MBE Simulated Exam Flashcards
Federal narcotics officers suspected the defendant of growing marijuana in his green- house, which was connected to his house. The narcotics officers learned from an anonymous informant that the semi-opaque panes of glass on the greenhouse were being replaced during the night with a newer type of glass that let in more light without an increase in visibility. Without
a warrant, the officers flew over the defendant’s greenhouse in a helicopter that night. One of the officers focused on the greenhouse with a pair
of “night vision” thermal imaging binoculars supplied by the Department of Defense and not available to the general public. He determined that marijuana was being grown. The officers then went to a magistrate, swore out a warrant, and arrested the defendant.
If the defendant moves to suppress any evidence gathered by virtue of the flyover, how should the court rule on the motion?
(A) Deny it, because the police may conduct flyovers to gather evidence.
(B) Deny it, because the defendant did not live in the greenhouse.
(C) Grant it, because the “night-vision” binocu- lars were not available to the general public.
(D) Grant it, because the flyover was prompted by a tip from an anonymous informant.
(C) The use of thermal imaging binoculars to observe the marijuana where it could not be observed by simply using the naked eye likely renders the search invalid. To be able to assert a Fourth Amendment right, a person must have a reasonable expectation of privacy with respect to the place searched or the item seized. There is no such expectation of privacy in objects or places held out to the public or that may be viewed from a public vantage point. Thus, the police may fly over an area to observe it with the naked eye, and even a low flyover by a helicopter to view inside a partially covered building is permissible. This is true even if the area is within the curtilage. However, the police may not use technologically enhanced methods that are not available to the public to search areas (at least as to areas within the curtilage). In the instant case, the police have flown over the defendant’s greenhouse at night and used a means of enhancing their vision that is not available to the general public. This enabled them to see what could not have been observed with the naked eye, which likely constitutes an impermissible search.
(A) is incorrect because it is too broad a statement. The police generally may look into any area, even an area within the home or curtilage, by means of a flyover, so long as they do so from a place the public has access to; however, the police may not use technological enhance- ments that are not available to the public. In the instant case, the use of thermal imaging makes the police conduct unconstitutional.
A large insurance company instituted a supplemental benefit plan for its own employees. Under the plan, any employee who had worked for the company for at least 25 years would be permitted to designate a charity to receive, on the employee’s retirement, a donation in the employee’s name of six months’ worth of the employee’s salary. The plan gave participating employees an unqualified right to change the beneficiary at any time before payment was made. An employee nearing retirement enrolled in the plan and named his favorite church as the beneficiary of the donation. The church received a letter from the company informing it that the employee had named it beneficiary of his plan and indicating the approximate amount that it would receive upon the employee’s retirement in 10 months. The letter did not inform the church of the employee’s right to change beneficiaries before that time. Church elders, anticipating the gift, authorized restoration work to the church building, making plans to pay for the work with the funds from the employee’s benefit program.
Six months later, the employee converted to a different religion and changed the beneficiary of his plan to his new church. When the employee retired, the company paid the benefit to his new church. His old church, which had paid for the restoration work on its completion, demanded payment of the benefit from the company. When payment was refused, the church sued the company.
Which party is likely to prevail?
(A) The church, because the interests of justice require it.
(B) The church, because its rights as third- party beneficiary had vested when it was informed in writing that it was the beneficiary.
(C) The company, because the agreement between the employee and the company allowed the employee to change the beneficiary of the benefit plan
(D) The company, because it had a duty to pay the employee’s new church as the named beneficiary of his plan.
So, A because there was estoppel.
(B) is incorrect because the church’s rights as a third-party beneficiary did not vest on receipt of the letter. In the usual case, an intended third-party beneficiary can prevent the contracting parties from rescinding or modifying the contract once his rights have vested. Vesting occurs when the beneficiary: (i) manifests assent to the promise in a manner invited or requested by the parties; (ii) brings suit to enforce the promise; or (iii) materially changes position in justifiable reliance on the promise. Merely being informed does not cause vesting; reliance is required
(A) The church will be able to recover against the insurance company because the interests of justice require it. Under the majority view, consideration is not necessary to make an agreement at least partially enforceable where the facts indicate that the promisor should be estopped from not performing. This is stating the concept of promissory estoppel without labeling it as such. Under the Second Restatement, a promise is enforceable to the extent necessary to prevent injustice if the promisor should reasonably expect the promise to induce action or forbearance and such action or forbearance is in fact induced. Here, the insurance company sent a letter to the church informing it that the employee had named the church beneficiary under his employee benefits program. The company did not warn the church that the employee had the right to change his beneficiary and should have reasonably expected that the church would rely on the promise in some way; it is not necessary in charitable contribution cases that the promisor know of a specific expenditure that the recipient made or is going to make.
A police officer went to the defendant’s house and placed him under arrest for operating an auto theft ring. As the defendant was being arrested, he told his wife, “You had better
call our lawyer; I don’t want to sign anything unless she’s with me.” The defendant was given Miranda warnings on the way to the police station. Meanwhile, the defendant’s lawyer called the station and told the desk sergeant that she was on her way and to have the defendant call her as soon as he arrived. The sergeant assured her that the defendant would be held without questioning for several hours until the district attorney arrived. When the defendant arrived at the station, the arresting officer and another officer immediately put the defendant in an interrogation room and questioned him about a bank robbery that had taken place two days ago. They did not inform him of the call from his lawyer, but he agreed to talk as long as he did not have to put anything in writing or sign anything without her okay. He made incrimi- nating statements about the robbery, and he was eventually indicted for that crime as well. Prior to trial on the robbery charge, the defendant’s lawyer moved to suppress the arresting officer’s testimony about the defendant’s statements.
How should the court rule?
(A) Deny the motion, because the questioning was about a different crime from the one for which the defendant was in custody.
(B) Deny the motion, because the defendant’s statements were made voluntarily after receiving Miranda warnings.
(C) Grant the motion, because the defendant was not informed that his lawyer was trying to see him, and his lawyer was misinformed that he would not be questioned right away.
(D) Grant the motion, because the defendant’s refusal to write or sign anything indicates that he did not knowingly and intelligently waive his right to the assistance of counsel.
(B) The defendant’s motion should be denied because his interrogation did not violate his Fifth Amendment right to counsel. At any time prior to or during interrogation, a suspect may invoke a Miranda (Fifth Amendment) right to counsel. However, the request must be unambiguous and specific. If the defendant agrees to answer questions orally, but requests the presence of counsel before making any written statements, the defendant’s oral statements are admissible. The defendant’s agreement to talk constitutes a voluntary and knowing waiver of the right to counsel, even if it could be argued that it indicates a misunderstanding of the evidentiary effect of oral statements.
To encourage minority business and foster pride in minority heritage, a state adopted legislation exempting magazines and other periodicals from the state’s receipts tax if 20% of the magazine is devoted to articles concerning minorities (a commission was set up to sample magazines to determine on a yearly basis whether they should be exempt). A publisher produced a sports magazine in the state that occasionally contained articles about minority athletes, but the commission determined that
the publisher’s magazine was not eligible for
the receipts tax exemption. After paying the tax assessed on her magazine, the publisher sued for a refund.
How will the court most likely rule?
(A) Against the publisher, because taxpayers do not have standing to challenge tax exemp- tions.
(B) Against the publisher, because the state has a compelling interest in encouraging minority business.
(C) In favor of the publisher, because the tax violates the Equal Protection Clause.
(D) In favor of the publisher, because the tax violates the First Amendment freedoms of speech and press.
(D) The court should rule in favor of the publisher because the tax exemption regulates speech based on its content in violation of the First Amendment. The freedom of the press is guaranteed by the First Amendment. As with other areas within the First Amendment, the freedom does not prohibit all government regulation of the press, but it does place limits on regulation. The press and broad- casting companies can be subject to general business regulations and taxes, but generally may not be singled out for a special tax. Moreover, a tax impacting on the press or a subpart of the press cannot be based on the content of the publication absent a compelling justification.
Although the state tax here appears to be a general receipts tax, the exemption is based on content, which means that the tax also is based on content (i.e., a publication is subject to the tax unless it contains . . . ). As discussed below, a compelling interest is not presented here, so the exemp-
tion is invalid and the tax should fail.
The Equal Protection Clause prohibits government discrimination absent a compelling interest, and laws that favor a minority are subject to the same strict scrutiny standard as laws that discriminate against a minority. However, the Supreme Court has found that remedying past discrimination against a minority—either by the government or by the public—is a compelling interest. Therefore, a government program favoring a minority will be upheld if it is narrowly drawn to remedy past discrimination. Here, we are not given any facts about past discrimination and so cannot decide whether the Equal Protection Clause has been violated.
A motorist was driving to a luncheon in a car that he knew did not have operating headlights. On the way there he was rear-ended by another driver who had been driving 20 m.p.h. over
the speed limit posted on that stretch of road. He suffered personal injuries and his car was extensively damaged. The jurisdiction makes it a misdemeanor to drive a vehicle that does not have operating headlights.
If the motorist brings an action against the other driver and the above facts are established, will he prevail?
(A) Yes, because the other driver violated the speeding statute, but the motorist’s damag- es will be reduced because of his violation of the headlight statute.
(B) Yes, because the other driver violated the speeding statute, and the motorist’s damages will not be reduced despite his violation of the headlight statute.
(C) No, because the motorist’s violation of the headlight statute constitutes negligence per se.
(D) No, because the motorist has not estab- lished that driving 20 m.p.h. over the speed limit created an unreasonable risk of injury to others.
(B) The motorist will recover all of his damages because the other driver’s violation of the statute constituted negligence per se. A clearly stated duty created by a criminal statute may replace the more general duty of care if the proponent of the statutory standard shows that (i) he is in a class intended to be protected by the statute, and (ii) the statute was designed to prevent the type of harm that was suffered. Here, the motorist can establish that the statutory standard regarding speeding should be applied against the other driver because the speed limit was posted, the motorist, as a fellow driver, is in the class intended to be protected by the statute, and it was designed to prevent accidents such as that which occurred.
(A) is incorrect because, while an applicable statute may establish plaintiff’s contributory negligence, the headlight statute does not apply here. Even though the statute was intended to protect drivers against cars being driven without headlights, it would be very difficult to show that it was designed to prevent rear-end collisions during the day, or that violation of the statute was a cause of the motorist’s injury
An owner purchased a parcel of property adjoining a five-foot-wide strip, which was a private right-of-way. Unsure where the exact boundaries of her property were located, the owner planted a garden on the five-foot right-of- way strip and enclosed it with a wire fence two weeks after taking up occupancy. The owner maintained the fence and garden for 20 years, at which time she removed the fence and smoothed out the ground where the garden had been located. Five years later, the owner entered into a written contract to sell the property to a buyer. The description in the contract included the five- foot strip. After research in the county recorder’s office, the buyer discovered that the strip was a private right-of-way when the owner purchased the property. After properly notifying the owner of the problem prior to closing, the buyer refused to tender the purchase money to the owner
when the closing day arrived. The owner sued the buyer for specific performance of the real estate sales contract. The jurisdiction’s statutory adverse possession period is 15 years.
Who will prevail?
(A) The buyer, because the owner failed to provide a marketable title.
(B) The buyer, because the owner surrendered her adverse possession rights when she removed the fence, as her possession was no longer open, notorious, and continuous.
(C) The buyer, because one may not adversely possess a right-of-way.
(D) Theowner,becausesheheldtheright-of- way for a longer time than the minimum required by the state adverse possession statute
(A) Absent a judgment in an action to quiet title or other tangible proof that title to the five-foot strip has actually been acquired, most jurisdictions would not consider the owner’s title marketable. All contracts for the sale of land contain, unless the contract expressly provides otherwise, an implied covenant by the seller that she will deliver to the buyer a marketable title at the date of closing. Marketability refers to freedom from the possibility of litigation concerning the title; title is marketable if a reasonably prudent buyer, ready and able to purchase, will accept it in the exercise of ordinary prudence. At times, sellers will rely on adverse possession to show that defects in title have been cleared. However, courts generally will not permit such reliance when proof of adverse possession rests only on oral evidence that will not be available to the buyer in the future. Here, title to the property described in the contract is unmarketable because the five-foot strip was a private right-of-way and not part of the owner’s record title. The owner’s adverse possession of
the strip will not be sufficient by itself to establish marketable title; there is no longer any physical evidence of the owner’s possession. Thus, at the least the owner must offer the buyer additional proof that the buyer can use to defend any lawsuit challenging title.
(B) is wrong because the owner removed the fence after she had acquired title by adverse possession. While that makes it more difficult for her to establish marketable title in selling the property, it does not affect the ownership rights she gained by adverse possession.
Question 14
A jogger found a stray dog in the park. She took the dog home with her and placed an ad in the paper to try to find the dog’s owner. Soon thereafter, the owner of the dog contacted the jogger. He came to the jogger’s home and identi- fied the dog as his. He offered to pay the jogger a $200 reward at the end of the week. The jogger thanked the dog owner but turned down the reward.
At the end of the week, however, the jogger changed her mind, so she called the dog owner and told him that she would like the reward after all. He refused to pay her, and she sues him for breach of contract.
What will the jogger recover?
(A) Nothing, because she rejected the dog owner’s offer.
(B) Nothing, because there was no consider- ation to support a contract.
(C) $200, because the technical defense of the Statute of Frauds will be overcome by the dog owner’s moral obligation to pay.
(D) $200, because the dog owner could not have revoked his offer until the end of the week, and he failed to do so before the jogger accepted.
(B) The jogger will recover nothing because her finding the lost dog occurred prior to the dog owner’s promise to pay the $200. An enforceable contract must be supported by consideration. Consideration consists of: (i) a bargained-for exchange between the parties; and (ii) an element of legal value to that which is bargained for. Legal value is present if the promisee has incurred a detriment (i.e., has done something she is under no legal obligation to do or has refrained from doing something that she has a legal right to do). To have a “bargained-for exchange,” the promise must induce the detriment, and the detriment must induce the promise. If something has already been given or performed before the promise is made, it will not satisfy the bargain requirement, because it was not given in exchange for the promise. Here, the jogger was under no legal obligation to return the dog to its owner. Thus, in doing so, she incurred a detriment. However, the jogger was not induced to so act by the dog owner’s promise to pay $200.
Two brothers who were certified public accountants worked together at a large accounting firm practicing their chosen profes- sion. The older brother was concerned about
his younger brother’s apparent inability to show up at his job by 9 a.m. each morning, sober and clear-eyed. One day, after the younger brother showed up late for work yet again, the older brother told him that if he would show up at the office sober and ready to work by 9 a.m. each morning for the next 10 months, he would pay him $15,000 at the end of that time. The younger brother accepted the offer and complied with its terms from that day forward. Nine months later, the older brother died unexpectedly. One month after that, the younger brother filed a claim with his brother’s estate for the $15,000.
Will the younger brother prevail in his claim?
(A) No, because he will be unable to prove the terms of the oral contract between him and his brother, because his brother is dead.
(B) No, because his brother’s offer to pay was terminated on his death.
(C) Yes, because he has performed under a valid contract, and thus his brother’s estate must now perform.
(D) Yes, because he changed his position for the worse in reliance on his brother’s promise, and thus his brother’s executor is estopped from denying that the contract existed.
(B) is incorrect because an offer will not be terminated by the death of the offeror if the offeror’s power to revoke is limited by law, such as in the case of a valid unilateral contract. Here, the younger brother has begun performance, making the offer irrevocable during the time he was given to complete performance
(C) The younger brother will prevail because he has performed under a valid contract. He entered into and performed a valid unilateral contract with his brother, who offered to give him $15,000 if he showed up at the office sober and ready to work by 9 o’clock each morning for the next 10 months. He accepted by fully performing; his giving up the right to do something that he had a legal right to do constitutes valid consideration. Because the younger brother fully performed his duties under the contract, the older brother’s estate is bound to perform his duties and must now pay him.
[example where being more literal would have helped]
On the last play of a playoff football game,
a game-winning touchdown was nullified by a questionable penalty called by the referee. To register her displeasure but without intending
to hit anyone, a fan sitting in the stands threw a bottle onto the field that just missed the head of the referee, who was looking in the other direc- tion and did not see the bottle being thrown. The fan was charged with assault.
Should the fan be convicted?
(A) Yes, because throwing the bottle was a substantial step towards commission of a battery.
(B) No, because the referee did not see the bottle.
(C) No, because the fan did not intend to hit anyone.
(D) No, because the referee did not see the bottle, nor did the fan intend to hit anyone.
(D) The fan should not be convicted under either definition of assault. Criminal assault is either: (i)
an attempt to commit a battery, or (ii) the intentional creation, other than by mere words, of a reasonable apprehension in the mind of the victim of imminent bodily harm. In the instant case, the fan did not intend to hit anyone. Thus, the fan’s actions do not constitute an attempt to commit a battery, which would require a specific intent to bring about bodily injury or an offensive touching. In addition, the fact that the referee did not see the bottle being thrown at him means that the defendant did not create in the referee a reasonable apprehension of imminent bodily harm. Consequently, the fan is not likely to be convicted of either type of assault. This also makes (B) and (C) incorrect, in that each answer considers only one type of assault
In January, an owner executed and deliv- ered a mortgage on her property to a bank to secure a $50,000 loan. Due to a clerical error, the mortgage was not recorded at that time. On February 15, the owner entered into a contract to sell the property to a buyer for $150,000.
On February 16, the owner took out a $30,000 mortgage on the property with a finance company. The finance company promptly
and properly recorded its mortgage. Knowing nothing about either of the mortgages, the buyer closed on the property on April 1, tendering $150,000 to the owner. The owner gave the buyer a warranty deed to the property. On April 3, the bank discovered its error and properly recorded its mortgage that same day. The buyer recorded his deed to the property on April 6.
A statute of the jurisdiction in which the property is located provides: “No conveyance or mortgage of real property shall be valid against a subsequent purchaser for value and without notice whose conveyance is first recorded.” The bank brings an appropriate action to determine the status of its mortgage on the property.
What should be the court’s determination?
(A) The buyer holds the property subject to both mortgages, and the bank’s mortgage is subordinate to the finance company’s mortgage.
(B) The buyer holds the property subject to both mortgages, and the bank’s mortgage is superior to the finance company’s mortgage.
(C) The buyer holds the property subject only to the finance company’s mortgage.
(D) The buyer holds the property subject only to the bank’s mortgage.
(A) The buyer holds the property subject to both mortgages, and the bank’s mortgage is subordinate to the finance company’s mortgage. The jurisdiction’s recording act is a race-notice statute. Under this statute, a bona fide purchaser is protected only if he records before the prior transferee or mortgagee records. Here, the buyer had record notice of the finance company’s mortgage, so he was not a bona fide purchaser protected by the recording statute as to that mortgage. As to the bank’s mortgage, the buyer was a bona fide purchaser because he had no notice of that mortgage executed by the owner, but he did not record until after that mortgage was recorded. Hence, the buyer holds the property subject to both mortgages. The bank’s mortgage is subordinate to the finance company’s mortgage because mortgagees for value are treated as “purchasers” under the recording statutes, and the finance company executed its mortgage without notice of the bank’s prior mortgage and recorded it before the bank recorded its mortgage. Thus, the finance compa- ny’s mortgage has priority over the bank’s mortgage,
A developer contracted with a general contractor to build an office building, and completion of the building was two years late. The developer filed a breach of contract action in federal district court against the general contractor, seeking damages caused by the delay. The general contractor filed a third-party claim against a major subcontractor, claiming that the subcontractor caused any delay and should be liable to the general contractor for anything the general contractor has to pay the developer. The subcontractor believes that the developer inter- fered with the subcontract and that the devel- oper’s interference caused not only the delay but also substantial cost overruns for the subcon- tractor.
May the subcontractor assert a claim in the pending action against the developer seeking payment for the cost overruns?
(A) No, because the subcontractor is a third- party defendant and may not assert claims against the original plaintiff.
(B) No, because the subcontractor’s claim does not seek indemnity for its liability to the general contractor, so the subcontractor may not assert this claim against the devel- oper as an impleader claim.
(C) Yes, because the subcontractor and the developer are already parties to the action, and the subcontractor’s claim arises from the same transaction or occurrence as the developer’s original claim, so the subcon- tractor will be barred from asserting the claim in an independent action.
(D) Yes, because the subcontractor’s claim against the developer arises from the same transaction or occurrence as the developer’s original claim, but the subcontractor may assert the claim in an independent action if it prefers.
[did now know this]
(D) The subcontractor may assert a claim against the developer in the pending action. A third-party defendant may assert a claim against the plaintiff if the claim arises out of the same transaction or occurrence as the plaintiff’s original claim.
(C) is incorrect because a third- party defendant’s claim against the plaintiff is not compulsory.
The defendant became very intoxicated one night. As he was staggering home, he came upon a construction site in which several large pieces of heavy equipment were parked. Having had heavy equipment training in the military, the defendant decided it would be fun to rearrange all the machines so that the operators would
be very surprised when they returned to work the next day. He started up the largest piece of heavy equipment and drove it toward the edge
of the site, but because he was so intoxicated,
he lost control of it, and it rumbled out into the street, weaved along for about a quarter mile, and then crashed into a house, flattening it. In this jurisdiction, it is a misdemeanor to tamper with heavy equipment on a construction site. The defendant is prosecuted on the tampering charge, as well as for reckless damage of the house.
Should he be convicted of the reckless damage charge?
(A) Yes, because he was tampering with heavy equipment on a construction site, in viola- tion of law, when he damaged the house.
(B) Yes, because he was intoxicated while driving a huge piece of earthmoving equip- ment.
(C) No, because at most he could be found guilty of criminal negligence.
(D) No, because he must have been aware that his conduct would cause damage to the house in order to be found guilty of reckless damage.
[recklessness is not negligence]
B) The defendant should be convicted because he was intoxicated when he damaged the property. The defendant is being charged with reckless damage to property. A person acts recklessly when he consciously disregards a substantial or unjustifiable risk that a prohibited result will follow and this disregard constitutes a gross deviation from the standard of reasonable care. Driving earth- moving equipment while intoxicated would be considered to be reckless because of the great potential for destruction arising from the huge size and power of the equipment.
[always saw this around]
During the defendant’s prosecution for robbery, the prosecutor asks the court to take judicial notice of the fact that at that latitude, the sun is still up at 5:30 p.m. on June 21. The court so finds.
What is the effect of the court’s action?
(A) The burden of persuasion is now on the defendant to prove otherwise as to the fact judicially noticed.
(B) The fact judicially noticed is established beyond a reasonable doubt.
(C) The prosecutor’s burden of producing evidence on the fact judicially noticed is satisfied.
(D) The fact judicially noticed is conclusively established.
(C) Judicial notice operates as a substitute for proof as to facts that are matters of common knowledge in the community or are capable of certain verification through easily accessible, well-established sources. When a court takes judicial notice of a fact under the federal rules in a criminal case,
the jury may, but is not required to, accept the fact noticed; thus, its effect is only to relieve the prosecutor of her burden of producing evidence on that fact.
[look at definition of looking into people’s pockets]
Based on a tip from a reliable informant
that an attorney was illegally selling automatic weapons and ammunition from his storefront office, the police obtained a warrant to search for weapons at the office. When they arrived at the building, they saw a client exiting the attorney’s office and placing what appeared to be a weapon inside his jacket. The police stopped the client on the street and an officer patted down his outer clothing. The officer felt no weapon but did feel a bag with several small tube-shaped objects
in it. She immediately placed the client under arrest. The contents of the bag were later deter- mined to be marijuana cigarettes.
Prior to trial on the narcotics charge, the client sought to suppress introduction of the marijuana as evidence. The arresting officer testified at
the suppression hearing that, based on her long experience as a narcotics officer, she concluded immediately that the bag contained marijuana cigarettes when she first touched it.
If the officer’s testimony is believed, how should the court rule on the motion to suppress the marijuana evidence?
(A) Deny it, because the search was incident to a lawful arrest.
(B) Deny it, because the police had a reasonable suspicion that the client might be armed and dangerous.
(C) Grant it, because the scope of an officer’s patdown during an investigatory detention is limited to a search for weapons.
(D) Grant it, because the search warrant did not authorize the police to search the client despite the fact that he was just present at the place to be searched.
(B) The client’s motion should be denied because the seizure of the marijuana was properly within
the scope of the stop and frisk. A police officer may stop a person without probable cause for arrest if she has an articulable and reasonable suspicion of criminal activity. [Terry v. Ohio (1968)] In such circumstances, if the officer reasonably believes that the person may be armed and dangerous, she may conduct a protective frisk. The scope of the frisk is limited to a patdown of the outer clothing for concealed instruments of assault, but the officer may reach into the suspect’s clothing and seize any item that the officer reasonably believes, based on its “plain feel,” is a weapon or contraband. [Minnesota v. Dickerson (1993)]
Here, the officer believed that the client put a weapon in his jacket as he was leaving a place where weapons and ammunition were being sold illegally; thus, she had reasonable grounds to conduct both a stop and a frisk. If the court accepts the officer’s testimony that she instantly recognized the marijuana cigarettes based on the patdown only without any further conduct, they were properly seized and can be admitted into evidence.
[type of notice]
An owner of three acres of lakefront property subdivided it and sold two acres to a buyer, retaining the one acre actually fronting on
the lake. The deed for the two acres expressly included an easement over the westernmost
30 feet of the one-acre parcel retained by the owner for access to the lake. The buyer recorded his deed in the county recorder’s office, which maintained an alphabetical grantor-grantee index only. Fifteen years later, the owner died, leaving the one-acre parcel to his wife. She sold it to a developer that planned to build condominiums. A month later, the buyer died, and his two acres passed by will to his nephew. Three weeks after taking title to the property, the nephew visited the property and discovered that the developer had erected a chain link fence all along the boundary between the nephew’s land and the acre of lakefront land. The nephew brings an action to enjoin the developer from obstructing his easement across the acre of lakefront property.
Which of the following best describes why the nephew should prevail in this litigation?
(A) Because the developer and the nephew
can trace their predecessors in interest to a common grantor whose covenants run with the land, the developer is estopped from interfering with the nephew’s use of the easement.
(B) The nephew’s easement is a legal interest that the developer has record notice of, even though there is no tract index.
(C) Because there is no tract index, the devel- oper was under an obligation to deter- mine the riparian rights of any adjacent landowners before erecting the chain link fence.
(D) The nephew’s easement is a legal interest that attaches not just to a legal estate but to the land itself and, running with the land, it binds successive owners of the servient estate whether or not they have notice of it.
(B) The nephew should prevail because his interest is a legal interest in the property and could have been discovered by the developer in the grantor-grantee index. The owner granted the buyer
an easement by express grant. The easement was properly recorded with the buyer’s deed,
and because it contained no limitation, it is perpetual. The easement here is appurtenant (i.e.,
one benefiting the holder of the easement), because it benefits the buyer’s land (the dominant tenement) and burdens the owner’s land (the servient tenement). Where there is an easement appurtenant, it passes with a transfer of the dominant tenement, even though it is an interest in
the servient tenement. Thus, the buyer’s easement passed to his nephew. Because the easement
is perpetual, it is binding on all of the owner’s subsequent transferees regardless of whether the conveyance refers to the easement, as long as the transferees have notice of it. Many courts will find record or constructive notice here because the nephew’s property is adjacent to the devel- oper’s property, is deeded from a common grantor (the owner), and includes the easement in the original deed from the owner.
(C) is incorrect because it is untrue. Purchasers of land are subject to easements in their chains of title regardless of the type of recording index, because they are deemed to have constructive notice of any easement that was recorded. There is no independent duty to discover riparian rights when there is no tract index. The nephew can enforce the easement here only because it was in the chain of title of the developer’s property.
The accused was driving his beat-up old car along a narrow road when he was passed by the victim in her new car. The victim’s daughter was lying down in the back seat and could not be seen. The accused sped up, drew even with the victim, and repeatedly rammed his car
into the side of the victim’s car. After several collisions, the victim was forced off the road, rolling down a cliff for several yards. Due to the rolling, both the victim and her daughter were severely injured. The accused was charged with attempted murder of both of them. At his trial, he testifies that he was angry because of the cavalier way the victim passed him in her new car, and that his only intent in smashing into her car was to scratch and dent it so that she would not be so haughty in the future.
Assuming that the jury believes this testi- mony, of whom may the accused be convicted of attempted murder?
(A) The victim.
(B) The victim’s daughter.
(C) Both the victim and her daughter.
(D) Neitherthevictimnorherdaughter.
(D) The accused may not be convicted of attempted murder because he lacked the necessary intent. A criminal attempt consists of (i) a specific intent to commit the crime; and (ii) an overt act in furtherance of that intent. In other words, the defendant must have the intent to perform an act and obtain a result that would constitute the crime charged if achieved. Regardless of the intent required for the completed offense, an attempt always requires a specific intent. Thus, attempted murder requires the specific intent to kill another person, even though the mens rea for murder itself does not require a specific intent—had the victim or her daughter died, the accused could be convicted of murder because malice aforethought can be established here by awareness of an unjustifiably high risk to human life (i.e., “abandoned and malignant heart”). However, the accused did not have the intent to kill either victim, so he lacked the intent necessary for attempt.
At the trial of the plaintiff’s breach of contract action against the defendant, the plaintiff called her accountant as a witness to testify about the difference in gross sales, gross income, and
net profit caused by the defendant’s failure to supply the promised quantity of ice cream to the plaintiff’s ice cream shop. When the plaintiff’s attorney asked the accountant to state the gross income figures for the year prior to formation
of the contract between the plaintiff and the defendant, the accountant replied that he could not remember the exact amounts. The plaintiff’s counsel then handed the accountant a copy of the federal tax return submitted by the plaintiff for that year, and asked him to read it. Counsel then asked, “Now that you have read the tax return, can you remember what the gross income of the plaintiff’s ice cream shop was for the relevant period?” The defendant’s counsel objects.
How should the court rule?
(A) Sustained, because the plaintiff’s counsel is seeking to elicit testimony based on inad- missible hearsay.
(B) Sustained, because the accountant’s testi- mony is not the best evidence.
(C) Overruled, because the accountant’s hearsay testimony is admissible as a past recollection recorded.
(D) Overruled,becausetheaccountant’stesti- mony is admissible evidence relating to the plaintiff’s damages.
D) The objection should be overruled because the accountant’s testimony is admissible. As the plain- tiff’s accountant, he has personal knowledge of the relevant financial information, and so may testify. Although the accountant indicated that he could not remember the plaintiff’s income, the rules of evidence allow a witness’s recollection to be refreshed by just about anything. The witness may not read from the writing while he testifies; it is used solely to jog his memory. While the opposing counsel is allowed to examine the item being used to refresh the witness’s testimony and may cross-examine the witness about it, he may not object to it
(B) is incorrect because the best evidence rule requires only that when the contents of a writing are sought to be proved, the writing itself should be entered into evidence, if it is available. Here, the contents of the tax return are not being entered into evidence; rather, the accountant is merely using the tax return to refresh his memory. Therefore, the best evidence rule does not apply.
[interesting mortgage question]
A photographer borrowed $100,000 from
a bank, secured by a mortgage on his home,
to build a studio and darkroom in the home. The bank properly recorded the mortgage.
After completing this project, the photographer decided to remodel his kitchen and borrowed $25,000 from a lending company, also securing the loan with a mortgage on his home. The lending company did not record its mortgage. After the remodeling was complete, the photog- rapher borrowed $15,000 from an investor, secured by a mortgage on his home, to redo his in-ground pool. Learning of this transaction, the lending company raced to the recording office and recorded its mortgage. The next day, the investor recorded its mortgage.
A few months later, the photographer defaulted on all three mortgages, having not made any principal payments. The lending company brought a foreclosure action, joining the investor in the proceeding. The foreclosure sale resulted in $150,000 in proceeds after all expenses and fees were paid. A statute of the jurisdiction in which the photographer’s home is located provides: “Any conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded.”
Which of the following statements is true?
(A) The bank is entitled to $100,000 of the foreclosure proceeds, the lending com- pany is entitled to $25,000 of the proceeds, the investor is entitled to $15,000 of the proceeds, and the buyer at the foreclosure sale is entitled to the remaining $10,000 in proceeds.
(B) The buyer at the foreclosure sale will take the home subject to the bank’s mortgage, the lending company is entitled to $25,000 of the proceeds, the investor is entitled to $15,000 of the proceeds, and the photogra- pher is entitled to the remaining $110,000 in proceeds.
(C) The buyer at the foreclosure sale will take the home subject to the bank’s and the investor’s mortgages, the lending company is entitled to $25,000 of the proceeds,
and the photographer is entitled to the remaining $125,000 in proceeds.
(D) The buyer at the foreclosure sale will take the home subject to the bank’s and the investor’s mortgages, the lending company is entitled to $25,000 of the proceeds, and the buyer at the foreclosure sale is entitled to the remaining $125,000 in proceeds.
(B) is wrong because the investor’s mortgage is also senior to the lending company’s, and as a result, the buyer also takes subject to the investor’s mortgage. Under a notice statute, which this jurisdiction has, a subsequent bona fide purchaser prevails over a
prior grantee who fails to record. The important fact under a notice statute is that the subsequent purchaser had no actual or constructive notice at the time of the conveyance (or mortgage), not at the time of recording. Mortgagees for value are treated as “purchasers.” Here, when the mortgage on the property was granted to the investor, it had neither actual nor constructive notice of the mortgage given to the lending company. The fact that the lending company recorded its mortgage first is irrelevant. Thus, the investor was a bona fide purchaser and would be entitled to protection under the statute.
(C) The buyer at the foreclosure sale will take the home subject to the bank’s and the investor’s mortgages, the lending company is entitled to $25,000 of the proceeds, and the photographer is entitled to the remaining $125,000 in proceeds. When an interest is foreclosed, after the expenses and fees are paid, the proceeds of the sale are first used to pay the principal and accrued interest on the loan that was foreclosed, next to pay off any junior liens, and finally any remaining proceeds are distributed to the mortgagor. (A) is wrong because the bank’s interest, an interest senior to the lending company’s, is not affected by the foreclosure. As a senior interest, the bank was not a necessary party to the foreclosure action and did not need to be named in the foreclo- sure action. Thus, the bank is not entitled to a share of the proceeds, and its lien continues on the property in the buyer’s hands
After filing a complaint in a federal district court, a plaintiff retained an appropriate private process server to serve the summons and complaint on the defendant, an individual who resides in a mansion in the state in which the court is located. In his first attempt to serve process, the process server knocked on the mansion’s main door, and the door was answered by the mansion’s caretaker, who resides in
the mansion. The process server learned that
the defendant resides in the house September through May of each year, but lives in another home during the other months. Given that it was October at the time, the defendant was currently residing there, but not present at that particular time. The process server left the summons and complaint with the caretaker, and he mailed copies of the summons and complaint to the defendant’s mansion address and to the defen- dant’s other home. The defendant’s attorney
filed a motion to dismiss the action for improper service of process.
Should the court grant the motion to dismiss?
(A) No, because the process server mailed cop- ies of the summons and complaint to the defendant’s homes.
(B) No, because the caretaker resides at the mansion.
(C) Yes, because service was not made on a member of the defendant’s family.
(D) Yes, because the mansion is not the defen- dant’s year-round permanent home.
(B) The court should not grant the motion to dismiss. Federal Rule of Civil Procedure 4 provides that service may be made on an individual in the United States by leaving a copy of the summons and complaint at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there
A brother and a sister were arrested on the federal charge of tax evasion in connection with the family business. Prior to trial, the prosecutor told the sister that he believed he could get her sentence reduced to probation if she pleaded guilty to a lesser charge and agreed to testify against her brother; the sister reluctantly agreed. During the jury trial, the sister is called by the prosecution. On cross-examination, the defense attorney brings out the fact that the sister was arrested on the same charge. The attorney then asks her whether it is true that after her arrest, the prosecutor told her that if she testifies against her brother her sentence can be reduced to probation. The prosecutor objects.
How should the court rule on the objection?
(A) Sustained, because it is against public policy to reveal information about plea bargains to a jury.
(B) Sustained, because it calls for hearsay.
(C) Overruled, because the question goes to bias or interest.
(D) Overruled,becausethesisterwaivedthe attorney-client privilege by testifying.
Under Federal Rule 410, withdrawn guilty pleas, pleas of nolo contendere, offers to plead guilty, and evidence of statements made in negotiating such pleas are inadmissible against the defendant who made the plea or was a participant in the plea discussions. This rule does not apply in this case because it does not apply to accepted guilty pleas, and the sister is not the defendant. The rule applies only to offers and withdrawn pleas. After the plea is accepted, it is admissible.
