MBE questions wrong 2 Flashcards
Hearsay- prior inconsistent statement to impeach a witness
To prove a prior inconsistent statement by extrinsic evidence, certain requirements must first be met. It is not enough that the prior inconsistent statement cast doubt on the witness’s credibility. Instead, the statement must be relevant to the case; i.e., it cannot be a collateral matter. Furthermore, the witness generally must be given an opportunity to explain or deny her statement at some point during trial, and the adverse party must be given an opportunity to examine the witness about the statement. There are certain exceptions to this foundational requirement. For instance, if the inconsistent statement was made by a hearsay declarant, the declarant may be impeached despite the lack of a foundation. Furthermore, the foundation is not required when the inconsistent statement qualifies as an opposing party’s statement
The witness’s prior inconsistent statement is not hearsay if it was made at a deposition, a prior hearing, or to a grand jury. Prior inconsistent statements made under oath at a prior trial or proceeding, or in a deposition, are not hearsay under the Federal Rules if the declarant is now testifying and subject to cross-examination.
Furthermore, a testifying witness’s prior inconsistent statement made while under oath and subject to penalty of perjury in a deposition or prior hearing is not hearsay under the Federal Rules, and is therefore admissible as substantive evidence of the facts asserted. (A) is therefore incorrect.
What? - hearsay - prior inconsistent statement?
Under Federal Rule 806, the credibility of an unavailable declarant may be attacked by evidence that would be admissible if the declarant had testified as a witness. There is no requirement that a declarant must be present at trial to be impeached. If the declarant is impeached with evidence of her prior inconsistent statement, the foundational requirement that she must explain or deny her statement does not apply. Furthermore, where the declarant’s credibility is impeached, it may also be rehabilitated.
The plaintiff, an electrical contractor, sued the defendant homeowner for refusal to pay for extensive wiring repairs performed on his home by the plaintiff’s employee. The plaintiff called the employee to the stand. The employee, under oath, testified that he did not perform any work at the defendant’s home. The employee also denied writing a letter to a friend telling the friend that the employee was going to do electrical work on the home. Without releasing the employee as a witness, the plaintiff offers into evidence the letter written by the employee to his friend.
If the employee’s letter to his friend is properly authenticated, should the court admit the letter?
The letter is admissible as substantive evidence as well as for impeachment purposes. For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. This may be done by first questioning the witness as to the prior inconsistent statement that he has made. If the witness denies having made the statement or fails to remember it, the making of the statement may be proved by extrinsic evidence. A proper foundation must be laid by giving the witness an opportunity to explain or deny the statement, and it must be relevant to some issue in the case. Here, the plaintiff’s employee has denied that he wrote the letter to his friend. The plaintiff can then impeach the employee by offering the letter into evidence. Because the employee has not been released as a witness, he will have an opportunity to explain or deny the statement, and it is relevant to whether any work was done at the home. Because prior inconsistent statements are generally hearsay, they often are admissible only for purposes of impeachment. The Federal Rules do categorize a testifying witness’s prior inconsistent statement as nonhearsay if it was made under penalty of perjury at a prior trial, hearing, or proceeding, or in a deposition. Here, of course, the employee’s letter to the friend was not made under oath, so it is hearsay.
However, it is still admissible as substantive evidence because it falls within an exception to the hearsay rule. Under Rule 803(3), a statement of a declarant’s then-existing state of mind is admissible as a basis for a circumstantial inference that the declarant acted in accordance with his state of mind. [See also Mutual Life Insurance Co. v. Hillmon (1892)] The employee’s statement that he was going to do electrical work on the home is admissible as circumstantial evidence tending to show that he followed through with his plans and did the electrical work, which is what the statement is being offered to establish.
The defendant was being sued for striking and seriously injuring a child with his car one evening while the child was playing in the street near the curb. At trial, the attorney for the child’s parents seeks to have the defendant’s wife testify that he had told her what had happened as soon as he had gotten home, and that he had said, “Between you and me, just before all this happened, I took a quick peek at the back seat to make sure I brought my briefcase home with me. If I had kept my eyes on the road, I never would’ve hit the kid.” The wife was recently divorced from the defendant and eager to testify against him. The attorney for the child’s parents also presented evidence that, unknown to either the defendant or his wife, their neighbor overheard this conversation through her open window.
Assuming a proper objection by the defense attorney, will the wife be permitted to so testify?
The defendant’s statement to his wife was made in reliance upon the intimacy of what was at that time their marital relationship. Thus, he has a privilege to prevent her from disclosing the statement. Either spouse (whether or not a party) has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made between the spouses while they were married. Divorce does not terminate this privilege retroactively. At the time that the defendant made the subject statement to his wife, they were married. Given that the statement essentially constituted an admission of liability by the defendant, that he prefaced it with “between you and me,” and that he made the statement in the privacy of their home, it seems likely that the statement was made in confidentiality and in reliance upon the intimacy of the marital relationship. Thus, both the defendant and his wife may refuse to disclose, and may prevent the other from disclosing, the statement. Consequently, the defendant can prevent the wife from testifying to the statement.
The police arrested the defendant and charged him with murder. After the defendant’s arrest, two police officers went to his home, where they found his wife. The victim had been killed on the night of March 13, and the officers asked the wife to give them the jacket that the defendant wore on the evening of March 13. Without saying a word, the wife handed the officers a jacket that was covered with bloodstains. Crime lab tests established that the blood on the jacket matched the victim’s blood characteristics. At the defendant’s trial for murder, the prosecution seeks to introduce the jacket into evidence.
Assuming the prosecution successfully establishes a foundation, if the defense objects to the jacket’s admissibility, should the court admit the jacket?
The jacket is admissible as relevant evidence linking the defendant to the crime. Generally, all relevant evidence is admissible if offered in an unobjectionable form and manner (i.e., if it does not violate an exclusionary rule, such as hearsay). Clearly, the bloodstained jacket makes it more probably true that the defendant committed the murder than it would have been without the jacket; therefore, the jacket is relevant evidence. Because it does not violate any exclusionary rule, the jacket is admissible
(C) is incorrect because a jacket is not a “statement,” and the hearsay rule excludes out-of-court statements that are offered for their truth. While the wife’s conduct in handing over the jacket arguably may be a statement and perhaps hearsay, the jacket itself is not.
What is the full faith and credit doctrine?
(C) is incorrect because a jacket is not a “statement,” and the hearsay rule excludes out-of-court statements that are offered for their truth. While the wife’s conduct in handing over the jacket arguably may be a statement and perhaps hearsay, the jacket itself is not.
Can you impeach an impeaching witness?
Yes, you can impeach any witness
Failure to join party….waivable?
NO. along with SJ, failure to state a claim those you can bring anytime
A corporation, through its president, requested from a financing company a short- term loan of $100,000. On April 1, the corporation’s president and the financing company’s loan officer agreed orally that the financing company would make the loan on the following terms: (1) The loan would be repaid in full on or before the following July 1 and would carry interest at an annual rate of 15 percent (a lawful rate under the applicable usury law); and (2) the corporation’s president would personally guarantee repayment. The loan was approved and made on April 5. The only document evidencing the loan was a memorandum, written and supplied by the financing company and signed by the president of the corporation, that read in its entirety:
“April 5
In consideration of a loan advanced on this date, the corporation hereby promises to pay the financing company, $100,000 on September 1.
The corporation By /s/ the president”
The corporation did not repay the loan on or before July 1, although it had sufficient funds to do so. On July 10, the financing company sued the corporation as principal debtor and the corporation’s president individually as guarantor for $100,000, plus 15 percent interest from April 5.
At the trial, can the financing company prove the president’s oral promise to guarantee the loan?
D is correct. There is a written agreement with the president’s signature, but the agreement does not mention the president’s oral promise to personally guarantee the loan. Under the Statute of Frauds, promises to act as a surety or to guarantee the debt of another must meet the writing and signing requirements of the statute to be enforceable. Restatement (Second) of Contracts § 110 (1981). Thus, because the president made the promise orally and it was never written and signed by the president, the president cannot be held liable for the loan amount and the court will not allow the conversation between the loan officer and president to act as proof of the surety agreement.
B is incorrect. According to the Restatement (First) of Contracts § 133 (1932), a person who is neither a promisor nor promisee in a contractual agreement, but stands to benefit from the contract’s performance, is considered an intended beneficiary. Here, the contract was not made to benefit the president. The president’s oral promise to guarantee the loan was actually made to benefit the corporation. Thus, this answer choice mistakes the facts.
When and how do you join indespensible parties?
n certain situations, a plaintiff must join all interested parties or face dismissal of the lawsuit. The dismissal is usually sought under Rule 12(b) and the issue may be raised any time until judgment. Analysis of a compulsory joinder issue follows a three-step process: (i) should the absentee be joined, (ii) can the absentee be joined, and (iii) if not, should the action proceed in his absence, i.e., is the absentee indispensable.
The absentee should be joined as a party when: (i) complete relief cannot be accorded among the other parties to the lawsuit without the absentee being made a party, or (ii) the absentee has such an interest in the subject matter of the
lawsuit that a decision in his absence will impair or impede his ability to protect the interest or leave any of the other parties subject to a substantial risk of incurring multiple or inconsistent obligations.
Assuming that the absentee should be joined, the next question is whether the court has subject-matter and personal jurisdiction over him. If the court has personal jurisdiction over the absentee, and his joinder will not destroy diversity or venue, he must be joined.
If the absentee cannot be joined, the court must determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absentee thus being regarded as indispensable. This decision requires consideration of (i) the extent of prejudice to the absentee or available parties of a judgment, (ii) the extent to which the prejudice can be reduced or avoided by means of protective provisions in the judgment, the shaping of relief, or other measures, (iii) the adequacy of a judgment without the absentee, and (iv) whether the plaintiff will have an adequate remedy if the case is dismissed for nonjoinder.
Is a medical examinatino a substantive state issue or procedural?
In the famous Erie decision, the Supreme Court held that federal courts sitting in diversity must apply state substantive law on the substantive issues of the case, including state common law. For all procedural issues, federal courts sitting in diversity must apply federal procedural rules, namely the Federal Rules of Civil Procedure (FRCP).
In Sibbach v. Wilson Co., Inc., 312 U.S. 1 (1941), the Supreme Court held that FRCP 35, which outlines the process for ordering a party to submit to a physical or mental evaluation, is a federal procedural law. FRCP 35 is applicable only in certain narrow circumstances, generally when a party’s mental or physical condition is directly at issue in the action. Its use must be supported by good cause, and it cannot be applied to a non-party.
The defendant was on trial for murdering his mother, who was found dead in her bathtub. At trial, the prosecutor called the nurse of the defendant’s aunt to testify to what the aunt told the nurse just before the aunt died of cancer. The nurse is prepared to testify that, shortly before she died, the aunt stated, “I know I don’t have much longer to live, so I must tell someone what my nephew said to me yesterday. He told me that he was very angry with his mother and that he wanted to kill her and make it look like an accident!”
Should this testimony be admitted?
The testimony is inadmissible. Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted. An out-of-court statement that incorporates other hearsay is “hearsay within hearsay.” Hearsay within hearsay is admissible only if both the outer hearsay statement and the inner hearsay statement fall within an exception to the hearsay rule. Here, the aunt’s statement incorporating the defendant’s statement constitutes hearsay within hearsay. Therefore, both statements must fall within an exception to the hearsay rule to be admissible. The defendant’s statement to his aunt ordinarily would be hearsay because it is being offered to prove the truth of the matter asserted—that he intended to kill his mother. However, statements by a party-opponent (commonly called admissions) are admissible nonhearsay under the Federal Rules. Thus, the defendant’s statement is admissible as a statement by a party-opponent. However, the aunt’s statement made to the nurse regarding the defendant’s admission must also fall within an exception to the hearsay rule. Because no exception applies to that statement, the entire testimony is inadmissible.
(A) is incorrect because, while it correctly states that the defendant’s statement is a statement by an opposing party, it incorrectly deems the statement admissible because it fails to address the hearsay within hearsay issue discussed above.
A recent law school graduate was offered a job as an aide by a state legislator. The legislator told the graduate that before she could begin working, she had to take the following loyalty oath: “I swear to uphold our state and federal Constitutions; to show respect for the state and federal flags; and to oppose the overthrow of the government by violent, illegal, or unconstitutional means.” The graduate told the legislator that the oath is unconstitutional and refused to take the oath.
Is the graduate correct?
The graduate is correct as to the promise to respect the flag, but incorrect as to the other two promises. The Supreme Court has upheld oaths requiring government employees to oppose the violent overthrow of the government and to support the Constitution; hence, (A) and (C) are incorrect. However, it has held that government employees cannot be required to show respect for the flag, as a person might refuse to salute the flag on religious grounds. Thus, (B) is correct and (D) is incorrect.
A homeowner entered into a written agreement with a contractor whereby the contractor agreed to completely remodel the homeowner’s bathroom “to her specifications” at a cost of $10,000. The homeowner’s specifications were highly detailed and required custom-made fixtures that would not be usable in other bathroom remodeling jobs. The contractor ordered the custom-made fixtures and paid $4,000 for them when they were delivered to his place of business. Figuring up the cost of the fixtures and labor, the contractor estimated that he would make a total profit of $2,000 on the job after payment for materials and workers. Before the contractor began work on the project, but after he had paid for the fixtures, the homeowner told the contractor that she had had a change of heart and would probably be selling the house the following year, and so would not need a custom bathroom. The contractor made no attempt to sell the fixtures to another contractor and filed suit against the homeowner for damages.
What is the contractor likely to recover?
The contractor can recover $2,000 as lost profits plus the $4,000 in costs he incurred before the homeowner breached the contract. The purpose of a damages remedy based on an affirmance of the contract is to give compensation for the breach; i.e., to put the nonbreaching party where he would have been had the promise been performed. In most cases, the plaintiff’s standard measure of damages will be based solely on an “expectation” measure, i.e., sufficient damages for him to buy a substitute performance. A reliance measure of damages, on the other hand, awards the plaintiff the cost of his performance, i.e., his expenditures in performing his duties under the contract. In certain situations, an award of compensatory damages will contain both an expectation and a reliance component. In a construction contract, if the owner breaches the contract after the builder has already begun his performance, the builder will be entitled to any profit he would have derived from the contract plus any costs he has incurred to date. This formula contains an expectation component (the profit the builder would have made) and a reliance component (the cost incurred prior to the breach). This formula is applicable to the facts in this case. The contractor has begun performance by ordering and purchasing the custom-made fixtures at a cost of $4,000. Because they are usable only for the homeowner’s purposes, their cost, which is treated just like any other expenditure of labor and material in a partially completed construction contract, can be recovered as reliance damages. The other element of his recovery is the $2,000 profit that he would have derived from the contract—his expectation damages. His total recovery will therefore be $6,000. (A) is incorrect because the contractor can do nothing further to mitigate his damages. The nonbreaching party is always under a duty to mitigate damages after learning of the other party’s breach. In construction contracts, the builder’s duty to mitigate generally dictates only that he not continue work after the breach and not incur further expenditures. While the builder would also have a duty to apply any usable materials that he purchased to other jobs or to attempt to resell them to another contractor, the facts specify that the custom-made fixtures here were not usable in other remodeling jobs. Hence, the contractor’s failure to attempt to sell the fixtures did not amount to a failure to mitigate damages.
A town adopted an ordinance providing that a person must have been a resident of the town for at least one year to be eligible to vote in school board elections. A resident who moved to the town seven months ago attempted to register to vote in the school board elections scheduled for the next month. However, the town clerk refused to register the resident because he will not have resided in the town for a full year prior to the election. The resident filed a class action suit on behalf of all of the new residents of the town, challenging the validity of the one-year residency requirement.
Which of the following statements is correct?
he resident will prevail even if the matter is not decided until after the election, because the suit is not moot and the residency requirement is unconstitutional. The resident’s suit is not moot even if the matter will not be decided until after the election because other members of the class might have a live controversy. Under the case and controversy requirement of the Constitution, there must be a real, live controversy at all stages of the suit. If through the passage of time, the controversy between the parties is resolved, the case is said to be moot. However, there are exceptions to the mootness doctrine. In a class action, it is not necessary that the suit by the named plaintiff be viable at all stages, as long as the claim is viable by some member of the class. Thus, the suit here would not be moot. Moreover, the residency requirement here violates the resident’s fundamental rights to vote and to interstate travel. A restriction on the right to vote is subject to strict scrutiny and is valid only if it is necessary to achieve a compelling state interest (otherwise the restriction violates the Equal Protection Clause by treating new residents differently from old residents). Relatively short residency requirements (e.g., 30 days) have been upheld as being necessary to promote the compelling interest of assuring that only bona fide residents vote. However, the Supreme Court has struck down longer durational requirements for lack of a compelling justification. Thus, the one-year requirement here probably unconstitutionally impinges on the right to vote. The residency requirement also impinges on the fundamental right to travel in the same manner (i.e., it discourages people from migrating by denying them the right to vote without a compelling reason). Thus, the requirement is invalid.
Congress passed legislation banning the hunting of snipe birds within the United States. The range of the snipe is quite limited; they are found primarily in only one state, although they migrate annually to several nearby states. Hunters from throughout the United States have traditionally traveled to the snipe’s home state during snipe hunting season, bringing considerable revenue into the state. A state statute allows hunting of snipe during a two-week period in November and charges a $50 license fee for state residents and a $250 fee for hunters from other states. The bag limit is one snipe bird per licensed hunter.
Is the state statute allowing snipe hunting valid?
The state statute is invalid because of the Supremacy Clause. Under the Clause, if the federal government adopts legislation that it has the power to adopt, the federal legislation is supreme, and a conflicting state law is rendered invalid. The federal law here, banning the hunting of snipe, is within the federal government’s power under the Commerce Clause, which gives the government power to regulate anything that might affect interstate commerce. Because the birds themselves are found in a few states, they probably cross state lines. Also, hunters come from out of state and generate revenue in the state, so interstate commerce is involved. The state law directly conflicts with the federal law because it allows hunting of snipe. Therefore, the state law will be held invalid under the Supremacy Clause
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.
A hockey player who was playing in the final game of the season before a hostile crowd in the opponent’s packed stadium had an opportunity to get his team into the playoffs, but he missed a shot into an open net as the horn sounded, ending the game. As the crowd cheered and jeered, the puck bounced back to him and he shot it in anger toward the stands. A fan who had been looking the other way turned back toward the rink just in time to be struck in the face by the puck. He suffered a broken nose and a severe gash under his eye. After the game, the league commissioner fined the player for violating league rules by intentionally directing the puck out of the playing area.
If the fan sues the player for battery, will the fan likely prevail?
The fan will prevail in his battery action because the player had the requisite intent for battery. A prima facie case for battery requires plaintiff to prove (i) an act by defendant that brings about a harmful or offensive contact to the plaintiff’s person, (ii) intent on defendant’s part to bring about harmful or offensive contact, and (iii) causation. The intent element is satisfied as long as the defendant knew with substantial certainty that the harmful or offensive contact would result. Here, the player’s conduct caused a harmful contact to the fan, because the player set into motion the force that caused injury to the fan. His intentionally shooting the puck into the crowded stands is enough to establish that he knew with substantial certainty that the puck would strike a spectator. (Note that even if he only intended to cause apprehension of contact, which is the intent for assault, this intent would suffice for liability for battery under the doctrine of transferred intent.
Which of the following suits would not fall within the United States Supreme Court’s original jurisdiction under Article III, Section 2?
A: A suit seeking to assert the interest of state citizens in retaining diplomatic relations with a foreign nation.
B A suit seeking to protect a state’s timber from allegedly illegal cutting by residents of another state.
C A suit seeking to enjoin enforcement of an allegedly unconstitutional executive order that will greatly limit the state’s authority to make policy decisions regarding admission to state universities.
D A suit by the United States Government seeking to enjoin state construction of a bridge over a navigable waterway.
The suit to assert state citizens’ rights is not within the Supreme Court’s original jurisdiction. Under Article III, Section 2, the United States Supreme Court has original jurisdiction in all cases affecting ambassadors, other public ministers, and consuls, and in which a state is a party. In (A), the state is not really seeking to advance or protect any interest of its own. Rather, the state is attempting to act in parens patriae (i.e., to act as a representative of its citizens, thereby asserting their interests). Thus, the state is not an actual party in this case in the sense that the Supreme Court has traditionally required to justify exercise of original jurisdiction. (B) would be a proper case for institution under the Supreme Court’s original jurisdiction because it involves an attempt by a state to protect its own economic interest rather than to assert the interests of its citizens in a representative capacity
A retailer entered into a written contract with a wholesaler whereby the wholesaler agreed to sell, and the retailer agreed to buy, 100 boxes of sunglasses manufactured by a large corporation located in a neighboring city. The agreed-upon price was $75 per box. Two weeks before the specified delivery date, the wholesaler told the retailer that it would not be able to fill its order, because of unexpected high demand for sunglasses this season. Although the retailer learned that the needed quantity of the same brand of sunglasses could be shipped within two days for $83 per box from a supplier in another area, the retailer instead purchased 100 boxes of the sunglasses locally at a cost of $90 per box. These sunglasses were of a slightly higher quality than the sunglasses that were originally contracted for. A few days before the original delivery date, the wholesaler notified the retailer that it would fill the order, and tendered 100 boxes of the sunglasses on the date of delivery. However, the retailer refused to accept them. At that time, the wholesale market price of the sunglasses had declined to $80 per box.
If the retailer sues the wholesaler for damages based on the wholesaler’s alleged breach, what is the retailer likely to recover?
response
A $1,500, the difference between the cost of cover and the contract price.
Correct
B $800, the difference between the contract price and the nonlocal supplier’s price.
Incorrect
C $500, representing the difference between the contract price and the wholesale market price at the time of performance.
D Nothing, because the retailer obtained cover without waiting a commercially reasonable time for the wholesaler to retract the repudiation.
The retailer is entitled to recover $800. The wholesaler’s notice that it would be unable to fill the retailer’s order constituted an anticipatory repudiation, which the retailer was entitled to treat as a total breach. Under the UCC, the buyer’s basic remedy where the seller breaches by refusing to deliver is the difference between the contract price and either the market price or the cost of buying replacement goods (“cover”). If the buyer intends to fix damages based on the latter measure, the buyer must make a reasonable contract for substitute goods in good faith and without unreasonable delay. Here, the retailer chose to make a contract for a higher quality of sunglasses at a higher price, even though the model that he had originally ordered was available from a supplier outside the area. While the retailer need not find the lowest available price in the country or make a contract for substitute goods with an unreliable supplier, he was aware that he could have obtained the sunglasses in plenty of time from the nonlocal supplier. Absent additional facts that would justify the retailer’s decision, he can recover only the difference between the contract cost and a reasonable contract for substitute goods. Hence, (A) is wrong because the retailer’s contract for cover probably would not be deemed to be commercially reasonable. (C) is wrong because the retailer’s remedy based on market price would be determined at the time the retailer learned of the breach, not necessarily the time of performance. In the case of an anticipatory repudiation such as this, the buyer may either treat the anticipatory repudiation as a total breach and pursue his breach of contract remedies, or suspend his performance and await the seller’s performance for a commercially reasonable time. The retailer chose to treat the wholesaler’s notice as a total repudiation and breach of contract. Hence, the market price remedy would be measured at that time because that is when the retailer “learned of the breach,” rather than at the time of performance.
Does a covenant to recycle touch and concern the land?
NO
A defendant visited her doctor to seek treatment for a bullet wound. While he was treating the wound, the doctor asked the defendant how she was shot. The defendant replied that she was struck by a police officer’s bullet while running away from a jewelry store she had robbed, but she implored the doctor not to tell this to anyone. The doctor promised that he would not. Although the defendant was never charged by the police, the owner of the jewelry store brought suit against her seeking the value of the stolen goods. The defendant denied robbing the store. At the trial, the owner calls the doctor to testify to the statement made to him by the defendant. The defense attorney objects on the ground that such testimony is barred by the jurisdiction’s physician-patient privilege.
Should the objection be sustained?
NO, not related to treatment
A landlord leased office space to a business owner for five years, ending on November 1, reserving a yearly rent of $24,000, payable monthly. On October 1 of the fifth year, the business owner notified the landlord that he was preparing to move, but would greatly appreciate if the landlord could extend the lease for a month or two. On October 10, the landlord wrote to the business owner that she thought they could reach a satisfactory arrangement, but did not hear back from the business owner. The business owner did not vacate the office until November 20. On November 30, the landlord received a check from the business owner in the amount of $1,333 for “November’s rent” and a note that he had vacated the premises.
If the landlord brings an action against the business owner for additional rent, how will the court rule?
A The business owner is bound to a year-to-year tenancy, because he did not vacate the premises until November 20.
B The business owner is bound to a tenancy through December because one month’s advance notice was required to terminate.
C The business owner is not bound, because the $1,333 check discharged him from his obligations.
D The business owner is not bound if the court admits parol evidence of the October 10 letter from the landlord.
The court will rule that the business owner is bound to a year-to-year tenancy because he is a hold-over tenant. When a tenant fails to vacate the premises after the termination of his right to possession, the landlord may: (i) treat the hold-over tenant as a trespasser and evict him; or (ii) bind the tenant to a new periodic tenancy. The terms and conditions of the expired tenancy apply to the new tenancy. At least in commercial leases, the new tenancy will be year-to-year if the original lease term was for one year or more. Here, the businessman was a tenant for years because his lease was for a five-year fixed period of time. A tenancy for years ends automatically on its termination date. Therefore, as of November 1, the business owner became a hold-over tenant and the landlord had a right to bind him to a new periodic tenancy. Because the original lease was for more than one year, the business owner may be held to a year-to-year tenancy, at the stipulated rent of $24,000 per year.
Example of voting at large:
A city’s water board election laws provide that, although members of the board are elected at large, one member of the board is required to live within each of the five designated water districts within the city. The city’s population was more or less evenly distributed among the districts when this election law was enacted. A resident and registered voter of the city investigated the district residency requirement and discovered that most of the city’s newer residents had moved into the same two water districts, so that the city’s population was no longer evenly distributed among the five water districts. Instead, 80% of the city’s residents lived within its central and eastern water districts, while the other 20% of the city’s residents were scattered among its three other, more rural, districts.
If the resident files suit in federal court challenging the constitutionality of the residency requirement, how will the court most likely rule?
The residency requirement is permissible because the water board is elected at large. The Equal Protection Clause prohibits state dilution of the right to vote, so that when a governmental body establishes voting districts for the election of representatives, the number of persons in each district may not vary significantly. This is known as the principle of “one person, one vote.” This principle applies to almost every election where a person is being elected to perform normal governmental functions (e.g., an election for trustees for a junior college district). However, the principle of one person, one vote generally is inapplicable where there is an at-large system of election (except where the system is adopted for discriminatory purposes). Here, the water board members are elected by all of the qualified voters in the city in an at-large system (rather than having the voters of each individual district select one board member apiece), and no discriminatory intent is evident. Thus, the statutory provision requiring board members to reside in each of the five districts does not result in an imbalance or a dilution of the voting rights of the citizens of the city. Consequently, (A) is incorrect, and (D) presents an accurate statement of the constitutionality of the residency requirement. (Note that the answer might be different under federal statute because the city would have to prove a valid, nondiscriminatory purpose.)
Treatise ok to impeach and as substantive evidence?
YES The Federal Rules recognize an exception to the hearsay rule for learned treatises and admit them as substantive evidence if: (i) the expert is on the stand and it is called to his attention, and (ii) it is established as reliable authority (see above).
Wierd question
A defendant is on trial for murder. The only evidence linking the defendant to the crime is some blood found at the scene. The lead detective testifies that an officer took a vial containing a blood sample that had been retrieved by a crime scene technician and drove off with it. The officer is now dead. Next, the prosecution presents as a witness a crime lab chemist. The chemist will testify that he took a vial of blood that contained a label identifying it as having been retrieved from the subject crime scene, and that he performed tests that established a match between that blood and a blood sample taken from the defendant.
Is the testimony of the chemist admissible?
A Yes, because there has been proper authentication.
B Yes, because the chemist qualifies as an expert witness.
C No, because there is insufficient evidence of chain of custody.
D No, because he did not take the original blood sample at the scene of the crime.
The testimony is inadmissible because it has not been shown what happened to the blood between the time the officer took it and the time the chemist examined it. Real evidence presents an object in issue directly to the trier of fact. One of the general requirements for admissibility of real evidence is that it be authenticated; i.e., that it be identified as being what its proponent claims it is. If the evidence is of a type that is likely to be confused or can be easily tampered with, the proponent of the object must present evidence of chain of custody. The proponent must show that the object has been held in a substantially unbroken chain of possession. It is not necessary to negate all possibilities of substitution or tampering; rather, what is required is to show adherence to some system of identification and custody. Here, the proponent of the blood sample (the prosecution) has not shown what the officer did with it after leaving the crime scene. There is no showing that the vial was placed directly in a properly secured area so as to diminish the possibility of tampering. In short, it has not been demonstrated that there was adherence to some defined system of identification and custody. In the absence of a substantially unbroken chain of custody, the evidence is inadmissible for lack of proper authentication
A tourist and his friend visited an amusement park located in State A. One of the rides malfunctioned, injuring the tourist. The friend, who witnessed the accident, sued the amusement park for negligent infliction of emotional distress in the federal court for State A, properly invoking diversity of citizenship jurisdiction. The friend’s complaint alleges that he and the tourist were lifelong friends and that the friend suffered severe emotional distress from witnessing the tourist’s injuries.
The highest court of State A has held that bystanders may not recover for emotional distress from witnessing another’s injuries unless the bystander and the injured person are related by blood or marriage.
Which of the following motions would best achieve the amusement park’s goal of expeditiously disposing of the action?
A A pre-answer motion to dismiss for failure to state a cause of action.
B A motion for summary judgment.
C A motion for judgment on the pleadings.
D A motion to dismiss for failure to join the tourist as a necessary party.
A) The amusement park’s most expeditious course of action would be to file a pre-answer motion to dismiss under Rule 12(b) for failure to state a cause of action. A pre-answer motion to dismiss a complaint for failure to state a claim addresses the adequacy of the pleadings. The allegations of the complaint are deemed true for purposes of the motion. Here, the complaint alleges that the bystander was a lifelong friend of the victim, which is insufficient as a matter of law because State A requires bystanders to be related by blood or marriage to the victim. (B) is incorrect because a party moving for summary judgment submits evidence (typically affidavits and discovery materials) to establish that there are no issues of material fact. Here, the amusement park need not gather or submit evidence because the pleading’s allegations are in themselves insufficient to support the bystander’s claim. (C) is incorrect because a motion for judgment on the pleadings under Rule 12(c) can be made only after the pleadings are closed (i.e., after the defendant files its answer). Thus, the amusement park could more efficiently dispose of the case by making a pre-answer motion to dismiss, rather than filing an answer and then making a motion for judgment on the pleadings.
How can one party get the insurance information of the other party?
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.
When can you choose to go for the state law method of serving process?
Federal Rule 4 provides that summons and complaint may be served on an individual other than an infant or incompetent pursuant to the law of the state in which the district court is located. Notwithstanding, the state provision must be constitutional; i.e., it must be reasonably calculated to give the defendant notice of the action. Thus, (A) is correct
A union filed suit against a corporation, known for its antiunion management, asserting that its members were being discharged in retaliation for membership in the union rather than for any failure to perform their jobs properly. Under the pretrial discovery orders, a union employee was allowed to examine all of the records held in the corporation’s files concerning discharge of employees for a seven-year period prior to the instigation of suit by the union. The employee sorted through this large volume of material and discovered that persons who were union activists usually had “lack of corporate spirit” listed as their reason for discharge, while other fired workers tended to have more specific grounds for discharge listed, e.g., persistent lateness. The employee developed a chart showing grounds for dismissal of union members versus nonmembers based on the data in the files. At the trial, the union placed the employee on the stand. She testified in some detail regarding how she had conducted her research. The employee brought out the chart and the union’s lawyer asked that the chart be admitted into evidence. The corporation’s attorney objected.
How should the court rule on the admissibility of the chart?
A Admissible, because copies of the original documents upon which the chart was based were available to the corporation prior to trial.
B Admissible, because the chart is helpful to the trier of fact.
C Inadmissible, because it is hearsay not within any exception
The chart is admissible because the original documents are in the corporation’s files. The original document or best evidence rule generally requires the original writing to be produced when the terms of the writing are sought to be proved and are material to the case. [Fed. R. Evid. 1002] However, under Federal Rule 1006, the contents of voluminous writings that are otherwise admissible may be presented in the form of a chart as long as the original documents are available to the other party for examination and copying. Here, the underlying documents belonged to the adverse party, and thus the corporation had unlimited access to them
(C) is incorrect because the chart is admissible provided the underlying documents are admissible. Even if the documents in this case would be hearsay, they would be admissible under the business records exception to the hearsay rule because they are records of events made in the regular course of business
A new federal law prohibited the use of various pesticides in areas with a certain population density near navigable waters. A city located in the southeastern United States was plagued by a sharp increase in disease-carrying mosquitoes. The city’s board of health recommended that all residential areas be sprayed with a pesticide proven to be highly effective against mosquitoes. Despite the fact that the federal law would prohibit use of that pesticide in these areas, the city council passed an ordinance adopting the board of health plan, relying on the opinions of several independent experts that the health benefits of reducing the mosquito population outweighed the risks of spraying. An environmentally minded citizen of the city brought an action in federal court challenging the ordinance.
Assuming that the citizen has standing, is the court likely to find the ordinance valid?
A Yes, because pursuant to the police power, cities have a compelling interest in laws designed to protect the health, safety, and welfare of their citizens.
B Yes, because controlling health hazards is an integral governmental function.
C No, because it is superseded by the power of Congress to adopt laws to protect the health, safety, and welfare of citizens.
D No, because it conflicts with a federal law that Congress had the power to make under the Commerce Clause.
Congress’s power to regulate commerce has been construed broadly, so that it may regulate any activity, local or interstate, that either in itself or in combination with other activities has a substantial economic effect on interstate commerce. If Congress has determined that the use of chemical pesticides and their runoff into waterways (which are channels of interstate commerce) will have an overall detrimental impact on the environment, this determination will be sufficient in this case to satisfy the standards established by the Supreme Court. Therefore, the law probably is a valid exercise of the commerce power. Any state or local action that conflicts with a valid act of Congress is invalid under the Supremacy Clause. (A) is incorrect because while the police power (the power to adopt regulations for the health, safety, and welfare of citizens) belongs to the states, a police power regulation that conflicts with a federal law is invalid under the Supremacy Clause
A cattle-producing state adopted a statute requiring any food service business operating in the state to serve beef raised in the United States. A licensed hot dog vendor who worked at a football field within the state and who had been buying hot dogs made with foreign beef for the past several years estimated that switching to an all-beef hot dog made from United States beef would reduce his profits by 10%. An attorney hired by the vendor to challenge the statute discovered during research into the case that most of the footballs used at the football field at which the vendor worked were made of foreign leather.
Which of the following grounds is the vendor’s best argument against the constitutionality of the state statute?
The best argument against the constitutionality of the state statute is that it burdens foreign commerce. For all practical purposes, the power to regulate foreign commerce lies exclusively with Congress. Therefore, a state that adopts legislation requiring private vendors to favor United States products over foreign products, as the state did here, may be acting outside the scope of its powers.
WHEN do you remove a case?
The court should grant the motion to remand the case because the notice of removal was not timely. Under 28 U.S.C. section 1441(a), a defendant can remove an action that could have originally been brought by the plaintiff in the federal courts. Thus, a case that could have invoked subject matter jurisdiction based on either federal question or diversity of citizenship may be removed from state court to federal. However, removal must be sought within 30 days after receipt by or service on that defendant of the initial pleading or summons, or, if the case is not initially removable, within 30 days of the case becoming removable. Additionally, removal based on diversity jurisdiction cannot be had if more than one year has passed since the suit was filed unless bad faith on the part of the defendant can be shown. Here, the case was immediately removable, and the defendant should have filed a notice of removal 30 days from receipt of service of process, but he did not do so. Accordingly, on a timely motion to remand, therefore, the court should remand the case to state court.
A property owner sued a developer in federal court alleging breach of an oral contract. According to the property owner, only one other person of questionable credibility heard the conversation in which the contract was allegedly made. That person was listed in the pretrial conference order. The next day, five days before the scheduled trial, the property owner’s attorney discovered that a disinterested person also heard the conversation, and he wanted to call this witness at trial as well. He immediately notified the developer of the witness and his change in plans.
May the property owner call the additional witness?
YES if the COurt modifies the pre trial order.
The property owner may call the additional witness only if the court modifies the pretrial order, since a pretrial order controls the subsequent course of an action unless modified. The order will be modified “only to prevent manifest injustice.” [Fed. R. Civ. P. 16(e)]
