mix Flashcards
A mechanic was rebuilding an antique car in his garage. One day, a woman complimented the mechanic’s work on the car. The mechanic told her that the car should be done within the next week and offered to sell it to her for $100,000. The woman wanted to think about it, so the mechanic told her that he would hold the car for her for a week. Two days later, the woman discovered that the mechanic had just sold the antique car to a foreign collector for $150,000. She immediately went to the mechanic’s garage and discovered that the car was still there. The woman told the mechanic that she accepted his offer to sell the car for $100,000, but the mechanic explained that he had accepted another offer and could no longer sell the car to her. The woman subsequently brought an action against the mechanic for breach of contract.
Is the woman likely to succeed in her action against the mechanic?
A No, because the mechanic revoked the offer when he informed the woman that he had accepted another offer for the car.
B No, because the woman learned that the car had been sold before accepting his offer.
C Yes, because the mechanic did not revoke his offer until after the woman accepted it.
D Yes, because the woman accepted the mechanic’s offer within the week.
Answer choice B is correct. In general, an offer can be revoked by the offeror at any time prior to acceptance. If the offeree acquires reliable information that the offeror has taken definite action inconsistent with the offer, the offer is automatically revoked (i.e., a constructive revocation occurs). Here, the mechanic’s offer was constructively revoked when the woman learned that the foreign collector had purchased the car.
Answer choice A is incorrect. As discussed with regard to answer choice B, the mechanic’s offer was revoked when the woman learned that the mechanic had sold the car to the foreign collector. Thus, when the woman went to the garage in an attempt to accept the offer and the mechanic explained to the woman that he had accepted another offer for the car, the offer had already been validly revoked and the mechanic’s explanation had no effect on the woman’s ability to accept his offer. (Note: If the woman had not learned that the mechanic had already sold the car (i.e., no constructive revocation), then based on the facts, the woman would have validly accepted the offer when she went to the garage because she told the mechanic she accepted it before the mechanic informed the woman that he had accepted another offer).
Answer choice C is incorrect because the mechanic did not need to personally inform the woman that the car had been sold to another party in order for the offer to be constructively revoked. Here, the offer was constructively revoked when the woman learned that the offeror had taken definite action inconsistent with the offer. Answer choice D is incorrect because the mechanic’s offer was freely revocable, even though he told her that he would hold the car for a week, and the offer was constructively revoked when the woman learned of the sale of the car to the foreign collector.
The President entered into a treaty on human rights on behalf of the United States. The Senate ratified this treaty, which was not self-executing, but took no further action on the treaty. In accord with the terms of this treaty, an international tribunal determined that a prisoner was entitled to a reconsideration of his conviction for murder by a state court. The President issued an order requiring the state to give effect to the international tribunal’s determination. The state court, adhering to state law, refused to reconsider the prisoner’s conviction.
Has the state court violated the Supremacy Clause?
ANo, because the treaty was not self-executing.
BNo, because a treaty is not entitled to the same treatment as a federal statute.
CYes, because the conduct of foreign affairs is committed to the President.
DYes, because the presidential order constituted implementation of the treaty.
Answer choice A is correct. Under the Supremacy Clause, a state is required to follow federal law when it conflicts with state law. A treaty that is not self-executing is not treated as federal law for purposes of the Supremacy Clause, however, unless it has been implemented through legislation. The President, acting on his own, cannot implement such a treaty. Consequently, the state court was free to follow state law; its refusal to reconsider the prisoner’s conviction did not violate the Supremacy Clause. Answer choice B is incorrect because a treaty may be entitled to the same treatment as a federal statute when the treaty is self-executing or has been implemented by legislation. Answer choice C is incorrect because the President cannot, acting on his own, implement a non-self-executing treaty, even a treaty that has been ratified by the Senate. Although the President is entrusted with the conduct of foreign affairs and has the power to enter into a treaty on behalf of the United States, he cannot take such actions on his own. Answer choice D is incorrect because the implementation of a non-self-executing treaty requires congressional legislation.
A brother and sister inherited a defunct gas station as tenants in common. The brother decided to operate an automobile repair shop out of the station. They executed a written agreement under which the sister personally surrendered her right to use of the station, and the brother personally promised to pay his sister a percentage of the annual gross receipts from the repair shop. Five years later, the sister died. Under the terms of the sister’s will, her interest in the station was devised to a friend. The following year, the brother did not make any payment to the friend, even though business at the repair shop is still profitable. The friend sues the brother for a percentage of the annual gross receipts from the repair shop based on the written agreement.
If the court finds for the brother, of the following, which is the most likely reason?
AThe brother’s obligation to pay money does not “touch and concern” the station.
BThe defense of changed circumstances can be successfully asserted by the brother.
CThe parties did not intend that the agreement run with the land.
DThere is a lack of privity between the sister and brother because neither required the interest through purchase.
Answer choice C is correct. Among the requirements for a covenant to run with the land is the requirement that the parties must intend for their successors in interest to be bound by the agreement. There is no indication that the brother and sister intended to bind anyone other than themselves to this agreement. Therefore, this is a likely reason that a court could find for the brother in the friend’s lawsuit. Answer choice A is incorrect. Traditionally, a covenant to pay money was held not to touch and concern because it did not physically affect the land, but today such a covenant is generally enforceable. Here, the obligation to pay only arises from the receipts of a business operated on the station, in much the same manner as a tenant’s obligation to pay rent to a landlord arises from the tenant’s right to use the rented premises. Answer choice B is incorrect because the defense of changed circumstances typically is based on whether changes in the surrounding area are sufficiently drastic that it no longer makes sense to enforce the restriction in the covenant, such as when property subject to a residential covenant is surrounded by commercial properties. Here, no change appears to make it more difficult for the brother to pay a percentage of his profit. Answer choice D is incorrect for multiple reasons. Since the friend was seeking to enforce the brother’s promise to pay a percentage of the gross receipts from the repair shop, it is only the benefit of this promise that must “run with the land.” There is no requirement that horizontal privity exist between the original parties to the agreement for a benefit to run with the land. Moreover, here, since the brother and sister were co-tenants in common at the time that the agreement was executed, there was horizontal privity between them.
In violation of state law, a farmer planted poppies from which opium could be harvested on 10 acres located well within the boundaries of her family farm. The 10 acres and the poppies grown there were not visible from any neighboring property. The farmer had posted “No Trespassing” signs along the boundaries of the family farm and constructed a barbed-wire fence around the 10 acres on which the poppies were cultivated. The police received a tip from an anonymous informant that poppies were being illegally grown at a specific geographic coordinate. Two officers, using a publicly available GPS device, entered the family farm, crossed over the barbed-wire fence, and took samples of the poppy crop. The farmer was arrested and charged with violation of the state law against growing opium poppies.
The farmer moved to suppress the evidence of the poppy plants, arguing that the police had violated her Fourth Amendment rights.
Is the farmer likely to succeed?
ANo, because the 10-acre field was outside the curtilage of the home.
BNo, because the police found the poppy field using only equipment generally available to the public.
CYes, because the police relied on the statement of an anonymous informant.
DYes, because the farmer had posted “No Trespassing” signs around her property, and the field was not visible from neighboring properties.
The answer you selected is the best choice in this situation.
Answer choice A is correct. Private property that lies outside the curtilage of a home, such as a farmer’s field, is not protected by the Fourth Amendment protection for a home. Under the open-fields doctrine, governmental intrusion on such property is not a search. The owner does not have a reasonable (i.e., objective) expectation of privacy, even though the owner may have a subjective expectation of privacy based on the fact that the land is fenced, protected from public view, and marked with “no trespassing” signs. In this case, the farmer did not have a reasonable expectation of privacy in the poppy field located in the fields of her farm, even though she had a subjective expectation of privacy. The poppy field was located outside of the curtilage of the farmer’s home and was not protected under the Fourth Amendment. Therefore, the officers’ intrusion on the farmer’s property was not a search. Answer choice B is incorrect because, since the farmer did not have a reasonable expectation of privacy in the poppy field, the type of equipment used by the police to find the field is irrelevant to the issue of the constitutionality of the search. Answer choice C is incorrect. Although the statement of an anonymous informant is not enough to constitute probable cause, the police do not need probable cause or a warrant to search open fields. Answer choice D is incorrect. Although the farmer had a subjective expectation of privacy based on the fact that the poppy field was fenced, protected from public view, and marked with “no trespassing” signs, the farmer did not have a reasonable (i.e., objective) expectation of privacy in the poppy field located in the farmer’s fields. Therefore, the officers’ conduct was not a search, and the evidence will not be suppressed.
A local university kept a pet hog, its mascot, to use during its halftime shows at home football games. One day, the university discovered that the hog was missing. Twice a day for the next month, the university made an announcement on its popular student-operated radio station offering a $5,000 reward to anyone who could “identify who stole the hog.” After that month, a coach from a rival college discovered that his team had stolen the hog as a prank. The coach immediately returned the hog. The university posted a bulletin on its website explaining that the hog had been located and that the reward offer had been revoked. Because the website did not have as wide of an audience as the radio station, many students never learned that the hog had been located. Two days after the bulletin was posted on the website, a student at the university, who did not know that the hog had been returned, heard a rumor about the rival college’s prank. Because he had never visited the university’s website, the student called the university to identify who stole the hog. The university’s representative thanked the student but explained to him that the reward offer had been revoked.
Can the student successfully sue to enforce a contract with the university?
A No, because the coach at the rival college had already returned the hog.
B No, because the revocation on the website was effective as to the student.
C Yes, because the student had not yet visited the university’s website.
D Yes, because the university’s radio station had a wider audience than its website
Answer choice D is correct. A “general offer” is an offer made to a large number of people, generally through an advertisement. A general offer can be revoked only by notice that is given at least the same level of publicity as the offer. So long as the appropriate level of publicity is met, the revocation will be effective even if a potential offeree does not learn of the revocation and acts in reliance on the offer. Here, the revocation on the website did not meet the same level of publicity as the initial offer on the radio station. Therefore, this revocation was ineffective, and the student still has the ability to accept the outstanding offer to identify who stole the hog. Because the student called the university and identified who stole the hog, the student has properly accepted the university’s offer and an enforceable contract exists. Answer choice A is incorrect. Even when another party accepts and performs a contractual duty, if the offer was made to multiple parties, that offer remains open until it is either terminated or revoked. Because the university did not effectively revoke the offer as discussed above, the offer remained outstanding and the student could still accept it after the rival college coach had returned the hog. Answer choice B is incorrect because the website was not as popular as the radio station. Therefore, the appropriate level of publicity was not met and the attempted revocation was ineffective. Answer choice C is incorrect. If the website had the same level of publicity as the radio station, a revocation on the website would have been effective as to the student, even if the student never saw the website bulletin.
A defendant was charged with committing larceny at a college party that took place on a Saturday night. At his trial, the defendant testified that he was at his parent’s house in a neighboring state for that entire weekend. The defendant then called his mother to the stand. On direct, his mother testified that on the weekend of the college party, the defendant had come home from college for his father’s birthday. She testified that he arrived Friday evening, the family spent all of Saturday and Sunday together, and the defendant left on Monday morning. On cross-examination, the prosecution asked the defendant’s mother about a time in the past when the defendant had lied to his swimming coach about his whereabouts during an out-of-state competition. The defense objected to this line of questioning.
Which of the following best supports the defense’s objection to the prosecution’s question?
A The defendant’s character can only be proven by reputation or opinion evidence.
B Inquiries into the defendant’s past acts are only permitted on cross-examination of the defendant.
C The defendant is not on trial for a crime involving dishonesty.
D The defendant’s mother has not testified as to the defendant’s character.
Answer choice D is correct.
Generally, a specific instance of conduct (e.g., lying on a job application) is not admissible to attack or support the witness’s character for truthfulness. However, on cross-examination, a witness may be asked about specific instances of conduct if it is probative of the truthfulness or untruthfulness of (i) the witness or (ii) another witness about whose character the witness being cross-examined has testified. Here, the prosecution cannot ask the defendant’s mother about this instance of the defendant’s dishonesty unless she has testified as to his character. Therefore, this reason best supports the defense’s objection to the question. Answer choice A is incorrect because the defendant has testified at his trial. Therefore, his character for truthfulness is open to proper impeachment by reputation and opinion evidence, as well as specific acts of dishonesty. Answer choice B is incorrect because it misstates the law. When a character witness is cross-examined, the court may allow a party to inquire into specific acts committed by the person about whom the witness is testifying, even when that person is the defendant. Answer choice C is incorrect. A witness can be impeached by the proper admission of his or her past specific instances of dishonesty, even if the witness is a defendant on trial for a crime that does not involve dishonesty.
An FBI agent was accused of killing a witness in a federal case. A U.S. Marshal who had been guarding the witness had actually killed the witness after being paid by the defense attorney to do so. The agent knew this, but because the U.S. Marshal threatened to harm the agent’s family, he told no one. The agent was indicted for murder, and his lawyer counseled him about the legal elements of the crime. At the arraignment, the judge explained the nature of the charge and the applicable statutory sentences. The judge also explained that although the normal maximum penalty for the charge was capital punishment, based on the plea bargain offered by the prosecution, the prosecutor would recommend no more than life without parole if the agent pled guilty. Finally, the judge explained that by pleading guilty, the agent would waive his right to a jury trial. Fearing for the safety of his family, the agent pled guilty to the murder charge. Determining that there was a factual basis for the plea, the judge accepted the agent’s plea.
One month after the arraignment, the U.S. Marshal was arrested and charged with the murder of another witness. The agent, believing his family would now be safe if he disclosed the truth, subsequently filed a motion to set aside his guilty plea.
What is the strongest argument in favor of setting aside the guilty plea?
AThe judge did not determine whether the plea resulted from force or improper threats.
BThe judge did not investigate whether there was any evidence that could prove the agent’s innocence.
CThe judge did not personally explain each element of the crime to the agent on the record.
DThe prosecutor’s plea bargain unconstitutionally coerced the agent into entering a guilty plea by threatening him with capital punishment.
Answer choice A is correct. A guilty plea is an admission of facts contained in the charging document (e.g., indictment, information). Because a guilty plea constitutes both a confession and a waiver of various constitutional rights, the plea must be both intelligent and voluntary. The record must reflect that the judge has determined that the defendant knows and understands (i) the nature of the charges and their essential elements, (ii) the consequences of the plea (e.g., the maximum and minimum possible sentences, possible immigration consequences), and (iii) the rights that the defendant is waiving (e.g., the right to a trial). The judge must also determine that the plea did not result from force or improper threats. Here, the judge did not ask or determine whether the agent’s plea resulted from force or improper threats. Therefore, this is the best argument provided to set aside the guilty plea. Answer choice B is incorrect because a judge need not search for exculpatory evidence before accepting a plea. Answer choice C is incorrect. The judge does not personally need to explain each element of the crime. It is sufficient for the defendant’s counsel to explain the nature and elements of the crime to him. Answer choice D is incorrect. A plea bargain may involve the defendant’s sentence, such as a promise by the prosecutor to recommend a particular sentence in exchange for the defendant’s guilty plea. A defendant’s plea made in response to the prosecution’s threat to bring more serious charges does not violate the protection of the Due Process Clause against prosecutorial vindictiveness, at least when the prosecution has probable cause to believe that the defendant has committed the crimes. Without more facts, there is no evidence that this plea bargain amounted to unconstitutional coercion or prosecutorial vindictiveness.
A defendant filed a motion for summary judgment. The trial judge, after considering the pleadings, affidavits submitted by each party, and discovery materials, found that that there was no genuine dispute as to any material fact, and granted the motion. A judgment in favor of the defendant was entered. The plaintiff timely filed an appeal, contending that the granting of the summary judgment motion was erroneous.
By what standard should the appellate court review the trial judge’s decision?
AAbuse of discretion
BClearly erroneous
CPlain error
DDe novo
Answer choice D is correct. A trial judge’s decision to grant a summary judgment motion is a legal ruling. As a legal ruling, the appropriate standard of review by the appellate court is de novo. While an appellate court relies on the record created in trial court and does not entertain the admission of additional evidence, the appellate court reviews the evidence and law without deference to the trial court’s legal rulings. Answer choice A is incorrect. The abuse of discretion standard for appellate court review of a trial judge’s ruling is appropriate when the ruling is a matter over which the trial judge has discretion, such as whether evidence is admissible or sanctions should be imposed. Answer choice B is incorrect. A trial court’s findings of fact, including a master’s findings that have been adopted by the court, are subject to review under the “clearly erroneous” standard. A trial judge’s grant of a summary judgment motion constitutes a legal ruling, so the “clearly erroneous” standard does not apply. Answer choice C is incorrect. When a trial judge gives an erroneous jury instruction to which the adversely affected party failed to make a timely objection, the appellate court may nevertheless consider the matter if the mistake constitutes a plain error that affects the party’s substantial rights; however, this standard does not apply to a trial judge’s grant of a summary judgment motion.
Occupying the field of alien registration, federal law imposes a series of requirements on the registration of aliens, including the requirement that aliens who remain in the United States for more than 30 days must register with the federal government and carry proof of registration. Under federal law, willful failure by an alien to register or carry proof of registration is punishable as a misdemeanor. A recently enacted state statute also makes the willful failure of an alien to register with the federal government or carry proof of registration punishable as a misdemeanor. The federal law does not contain an express preemption of state laws criminalizing the failure of aliens to register or carry proof of registration, nor does it contain a “savings clause” that explicitly allows state laws that regulate the registration of aliens. The state statute has been challenged in federal district court as invalid under the Supremacy Clause of Article VI of the United States Constitution.
Is the state statute valid under the Supremacy Clause?
Occupying the field of alien registration, federal law imposes a series of requirements on the registration of aliens, including the requirement that aliens who remain in the United States for more than 30 days must register with the federal government and carry proof of registration. Under federal law, willful failure by an alien to register or carry proof of registration is punishable as a misdemeanor. A recently enacted state statute also makes the willful failure of an alien to register with the federal government or carry proof of registration punishable as a misdemeanor. The federal law does not contain an express preemption of state laws criminalizing the failure of aliens to register or carry proof of registration, nor does it contain a “savings clause” that explicitly allows state laws that regulate the registration of aliens. The state statute has been challenged in federal district court as invalid under the Supremacy Clause of Article VI of the United States Constitution.
Is the state statute valid under the Supremacy Clause?
A television chef fired his production assistant. Enraged, the assistant sent an anonymous letter to a tabloid alleging that the reason that the television chef could not keep an assistant was that he had a pattern of emotionally and occasionally physically abusing his co-workers. Before writing a story based on this lead, the tabloid tried to fact check the letter by calling all the chef’s past assistants to confirm the story. Although the allegations in the letter were all false, the chef was widely despised by his co-workers and peers because he was arrogant and rude. As a result, everyone the tabloid called agreed with the false allegations in the letter, hoping to ruin the chef’s career. After finding numerous sources that confirmed the allegations in the letter, the tabloid published the story. Due to the public outrage over the story, the chef closed two of his restaurants because of lost profits. The chef has now brought a claim against the tabloid based on defamation.
Is the chef likely to succeed in his claim against the tabloid?
AYes, because the story was false and damaging to the chef’s reputation.
BYes, because the tabloid can claim neither an absolute nor a qualified privilege.
CNo, because the tabloid only repeated the defamatory remarks of others.
DNo, because the tabloid exercised ordinary care in determining whether the story was tr
The answer you selected is not the best choice in this situation.
Answer choice D is correct. As a celebrity, the television chef is a public figure. If the plaintiff in a defamation action is either a public official or a public figure, then the plaintiff is required to prove that the defendant acted with actual malice. This requires that the defendant either had knowledge that the statement was false or acted with reckless disregard as to the truth or falsity of the statement. Here, the tabloid fact checked this story with multiple sources before publishing it. Therefore, the television chef cannot establish that the tabloid acted with actual malice and his defamation claim will fail. Answer choice A is incorrect because it does not take into account all of the elements that must be proven for a public figure to succeed in a defamation action. Answer choice B is incorrect because, although neither an absolute nor a qualified privilege apply in this case, the claim will still fail because the celebrity chef cannot establish that the tabloid acted with malice. Answer choice C is incorrect because a person who repeats a defamatory statement may be held liable for defamation even though that person identifies the originator of the statement and expresses a lack of knowledge as to the truthfulness of the statement.
In the summer, a woman rented an apartment unit in a large apartment building. The lease contained a provision that placed the duty of repair on the landlord. As winter approached, the woman noticed that the radiator in her living room was not working. She has informed the landlord about the issue several times over the past two months, but no action has been taken. The forecast for the next month is for unseasonably cold weather. The woman wishes to remain in the apartment because its location is ideally situated for her job, but she wants to receive some compensation in the form of a rent abatement if the landlord continues to ignore the problem.
Of the following, which is the most likely legal basis that would provide the woman with a satisfactory remedy to her situation?
ACovenant of quiet enjoyment
BDoctrine of constructive eviction
CRepair provision in the lease
DWarranty of habitability
The answer you selected is the best choice in this situation.
Answer choice D is correct. There is an implied warranty of habitability in most residential leases, particularly when the dwelling is a multi-family unit. The landlord must maintain the property such that it is reasonably suited for residential use. A failure to provide adequate heat can constitute a breach of this warranty and, if not addressed, can provide the tenant with a remedy, such as a rent abatement, until the breach is corrected. Answer choice A is incorrect. Every lease contains an implied covenant of quiet enjoyment, which is breached only when the landlord, someone claiming through the landlord, or someone with superior title disrupts the possession of the tenant. While a landlord may breach this covenant through actual, partial, or constructive eviction of the tenant, no eviction has occurred under these facts. Therefore, under these facts, the covenant of quiet enjoyment will not allow the woman to seek a rent abatement as a remedy. Answer choice B is incorrect. A constructive eviction occurs if the landlord breaches a duty to the tenant, such as failing to make a repair, that substantially interferes with the tenant’s use and enjoyment of the leasehold (e.g., fails to provide heat or water). However, the tenant’s obligation to pay rent is excused by constructive eviction only if the tenant (i) gives notice and adequate time to permit the landlord to fulfill his duty, and (ii) vacates the property within a reasonable amount of time. Here, while the woman has given the landlord notice of the problem and two months to address it, the woman does not want to leave her apartment. Therefore, the woman cannot seek a rent abatement based on a constructive eviction. Answer choice C is incorrect because, while the woman may enforce a repair provision in the lease, the enforcement of that provision does not affect her obligation under the lease to pay rent.
An individual was subpoenaed to appear as a witness before a federal grand jury investigating the existence of illegal drug activity. The subpoena was issued because there was reason to suspect that the individual possessed evidence relevant to the criminal activity under investigation, but there was no probable cause to believe that the individual had any such evidence or that she was involved in the crime. The individual timely filed a motion seeking to quash the subpoena as a violation of the Fourth Amendment.
How should the court rule on this motion?
AGrant the motion, because the subpoena was not based on probable cause that the individual had committed a crime.
BGrant the motion, because the subpoena was not based on probable cause that the individual had evidence regarding a crime.
CDeny the motion, because the subpoena was not issued for the purpose of harassing the individual.
DDeny the motion, because the witness was not a target of the grand jury’s investigation.
SUBMIT ANSWER
Sorry, that’s not the best choice.
The answer you selected is not the best choice in this situation.
Answer choice C is correct. In general, the Fourth Amendment does not apply to a subpoena for a witness to testify before a grand jury. Consequently, even though the subpoena in question was not issued on the basis of probable cause, the individual’s Fourth Amendment rights have not been violated. Accordingly, answer choices A and B are incorrect. Answer choice D is incorrect because, while a target of a grand jury investigation may refuse to answer a grand jury’s questions when those questions violate the target’s Fifth Amendment right against self-incrimination, any witness, even a target of the grand jury’s investigation, is not protected by the Fourth Amendment from complying with a grand jury subpoena.
In a trial for murder, defense counsel presented eyewitness testimony that the murder victim threatened the defendant with a baseball bat, and that the defendant acted in self-defense when shooting the victim. In rebuttal, the prosecution called a neighbor of the victim to testify regarding the victim’s reputation for peacefulness. The defense objected to the testimony.
How should the court rule on this objection?
AOverrule the objection, because the defense contended that the defendant had acted in self-defense.
BOverrule the objection, because the prosecution may introduce evidence of the victim’s reputation for peacefulness in any homicide case.
CSustain the objection, because propensity evidence is inadmissible in a criminal trial.
DSustain the objection, because the defense did not present evidence of the victim’s character for violence.
Answer choice A is correct. Although the prosecution generally may offer rebuttal evidence of the victim’s good character only after the defendant has introduced evidence of the victim’s bad character, the prosecution in a homicide case may offer evidence of a victim’s peacefulness to rebut evidence that the victim was the first aggressor. Answer choice B is incorrect because it is overbroad; reputation evidence of the victim’s trait for peacefulness is allowed in a homicide case only after the defendant has introduced evidence that the victim was the initial aggressor. Answer choice C is incorrect because in some circumstances propensity evidence may be admissible in a criminal trial. Answer choice D is incorrect. While generally the prosecution may not introduce evidence of the victim’s pertinent character trait unless the defendant has offered evidence of the victim’s bad character, the prosecution in a homicide case may offer evidence of a victim’s peacefulness to rebut evidence that the victim was the first aggressor, even if the defendant has not addressed the victim’s character directly.
A defendant filed a motion for summary judgment. The trial judge, after considering the pleadings, affidavits submitted by each party, and discovery materials, found that that there was no genuine dispute as to any material fact, and granted the motion. A judgment in favor of the defendant was entered. The plaintiff timely filed an appeal, contending that the granting of the summary judgment motion was erroneous.
By what standard should the appellate court review the trial judge’s decision?
AAbuse of discretion
BClearly erroneous
CPlain error
DDe novo
Answer choice D is correct. A trial judge’s decision to grant a summary judgment motion is a legal ruling. As a legal ruling, the appropriate standard of review by the appellate court is de novo. While an appellate court relies on the record created in trial court and does not entertain the admission of additional evidence, the appellate court reviews the evidence and law without deference to the trial court’s legal rulings. Answer choice A is incorrect. The abuse of discretion standard for appellate court review of a trial judge’s ruling is appropriate when the ruling is a matter over which the trial judge has discretion, such as whether evidence is admissible or sanctions should be imposed. Answer choice B is incorrect. A trial court’s findings of fact, including a master’s findings that have been adopted by the court, are subject to review under the “clearly erroneous” standard. A trial judge’s grant of a summary judgment motion constitutes a legal ruling, so the “clearly erroneous” standard does not apply. Answer choice C is incorrect. When a trial judge gives an erroneous jury instruction to which the adversely affected party failed to make a timely objection, the appellate court may nevertheless consider the matter if the mistake constitutes a plain error that affects the party’s substantial rights; however, this standard does not apply to a trial judge’s grant of a summary judgment motion.
A salon owner contacted a manufacturer by email about purchasing shampoo sinks. The manufacturer sent the salon owner the following email: “I will sell you four shampoo sinks at a discounted price of $300 apiece.” The salon owner responded immediately, rejecting the offer. However, due to a transmission problem in the internet routing system, the message was not delivered to the manufacturer until the following day. In the meantime, the salon owner contacted several other sellers, all of whom made significantly higher offers. The salon owner then sent another email to the manufacturer, stating, “I accept your offer.” This email was delivered immediately. The following day, the misrouted rejection email arrived in the manufacturer’s inbox. Assume the parties are in a jurisdiction that applies the mailbox rule to electronic communications.
Was a contract formed?
AYes, because the salon owner accepted the manufacturer’s offer.
BYes, because the mailbox rule applies.
CNo, because the salon owner rejected the offer prior to accepting the offer.
DNo, because the manufacturer received the salon owner’s rejection.
Answer choice A is correct. The mailbox rule states that a timely sent acceptance is effective when sent, not upon receipt. However, if a communication is sent rejecting the offer, and a later communication is sent accepting the contract, the mailbox rule does not apply, and the first one to be received by the offeror prevails. Here, the salon owner rejected the offer, then sent an acceptance. Since the acceptance was received by the offeror first, the acceptance prevails. Answer choice B is incorrect because, as noted with respect to answer choice A, the mailbox rule does not apply when an acceptance is sent after a rejection. Answer choice C is incorrect because, while a rejection’s effect is to terminate an offer, to be effective, the rejection must be communicated to the offeror. When a rejection is sent before an acceptance, the mailbox rule does not apply and the first communication received by the offeror prevails. Answer choice D is incorrect because a contract was formed when the manufacturer received the acceptance before the rejection. The fact that the manufacturer received the rejection the following day may affect the damages to which the manufacturer is entitled if the salon owner refuses to honor the contract, but it does not control the issue of the formation of a contract.
A plaintiff lost a non-jury trial in federal district court in a state-law breach of contract action heard under diversity jurisdiction. The plaintiff has appealed the judgment to the appropriate court of appeals.
Which of the following is most accurate concerning the appellate court’s review of the case?
AThe appellate court can only set aside the trial judge’s findings of fact if they are clearly erroneous.
BThe appellate court reviews the factual record de novo to determine whether the verdict is against the weight of the evidence.
CThe appellate court cannot set aside the trial judge’s findings of fact.
DThe appellate court must reach its own independent conclusions on factual issues.
The answer you selected is the best choice in this situation.
Answer choice A is correct. If the losing party in a non-jury trial appeals, the appellate court will generally accept the trial judge’s findings of fact. These findings can only be set aside if they are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, based on the entirety of the evidence, is left with the definite and firm conviction that a mistake has been committed. Accordingly, answer choices B, C, and D are incorrect.
An 18-year-old defendant was arrested for armed robbery. After being Mirandized, the defendant asked for a lawyer. The police did nothing about this request, but instead contacted the defendant’s parents who came to the police station where the defendant was being held. The police placed the defendant and his two parents in a bugged room in the hopes that the defendant would incriminate himself. The defendant confessed to his parents that he committed the armed robbery. Learning that the prosecution now plans to use the confession at the defendant’s trial, the defendant’s attorney has filed a motion to suppress this confession as a violation of the defendant’s Fifth Amendment right to counsel.
Of the following, which represents the best factual support for the defense’s motion?
AThe defendant asked for an attorney after being Mirandized.
BThe defendant did not know that the room was bugged.
CThe police placed the defendant and his parents in a room in the hopes that the defendant would incriminate himself.
DThe police took unfair advantage of the defendant’s voluntary statements to his parents.
Answer choice C is correct. Once the right to counsel is invoked, the defendant may not be subjected to further interrogation without counsel present. Interrogation refers not only to express questioning, but also to any words or actions that the police know or should know are likely to elicit an incriminating response. Here, the police appear to have arranged for the defendant to meet with his parents in an effort to obtain an incriminating statement. Therefore, this would be the defendant’s best argument for excluding the statement. Answer choice A is incorrect because the police’s failure to comply with the student’s request for an attorney, by itself, will not make the statement inadmissible. Answer choice B is incorrect. After a defendant who is in police custody has requested an attorney, the focus is on whether the defendant’s statement was a product of police interrogation. Therefore, the determinative issue is whether the police knew or should have known that their words or actions were likely to elicit an incriminating response, and not the defendant’s knowledge of whether he was being recorded. Answer choice D is incorrect because volunteered statements are not protected by Miranda, as they are, by definition, not the product of interrogation. The defendant should instead argue that his statements were not voluntary, and that he was coerced into his statements as a result of police interrogation.
The driver of an automobile that was involved in an accident with a truck sued the truck driver in state court for property damages to the automobile. Although the court had personal jurisdiction over the truck driver and she received adequate notice of the lawsuit, she failed to appear. The court entered a default judgment against the truck driver. Shortly thereafter, the automobile driver died. The personal representative of the automobile driver’s estate has brought an action in the same state court against the truck driver for personal injuries suffered by the automobile driver as a consequence of the accident. A state survival statute recognizes the right of the personal representative of a decedent’s estate to bring an action that the decedent could have brought had she lived.
Can the truck driver successfully plead claim preclusion as an affirmative defense to this action?
ANo, because the judgment in the prior lawsuit was a default judgment.
BNo, because the plaintiff in the current action is not the same as the plaintiff in the prior action.
CYes, because the automobile driver’s claim for personal injury damages merged with her successful claim for property damages.
DYes, because the lawsuits were both brought in the same state court.
Answer choice C is correct. One aspect of claim preclusion is that when a judgment is in a party’s favor, the entire claim merges with the judgment and is extinguished. Under the transactional approach, a subsequent claim with respect to all or any part of the transaction, or series of connected transactions, out of which the original action arose is barred. In this case, because the current claim for personal injury damages and prior claim for property damages arose out of the same accident, the claim for personal injury damages merged with the claim for property damages, even though damages for personal injury were not sought in the prior suit. Thus, under the doctrine of claim preclusion, the truck driver has an affirmative defense to the current lawsuit, even though the judgment in the first lawsuit was in favor of the automobile driver. Answer choice A is incorrect. For purposes of claim preclusion, a default judgment is a final judgment even though the losing party, in this case the truck driver, did not litigate the issue of liability. Answer choice B is incorrect. Although claim preclusion generally requires that the same persons be parties in both lawsuits, a party who is in privity with a person who was a party in the prior lawsuit can satisfy this requirement. Here, the personal representative of the automobile driver’s estate is in privity with the truck driver. However, because the automobile driver could not have brought the current lawsuit, neither can her estate. Answer choice D is incorrect. Although both lawsuits in this case were brought in the same state court, claim preclusion can apply with respect to a state court judgment because of the Full Faith and Credit Clause even if the current lawsuit is brought in the court of a different state. Therefore, this answer is not determinative of the issue of claim preclusion here.
In a state known for its game fish, there are many guide-led fishing expeditions marketed to tourists. The state enacted a statute that required all fishing guides who charge a fee to have a license. The purpose of the statute is to protect the state’s game fish from overfishing. The license costs $100 for in-state residents and $300 for out-of-state residents. If an out-of-state resident challenges the constitutionality of this statute, what is the most likely result?
Answers:
Correct Answer: The statute will be struck down under the Privileges and Immunities Clause of Article IV, Section 2.
The statute will be struck down under the Equal Protection Clause.
You Selected: The statute will be upheld because engaging in fishing is not a fundamental right.
The statute will be upheld because regulation of fishing is traditionally a state, rather than national, function.
Answer choice A is correct. The Article IV Privileges and Immunities Clause prohibits a state from discriminating against nonresidents with respect to the exercise of a fundamental right or engagement in an essential activity, such as earning a living, unless there is substantial justification for the discrimination. Here, the state imposed a fee on nonresidents that was three times greater than the fee on residents. While nonresidents may contribute to the problem that the state was seeking to address (i.e., overfishing), there are other means of addressing this problem, such as limiting the amount of fish that can be caught, that are less restrictive on the rights of nonresidents. Answer choice B is incorrect because, since nonresident fishing guides are not members of a suspect classification, the rational basis standard is applied to determine whether the statute violates the Equal Protection Clause. Under this standard, the statute is likely to be upheld since indirectly limiting the number of guides could reduce the number of individuals who go fishing and thereby the number of fish caught. Answer choice C is incorrect because, although engaging in fishing is not a fundamental right, the right to earn a livelihood is an essential activity for purpose of the Article IV Privileges and Immunities Clause. Answer choice D is incorrect because, even if the state has traditionally regulated fishing, the state cannot do so in a manner that violates individual rights set forth in the Constitution. The conflict here is not between a state statute and a federal statute, but between the state statute and the Constitution.
A buyer who was not a merchant entered into a written contract to purchase a new car from a dealer at a cost of $35,000. Since the buyer desired a particular combination of features on the car and the dealer did not have a car with such features in its inventory, the dealer ordered the car from the manufacturer. When the car arrived, the dealer discovered that the manufacturer had increased the dealer’s price for the car by five percent. Acting in good faith, the dealer sought to increase the buyer’s price of the new car by a similar percentage. Reluctantly, the buyer orally agreed to the price increase, then had a change of heart and refused to complete the purchase. The car dealer eventually sold the car to another customer for $35,000. The dealer sued the buyer to recover damages for breach of contract.
Will the dealer be entitled to damages?
Answers:
No, because the dealer had a preexisting duty to sell the car for the original contract price.
You Selected: No, because the price increase was not in writing.
Yes, because the dealer sought the price increase in good faith.
Yes, because the car was specially manufactured for the buyer.
Rationale:
Answer choice B is correct. The UCC Statute of Frauds generally requires that a modified contract be in writing where the value of the goods is $500 or more. There is an exception for specially manufactured goods, but for this exception to apply, the goods cannot be suitable for sale to others in the ordinary course of the seller’s business. Because the dealer sold the car to another customer, this exception would not apply. Since the written evidence of the parties’ agreement fixed the price of the car at $35,000 and the dealer received this amount from another customer, the dealer would not be entitled to damages. Answer choice A is incorrect because the preexisting duty rule does not apply to a sale of goods governed by the UCC. Answer choice C is incorrect because, although the UCC permits a good faith modification of a contract without consideration, the Statute of Frauds prevents the enforcement of an oral modification. Answer choice D is incorrect because, as noted with respect to answer choice B, the exception to the Statute of Frauds for specially manufactured goods does not apply where the seller can sell the goods in the ordinary course of business.
A hospital placed an order to purchase scalpel blades from a medical supply company. The hospital specified that the blades were to be shipped immediately. Upon receipt of the order, the supply company discovered that it did not have the type of blade ordered by the hospital, and shipped instead a different type of blade, along with a note that these blades were not the type ordered by the hospital but were sent as an accommodation. The hospital rejected and returned the shipped blades, then sued the supply company for breach of contract. Will the hospital be successful in its suit?
Answers:
You Selected: Yes, because of the perfect tender rule.
Yes, because acceptance of the hospital’s order could be made by shipment as well as by a promise.
No, because the hospital order could only be accepted by shipment of the type of scalpel blades ordered.
Correct Answer: No, because the medical supply company did not accept the hospital’s offer.
Rationale:
Answer choice D is correct. Normally a shipment of goods by a seller made in response to an order placed by the buyer constitutes acceptance of the buyer’s offer. Such a shipment does not constitute acceptance, however, if the seller indicates that the shipped goods are made as accommodation. Since the supply company so designated the blades that it sent, the shipment did not constitute acceptance. Consequently, no contract was formed, so there can be no breach. Answer choice A is incorrect because, although the perfect tender rule does apply to a sale of goods, such as scalpel blades, it applies only when a contract exists between the buyer and seller. Answer choice B is incorrect because, although a seller may accept a buyer’s offer by shipment of the goods, as well as by a promise to ship the goods, a shipment of goods as an accommodation does not constitute an acceptance of the buyer’s offer. Answer choice C is incorrect because a seller’s shipment of goods in response to a buyer’s order can constitute acceptance even if the goods do not conform to the contract.
A series of burglaries was committed while the inhabitants were away from their homes. A police officer, relying in good faith on a valid search warrant for evidence related to these burglaries, knocked on the door of the residence specified in the warrant but did not identify himself as a police officer. Without waiting for the door to be opened by the inhabitants, the officer pried it open with a crowbar, even though he had no specific reason to believe that evidence would be destroyed or that he was in danger. The officer did not find any evidence related to the burglaries, but did find a cache of illegal drugs in plain view.
The applicable statute provides that an officer can break into a house “if, after notice of his authority and purpose, he is refused admittance.”
Prior to the trial of the homeowner for possession of the illegal drugs found during the search, the homeowner moved to exclude the drugs as evidence. Should the court grant this motion?
Answers:
No, because the officer relied in good faith on the search warrant.
Correct Answer: No, because the officer had a valid search warrant and the drugs were in plain view.
Yes, because the drugs were not covered by the search warrant.
You Selected: Yes, because the search was illegal.
Rationale:
Answer choice B is correct. When a police officer executing a valid search warrant fails to adhere to a “knock and announce” statute, evidence seized is not subject to the exclusionary rule, despite that failure. Answer choice A is incorrect because the police officer’s good faith reliance on a valid warrant is irrelevant. The fact that the warrant itself is valid is sufficient to constitutionally justify the search or arrest authorized by the warrant. Answer choice C is incorrect because items that are in plain view, such as the illegal drugs, may be seized by an officer who is executing a valid warrant. Answer choice D is incorrect because, although the officer violated the “knock and announce” statute, such a violation does not require the exclusion of evidence seized pursuant to a valid search warrant.
Question 422
At about 5:00 a.m., firefighters responded to a house fire. The fire was brought under control in about an hour and completely extinguished approximately two hours later. In the early afternoon, a city fire inspector came to the house with an administrative warrant. The warrant authorized the inspector to search for the cause of the fire and seize items related to it. The inspector first searched the basement of the house, finding a barely recognizable electric curling iron plugged into a partially melted timer, which was set to turn on at about 4:00 a.m. In addition, the inspector found the iron in a large soot blackened tub. Nearby were several empty gallon containers labeled “turpentine.” The inspector seized the iron, timer, tub and empty turpentine containers, believing that they constituted evidence necessary to establish the cause of the fire. While the ground level of the house was almost completely destroyed by the fire, the second level was in much better condition. On the second floor, the inspector noticed that there were several empty frames, their pictures apparently having been removed, hanging on the walls. Also the inspector noted that none of the three upstairs bedrooms contained electronic equipment, such as televisions or computers, despite the presence of empty power strips plugged into outlets in these rooms. The inspector seized the empty frames and power strips, believing that they constituted evidence the homeowner had deliberately set the fire. The family who lived in the house was away on vacation at the time of the fire and did not return until the following day. The homeowner was charged with arson.
Can the homeowner successfully object to the introduction into evidence of the items seized by the inspector from the second floor of the house?
Answers:
No, because the items were seized by a fire inspector rather than a police officer.
You Selected: No, because the search was conducted under exigent circumstances.
No, because the search was conducted pursuant to an administrative warrant.
Correct Answer: Yes, because the seizure of these items exceed the scope of the warrant.
Rationale:
Answer choice D is correct. Although the warrant authorized the fire inspector to search for the cause of the fire, the fire inspector determined the cause of the fire in his search of the basement. As a result, his search of the second floor of the house exceeded the scope of the administrative warrant. On the second floor, he was searching for and found evidence related to whether the homeowner had deliberately set the fire, i.e., whether the homeowner was guilty of arson, rather than the cause of the fire. Consequently, answer choice C is incorrect. Answer choice A is incorrect because the Fourth Amendment protection against unreasonable searches applies to a search conducted by a governmental agent. It does not require that the agent be a police officer. Answer choice B is incorrect because, since the fire inspector conducted the search pursuant to a warrant, there is no need to justify the search under an exception, such as exigent circumstances, to the warrant requirement. In addition, although a search for the cause of the fire conducted within a reasonable time after the fire was extinguished may be justified under the exigent circumstances exception, this exception does not apply to a search for evidence that arson was the cause of the fire.
A high school teacher played on a hockey team in a local recreational league. During a league game, the teacher was involved in a fight with another hockey player. That player sued the teacher in a battery action to recover for injuries inflicted during the fight. The teacher contended that he had acted in self-defense. The teacher called his principal to testify that the teacher had a reputation within the school community for peacefulness. The plaintiff, who had not introduced evidence of the teacher’s character for violence, objected to this testimony.
Should the court admit this testimony?
Answers:
Yes, because the defendant is entitled to introduce evidence of a pertinent good character trait.
Yes, because character evidence may be introduced through reputation testimony.
No, because the plaintiff had not introduced evidence of the teacher’s character for violence.
You Selected: No, because such evidence is not admissible in a civil action.
Rationale:
Answer choice D is correct. Evidence of a defendant’s character is inadmissible in a civil case to prove that the defendant acted in conformity with that character trait unless the defendant’s character is an essential element of a claim or defense. Since the defendant’s character for peacefulness is not an element of either battery or self-defense, the principal’s testimony is not admissible. Answer choice A is incorrect because, although a defendant is permitted to introduce evidence of a pertinent good character trait in a criminal case, such evidence is not admissible in a civil case. Answer choice B is incorrect because, although reputation testimony is an acceptable form of presenting character evidence when such evidence is permitted, character evidence is generally not admissible in a civil action. Answer choice C is incorrect because it is not relevant that the plaintiff has not introduced such evidence. Such evidence is not permitted in a civil case, whether introduced by the plaintiff or the defendant
