MBE Missed Questions Flashcards
A homeowner lived next door to a vacant lot owned by another neighbor. From the time the homeowner purchased his own property, he told other people that he owned the vacant lot. The homeowner had an underground dog fence installed under the vacant lot without the neighbor’s knowledge. The homeowner also mowed the vacant lot regularly in the summer. When he had landscaping services performed on his own property, the landscapers dug up vegetation beds, which extended three feet into the neighbor’s lot. After the statutory period for bringing a trespass action had passed, the homeowner brought an action to quiet title, claiming ownership of the vacant lot.
Which of the following additional facts, if true, would be most helpful to the homeowner’s case?
A One of the people that the homeowner often told about owning the vacant lot was the neighbor herself.One of the people that the homeowner often told about owning the vacant lot was the neighbor herself.
B The neighbor occasionally saw the homeowner’s dog on the vacant lot, but never demanded that the homeowner keep the dog in the homeowner’s yard.The neighbor occasionally saw the homeowner’s dog on the vacant lot, but never demanded that the homeowner keep the dog in the homeowner’s yard.
C The vegetation beds continued to exist with the same dimensions, and were regularly maintained by the homeowner, for the entire statutory period.The vegetation beds continued to exist with the same dimensions, and were regularly maintained by the homeowner, for the entire statutory period.
D When he told people that he owned the vacant lot, the homeowner believed that it was true.
A
Telling the neighbor about owning the lot would be most helpful to the homeowner. Establishing title by adverse possession requires the possessor to show (i) actual and exclusive possession that is (ii) open and notorious, (iii) adverse, and (iv) continuous for the statutory period. Mowing the vacant lot regularly would be an act consistent with open and notorious possession. That along with the homeowner’s communication of hostility-which means simply that the homeowner is possessing without the neighbor’s permission-ought to establish open and notorious adverse possession.
ntaining an inn and a bakery. She entered into a contract to sell the property to a purchaser for $1 million. The contract was recorded. The purchaser gave the landowner $200,000 as earnest money. The closing date was set for September 10, two months after the signing of the contract.
On August 10, an arsonist set fire to the inn, which burned to the ground. On September 10, the landowner appeared at the closing and tendered the deed to the property. The buyer refused to tender the remaining $800,000 of the purchase price and demanded the return of his earnest money. The landowner sued the buyer for specific performance of the contract. The buyer countersued for the return of his earnest money. Both parties stipulate that the value of the property without the inn is $600,000, that insurance on the property had lapsed, and that the common law, unmodified by statute, applies.
What is the most likely result at trial?
A The landowner will not prevail on the issue of specific performance, but will be allowed to keep the earnest money.The landowner will not prevail on the issue of specific performance, but will be allowed to keep the earnest money.
B The landowner will not prevail on the issue of specific performance and will be ordered to return the earnest money.The landowner will not prevail on the issue of specific performance and will be ordered to return the earnest money.
C The landowner will prevail on the issue of specific performance, but the price will be abated to $600,000.The landowner will prevail on the issue of specific performance, but the price will be abated to $600,000.
D The landowner will prevail on the issue of specific performance for the full contract price.
D
D
The landowner will succeed in her suit for specific performance at the full contract price. Where property subject to a contract for sale is destroyed without the fault of either party before the date set for closing, the rule in the absence of a statute is that the risk of loss is on the buyer. Thus, the buyer must pay the contract price despite a loss due to fire, unless the contract provides otherwise. Here, the inn was destroyed by fire after the landowner and the buyer entered into their contract for the sale of the property, but before the closing date. The contract apparently was silent regarding the risk of loss and there is no applicable statute. Thus, under the common law rule, the risk of loss is on the buyer. As a result, the landowner is entitled to receive specific performance of the contract, meaning that the buyer must pay the full contract price.
On April 15, a seller entered into a valid written agreement to sell her home to a buyer for $175,000. The provisions of the agreement provided that closing would be at the buyer’s attorney’s office on May 15, and that the seller would deliver to the buyer marketable title, free and clear of all encumbrances.
On the date of closing, the seller offered to the buyer the deed to the house, but the buyer refused to go ahead with the purchase because his attorney told him that a contractor who had done work on the house had recorded a lis pendens on May 1 against the property regarding a $10,000 contract dispute he had with the seller. The seller indicated that she was unaware of the lien, but that she was willing to go ahead with the sale and set aside funds from the purchase price to cover the contractor’s claim until the dispute was resolved. The buyer still refused to proceed, stating that the seller had breached the contract.
If the seller brings an action against the buyer for specific performance, what is the probable result?
A The buyer prevails, because the title to the property was not marketable as of the date of closing.The buyer prevails, because the title to the property was not marketable as of the date of closing.
B The buyer prevails, because an encumbrance was on the title as of the date of closing that was subject to litigation.The buyer prevails, because an encumbrance was on the title as of the date of closing that was subject to litigation.
C The seller prevails, because under the doctrine of equitable conversion, the buyer was the owner of the property when the lis pendens was recorded, and therefore it was invalid.The seller prevails, because under the doctrine of equitable conversion, the buyer was the owner of the property when the lis pendens was recorded, and therefore it was invalid.
D The seller prevails, because an implied term of their contract was that she could use the proceeds to clear any encumbrance on the title.
D
The seller will likely prevail because she is entitled to clear the encumbrance with the proceeds of the sale. In a contract for the sale of real property, the seller of the land is entitled to use the proceeds of the sale to clear title if she can ensure that the purchaser will be protected. The seller’s offer to escrow the funds in this case should act as such guarantee.
A homeowner borrowed $50,000 from a bank, secured by a mortgage on his home. Shortly thereafter, the homeowner sold his home to a buyer for $70,000 by a deed containing a recital signed by both parties that title passed “subject to” the bank’s mortgage, “which obligation grantee expressly assumes.” The buyer paid the homeowner $20,000, took possession of the house, and began making monthly payments of principal and interest to the bank. A few years later, a chemical manufacturing firm built a huge sulfur processing plant just down the road from the home, which caused the house to immediately decline in value to $35,000. Subsequently, the buyer stopped making the monthly payments to the bank. The bank exercised its contractual right of nonjudicial foreclosure and sold the house at a public auction for $34,000. The bank then brought suit against the homeowner and the buyer for $14,000, the difference between the proceeds of the foreclosure sale and the $48,000 principal remaining due on the original loan to the homeowner. The jurisdiction does not bar deficiency judgments.
Against whom should the bank be granted a judgment for $14,000?
A Both the homeowner and the buyer.Both the homeowner and the buyer.
B Only the homeowner.
C Only the buyer.
D No one.
A
Both the homeowner and the buyer are liable for the deficiency. If a sale of foreclosed property does not bring enough to satisfy the mortgage debt, the mortgagee/lender can bring a personal action against the mortgagor/debtor for the deficiency (as long as the jurisdiction does not bar deficiency judgments). When the mortgagor sells the mortgaged property and gives a deed, the grantee takes subject to the mortgage, which remains on the land. If the grantee does not sign an agreement to assume the mortgage, he does not become personally liable on the loan, and the original mortgagor remains personally liable. If the grantee does sign an assumption agreement, however, the lender is considered a third-party beneficiary of the agreement, and hence may recover from the assuming grantee, who is primarily liable, or the original mortgagor, who is secondarily liable. Here, the buyer signed the recital providing for the assumption, so she will be personally liable on the loan.
Mortgage order
Proceeds of sale pay foreclosing principal –> any interest junior (AFTER principal mortgaged)–> mortgagor
Any senior interest (BEFORE p) is not extinguished.
Absent any anti-deficiency statutes, the investor remains personally liable to pay for any shortfall arising from the foreclosure sale.
Assignment effect on K obligations
An assignment does not release the tenant from his contractual obligations to the landlord; thus, the baker is still liable for all of the lease provisions.
A wealthy philanthropist owned a mansion built to his exact specifications, featuring a pipe organ built into the wall of the music room. The organ was impressive, with beautiful hand-carved wood scrollwork. The accompanying bench was made from the same wood as the organ and was carved to match the patterns on the organ. The bench was fully movable and could be slid into a niche beside the organ when not in use, although the philanthropist usually left the bench in front of the organ for its matching effect, even when the organ was not being played.
The philanthropist died, and his will left all of his personal property to his daughter and all of his real property to a local charity. After the will was admitted to probate, the daughter removed all of the furniture and other movables from the mansion, including the organ bench. The daughter refused the charity’s request to return the bench to the mansion.
If the charity brings suit against the daughter to replevy the bench, who will prevail?
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A The daughter, because the bench is personalty since it was not bolted to the floor.The daughter, because the bench is personalty since it was not bolted to the floor.
B The daughter, because removing the bench does not damage the real property.The daughter, because removing the bench does not damage the real property.
C The charity, because the bench is integrally connected to the organ.The charity, because the bench is integrally connected to the organ.
D The charity, because removal of the bench reduces the value of the devise to the charity.
C
The charity will win because the organ is a fixture and the bench is integrally connected to the organ. Under the concept of fixtures, a chattel that has been annexed to real property is converted from personalty to realty. As an accessory to the land, it passes with ownership of the land rather than with a transfer of the personal property of an estate. The manifest intent of the annexor determines whether the chattel becomes a fixture. The factors for evaluating the annexor’s intent are: (i) the relationship between the annexor and the premises, (ii) the degree of annexation, and (iii) the nature and use of the chattel. Under this analysis, the organ itself is clearly a fixture: (i) the philanthropist was the fee owner of the mansion and had the organ built to his specifications when the mansion was constructed; (ii) the organ was built into the wall of the mansion and could not be easily removed; and (iii) the appearance of the organ and how it complemented the rest of the mansion probably were more important to the philanthropist than its function. Constructive annexation occurs when an article of personal property (an “accession”) becomes an integral part of the property, even though it is not physically annexed to the property, in the same sense that a fixture becomes an integral part of the realty. The doctrine is fully applicable in this case even though the accession goes with an item of property that is itself converted from personalty to realty, as the organ was here. The bench is an accession because it was created as an integral part of the organ and significantly contributes to an important aspect of the organ: its overall appearance. Removing the bench and replacing it with a bench made of different wood or carvings would damage the aesthetic value of the organ. Thus, the charity will succeed in obtaining the bench because it is not severable from the organ.
A landowner owned a tract known as Section 35. He subdivided Section 35, and sold a lot to a neighbor. The warranty deed that conveyed the property included the following language:
COVENANTS
Purchaser shall have a privilege to hunt and fish on all lands owned by Seller in Section 35.
These covenants shall run with the land.
Years later, the landowner sold the remaining land in Section 35 to a builder. Shortly thereafter, the neighbor died, leaving the lot to her granddaughter. The builder posted “no trespassing” signs on his land. The granddaughter brought an action for declaratory judgment against the builder to enforce the granddaughter’s ability to hunt and fish on the builder’s land.
What would be the likely result?
A The granddaughter will win, because the warranty deed granted her an easement.The granddaughter will win, because the warranty deed granted her an easement.
B The granddaughter will win, because the warranty deed granted her an irrevocable license.The granddaughter will win, because the warranty deed granted her an irrevocable license.
C The granddaughter will win, because the warranty deed granted her a profit.
D The builder will win, because the warranty deed granted a revocable license.
C
he granddaughter will win because she has a profit. A profit is a nonpossessory interest in land, allowing the grantee to enter on the land and remove resources of the land, in this case, fish and game. Moreover, the profit can be conveyed from the original grantee to a third party, as it was here from the neighbor to her granddaughter. A profit can be terminated in one of several ways, such as by abandonment or misuse, but the facts here do not indicate that termination has occurred. (D) is incorrect. Although the warranty deed used the word “privilege” to describe the interest that was being conveyed, the additional use of the words “covenant” and “shall run with the land” evidences an intent on the part of the original landowner to create more than a bare license to hunt and fish. Otherwise, such a license would have been revocable at the will of the landowner, and would have been extinguished once the neighbor conveyed her lot to her granddaughter. (A) is not as good an answer as (C). Although easements and profits are similar, an easement is an interest allowing the holder to use the land, while a profit specifically allows the holder to remove resources. An easement would not have included the right to hunt and fish on the builder’s land.
Zoning reg v. covenant
More restrictive wins
Covenant rules
WITHN (writing, intent, touch & concern, horizontal & v privity, notice)
A covenant at law will run with the land and be enforceable against subsequent grantees if: (i) the contracting parties intended it to run; (ii) there is privity of estate between the original promisor and promisee (horizontal privity), as well as between the promisor and his successor (vertical privity); (iii) the covenant touches and concerns the property; and (iv) the burdened party has notice of the covenant. If common driveway owners agree to be mutually responsible for maintaining the driveway, the burdens and benefits of these covenants will run to successive owners of each parcel. The implied cross-easements for support satisfy the horizontal privity requirement because they are mutual interests in the same property. Each promise touches and concerns the adjoining parcel. So here, where the friend is in vertical privity with the neighbor (holding the same interest he held) and has constructive notice, she will be bound by the agreement to maintain the driveway.
Easement termination by estoppel
For an easement to be extinguished by estoppel, there must be (i) some conduct or assertion by the owner of the easement, (ii) a reasonable reliance by the owner of the servient tenement, coupled with (iii) a change of position.
Easement by implication
An easement by implication is created by operation of law rather than by written instrument. It is an exception to the Statute of Frauds. An easement is implied if, prior to the time the property is divided, a use exists on the “servient part” that is reasonably necessary for the enjoyment of the “dominant part,” and the parties intended the use to continue after division of the property. The use must be continuous and apparent at the time the property is divided. Reasonable necessity is determined by many factors, including the cost and difficulty of alternatives, and whether the price paid reflects the expected continued use. The use of the stairs was continuous, apparent, and reasonably necessary to the use of the apartment building when the investor conveyed it to the landlord. Although the facts do not give enough information to determine whether the accounting firm’s purchase price reflected the continued use of the stairs, it seems clear that the alternatives would be very costly.
e night when a man was very drunk, he took one of his rifles, loaded it, and fired a bullet through his front door. Unbeknownst to him, at the time he fired the rifle, someone was driving by the house. The bullet went through the front door, through the window of the car, and killed the driver. The shooter was convicted of murder and appeals. He contends that there was insufficient evidence to support a finding of murder.
How should the court of appeals rule?
A That the evidence is sufficient to prove that the killing was intentional.That the evidence is sufficient to prove that the killing was intentional.
B That the evidence is sufficient to prove that the killing was done with malice aforethought.That the evidence is sufficient to prove that the killing was done with malice aforethought.
C That the evidence is insufficient, because the shooter did not know that the driver was driving by his house and therefore he could not have acted intentionally.That the evidence is insufficient, because the shooter did not know that the driver was driving by his house and therefore he could not have acted intentionally.
D That the evidence is insufficient, because at most the shooter’s conduct constituted gross negligence and involuntary manslaughter.
B
Court of appeals should rule that the evidence is sufficient to prove that the killing was done with malice aforethought. Under the facts of this case, to support a finding of murder, the trial court would have to find that the shooter acted either intentionally or with malice aforethought. The facts clearly indicate that the shooter did not know of the car, so it cannot be said that he shot at it intentionally, and therefore (A) is not correct. “Malice aforethought” can mean that the defendant is acting with reckless indifference to an unjustifiably high risk to human life. There is little question that shooting a rifle through a front door shows reckless indifference to an unjustifiably high risk to human life. Thus, the question is whether the shooter’s intoxication was sufficient to negate this state of mind. Voluntary intoxication is not a defense to crimes requiring malice, recklessness, or negligence. In the case of recklessness, if a defendant’s lack of awareness results from voluntary intoxication, his conduct will nevertheless be deemed reckless. (C) is not a correct analysis of the issue, because his intentional act was firing the rifle, not shooting at the car. (D) is not the best answer, because although there is the possibility that the prosecution might have been able to show only gross negligence, there is sufficient evidence to support a finding of malice aforethought and murder.
Two robbers planned to rob a local convenience store, with one using a gun to force the clerk to turn over all of the money in the cash register while the other stood lookout near the door. The robbery did not go as planned. Instead of turning over any cash, the store clerk tried to disarm the gunman. During their struggle for the gun, the lookout decided that her best course of action was to grab what she could and flee the scene. The lookout took a newspaper and a bag of potato chips and ran out of the store. On her way out, she heard a gunshot. Later that day, she learned from news accounts that the gun accidentally discharged, killing the gunman. After an investigation, the lookout was arrested.
If the lookout is charged with felony murder, what would be her most promising defense?
A She did not intend for the gunman to get killed.She did not intend for the gunman to get killed.
B The only person killed was the gunman.The only person killed was the gunman.
C The killing occurred after the robbery was over.The killing occurred after the robbery was over.
D The robbery was not a felony because the items that the lookout took had only minimal value.
B
Lookout’s best defense is that the gunman was the only person killed. Under the felony murder doctrine, a killing committed during the course of a felony is murder, malice being implied from the intent to commit the underlying felony. However, under the majority view, criminal liability for murder cannot be based on the death of a co-felon from resistance by the victim or police pursuit. Thus, given that the gunman’s death resulted from an act by the clerk, the victim of the robbery, the lookout cannot be found guilty of the felony murder of the gunman, a co-felon. (A) is incorrect because any desire or lack of desire by the lookout to see her co-felon harmed is irrelevant to liability for felony murder. The only mens rea required is the intent to commit the underlying felony. Here, the lookout had the intent to commit robbery, the underlying felony. From this intent, the malice required for murder is implied. (C) is incorrect because the fact that the felony was technically completed before the gunman’s death does not prevent the killing from being felony murder. A death caused while fleeing from the crime is considered to have been caused during the commission of the felony. (D) is incorrect because robbery is a felony regardless of the value of the property that is taken.
A felon intending to rob a market waited outside until there were no customers. When he saw that the market was empty, he went inside and walked up to the counter with his hand in his jacket pocket to simulate a gun. Before the clerk could turn around to see what the felon wanted, another customer entered the market, startling the felon, who turned and ran out the door.
Should the felon be found guilty on a charge of attempted robbery?
A No, because he used no actual force on the clerk nor threatened any..
B No, because he withdrew successfully from the robbery attempt.
C No, because he never entered the zone of perpetration.
D Yes, regardless of whether he totally abandoned his plan when the customer entered the market.
D
The felon should be found guilty of attempted robbery. With the specific intent to commit a robbery, the felon went beyond mere preparation for the offense. Once a person has gone beyond preparation, abandonment is not a defense to attempt. A criminal attempt is an act that, although done with the intention of committing a crime, falls short of completing the crime. The defendant must have the intent to perform an act and obtain a result that, if achieved, would constitute a crime. Also, the defendant must have committed an act beyond mere preparation for the offense. If a defendant has, with the required intent, gone beyond preparation, the general rule is that abandonment is not a defense. Even in those jurisdictions in which abandonment is a defense, such abandonment must be: (i) fully voluntary and not made because of the difficulty of completing the crime or because of an increased risk of apprehension; and (ii) a complete abandonment of the plan made under circumstances manifesting a renunciation of criminal purpose, not just a decision to postpone committing it or to find another victim. Here, the felon intended to take money from the clerk at the market by means of the threat of having a gun (i.e., by simulating a gun). Thus, the felon intended to commit a robbery. In walking up to the market counter while simulating a gun with his hand, the felon committed an act that was a substantial step toward commission of the intended crime, and that strongly corroborated his intent and purpose to commit the crime. All that was missing to complete the crime was for the clerk to turn around and, upon seeing the felon apparently armed, be forced to give up the money. Thus, the felon went far beyond mere preparation for the crime of robbery. Having gone beyond mere preparation, with the intent to commit robbery, the felon is guilty of attempted robbery. And, as explained above, even if the felon abandoned his plan when the customer entered the market, such abandonment will not afford him a defense. Even in those jurisdictions in which abandonment is a defense, the felon will not have a defense because his abandonment apparently occurred when the customer’s sudden presence increased the risk of apprehension. Thus, the abandonment was not fully voluntary and did not really manifest a renunciation of criminal purpose.
The owner of a furnished cottage leased it to another for one year. While this lease was in effect, the cottage owner found herself in immediate need of cash, and decided to burn down the cottage to collect the insurance on it. She waited until one evening when the tenant was away. The cottage owner then used her own key to gain access to it. To make it appear that the fire was caused accidentally by the tenant, she soaked one end of the mattress on the bed in the bedroom with gasoline and then left a lighted cigarette burning at the other end of the mattress. She planned that the cigarette would ignite the mattress and that when the fire smoldered to the area soaked in gasoline, the entire bed would burst into flames, and the resulting fire would destroy the house. However, the tenant returned home earlier than expected and discovered the fire just as the mattress burst into flames. He immediately put it out with a fire extinguisher. A police investigation revealed the cottage owner’s activities.
What crime(s), if any, has the cottage owner committed? A Burglary as to the house and arson as to the mattress. B Neither burglary nor arson because she owned the structure and its contents.
C Burglary and attempted arson.
D Attempted arson but not burglary because she entered with her own key.
C
The cottage owner is guilty of burglary because the right of occupancy belonged to the tenant. However, the fact that there was no burning of the structure means that the cottage owner is guilty of attempted arson rather than arson. Burglary at common law is a breaking and entering of the dwelling of another at nighttime, with the intent of committing a felony therein. A breaking requires some use of force to gain entry, but minimal force is sufficient. In determining whether the dwelling is that of another, occupancy rather than ownership is material. Thus, an owner can commit burglary of her own structure if it is rented and used as a dwelling by someone else. Here, although the cottage owner owned the cottage, the tenant had the right to occupy it pursuant to a lease. Thus, for purposes of the crime of burglary, the cottage owner is deemed to have entered the dwelling of another. Although the cottage owner used her own key to gain access to the cottage, this was still an unconsented use of force to effectuate entry, thereby constituting a breaking. This breaking and entering of the tenant’s dwelling occurred in the evening. At the time of the entry, the cottage owner intended to commit the felony of arson. Consequently, all the elements of burglary are in place, making her guilty of this crime.
Arson consists of the malicious burning of the dwelling of another. There is a requirement of some damage to the fiber of the wood or other combustible material. As with burglary, ownership of the structure is not material for determining whether the dwelling is that of another; rather, the right to occupancy is material. The cottage owner left a lighted cigarette on the mattress, intending to burn down the entire cottage. However, the tenant extinguished the fire before any damage was done to the structure of the cottage, even mere charring. Absent such damage, arson cannot have been committed. The cottage owner did commit attempted arson. A criminal attempt is an act which, although done with the intention of committing a crime, falls short of completing the crime. The defendant must intend to perform an act and obtain a result that, if achieved, would constitute a crime. Also, the defendant must have committed an act beyond mere preparation for the offense. The cottage owner intended to perform an act that would have culminated in the crime of arson. By soaking the mattress with gasoline and leaving a lighted cigarette on it, the cottage owner committed an act that came dangerously close to successfully burning the cottage. This act, in combination with the intent to commit arson, means that the cottage owner is guilty of attempted arson.
(A) is incorrect because there can be no arson as to the mattress. Arson requires a burning of a dwelling. Because the cottage was not burned, the cottage owner is not guilty of arson. (B) is incorrect because the key element in determining whether a dwelling is that of another, for both arson and burglary, is the right of occupancy. Under the terms of his lease, the tenant had the right to occupy the cottage for one year. Therefore, the cottage owner’s ownership of the cottage will not be a defense to either arson or burglary. (D) is incorrect because, as explained above, the cottage owner’s use of a key to gain access to the cottage without the consent of the person who had the right of occupancy is deemed to be a use of force to gain entry, in the same way as if a person who did not own the cottage were to gain entry by means of a key.
The defendant was at a bar with a couple of friends when he spotted a man who had gotten the defendant’s friend fired from a job several weeks ago. Since that time, the defendant had been verbally harassing the man and calling him names. This particular night, the defendant went over to the man’s table and flirted with his girlfriend. The man was infuriated after having taken the defendant’s abuse for so long, so he jumped up and attacked the defendant with a knife. The defendant could have easily run away, but instead grabbed the man and slammed him backwards. The man went crashing through the front window and was severely cut by the broken glass. He died before he could be taken to the hospital.
The defendant will most likely be found guilty of what crime?
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A Murder.Murder.
B Voluntary manslaughter.
C Involuntary manslaughter
D None of the above.
D
The defendant would most likely be guilty of none of the listed crimes because the defense of self-defense makes his homicide excusable. A person may use deadly force in self-defense if (i) he is without fault, (ii) he is confronted with unlawful force, and (iii) he reasonably believes that he is threatened with imminent death or great bodily harm. In a majority of states, a person may use deadly force in self-defense even if this could be avoided by retreating. Here, the defendant’s use of force was privileged because it reasonably appeared necessary to defend him from the man’s unlawful attack, and the defendant had no duty to retreat under the majority view. Furthermore, the defendant can claim the privilege of self-defense even though his words triggered the fight-calling someone names would not be considered adequate provocation that would make the defendant the aggressor. Hence, because the defendant’s use of force was privileged, he cannot be convicted of any of the listed crimes, making (A), (B), and (C) incorrect.
A woman was arrested, given Miranda warnings, and questioned about an armed robbery. After she asked to speak with an attorney, the police stopped questioning her about the robbery. Several hours later, the police gave the woman a fresh set of Miranda warnings and began to question her about a different robbery. She did not repeat her request for an attorney and instead made several incriminating statements about the robbery. At the woman’s trial for the robbery for which she made incriminating statements, the prosecution seeks to have her statements introduced into evidence.
If the woman’s attorney objects on appropriate grounds, how should the court rule?
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A Overrule the objection, because the police did not badger the woman into confessing.
B Overrule the objection, because the woman did not renew her request for an attorney after receiving fresh Miranda warnings.
C Sustain the objection, because the police did not honor the woman’s request.
D Sustain the objection, because a confession obtained in violation of a defendant’s Miranda rights but otherwise voluntary may be used against the defendant.
C
The court should sustain the objection because the police did not honor the woman’s request for an attorney. 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. (A) is incorrect. After receiving Miranda warnings, if an accused invokes the right to remain silent, the police cannot badger the accused. However, courts have ruled that if the police scrupulously honor the request, they can rewarn the accused and later resume questioning, at least about a different crime. Here, however, the accused did not simply invoke the right to remain silent, but rather requested an attorney. After such a request, as indicated above, all questioning must cease. (B) is incorrect because the accused does not need to reassert the right to an attorney; all questioning must stop until the accused is provided an attorney or resumes the questioning herself. (D) is incorrect. It is stating the rule for impeachment-a confession obtained in violation of a defendant’s Miranda rights but otherwise voluntary may be used against the defendant for purposes of impeachment, but there is no such rule for use of the confession for other purposes.
A husband and wife were charged with stealing credit cards and charging expensive items on the misappropriated cards. An attorney was appointed by the court to represent the couple jointly. At the preliminary hearing, the judge found that the attorney would have no conflict representing both defendants in the joint trial. Halfway through the trial, however, a conflict arose between the defenses of the husband and wife. At the wife’s request, the attorney moved that another attorney be appointed to represent the wife and that a mistrial be declared. The trial judge moved favorably on the attorney’s motion.
Another attorney was appointed to represent the wife, and as soon as the wife’s trial began, her attorney moved to dismiss the case on the ground that jeopardy had attached during the wife’s first trial and that she was being retried in violation of the United States Constitution.
Should the judge grant the wife’s attorney’s motion?
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A Yes, because jeopardy attached when the jury began to hear evidence in the first trial.Yes, because jeopardy attached when the jury began to hear evidence in the first trial.
B Yes, because the judge incorrectly ruled that there would be no conflict of interest from the joint representation.
C No, because the wife requested the mistrial.
D No, because it is premature to move for a dismissal based on double jeopardy until the defendant is convicted.
C
Although jeopardy attached in the wife’s first trial, her retrial is not barred because she initiated the grant of the mistrial in her first trial. As a general rule, the right to be free of double jeopardy for the same offense bars a retrial for the same offense once jeopardy has attached in the first trial. However, one of the exceptions permitting retrial even if jeopardy has attached is when a mistrial is granted in the first trial at the request of the defendant on any ground not constituting an acquittal on the merits. Here, the wife requested the mistrial because a conflict arose between the defenses of her and her co-defendant in the joint trial, and the judge granted the mistrial solely to allow the wife to obtain another attorney. Thus, no acquittal on the merits occurred and the double jeopardy rule does not apply. (A) is incorrect for several reasons. Merely because jeopardy attaches does not mean that the double jeopardy rule will apply; retrial will be permitted under certain exceptions, one of which is applicable here. Furthermore, (A) is not a correct statement of law. Jeopardy attaches in a jury trial when the jury is impaneled and sworn in, even if it has not yet heard any evidence. (B) is incorrect because the judge’s finding at the preliminary hearing stage appears to be an honest error rather than bad faith conduct. In the absence of bad faith conduct by the judge or prosecutor designed to force the defendant to seek a mistrial, the defendant’s securing of a mistrial does not preclude a retrial. (D) is incorrect because the right to be free of double jeopardy creates a bar as soon as the defendant is retried for the same offense, rather than on her conviction.
If defendant reinitiates interrogation . .
Forgoes rights
Miranda warnings and a valid waiver are prerequisites to the admissibility of any statement made by the accused during a custodial interrogation. Once a person explicitly and unequivocally invokes his right to remain silent, all questioning related to the particular crime must stop. However, the police may reinitiate questioning after the defendant has invoked his right to remain silent, as long as they “scrupulously honor” the defendant’s request. This means, at the very least, that the police may not badger the defendant into talking and must wait a significant time before reinitiating questioning. Here, the police immediately ceased questioning once the defendant invoked his right to remain silent, and they scrupulously honored the defendant’s right to remain silent. The act of giving the defendant the police officer’s business card would most likely be viewed as simply a way of making it easier for the defendant to reinitiate questioning of his own volition rather than an impermissible interrogation. There was no “badgering” of the defendant to forgo his rights; the defendant himself initiated the relevant discussions and appears to have freely and knowingly waived his right to remain silent after again receiving Miranda warnings.
Automobile exception
The automobile exception comes into play when the police have probable cause to believe that the vehicle contains evidence of a crime. Under the exception, the police may search anywhere in the vehicle in which the item for which they have cause to search may be hidden, including packages in the vehicle.
A plaintiff and a defendant were involved in a two-car collision. The defendant was indicted for drunken driving, a crime that carries a maximum sentence of two years’ imprisonment. A witness to the collision testified before the grand jury. The defendant pled guilty to the charge of drunken driving and was fined $500. After the criminal charge was disposed of, the plaintiff sued the defendant for negligence and sought personal injury damages. In the negligence action against the defendant, the witness testified for the plaintiff that the defendant was on the wrong side of the highway at the time of the collision. On cross-examination, the defendant seeks to question the witness about his sworn grand jury statement that the defendant was driving normally at the time of the accident.
Upon proper objection, should the court rule that the witness’s statement before the grand jury is admissible?
Press Enter or Space to submit the answer
A Yes, for impeachment only.Yes, for impeachment only.
B Yes, as substantive evidence only.Yes, as substantive evidence only.
C Yes, for impeachment and as substantive evidence.
D No, because it is hearsay not within any exception.
C
The grand jury statement is admissible both as impeachment evidence and as substantive evidence. A prior inconsistent statement made under penalty of perjury at a prior trial or proceeding, or in a deposition, is admissible nonhearsay and thus may be used as substantive evidence as well as for impeachment. The credibility of a witness may be impeached by showing that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. Because it is made by the declarant other than while testifying at the trial or hearing, a prior inconsistent statement will usually constitute hearsay if offered to prove the truth of the matter asserted therein. Under such circumstances, the statement would be admissible only to impeach the witness. However, where the statement was made under penalty of perjury at a prior proceeding, including a grand jury proceeding, it is admissible nonhearsay (i.e., it may be considered as substantive proof of the facts stated). [Fed. R. Evid. 801(d)(1)(A)] The witness’s sworn statement before the grand jury that the defendant was driving normally at the time of the accident is inconsistent with his later in-court testimony that the defendant was on the wrong side of the highway at the time of the collision. Thus, this statement can be inquired into by the defendant to cast doubt on the witness’s credibility. Because the statement was made at a prior proceeding, and was made under oath, it is nonhearsay, and is also admissible as substantive proof that the defendant was in fact driving normally at the time of the accident. (C) is the only answer that reflects the fact that the grand jury statement may be used both for impeachment and for substantive purposes.
(A) reflects the view of prior law, which was that prior inconsistent statements were limited to impeachment regardless of the circumstances under which they were made. As noted above, Federal Rule 801(d)(1)(A) deems such statements made under penalty of perjury at a prior trial or other proceeding to be nonhearsay and, as such, admissible as substantive evidence. (B) is incorrect because it precludes use of the witness’s grand jury testimony for impeachment purposes. A prior inconsistent statement may always be used to impeach the credibility of a witness. (D) is incorrect for two reasons. First, even if deemed to be hearsay, a prior inconsistent statement would be admissible to impeach the witness. Second, because the prior inconsistent statement of the witness was made under oath at a grand jury proceeding, it is admissible nonhearsay.
A of photos
To be admissible, a photograph must be identified by a witness as a portrayal of certain facts relevant to the issue, and verified by the witness as a correct representation of those facts. It is sufficient if the witness who identifies the photograph is familiar with the scene or object depicted. It is not necessary to call the photographer to authenticate the photograph.
Lab results affidavit
Affidavits that summarize the findings of forensic analysis and have the effect of accusing the defendant of criminal conduct are testimonial in nature and are not admissible into evidence against the defendant unless the preparer is unavailable and the defendant previously had an opportunity to cross-examine.
