General Missed MBE Questions Flashcards
Can a security guard be liable for false imprisonment for locking a person in the building whom he didn’t know was there?
No. For false imprisonment, the plaintiff must show (i) an act or omission on the part of the defendant that confines or restrains the plaintiff to a bounded area, (ii) intent on the part of the defendant to confine or restrain the plaintiff, and (iii) causation. Here, because the guard apparently did not know that the attorney was still in the building, she had no intent to confine him when she locked the doors.
Should the court suppress a wiretap recorded after D had been booked and interrogated and requested an attorney?
The conversation should be suppressed because the police conduct violated the man’s Sixth Amendment right to counsel. The Sixth Amendment provides that in all criminal prosecutions a defendant has a right to the assistance of counsel at all critical stages after formal proceedings have begun. For Sixth Amendment purposes, a criminal prosecution begins when adversary judicial proceedings have commenced, such as the filing of formal charges in this case. Because custodial interrogation is a critical stage of prosecution, the Sixth Amendment is violated by post-charge interrogation unless the defendant has waived his right to counsel. Interrogation includes not only direct questioning, but also any other conduct by the police intended to elicit a response. The police conduct here (telling the man that the woman had implicated him and then bugging the conversation) constitutes prohibited interrogation.
If a parent whose daughter was searched at a school sues the school for a 4A violation, and the school files a motion for summary judgment, should the court grant the motion?
The motion should be denied. A school search will be upheld only if it offers a moderate chance of finding evidence of wrongdoing, the measures adopted to carry out the search are reasonably related to the objectives of the search, and the search is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” [Safford United School District #1 v. Redding (2009)] In the Redding case, school officials were also attempting to locate lawful pain killers believed to be on a student’s person based on an uncorroborated tip from another student. The medication was prohibited on school premises without a doctor’s note on file. The Court concluded that a search of the student’s outer clothing and backpack did not violate the Fourth Amendment. However, a subsequent strip search of the student was unconstitutional. Here, the trier of fact could find that a search of the senior’s gym shorts that she was wearing under her school uniform was excessively intrusive and not reasonably related to the objectives of the search; hence, the school officials should not be entitled to summary judgment.
A husband sees his wife has been injured by broken glass caused by the bank in which she was sitting. He faints and sustains injuries. Is he likely to prevail if he sues the bank for his injuries?
The husband will recover for his injuries because his wife was among those injured by the collapse of the artwork. The duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. In most jurisdictions, a bystander who sees the defendant negligently injuring another can recover for his own distress if (i) the plaintiff and the person injured by the defendant’s negligence are closely related, (ii) the plaintiff was present at the scene of the injury, and (iii) the plaintiff personally observed or perceived the event. Observation is typically by sight, but may also be by hearing or other senses under certain circumstances. Here, the husband heard the screams and the sound of breaking glass when the artwork collapsed as he entered the lobby. Even though he evidently did not see the artwork collapse on the diners, he heard it crash where his wife was sitting and saw the immediate aftermath. Because his wife was one of the persons injured by the collapse of the artwork, he can recover damages for the injuries caused by his distress.
Can D remove a claim filed in a court of the state where he resides to federal court, based on federal question jurisdiction?
The case is properly removable. Under 28 U.S.C. section 1441, a defendant may remove an action that could have originally been brought in the federal courts. Federal question jurisdiction is available when the plaintiff, in his well-pleaded complaint, alleges a claim that arises under federal law. In the instant case, the citizen’s civil rights claims under section 1983 present a federal question. Because a federal question has been presented, the case is removable. Once one claim satisfies the requirements for original federal subject matter jurisdiction, the court has discretion to exercise supplemental jurisdiction over related claims that derive from the same common nucleus of fact and are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding. Here, the citizen’s state tort law claim is derived from the exact same fact pattern. Thus, the court has supplemental jurisdiction over that claim.
(B) is incorrect because the “in-state defendant” restriction on removal applies only when removal is based solely on diversity of citizenship jurisdiction.
Boat owner is injured in an accident. Passenger sustains $100,000 in damages. Boat owner sustains $10,000 in damages. Driver is 45% at fault and boat owner is 55% at fault. Boat owners pays passenger $100,000.
How much can boat owner recover from driver?
The boat owner can recover $45,000 through comparative contribution for the passenger’s claim and $4,500 on his own claim against the driver of the boat. Most comparative negligence states have adopted a comparative contribution system based on the relative fault of the various tortfeasors. Nonpaying tortfeasors who are jointly and severally liable are required to contribute only in proportion to their relative fault. Here, because the jurisdiction retained joint and several liability, the boat owner had to pay the passenger all of her damages. Under comparative contribution rules, the boat owner can obtain contribution from the driver for 45% of that amount, because the driver was 45% at fault. In addition, the boat owner has a direct claim against the driver for his own damages of $10,000, reduced by 55%, the amount of his fault. Thus, the total amount that the boat owner can recover from the driver is $49,500.
A dog whistle manufacturer’s factory was located near a residential area. The manufacturer used the most effective methods for testing its whistles, but it was impossible to completely soundproof the testing area. A breeder of champion show dogs bought some property near the factory and raised and trained her dogs there. Although the whistles were too high-pitched to be perceived by human ears, they could be heard by the breeder’s dogs. Consequently, the dogs often were in a constant state of agitation.
In a suit by the breeder against the manufacturer, what is the likely outcome?
The breeder will not recover because there has been no substantial interference with her use or enjoyment of her land, nor has there been a trespass. A private nuisance is a substantial, unreasonable interference with another person’s use or enjoyment of her property. The interference must be offensive, inconvenient, or annoying to the average person in the community. It is not a substantial interference if it merely interferes with a specialized use of the land. Here, the testing of the dog whistles did not bother humans, and so it did not disturb the average person in the community. It is disturbing to the breeder’s dogs, but this affects only her specialized use of her land. Thus, the manufacturer’s actions do not constitute a private nuisance. (Nor do they constitute a public nuisance—an act that unreasonably interferes with the health, safety, or property rights of the community.)
(D) is incorrect because the manufacturer could be found liable to the breeder even if it acted reasonably. In determining whether there is a nuisance, a court would consider the manufacturer’s care in testing its whistles, but that factor alone would not be determinative. If the activities were offensive to the average person, the court might still find there is a nuisance—even if it is impossible to do a better job of soundproofing. The court would have to consider the “reasonableness” of the interference, i.e., balance the injury against the utility of the manufacturer’s conduct.
Must a judge raise the issue of competency for a loony D who is representing himself?
The judge must raise the issue of competency. If it appears to the judge that the defendant might be incompetent, the judge has a constitutional obligation to conduct further inquiry and determine whether in fact the defendant is incompetent. If the defendant is tried and convicted but it later appears that he was incompetent to stand trial, the judge’s failure to raise the issue or to request a determination of competency does not constitute a waiver of the competency issue. [Pate v. Robinson (1966)] Therefore, if the trial judge observes the defendant acting in such a way that may indicate he is incompetent to stand trial (e.g., meowing, chasing imaginary squirrels), she should conduct further inquiry to determine the competency of the defendant.
The police received a tip from a reliable informant that a former student at the local university was selling narcotics. A brief investigation revealed that the former student, a college dropout, still hung around the university campus, had no visible means of support, and yet drove a large luxury car and wore flashy clothing and jewelry. The police picked up the former student the next time he showed up on campus, took him to the station, and questioned him all night long without a break and without letting him communicate with anyone else. When the former student tired from the interrogation, he admitted that he sold cocaine to his friend, who is a current student at the university. Based on this information, the police went to the current student’s dormitory room. When they arrived, they found the door open but no one was in the room. The police entered, searched the room, and discovered a vial of white powder. Later laboratory tests established the powder to be cocaine. The former student was then charged with the sale of narcotics. At his trial, the prosecution attempted to admit the cocaine discovered in the dormitory room into evidence.
What is the former student’s best argument for preventing the cocaine from being admitted into evidence?
The former student’s best argument for preventing the cocaine from being admitted into evidence is that his confession was not voluntary.’’
The former student will have a better chance of invoking the exclusionary rule if the confession is involuntary. For confessions to be admissible, the Due Process Clause of the Fourteenth Amendment requires that they be voluntary. While voluntariness is a fact question that is assessed by looking at the totality of the circumstances, the duration and manner of the police interrogation here indicate that the confession probably was the result of actual coercion. If the confession is found to be involuntary, the former student can invoke the exclusionary rule to exclude the cocaine as “fruit of the poisonous tree.” In contrast to an involuntary confession, a confession obtained without Miranda warnings, as long as the failure to warn was not purposeful, may not be sufficient to justify excluding the nontestimonial “fruits” of the confession. [See United States v. Patane (2004)] Thus, the involuntariness of the confession, rather than the absence of Miranda warnings, is the best argument for excluding the cocaine.
A pedestrian was injured in a car accident involving two cars. The pedestrian filed a negligence action in federal district court against the first driver, seeking $100,000 in damages. The pedestrian is a citizen of State A and the first driver is a citizen of State B. The first driver then filed a third-party claim against the second driver, claiming that the second driver is responsible for half of the harm caused to the pedestrian and seeking to recover half of any liability the first driver is found to have to the pedestrian. The second driver is a citizen of State A.
Does the federal court have subject matter jurisdiction over the third-party claim asserted by the first driver against the second driver?
The court has supplemental jurisdiction over the third-party claim. Diversity of citizenship jurisdiction is available when (i) there is complete diversity of citizenship, meaning that each plaintiff must be a citizen of a different state from every defendant; and (ii) the amount in controversy exceeds $75,000. In the instant case, the case is properly in federal court because diversity jurisdiction exists for the underlying claim (i.e., the claim by the pedestrian against the first driver), given that the pedestrian is from State A, the first driver is from State B, and the amount in controversy is $100,000. The third-party indemnity claim, however, cannot invoke diversity jurisdiction, even though the first driver is from State B and the second driver is from State A, because the amount claimed is $50,000.
This makes (B) an incorrect answer choice. When the federal court has subject matter jurisdiction over one claim, it has discretion to exercise supplemental jurisdiction over related claims that derive from the same common nucleus of fact and are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding. (Essentially, this means that the supplemental claim must arise from the same common nucleus of operative fact as the claim invoking federal subject matter jurisdiction.) In the instant case, the claims of pedestrian (the underlying claim) vs. first driver and of first driver vs. second driver (the indemnity claim) are derived from the same accident, and thus both are derived from the same common nucleus of operative fact. There are restrictions on the use of supplemental jurisdiction when the use of supplemental jurisdiction would be contrary to diversity jurisdiction. In terms of third-party practice, claims by a plaintiff against an impleaded party may not use supplemental jurisdiction to circumvent the diversity statute. However, claims by a defendant are not listed among the restrictions; thus, supplemental jurisdiction is available to a defendant (third-party plaintiff) against a third-party defendant. Therefore, the first driver may use supplemental jurisdiction to have his claim against the second driver heard in federal court. (This would be true even if they were from the same state, so long as the claim was a true indemnity claim.)
Actual vs. Proximate Cause in Negligence
To establish a prima facie case for negligence, the attorney must show that the pilot’s breach of his duty to her was the actual and proximate cause of her injury. The attorney can establish actual cause because but for the pilot’s error, she would not have been injured. However, not all injuries “actually” caused by a defendant will be deemed to have been proximately caused by his acts. The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. This rule applies to cases such as this, where an intervening force comes into motion after the defendant’s negligent act and combines with it to cause plaintiff’s injury (indirect cause cases). Here, the pilot’s navigational error did create a greater risk of collision with other planes in the process of landing, but it did not increase the risk of a plane using the landing runway to take off in disregard of the control tower’s instructions once the pilot was safely on the ground. Hence, the student pilot’s unforeseeable conduct was not within the increased risk created by the pilot’s negligence and constitutes a superseding force that breaks the causal connection between the pilot’s conduct and the attorney’s injury, enabling the pilot to avoid liability to the attorney.
Miranda Warnings and 5A Right to Counsel in Interrogations
At any time prior to or during a custodial interrogation, the accused may invoke a Miranda (Fifth Amendment) right to counsel. If the accused invokes this right, all questioning must cease until the accused is provided with an attorney or initiates further questioning himself. Thus, the police questioning of the woman about the robbery was improper, and she can have her statements excluded.
Pre-Trial Discovery: Insurance Policy
The plaintiff is entitled to obtain information about the defendant’s insurance coverage prior to trial. Without waiting for a discovery request, a party must provide to the other parties copies of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered.
Co-Defendants and Admissibility of One D’s Confession
Where two persons are tried together and one has given a confession implicating the other, the general rule is that the Sixth Amendment right to confront adverse witnesses prohibits the use of such a statement. This problem arises because of the inability of the nonconfessing defendant to compel the confessing co-defendant to take the stand for cross-examination at their joint trial. As exceptions to the general rule, the statement may be admitted if: (i) all portions of the statement referring to the other defendant can be eliminated (so that there is no indication of that defendant’s involvement); (ii) the confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth or falsity of what the statement asserts; or (iii) the confession of the nontestifying co-defendant is being used to rebut the defendant’s claim that his confession was obtained coercively, in which case the jury must be instructed as to the purpose of the admission. The accomplice’s confession, which the prosecution seeks to introduce into evidence, implicates the defendant in the commission of the crimes charged. Consequently, introduction of this confession raises a problem based on the right of confrontation. However, given that the judge will issue the limiting instruction, the confession is admissible.
Guilty Pleas: Constitutional requirement that they be “Voluntary and intelligent”
The judge’s failure to determine whether the woman understood her right to trial by jury indicates that her guilty plea does not satisfy the constitutional requirement that it be “voluntary and intelligent.” A guilty plea is a waiver of the Sixth Amendment right to a jury trial. To be a valid waiver, the judge must determine on the record that the guilty plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. To ensure that this is the case, the judge should make sure that the defendant is informed of the nature of the charge to which the plea is offered, of the maximum possible penalty, that she has a right not to plead guilty, and that by pleading guilty she waives her right to a trial. If the judge did not determine whether the woman understood that she had a right to a trial by jury, her plea will not be a sufficiently intelligent choice to satisfy the constitutional standard, and therefore will not be immune from a post-sentence attack on it. (A) is incorrect because the woman had no legitimate grounds for her motion to dismiss for violation of her right to a speedy trial. The Sixth Amendment right to a speedy trial does not attach until the defendant has been arrested or charged. Pre-arrest delays do not violate this standard, nor do they violate general due process requirements unless they were in bad faith and prejudice the defendant. Otherwise, the only limitation on pre-arrest delay would be the statute of limitations for the particular crime. Thus, the failure of the judge to rule on the motion to dismiss would not be a good argument for setting aside the woman’s guilty plea.
