff is unsuccessful, which of the following is the most likely reason? Answers: The ramp was not designed for skateboarding. The ramp was not designed to be attractive to children. The defendant had explicitly told the plaintiff he did not have permission. The plaintiff, despite his youth, fully appreciated the risks involved.

Answer choice D is correct. Under the "attractive nuisance" doctrine, a land possessor may be liable for injuries to children trespassing on the land if: (i) an artificial condition exists in a place where the land possessor knows or has reason to know that children are likely to trespass, (ii) the land possessor knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children, (iii) the children, because of their youth, do not discover or cannot appreciate the danger presented by the condition, (iv) the utility to the land possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children, and (v) the land possessor fails to exercise reasonable care to protect children from the harm. Here, it is clear that the plaintiff did appreciate the danger presented by skateboarding on the ramp, despite his youth. Answer choice A is incorrect. The attractive nuisance doctrine is not limited to artificial conditions that are designed for the particular activity engaged in by the child plaintiff. Answer choice B is similarly incorrect, because the artificial condition does not need to be designed to be attractive to children; so long as the condition attracts children, the attractive nuisance doctrine will apply if the other elements are met. Answer choice C is incorrect because the fact that the plaintiff was a trespasser would not preclude recovery if the elements of the attractive nuisance doctrine were satisfied.

Question 8599 An elementary school teacher detained a student after school. A state's attorney, alleging that the detention was improper, filed an information charging the teacher with false imprisonment. At trial, the jury rendered a not guilty verdict. Subsequently, the student revealed that the teacher had hidden him in a closet to prevent his being found on the day of the incident. The state's attorney then filed an information charging the teacher with kidnapping, which in addition to the elements required to establish false imprisonment also requires either movement of the victim or hiding the victim. The teacher, contending that his constitutional rights have been violated, has filed a motion to dismiss the charges. Should the court grant this motion? Answers: No, because kidnapping requires proof of an additional element that false imprisonment does not. No, because the teacher was not previously subject to punishment for her behavior. Yes, because both crimes are based on the teacher's conduct at a single event. Yes, because the teacher was previously found not guilty of false imprisonment, which is a lesser-included offense of kidnapping.

Answer choice D is correct. Under the Fifth Amendment Double Jeopardy Clause that is applicable to the states through the Fourteenth Amendment, a person may not be prosecuted for the same offense after being acquitted of that offense. The Blockburger test is applied to determine whether the crimes constitute the same offense for double jeopardy purposes. Under this test, each crime must require the proof of an element that the other does not in order for each to be considered as a separate offense. A lesser-included offense is one that does not require proof of an element beyond those required by the greater offense. In this case, false imprisonment is a lesser-included offense of kidnapping. Accordingly, the teacher cannot be prosecuted for kidnapping. Answer choice A is incorrect. Kidnapping is a different crime from false imprisonment because it requires the proof of an additional element—movement of the victim or hiding the victim. However, kidnapping and false imprisonment are treated as the same offense for double jeopardy purposes because false imprisonment is a lesser-included offense of kidnapping. Answer choice B is incorrect because the protection from double jeopardy applies when a defendant has previously been acquitted of an offense, as well as when a defendant has previously been convicted of that offense. Answer choice C is incorrect. When a defendant is charged with more than one offense from a single event, the protection from double jeopardy is keyed to whether each offense requires the proof of at least one element that the other offense does not. The protection is not triggered simply because the defendant has been charged with multiple crimes arising from a single event.