Mixed Questions - Set 12 Flashcards
A horse breeder offered to sell a colt to his neighbor and they agreed on a purchase price. The horse breeder subsequently received a letter from the neighbor thanking him for the sale and summarizing their agreement. The letter contained the neighbor’s alleged signature. When the horse breeder attempted to set up transfer of the colt, the neighbor denied that she agreed to purchase it. In a breach of contract action against the neighbor, the horse breeder offers into evidence the letter. The horse breeder testifies that he is familiar with the neighbor’s handwriting and recognizes the signature on the letter as being hers.
Assuming appropriate objection by the neighbor, who claims that she did not sign the letter, how should the trial court rule on the admissibility of the letter?
A Exclude the letter for lack of foundation because lay opinion testimony regarding handwriting identification is not admissible.
B Exclude the letter unless its authenticity is established by a preponderance of the evidence.
C Admit the letter as authentic and instruct the jury accordingly.
D Admit the letter but instruct the jury that it is up to them to decide whether the letter is authentic.
D
The court should admit the letter and instruct the jury that it is up to them to decide whether the letter is authentic. Before a writing may be received in evidence, it must be authenticated by proof showing that the writing is what the proponent claims it is. All that is necessary is proof sufficient to support a jury finding of genuineness. The authenticity of a document is a preliminary fact to be decided by the jury. Here, the horse breeder’s testimony that he is familiar with the neighbor’s handwriting and that he recognizes the signature on the letter to be that of the neighbor is sufficient to support a jury finding of genuineness. Thus, the letter should be admitted and authenticity should be left to the jury to decide. (A) is wrong because a lay witness who has personal knowledge of the handwriting of the supposed writer may state his opinion as to whether the document is in that person’s handwriting. (B) is wrong because authentication of documentary evidence requires only enough evidence to support a jury finding that the matter is what its proponent claims it is. It is not required that the proponent establish its genuineness by a preponderance of the evidence. (C) is wrong because, as noted above, where there is a dispute as to the authenticity of a document, the issue of authenticity is a fact determination for the jury, not the judge, to decide.
A man from a foreign country obtained a doctorate in political science from a state university and applied to teach there. The man was denied employment at the university under a state law requiring all teachers within the state to be United States citizens.
Is the state’s citizenship requirement constitutional as it applies to the man?
A Yes, because states have the right to set minimal standards for state employees under the Tenth Amendment.
B Yes, because a university political science teacher would exert a great deal of influence over the attitudes of students toward government, the political process, and citizenship.
C No, because the citizenship requirement is not rationally related to a legitimate state interest..
D No, because the citizenship requirement is not necessary to achieve a compelling state interest.
D
A state generally may not discriminate against aliens absent a compelling state interest, and no compelling interest is served by prohibiting aliens from teaching at a state university. (A) is incorrect. The Tenth Amendment reserves to the states power not granted to the federal government. The Constitution vests the power to regulate aliens in Congress, and thus the states do not have power to control aliens under the Tenth Amendment. (B) is incorrect because it states the standard that the Supreme Court has applied to primary and secondary school teachers. The Supreme Court has upheld state statutes prohibiting aliens from teaching primary or secondary school on the rationale that teachers at the elementary and high school level have a great deal of influence over the attitudes of young students toward government, the political process, and citizenship. It is doubtful that the Court would extend this rationale to university teachers. (C) is incorrect because it states the wrong standard. If state discrimination against aliens relates to participation of aliens in the functioning of state government, the rational basis test applies. Merely teaching political science at a state university is not equivalent to participating in the political process.
Congress enacted a statute that purported to ban all discrimination against African-Americans in any commercial transaction taking place within the United States.
Would the statute most likely be held constitutional?
A Yes, under Thirteenth Amendment provisions barring badges or incidents of slavery.
B Yes, because the federal government has an important interest in furthering the equal protection provisions of the Fourteenth Amendment.
C No, because Congress’s powers under the Commerce Clause do not extend so far as the statute would require.
D No, because commercial transactions are not among the privileges or immunities of national citizenship.
A
The statute is constitutional as a legitimate exercise of congressional enforcement powers under the Enabling Clause of the Thirteenth Amendment. The Thirteenth Amendment prohibits slavery. The Enabling Clause of the amendment has been held to confer on Congress the authority to proscribe almost any private racially discriminatory action that can be characterized as a badge or incident of slavery. Because the statute at issue bans all discrimination against African-Americans in commercial transactions, it necessarily reaches private conduct. Such congressional action is constitutionally permissible pursuant to the Thirteenth Amendment. (B) is incorrect. Application of the Fourteenth Amendment has been limited to cases involving state action. [See United States v. Morrison (2000)] The statute here reaches private action, and so the Thirteenth Amendment is the correct source for the law, since that amendment addresses private action. (C) is incorrect because, even if Congress’s power over interstate commerce would not reach every commercial transaction, the statute would be enforceable under the Thirteenth Amendment, as discussed above. (D) is incorrect because it is irrelevant. While it is true that the commercial transactions here are not among the privileges or immunities of citizenship (which include rights such as the right to petition Congress for redress and the right to interstate travel), the law can be based on the Commerce Clause or the Thirteenth Amendment, and thus is constitutional.
A homeowner, a citizen of State A, hired an electrician, a citizen of State B, to fix the wiring in her basement and hired a gas worker, also a citizen of State B, to install a new gas stove in her kitchen. Unfortunately, the home caught fire and burned down while they were both working on their separate jobs. The homeowner sued the gas worker for negligence in federal court in State A, seeking $100,000. The homeowner promptly served the gas worker, and the gas worker timely filed an answer with the court. One month after filing the answer, the gas worker moved to file and serve a third-party complaint against the electrician, alleging that the electrician was the sole cause of the accident.
Which of the following arguments is most likely to achieve the electrician’s goal of dismissal of the third-party complaint?
A The gas worker’s motion for leave to file a third-party complaint is untimely and thus should be denied as a matter of law.
B The court does not have subject matter jurisdiction over the third-party complaint because the electrician’s claim and the gas worker’s claim do not arise from a common nucleus of operative fact.
C The gas worker’s claim against the electrician is not a proper third-party claim.
D Dismissing the gas worker’s claim will not impede his ability to protect his rights in a separate action.
C
The electrician’s best argument is that the gas worker’s claim against the electrician is not a proper third-party claim. Under Rule 14, a defendant may assert a third-party claim against “a nonparty who is or may be liable to it for all or part of the claim against it.” In other words, a third-party claim must be a derivative claim; the third-party plaintiff must be seeking indemnification or contribution from the third-party defendant. Here, the gas worker’s claim is not that the electrician must indemnify him or that the electrician is a joint tortfeasor who may be jointly liable under principles of contribution. Rather, the gas worker is alleging that he (the gas worker) is not liable and that the electrician is. Because the claim is not derivative, it is not properly asserted as a third-party claim under Rule 14. (A) is incorrect. A defendant may serve a third-party complaint as of right within 14 days of serving his original answer. Thereafter, he must make a motion to serve the complaint, and it is within the trial court’s discretion whether to grant or deny the motion. Here, it is unlikely that a court would deny a defendant’s motion to serve a third-party complaint at such an early stage of the proceeding. (B) is incorrect because both claims arose from a single occurrence: the fire that burned down the homeowner’s house. Thus, there would be supplemental jurisdiction for the gas worker’s claim because it arises from the same set of facts as the homeowner’s claim against the gas worker, which is based on diversity of citizenship. (D) is incorrect because the gas worker’s ability to bring a separate action against the electrician is not a compelling reason for dismissing a properly asserted third-party claim.
A locksmith knew that his friend had been having marital troubles. The friend had told the locksmith that he suspected his wife was having an affair with his rival. One afternoon, the friend, visibly upset, asked to borrow some of the locksmith’s tools, telling him that he knew that his rival was going to meet up with his wife later that day. The locksmith gave his friend the tools, advising him not to do anything that he would regret later. The friend stated that it would be others who would have regrets. The friend went to his rival’s apartment and picked the door lock with the locksmith’s tools. He found his wife and rival in bed together. The friend stabbed his rival, seriously wounding him. A few minutes later the locksmith called the apartment to try to warn the rival that his friend might come over. After the friend was arrested, he agreed to plead guilty to aggravated battery and attempted voluntary manslaughter in exchange for testifying against the locksmith, who was charged as an accomplice to attempted murder.
Can the locksmith be convicted of that charge?
A Yes, because he recklessly disregarded a substantial risk to human life and was not provoked.
B Yes, because his failed attempt to neutralize his assistance did not prevent the crime from occurring and therefore did not constitute an adequate withdrawal.
C No, because he did not have the requisite intent to be liable as an accomplice.
D No, because an accomplice cannot be found guilty of a more serious offense than that for which the principal has been convicted.
C
The locksmith cannot be convicted as an accomplice because he did not have the requisite intent for attempted murder. To be convicted as an accomplice under the prevailing rule, a person must have given aid, counsel, or encouragement with the intent to aid or encourage the principal and the intent that the principal commit the substantive offense. Mere knowledge that a crime would result from the aid provided is generally insufficient for accomplice liability. Here, the locksmith did not provide the tools to the friend with the intent that he kill the rival. His knowledge that the friend might be intending harm to the rival is not sufficient to establish the intent to kill required for attempted murder. (A) is incorrect because even if the locksmith’s conduct constituted reckless disregard of high risk to human life, that state of mind is not sufficient for attempted murder. Unlike murder, attempted murder is a specific intent crime and requires the intent to kill. (B) is incorrect. Although the locksmith’s attempt to neutralize his assistance would not have been enough to raise the defense of withdrawal if he had incurred liability as an accomplice, here he did not have the requisite intent for accomplice liability. (D) is an incorrect statement of law; the degree of liability of a principal is irrelevant to the potential liability of an accomplice. If the locksmith had had the intent to aid his friend in killing the rival, the fact that the friend could show adequate provocation to reduce his offense to attempted voluntary manslaughter would have no effect on the locksmith’s liability for attempted murder.
A victim was struck by a car in a hit-and-run accident. A police officer arrived half an hour after the accident. The victim was in shock and came in and out of consciousness. As the officer applied first aid, the victim muttered, “I know I’m going to die. Oh my, he ran the light!” The victim fell back into unconsciousness, but revived again and muttered, “Why didn’t he stop?” The officer heard the comments clearly and made a note of them. Good police work by the officer and others led to the discovery of the driver of the car that struck the victim. The victim survived and filed a tort action against the driver. Before the case came to trial, the victim died of a heart attack. The causes of the heart attack were totally unrelated to the accident. The laws of the jurisdiction allow for survival of personal injury actions. Thus, the victim’s estate is substituted for the victim as plaintiff.
If the plaintiff’s attorney seeks to have the officer testify to the victim’s statements at the time of the accident, how will the court rule?
A Inadmissible, because the victim did not die as a result of the accident.
B Inadmissible, because this is a civil case and not a criminal matter.
C Admissible, because the victim’s statements were present sense impressions.
D Admissible, because the statements were made at a time when the victim feared impending death.
D
The officer’s testimony as to the victim’s statements is admissible because the statements were made when the victim feared impending death and so they qualify under the dying declaration exception to the hearsay rule. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. [Fed. R. Evid. 801(c)] Upon appropriate objection, a hearsay statement to which no exception is applicable must be excluded. Under the dying declaration exception to the hearsay rule, a statement made by a now-unavailable declarant while believing her death was imminent that concerns the cause or circumstances of what she believed to be her impending death is admissible. [Fed. R. Evid. 804(b)(2)] The declarant need not actually die as a result of the circumstances giving rise to her belief of imminent death. Here, testimony as to the victim’s statements would be hearsay, because they are out-of-court declarations offered for the truth of the matter asserted; i.e., that the driver of the car that hit her ran a red light. However, these statements related to the circumstances of what the victim believed to be her impending death and the victim (who is now unavailable due to her death) made these statements under a fear of imminent death, as indicated by her condition and her statement “I know I’m going to die.” Consequently, all of the elements of the dying declaration exception are present, and the officer’s testimony as to the statements is admissible. (A) is incorrect because the declarant need not actually die as a result of the incident that gives rise to the statements. Indeed, the declarant need not die at all. All that is required is that the declarant be unavailable at the time the statements are offered. (B) is incorrect because it reflects the traditional view, which limited the admissibility of dying declarations to homicide cases, rather than the position of the Federal Rules, which allow such declarations in both civil cases and homicide prosecutions. (C) is incorrect because the statements do not qualify under the present sense impression exception to the hearsay rule. A present sense impression is a statement that describes or explains an event or condition, and is made while or immediately after the declarant perceives the event or condition. Here, the victim’s statements were made at least one half-hour after the accident. This time lapse between the accident and the statements means that such statements were not made either at the time the victim received a sense impression or immediately thereafter; thus, the present sense impression exception is inapplicable to these facts.
Based on recommendations of a state commission studying the effect of pornographic films on violent criminal activity, a state adopted legislation banning films intended for commercial distribution that appealed as a whole to the prurient interest in sex of the average person in the community, portrayed sex in a patently offensive way to citizens of the state, and which a reasonable person in the United States would find had no serious literary, artistic, political, or scientific value.
In ruling on a constitutional challenge to the legislation from a film distributor in the state who was convicted of distributing films in violation of the legislation, will the federal court likely find the legislation to be constitutional?
A Yes, because it uses a national “reasonable person” standard for determining the social value of the work.
B Yes, because it uses a statewide standard rather than a community standard for determining whether the material is patently offensive.
C No, because it uses a statewide standard rather than a national standard for determining whether the material is patently offensive.
D No, unless the court finds that the legislation is necessary to advance the state’s compelling interest in reducing violent criminal activity.
A
The court will likely find the legislation to be a constitutional regulation of obscenity. Obscenity, which is not protected speech under the First Amendment, is defined by the Supreme Court as a description or depiction of sexual conduct that, taken as a whole, by the average person, applying contemporary community standards, appeals to the prurient interest in sex, portrays sex in a patently offensive way, and—using a national reasonable person standard—does not have serious literary, artistic, political, or scientific value. Thus, the legislation here is constitutional because it uses a reasonable person standard, rather than a community standard, for determining the value of the work. (B) is incorrect because while a statewide standard for determining whether the material is patently offensive is permissible, it is not mandatory. A state may use a “community standard” for making this determination. (C) is incorrect because, again, a statewide standard for determining whether the material is patently offensive is permissible. Only the “social value” element of the obscenity test requires a national standard. (D) is incorrect because the legislation is valid regardless of whether it is necessary to achieve the state’s compelling interest in reducing violent crime. Speech that falls within the definition of obscenity is unprotected speech; the government does not need a specific compelling interest to ban it.
A mother’s will left her farm to her son and daughter “jointly, as tenants in common.” The son and the daughter, having had no interest in farming, had long since moved to a large city about 150 miles from the farm. However, after the mother’s death the son decided to move back to the farm. The son rented various parts of the farm to sharecroppers and regularly sent half of any profits from the farm to the daughter. A few years later the daughter died, leaving a will devising all of her property to a friend. The son, however, refuses to pay any of the profits of the farm to the friend and claims an exclusive interest in the farm.
If the friend sues the son, how will a court most likely rule?
A For the son, because he actively managed the use of the farm and the daughter never showed any interest in it.
B For the son, because he survived the daughter, the other joint tenant.
C For the son, because the unities of time, title, and interest have been destroyed by the daughter’s death.
D For the friend, because he inherited the daughter’s interest.
D
The friend will prevail because he inherited the daughter’s interest. Although the language in the mother’s will uses the word “jointly,” the grant also states “as tenants in common.” Because no right of survivorship is mentioned, the court will most likely find that this language establishes a tenancy in common, rather than a joint tenancy. The daughter can pass her interest in the farm by will, and thus the friend now holds the farm as a tenant in common with the son. (A) is wrong because the son’s management of the use of the farm does not entitle him to an exclusive interest in it. (B) is wrong because the interest created by the mother’s will was a tenancy in common, not a joint tenancy. (C) is wrong because the unities only apply to a joint tenancy.
To reduce deer overpopulation in state forests, state Blue adopted a statute allowing anyone with a valid deer hunting license from any state to hunt deer within state Blue. The act also imposed a $0.25 per pound tax on each deer killed within the state. Funds from the tax were earmarked to support state forest land. State Red is adjacent to state Blue and also has an overabundance of deer. To encourage hunting, state Red does not impose a tax on deer taken from its forests.
A hunter who is a resident of state Red and who is licensed to hunt there earns his living by supplying wild game to several high-end restaurants in state Red. While legally hunting deer within state Red, the hunter inadvertently crossed the state line and killed a deer in state Blue. Upon hearing the hunter’s shot, a state Blue game warden arrived at the scene, approximated the weight of the kill, and handed the hunter a tax bill based on the approximation. The bill provided a method for challenging the approximated weight of the deer, but the hunter refused to pay any tax on his kill. He instead filed suit in federal court to enjoin collection of the state Blue tax on constitutional grounds.
Which of the following results is most likely?
A The hunter will prevail because the tax is invalid under the Commerce Clause.
B The hunter will prevail because the tax is invalid under the Interstate Privileges and Immunities Clause of Article IV, Section 2.
C State Blue will prevail because the tax is valid under the Commerce Clause.
D State Blue will prevail because the tax is valid under the Import-Export Clause.
C
State Blue will prevail because the tax is valid under the Commerce Clause. A tax is valid under the Commerce Clause if: (i) the tax does not discriminate against interstate commerce; (ii) there is a substantial nexus between the activity taxed and the taxing state; (iii) the tax is fairly apportioned; and (iv) the tax fairly relates to services or benefits provided by the state. The state of Blue tax is applicable equally to residents of Blue and nonresidents. Thus, there is no discrimination against interstate commerce. Because the taxed deer are taken from within the state, there is a substantial nexus between the activity taxed and the taxing state. There is fair apportionment if a tax is based on the extent of the taxable activity or property in the state. Here, the killing of a deer within state Blue obviously occurs entirely within the state. Thus, the state tax is fairly apportioned. Also, there is a fair relationship between the tax and any benefits provided by the taxing state, because the state is permitting those engaged in hunting to take deer from its forest lands, in return for a rather modest amount of $0.25 per pound. That revenue, in turn, is used to support state Blue forest land, which provides hunters with a place to hunt. Thus, the state tax meets all of the requirements for validity under the Commerce Clause. (A) incorrectly states that the tax is invalid under the Commerce Clause. (B) is incorrect because the Interstate Privileges and Immunities Clause prohibits discrimination by a state against nonresidents when such discrimination involves fundamental rights, such as those involving important commercial activities. Here, while the tax may affect the hunter’s commercial activity (because he earns a living from hunting and selling meat), the tax treats residents and nonresidents equally. Thus, there is no constitutional violation under the Privileges and Immunities Clause. (D) is incorrect because the Import-Export Clause applies to the authority of a state to tax foreign commerce. This question here does not deal with imported or exported goods. Thus, the Import-Export Clause is inapplicable to these facts.
An uncle’s will devised his lakefront estate “to my butler for life, remainder to my niece.” The 40-acre estate includes a mansion, a 20-acre orchard, a beach, and gardens. At the time of the uncle’s death, the butler was 40 years old and of modest means. The niece was 18 years old and quite wealthy. The estate was encumbered by a mortgage that was not entitled to exoneration. After the first year, the butler could no longer make the mortgage payments, so the niece paid them.
Ten years after the uncle’s death, the town in which the estate was located became a hot resort area. A major resort chain approached the butler with a multimillion-dollar offer for the easternmost 20 acres of the estate, which included the residence and beach. The resort chain planned to raze the mansion to erect a high-rise hotel. The butler approached the niece about the offer. He proposed to give her most of the money from the sale and offered to build any house she desired on the remaining land. The niece refused to go along with the plan. The butler decided to proceed with the sale, and the niece brought a suit to enjoin the butler’s proposed actions.
Which of the following is the niece’s best argument?
A The eventual use of the property by the remainderman will be as a residence.
B Destruction of the mansion constitutes waste.
C Because the niece paid the mortgage payments, the butler is subrogated to her rights.
D The butler has no right to transfer his life estate.
B
The niece’s best argument is that destruction of the residence constitutes waste. The other choices do not present arguments giving her a chance of success. A life tenant is entitled to all ordinary uses and profits of the land, but he cannot lawfully do any act that would injure the interests of the remainderman. A grantor intends that the life tenant have the general use of the land in a reasonable manner, but that the land pass to the owner of the remainder, as nearly as practicable, unimpaired in its nature, character, and improvements. Even ameliorative waste, which actually increases the value of the land, is actionable if there is no reasonable justification for the change. A life tenant can substantially alter or even demolish existing buildings if (i) the market value of the future interests is not diminished and either (ii) the remainderman does not object, or (iii) a substantial and permanent change in the neighborhood conditions has deprived the property in its current form of reasonable productivity or usefulness. Here, the market value of the property would not be diminished. The remainderman (the niece), however, is objecting, making option (ii) unavailable. Furthermore, although the neighboring properties have been sold for hotels and resorts, it does not necessarily follow that the conditions have changed to such a degree that the estate should be similarly converted. The property is large enough to be somewhat isolated from the changes in the surrounding areas; thus, despite the surrounding hotels, an owner could still enjoy the land as a private residence, orchard, and beach. Therefore, the property is still useful and option (iii) is also unavailable. In this case, the life tenant’s desire to raze the mansion is not because the changes in the neighborhood have made the mansion uneconomical or impractical. The life tenant can make more money by tearing the mansion down, but its usefulness and value are apparently unaffected by the changes in the neighborhood. Thus, the niece will be able to enjoin the butler from allowing the resort chain to raze the mansion and build a hotel. (A) is wrong because the fact that the niece intended to use the property as a residence is irrelevant. Even if the niece intended to change the use of the property, she is still entitled to receive the land in the condition in which it passed to the butler. (C) is wrong because the fact that the niece made mortgage payments does not affect the butler’s rights. The niece had to make the payments to protect her remainder interest. She will be entitled to reimbursement of those payments, but the butler is not subrogated to her rights. (D) is wrong because life estates generally are alienable. The transferee merely takes the same interest as the life tenant. In this case, the butler may convey his interest in the property. Of course, anyone taking the butler’s interest would have only an estate for the butler’s life, i.e., a life estate pur autre vie.
A wholesaler sued a retailer in a federal court in State A. The retailer timely filed and served a motion to dismiss for lack of subject matter jurisdiction. The court denied this motion.
Thereafter, the retailer filed and served his answer. Ten days after serving his answer, the retailer filed an amended answer, raising, for the first time, the defense of lack of personal jurisdiction, which was available when the motion mentioned above was filed.
Should the court consider the personal jurisdiction objection?
A No, because that defense has been waived.
B No, because objections to personal jurisdiction may only be made by making a motion to dismiss before filing an answer.
C Yes, because the retailer may serve an amended answer as of right within 21 days after serving his original answer.
D Yes, because the amendment relates back to the original answer, thus preserving his right to raise the objection.
A
(A) The court should not consider the retailer’s objection because the retailer has waived the defense of lack of personal jurisdiction. A defendant may object to personal jurisdiction in two ways: (i) by raising it in a pre-answer motion to dismiss under Rule 12(b); or (ii) if he has not moved under Rule 12(b), by raising the defense in his answer. Thus, the retailer has waived the defense of lack of personal jurisdiction by making a pre-answer motion to dismiss for lack of subject matter jurisdiction under Rule 12(b) and failing to raise in that motion the defense of lack of personal jurisdiction. (B) is incorrect because a defendant may preserve the defense of lack of personal jurisdiction in his answer, provided he has not made a Rule 12(b) motion. (C) is also incorrect. If a defendant does not make a Rule 12(b) motion, he may preserve the defense by raising it in his answer or in any amendment as of right. However, the retailer has made a Rule 12(b) motion to dismiss; therefore, he has not preserved by putting it in his amended answer. (D) is incorrect because, as previously discussed, the retailer waived the defense by making a Rule 12(b) motion. Moreover, the concept of “relation back” is irrelevant here. It is used to determine when a claim asserted in an amended pleading relates back to the date of the original pleading for statute of limitations purposes.
In a trial for bank robbery, a teller has identified the defendant as the robber. Defense counsel offers into evidence a still frame from a video taken by the bank security camera the day after the robbery to show that a column obstructed that teller’s view of the defendant.
Is such evidence admissible?
A Yes, upon testimony by the camera operator that the still frame was developed from film that was taken from that camera the day after the robbery.
B Yes, upon testimony by a bank employee that the photo accurately portrays the scene of the crime.
C No, not admissible into evidence but usable by a witness for explanatory purposes.
D No, if a still frame can be obtained from a video taken at the time of the robbery.
B
The photo should be admitted into evidence upon testimony that it is an accurate representation of the location depicted. To be admissible, real or demonstrative evidence must not only be relevant but must also be authenticated, i.e., identified as being what the proponent claims it to be. For a photograph that is used as demonstrative evidence, authentication is by testimony that the photo is a faithful reproduction of the object or scene depicted. Here, testimony by a bank employee that the still frame from the video accurately portrays the setting where the robbery took place is sufficient for admissibility. (A) is incorrect because the frame from the video is not being offered as original evidence that played an actual role in the robbery itself, such as a gun used by the robber, which would require the “chain of custody” type of authentication in (A). Here, the still frame is only being used for demonstrative purposes; hence, authentication focuses on whether it is an accurate representation rather than how it was handled. (C) is incorrect. Charts and diagrams that are used solely to help explain a witness’s testimony may be permitted at trial but not admitted into evidence where they are not offered as representations of a real object or scene but only as aids to testimony. Here, however, the photo is being offered as a faithful representation of the scene of the crime and should therefore be admissible into evidence. (D) is incorrect because it is a misapplication of the best evidence rule. The best evidence or original document rule, which is made applicable to photographs by the Federal Rules, generally requires that in proving the terms of a writing the original writing must be produced where the terms are material. The terms are material and the rule applies only when (i) the document is a legally operative or dispositive instrument, or (ii) the witness’s knowledge results from having seen the fact in the document. Neither situation arises in this case. The location of the columns in the bank and the circumstances of the robbery are facts that exist independently of the document (the videotape on the day of the robbery), and thus may be proved by other evidence.
A plaintiff is suing a defendant in federal court for personal injuries arising out of an automobile accident. The defendant’s automobile insurance policy covers the accident.
Must the defendant disclose the existence of the insurance policy?
A Yes, because it is required under the Federal Rules.
B Yes, unless the discovery of the insurance coverage would not lead to other discoverable evidence.
C No, unless the plaintiff submits an interrogatory.
D No, because insurance coverage cannot be mentioned at trial.
A
The defendant must disclose the existence of the insurance policy under the Federal Rules, which expressly permit discovery of insurance agreements as an initial disclosure. (B) is incorrect. There is no need to show that the discovery of insurance coverage would lead to other admissible evidence. (C) is incorrect. Initial disclosures must be made regardless of whether the opposing party submits a request for the information. (D) is incorrect. Even though insurance coverage is not relevant to the case, insurance coverage is nonetheless discoverable.
A father was angry at his son’s coach because the coach would never let the son into a game. In order to exact revenge, the father decided to plant an incendiary device on the coach’s front porch. The father believed the device would start a fire that would destroy the coach’s home and perhaps injure him as well. However, the father made a mistake while assembling the incendiary device, and it was impossible for the device to do any harm. When the device went off, it did nothing more than produce a foul odor.
If the father is charged with attempted murder and attempted arson in a common law jurisdiction, which of the following decisions is most likely to be reached by the court?
A The father is guilty of attempted murder and attempted arson.
B The father is guilty of attempted murder, but he is not guilty of attempted arson.
C The father is not guilty of attempted murder, but he is guilty of attempted arson.
D The father is not guilty of attempted murder or attempted arson.
C
The father lacked the specific intent to kill that is required for attempted murder. However, the circumstances surrounding the “incendiary device” constitute factual impossibility and will not afford the father a defense to attempted arson. Criminal attempt is an act that, although done with the intention of committing a crime, falls short of completing that crime. To be guilty of attempt, the defendant must have the intent to perform an act and obtain a result that, if achieved, would constitute a crime. Regardless of the intent that would suffice for the completed offense, attempt always requires a specific intent to commit the target offense. Also, the defendant must have committed an act beyond mere preparation for the offense. Here, to be guilty of attempted murder, the father must have had the specific intent to kill his son’s coach, even though the intent to inflict great bodily injury would be sufficient mens rea for murder. However, the facts indicate that the father intended at most only to injure the coach rather than kill him. Thus, the father cannot be guilty of attempted murder. However, the father did intend to burn the coach’s home; therefore, he had the specific intent to commit arson by means of placing an incendiary device on the coach’s porch, and his placing the device was an act beyond mere preparation for this crime. Although the device could not have actually burned the coach’s house, it is no defense to attempt that it would have been impossible for the defendant to complete his plan. This is factual impossibility and is not a defense. Thus, the father is guilty of attempted arson. (A) and (B) are incorrect because the father did not have the specific intent to kill. (D) is incorrect because the father is guilty of attempted arson, as explained above.
In a criminal trial, the prosecutor called a witness to the stand to authenticate the voice in a tape recording as the defendant’s. The only other time the witness had heard the defendant’s voice was after his arrest.
Assuming a proper foundation has been laid, may the witness properly authenticate the defendant’s voice?
A Yes, because the witness is now familiar with the defendant’s voice.
B Yes, because the prosecutor can qualify the witness as an expert on the defendant’s voice.
C No, because the witness’s testimony would be inadmissible hearsay.
D No, because the witness did not hear the defendant’s voice until after he was arrested.
A
The witness may properly authenticate the defendant’s voice because she is now familiar with his voice. Any person familiar with an alleged speaker’s voice may authenticate a recording of the voice by giving an opinion as to its identity. Thus, because the witness is now familiar with the defendant’s voice, she may give her opinion as to whether it is his voice on the tape. (B) is incorrect because the witness does not need to be qualified as an expert—lay opinion testimony is sufficient to identify a voice (assuming the lay witness is familiar with that voice). Expert testimony is appropriate only when the subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact in understanding the evidence or determining a fact in issue. [Fed. R. Evid. 702] Here, identification of the defendant’s voice does not require such specialized knowledge; rather, all that is required is familiarity with his voice. (C) is incorrect because the witness’s testimony would not be hearsay at all. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. [Fed. R. Evid. 801(c)] The witness is not going to be testifying to an out-of-court statement. Rather, she will testify that, being familiar with the voice of the defendant by virtue of having heard that voice before, she can now identify the voice on the tape as being that of the defendant. Because the witness will not be testifying as to any particular statement made by the defendant, there is no hearsay problem. (D) is incorrect because, as long as the witness is familiar with the voice of the defendant, it makes no difference that she acquired such familiarity only after he was arrested. Thus, the witness may properly authenticate the voice.
To finance the purchase of a vineyard, a vintner borrowed $500,000 from a bank, secured by a mortgage on the vineyard. Due to a clerical error, the bank’s mortgage was not immediately recorded. Six months later, the vintner borrowed $10,000 from a creditor, also secured by a mortgage on the vineyard. The creditor immediately recorded its mortgage. The following week, the bank discovered its error and recorded its mortgage. Subsequently, the vintner defaulted on her payments to the bank. The bank instituted foreclosure proceedings but did not join the creditor in the action. A buyer purchased the property at the foreclosure sale.
A statute of the jurisdiction provides, “No conveyance or mortgage of real property shall be good against subsequent purchasers for value without notice unless the conveyance is recorded.”
If a court finds that the buyer took title subject to the creditor’s mortgage, what is the most likely reason?
A The creditor’s mortgage was senior to the bank’s purchase money mortgage.
B The bank did not join the creditor in the foreclosure action.
C The vintner has not defaulted on the creditor’s mortgage.
D The buyer assumed the creditor’s mortgage.
A
If a court finds that the buyer took title subject to the creditor’s mortgage, it will be because the creditor’s mortgage was senior to the bank’s purchase money mortgage (“PMM”). A PMM is a mortgage typically given to a third-party lender, who is lending the funds to allow the buyer to purchase the property. A PMM, whether recorded or not, has priority over mortgages, liens, and other claims against the mortgagor that arise prior to the mortgagor’s acquisition of title. However, PMM priority is subject to being defeated by subsequent mortgages or liens by operation of the recording acts. Here, the creditor’s mortgage has priority over the bank’s PMM under the jurisdiction’s notice statute because the creditor had no notice of the bank’s interest at the time of the loan. Because foreclosure does not affect any interest senior to the mortgage being foreclosed, the buyer takes title subject to the creditor’s mortgage. (B) is incorrect because, although failure to join a necessary party results in the preservation of that party’s interest despite foreclosure and sale, the creditor’s mortgage was senior to the bank’s mortgage, and thus it was not a necessary party. (C) is incorrect because the creditor’s mortgage is not preserved merely because the vintner has not defaulted on it. Rather, the creditor has a valid mortgage on the vineyard because the buyer took title subject to it. The vintner remains primarily and personally liable on the creditor’s mortgage, but if the vintner defaults and the buyer does not pay, the creditor may foreclose on its mortgage. (D) is incorrect because it misstates the facts. The buyer did not sign an assumption agreement, which would render him primarily liable to the creditor while the vintner became secondarily liable as a surety. Rather, the buyer took title subject to the creditor’s mortgage because it was not destroyed by the foreclosure sale.
A plaintiff sued a defendant for defamation, asserting in her complaint that the defendant had called the plaintiff a thief in front of a number of business associates. The plaintiff calls two witnesses to the stand, both of whom testify that they heard the defendant refer to the plaintiff as a thief in front of the business associates. The plaintiff does not take the stand herself. The defendant pleads truth of the statement as an affirmative defense and calls a witness to the stand. The defense witness is prepared to testify that he was a co-worker of the plaintiff when the plaintiff supplemented her income by tending bar three nights a week. The witness will testify that he saw the plaintiff take a $20 bill from the tavern’s cash register and secrete the money in her pocket. The plaintiff’s attorney objects.
May the defense witness’s testimony be allowed?
A Yes, as substantive evidence that the plaintiff is, in fact, a thief.
B Yes, because theft is a crime indicating dishonesty.
C No, because specific bad acts may not be used to show bad character.
D No, because the plaintiff never took the stand.
A
The defense witness’s testimony is admissible character evidence because the plaintiff’s character is directly in issue in the case. As a general rule, evidence of character to prove the conduct of a person in the litigated event is not admissible in a civil case. However, when proof of a person’s character, as a matter of substantive law, is an essential element of a claim or defense in a civil action, character evidence is admissible because it is the best method of proving the issue. Under the Federal Rules, any of the types of evidence-reputation, opinion, or specific acts-may be used. Here, character is an issue in the plaintiff’s defamation action because the defendant has pleaded as an affirmative defense that his statement claiming that the plaintiff is a thief is the truth. The defense witness’s testimony that he saw the plaintiff take the money from the cash register is relevant because it tends to show that the defendant spoke the truth. Hence, it should be allowed. (B) is incorrect because the fact that the theft here could be considered a crime of dishonesty would be relevant only if the plaintiff’s credibility were being impeached, and only then if proof of an actual conviction were provided. Here, the testimony is admissible because it is being offered as substantive evidence of an aspect of the plaintiff’s character that is an essential element of a defense in the case. (C) is incorrect. One of the few cases where testimony as to specific acts of a person may be used to show that person’s character is when character itself is one of the essential issues in the case, as it is here. (D) is incorrect because the fact that the plaintiff never took the stand only means that she has not placed her credibility in issue and become subject to impeachment. Here, however, the plaintiff’s character is in issue and the testimony is being offered as substantive evidence of her character rather than to impeach her credibility.
A plaintiff sued a defendant for trespass. The defendant claimed the property in question belongs to her, not to the plaintiff. After a lengthy search through old family records stored in the defendant’s attic, her attorney found an old deed that appears to provide a missing link in the plaintiff’s title. The attorney immediately placed the deed in his office safe as part of his working file on the defendant’s case. The plaintiff learned of the existence of the deed through other sources and seeks to inspect it and copy it.
Under modern discovery rules, may the plaintiff do so?
A Yes, because the deed was not prepared in anticipation of litigation.
B Yes, because the discovery rules trump the attorney work product doctrine.
C No, because the efforts of the defendant’s attorney constitute attorney work product.
D No, because the deed was obviously never officially recorded and is therefore irrelevant to the case.
A
The plaintiff may inspect and copy the deed because it was not work product. There is a qualified privilege for an attorney’s work product. Work product is defined as material prepared in anticipation of litigation. Since the deed was not prepared in anticipation of litigation, it is unlikely to be considered work product. (B) is incorrect because the work product doctrine may be asserted in some cases. (C) is incorrect because, as stated above, the deed is not “work product,” and it does not become work product merely because it took considerable effort to find. (D) is incorrect. The deed is the subject matter of the dispute, and the discovery of the deed, at the very least, may lead to other discoverable evidence.
A foreign student who had entered the United States on a student visa four years ago was notified by federal immigration authorities that he was subject to being deported because his visa had expired. Federal law provided that an alien who is subject to being deported has the right to appear before an administrative officer appointed by the Attorney General’s office for a hearing on whether he should be deported. This officer, appointed by the executive branch of the government, has the right under law to make a final order concerning whether the alien should be deported. After a hearing, the administrative officer entered an order allowing the student to remain in the United States as a permanent resident.
However, a congressional rule permitted the House of Representatives, by resolution, to deport “undesirable aliens.” After the administrative judge entered his order, the House passed a resolution that the student should be deported. The student petitioned the federal court to declare the legislative resolution invalid.
Should the court find the resolution to be valid?
A Yes, because Congress has plenary powers with regard to aliens and naturalization.
B Yes, because aliens are not “citizens” within the meaning of the Fourteenth Amendment.
C No, because the federal law removed congressional power with regard to aliens in this circumstance, and the resolution of the House violates the separation of powers doctrine.
D No, because the student was denied due process when he was not given a hearing before the House of Representatives.
C
The court should find the resolution invalid. While Congress has broad power to delegate, the separation of powers doctrine forbids Congress from trying to control the exercise of the power delegated in various ways, such as by overturning an executive agency action without bicameralism (i.e., passage by both houses of Congress). By enacting the federal law allowing the administrative law judge to enter a final order with regard to aliens, Congress has given up any control it may have had previously in these situations. The resolution by the House here is an unconstitutional legislative veto that violates the separation of powers doctrine. (A) is incorrect because, while Congress does have plenary power over aliens with regard to immigration and naturalization, here it has given up control over this area by enacting a law allowing an administrative officer appointed by the executive branch to make a final order concerning whether an alien should be deported. (B) is incorrect because the fact that aliens are not citizens has no bearing on whether the House resolution violated the Constitution. (D) is incorrect because, while resident aliens are entitled to notice and hearing before they can be deported, the student did receive a hearing before the administrative officer. There is no requirement that persons affected by legislative action have the right to be heard by the legislative body taking the action. Thus, the better argument as to why the resolution was invalid is based on separation of powers.
For many years, a landowner owned a parcel of land bordered on the west by a public road, and his neighbor owned a parcel of land located immediately to the east of that parcel. The neighbor had an easement to cross the west parcel to enter the public road bordering it. Because the neighbor’s east parcel is surrounded by swampland on the north, south, and east, the only route of ingress to and egress from that parcel over dry land passed through the west parcel. Subsequently, the neighbor sold the east parcel to the landowner, who proceeded to use both lots as a common tract. Last year, the landowner sold the east parcel to his friend.
Does the friend have an easement over the landowner’s west parcel?
A Yes, she has an easement in gross.
B Yes, because her only access to her parcel from the public road is across the west parcel.
C No, because the easement was extinguished when the landowner purchased the east parcel.
D No, because she has not used the property long enough to gain an easement by prescription.
B
The friend has an easement by necessity over the landowner’s west parcel, because only by crossing over that parcel can she gain access to her parcel. When the owner of a tract of land sells a part of the tract and by this division deprives one lot of access to a public road, a right-of-way by absolute necessity is created by implied grant over the lot with access to the public road. The facts state that the east parcel is surrounded by swampland on the north, south, and east. Thus, when the landowner sold that parcel to the friend, there was an implied grant of an access easement across the landowner’s parcel because it was clearly her only access to a public road. (A) is wrong because an easement in gross does not have a dominant tenement. The holder of an easement in gross has a right to use the servient tenement independent of her ownership or possession of another tract of land. Here, the easement over the west parcel arises solely as a consequence of the friend’s ownership of the adjacent east parcel. Thus, the easement is appurtenant, not in gross. (C) is wrong because even though the neighbor’s easement was extinguished, the friend has acquired a new easement by necessity. When the ownership of the easement and the servient tenement is in one person, the easement is extinguished. Thus, when the landowner bought the east parcel, the neighbor’s easement was extinguished. After the easement was extinguished, however, a new easement was created by operation of law when the land was again subdivided into two lots and as a result of this subdivision one of the lot owners was deprived of access to a public road. (D) is wrong because the friend has an easement by necessity, which can arise any time the appropriate circumstances exist. The friend need not wait out the prescriptive period to gain the legal right to pass over the landowner’s parcel.
A mapping service on the Internet that provided maps and satellite images of urban areas developed a “tourist view” option that offered street level views on its website of many downtown locations in major cities. In one of the street view images posted by the mapping service, a pedestrian could be seen on the steps outside the doors of a business while smoking a cigarette. He was recognized on the website by his supervisor, who was surprised to see him smoking because he had obtained an employee health insurance discount by affirming that he was a nonsmoker.
If the pedestrian sues the mapping service for invasion of privacy, how should the court rule?
A For the mapping service, because the disclosure was of someone in a public place.
B For the mapping service, unless the pedestrian’s employer canceled his health insurance discount.
C For the pedestrian, because there was widespread public disclosure by the mapping service of a private fact.
D For the pedestrian, because he was on the premises of a business rather than a public sidewalk when the image was taken.
A
The mapping service should prevail because the pedestrian was in a public place when the photo was taken. To establish a prima facie case for invasion of privacy involving public disclosure of private facts about the plaintiff, the plaintiff must show that the publication was of private information about the plaintiff and that its public disclosure would be highly offensive to a reasonable person. There is no liability for publication of matters occurring in a public place. Here, the pedestrian was in public when he was photographed smoking. Even though he might not have wished that to be publicized, he was in a public place at the time, so he cannot claim invasion of privacy. (B) is incorrect because the fact that the pedestrian suffered economic damages due to the cancellation of his health insurance discount is irrelevant. He cannot prevail because he cannot establish the prima facie case; if he were able to establish the prima facie case, he could prevail even without proof of economic damages. (C) is incorrect because the fact that the disclosure was widespread does not matter if it is not a private fact; a photograph of someone in a public place is not actionable no matter how widely it is disseminated. (D) is incorrect because a “public place” is not limited to property owned by public authorities; it includes all areas open to the public, including the entrance to a business’s premises.
A husband and a wife were arrested by federal agents and charged with distributing obscene materials through the United States mails. When called before a grand jury, the wife refused to say anything, invoking her Fifth Amendment right to be protected from compelled self-incrimination. The husband was terrified of the grand jury and readily admitted under questioning that he sent obscene matter through the mail. He also incriminated his wife in the illegal activity. The thought of a trial and a prison term drove the husband over the edge, and he committed suicide two days before his trial was to begin. A month later, the wife was put on trial in federal district court. The federal prosecutor seeks to introduce a transcript of the husband’s grand jury testimony into evidence against the wife. The defense attorney objects.
How should the court rule on the admissibility of the grand jury transcript?
A Admissible, as a vicarious statement of an opposing party.
B Admissible, as former testimony.
C Inadmissible, because the wife can invoke the testimonial privilege, even though her husband is now deceased.
D Inadmissible, because the husband’s testimony was not subject to cross-examination.
D
The grand jury transcript is not admissible because the husband’s testimony was not subject to cross-examination. The husband’s testimony was hearsay because it was an out-of-court statement offered to prove the truth of the matter asserted. [Fed. R. Evid. 801(c)] If a statement is hearsay, and no exception to the rule is applicable, the evidence is inadmissible. [Fed. R. Evid. 802] Under the former testimony exception to the hearsay rule, the testimony of a now unavailable witness given at another hearing is admissible in a subsequent trial as long as there is a sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examine at the prior hearing was meaningful. [Fed. R. Evid. 804(b)(1)] The party against whom the former testimony is offered must have had the opportunity to develop the testimony at the prior proceeding by direct, cross-, or redirect examination of the declarant. Thus, the grand jury testimony of an unavailable declarant is not admissible as former testimony against the accused at trial. This is because grand jury proceedings do not provide the opportunity for cross-examination. Therefore, because the husband’s testimony was in front of the grand jury and was not subject to cross-examination, it is inadmissible as hearsay. (A) is incorrect because the husband’s testimony cannot be considered a vicarious statement of an opposing party. A statement by an opposing party (i.e., a statement made by or attributable to a party and offered against that party) is not hearsay under the Federal Rules. [Fed. R. Evid. 801(d)(2)] A declarant’s statement may be attributable to a party because of the relationship between them. For example, statements of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime, may be admissible against co-conspirators. Here, however, the husband’s grand jury testimony was not made in furtherance of a conspiracy. Because he was not a party here, and his testimony does not otherwise qualify as a vicarious statement of the wife, it cannot be considered an opposing party’s statement. (B) is incorrect because the husband’s grand jury testimony was not subject to cross-examination. Federal Rule 804(b)(1) allows the former testimony of an unavailable witness to be admitted under circumstances where the opportunity to develop testimony or cross-examine at the prior hearing was meaningful. The husband was an unavailable declarant because he was unable to testify because of death. [Fed. R. Evid. 804(a)(4)] However, as discussed above, his grand jury testimony is not admissible as former testimony because grand jury proceedings do not provide the opportunity for cross-examination. (C) is incorrect because the testimonial privilege does not belong to the wife in federal court and because it may only be asserted while the marriage relationship exists. In federal courts, this privilege belongs to the witness-spouse. This means that one spouse may testify against the other in criminal cases, with or without the consent of the party-spouse. Thus, while the husband could not have been compelled to testify against his wife, he could not be foreclosed by her from testifying (except as to confidential communications).
A seller entered into a written contract to sell a tract of land to a buyer. The buyer was to pay $1,500 per month for five years, at which time the seller would deliver a warranty deed. The contract was silent as to the quality of title to be conveyed. After making 12 payments, the buyer discovered that a neighbor had an easement of way over the land, which was not discussed at the time the seller and buyer entered into the contract. The neighbor had not used the easement over the previous year because she had been out of the country. On the basis of the easement, the buyer wishes to cancel the contract.
Which party is more likely to prevail?
A The seller, because the neighbor’s easement has been extinguished.
B The seller, because the buyer has no basis on which to rescind the contract.
C The buyer, because the obligation to convey marketable title is implied.
D The buyer, because the seller has breached the covenant against encumbrances.
B
The seller is more likely to prevail because the buyer has no basis on which to rescind the contract. Absent a provision to the contrary, a contract for the sale of land contains an implied promise by the seller that she will deliver to the buyer a marketable title at the time of closing. This promise imposes on the seller an obligation to deliver a title that is free from reasonable doubt; i.e., free from questions that might present an unreasonable risk of litigation. Title is marketable if a reasonably prudent buyer would accept it in the exercise of ordinary prudence. An easement that reduces the value of the property (e.g., an easement of way for the benefit of a neighbor) generally renders title unmarketable. If the buyer determines, prior to closing, that the seller’s title is unmarketable, he must notify the seller and allow a reasonable time to cure the defect. If the seller is unable to acquire title before closing, so that title remains unmarketable, the buyer can rescind, sue for damages caused by the breach, or obtain specific performance with an abatement of the purchase price. However, the buyer cannot rescind prior to closing on grounds that the seller’s title is unmarketable. Where an installment land contract is used, the seller’s obligation is to furnish marketable title when delivery is to occur, e.g., when the buyer has made his final payment. Thus, a buyer cannot withhold payments or seek other remedies on grounds that the seller’s title is unmarketable prior to the date of promised delivery. Here, there is a valid easement on the property (see below), but the seller has four years in which to cure this defect. Thus, the buyer cannot yet rescind on grounds that title is unmarketable. (A) is incorrect because the neighbor’s easement has not been extinguished. An easement can be extinguished where the owner of the privilege demonstrates by physical action an intention to permanently abandon the easement. Mere nonuse is not sufficient to terminate an easement, unless the nonuse is combined with other evidence of intent to abandon it. Here, the fact that the neighbor did not use the easement for a year because she was out of the country does not establish her intent to abandon the easement. (C) is incorrect because, although the law implies in every land sale contract a covenant that title will be marketable, the seller has until the time of delivery to cure the defect. (D) is incorrect because the deed has not yet been delivered. The covenant against encumbrances is a covenant contained in a general warranty deed which assures that there are neither visible encumbrances (e.g., easements) nor invisible encumbrances (e.g., mortgages) against the title or interest conveyed. This covenant is breached, if at all, at the time of conveyance. Here, the deed has not yet been delivered, and thus this covenant has not yet been breached.
A plaintiff filed a negligence action against a defendant in federal district court after a two-car accident. The plaintiff’s attorney created a list of everyone he could identify who observed the accident or otherwise had information relevant to the accident. The list includes one eyewitness whom the plaintiff’s attorney was able to identify only through the expenditure of several thousand dollars in investigation costs. The defendant served the following interrogatory on the plaintiff: “Please state the name of each person of whom you are aware who may know or have information relevant to this action.”
Must the plaintiff provide the defendant with the names of all of the people on the plaintiff’s attorney’s list?
A No, because the names on the list are protected from discovery under the work product doctrine.
B No as to the name of the eyewitness found through the plaintiff’s investigation efforts, but yes as to the other names on the list.
C Yes, because, while the names are subject to qualified immunity from discovery under the work product doctrine, the defendant will be able to show sufficient need to obtain a court order requiring the names’ disclosure.
D Yes, because the names are relevant to the claims and defenses of the parties, and they do not constitute work product.
D
The plaintiff must provide the defendant with the names of the people on the plaintiff’s attorney’s list. In general, discovery may be had of any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, including the identity of individuals with knowledge of any discoverable matter. Because the Federal Rules of Civil Procedure state that the identities of people with knowledge of discoverable matters are discoverable, the plaintiff’s attorney’s list is not considered work product. Thus, (A) and (C) are incorrect. (B) is incorrect because the identity of the eyewitness is discoverable regardless of the extent of the plaintiff’s investigation efforts.
