Mixed Questions - Set 19 Flashcards
After a single vehicle accident, the passenger filed a negligence action in federal district court against the driver to recover for a whiplash injury allegedly suffered in the accident. On the advice of his attorney, the passenger consulted and retained five physicians in search of one who would serve as an expert witness on his behalf at trial. Four of the physicians determined that the passenger had suffered no injury. Obviously, the passenger does not intend to use those four physicians as witnesses at trial.
May the driver obtain in discovery the opinions of the four physicians whom the passenger does not intend to have testify at trial?
A Yes, the passenger must disclose in his required disclosures the identity of the four physicians and provide a written report concerning their qualifications and opinions.
B Yes, the driver may obtain information concerning their opinions through interrogatories, but the driver may not depose the four physicians.
C No, the driver will not be permitted to discover the facts known and opinions held by these four physicians unless the driver can demonstrate exceptional circumstances under which it is impracticable to obtain facts or opinions on the same subject by other means.
D No, the parties may not under any circumstances obtain discovery of opinions held by experts retained by another party when the other party does not intend to have the expert testify at trial.
C
The driver may not obtain in discovery the opinions of the four physicians unless he can demonstrate exceptional circumstances. The opinions of experts who are retained in anticipation of litigation but who are not expected to testify at trial may be discovered only upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means or when a medical report for an exam conducted under FRCP 35 is requested. (D) is therefore incorrect. (A) is incorrect because it describes the requirements for expert witnesses who are expected to be used at trial. (B) is incorrect because the opinions of experts who will not testify at trial cannot be discovered by any means unless there is a showing of exceptional circumstances.
A State A consumer was in a traffic accident with a State B driver. The State A consumer’s car burst into flames, causing horrific injuries to the consumer. The State A consumer believes that his injuries were caused by both the State B driver’s negligence and design defects in his own car. The State A consumer thus filed a tort action for damages against both the State B driver and the manufacturer of the car. The manufacturer is also a citizen of State B. The State B driver was also burned in the accident and believes that manufacturing and design defects in the State A consumer’s car also caused his burns.
Can the State B driver assert his tort claim against the State B manufacturer in the pending action asserted by the State A consumer?
A Yes, because the State B driver and State B manufacturer are already parties to the State A consumer’s action.
B Yes, because the State B driver’s claim is a proper cross-claim and is within the court’s supplemental jurisdiction.
C No, because the State B driver’s tort claim against the State B manufacturer is not between citizens of different states.
D No, because the State B driver’s claim is not a proper cross-claim.
B
The State B driver can assert his tort claim against the State B manufacturer. The driver’s claim is a proper cross-claim because it arises from the same transaction or occurrence as the consumer’s original claim. (D) is therefore incorrect. (A) is incorrect because the State B driver cannot assert any claims it has against the manufacturer; the claims must arise from the same transaction or occurrence. (C) is incorrect because the State B driver’s claim falls within the federal court’s supplemental jurisdiction because the claim and the State A consumer’s claim derive from a common nucleus of operative fact.
A landowner’s will left his ranch to a rancher, his heirs, and assigns, so long as the property was used exclusively for ranch purposes, then to the landowner’s grandson. The remainder of the landowner’s property passed through the residuary clause of his will to the grandson. Seven years after the landowner’s death, the rancher began strip mining operations on the ranch. The grandson brought an action to quiet title to the ranch against the rancher, and the rancher counterclaimed on the same theory.
Who should prevail?
A The rancher, because the condition imposed on his interest under the will is void as violating the Rule Against Perpetuities.
B The rancher, because the condition imposed is a restraint against alienation.
C The grandson, pursuant to the residuary clause.
D The grandson, because the condition imposed is valid and he takes according to the subsequent provision.
C
The grandson prevails because the ranch passed through the residuary clause. Under the Rule Against Perpetuities, the attempt to give the grandson an executory interest is void, so (D) is incorrect. However, the courts would simply read the conveyance without the language of the executory gift, leaving a possibility of reverter in the grantor, the landowner. Thus, (A) is incorrect. Because the grandson succeeded to the landowner’s interest as grantor via the residuary clause of the will, he will prevail. (B) is incorrect because there is no restraint on alienation contained in the will.
A landowner owned a large tract of undeveloped land in fee simple. Although no excavation had been done on the land, it was believed to contain gold. The landowner therefore began to mine the land, financing his operation with a $100,000 mortgage to a bank. Subsequently, the landowner sold all of the interest in gold on the land to a miner. Shortly thereafter, the landowner conveyed his ownership in the land to a mining company. Realizing that none of their interests had been recorded, the bank recorded its mortgage first, the miner recorded her deed second, and the mining company recorded its deed third. None of the parties dealing with the landowner had any knowledge of the others at the time of their transactions.
The jurisdiction in which the land is located has the following statute: “No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof, unless it is recorded.”
If the mining company brings an action to quiet title in the land, what is the most likely result?
A Because the rights of the bank, the miner, and the mining company are different in nature, the court would most likely validate all of the interests, with the mining company having the ownership subject to the payment of the mortgage to the bank.
B The mining company would be successful in quieting title to the land.
C The bank’s mortgage would be declared valid because it is first in time to all of the grants by the landowner concerning the land.
D The bank’s mortgage would take priority over the miner and the mining company because the bank had no notice at the time it recorded its mortgage.
B
The mining company would likely be successful. Under a notice statute, which the jurisdiction in this question has, a subsequent bona fide purchaser prevails over a prior grantee who fails to record. The important fact under a notice statute is that the subsequent purchaser had no actual or constructive notice at the time of the conveyance, not at the time of recording. When the property was conveyed to the mining company, it had neither actual nor constructive notice of the conveyances to the bank or the miner, whose interests were not recorded at that time. Therefore, the mining company was a bona fide purchaser and would be entitled to protection under the statute. (A) is incorrect because the recording statute applies to all conveyances and mortgages of an interest in land, including a conveyance of the mineral interests. Thus, both the bank’s and the miner’s interests are not enforceable against the mining company. (C) is incorrect because that would be the result in the absence of a recording statute—priority is given to the grantee who was first in time. The recording statute changes this result. (D) is wrong because, as discussed above, the mining company did not have notice of the bank’s interest at the time of its conveyance from the landowner, so it takes free of that interest under the statute.
The plaintiff brought a breach of contract suit against the defendant, alleging that the defendant paid for only 25 cases of baseball cards even though the order was for 50. The defendant claimed that only 25 cases were delivered to his store. The plaintiff then introduced a shipping bill from a freight company showing that pickup had been made from the plaintiff on 50 cases.
May the defendant now compel the plaintiff to introduce the remainder of the record, showing that the freight company had only 25 cases of baseball cards on its truck?
A Yes, after a proper foundation is laid.
B Yes, because fairness dictates that it should be considered contemporaneously with what the plaintiff is offering.
C No, because the information is irrelevant to the case.
D No, because the record would constitute inadmissible hearsay.
B
(B) The defendant may compel the plaintiff to introduce the remainder of the record. When part of an act, conversation, or writing is introduced into evidence, the Federal Rules provide that the adverse party may compel the proponent of the evidence to introduce any part thereof that ought, in fairness, to be considered at the same time. Here, the remainder of the shipping record that supports the defendant’s position should be introduced at the same time as the part introduced by the plaintiff. Answer (A) is incorrect because no foundation need be laid for another part of a record that has already been introduced. Answer (C) is incorrect because Federal Rule 106 does not require proof of relevance. The standard is fairness. In any case, the remainder of the record appears to be relevant to the defendant’s claim. Answer (D) is incorrect because, although it is hearsay, a shipping record from a freight company very likely falls within the business records exception to the hearsay rule.QUESTION ID: ME390
A lawyer sued a client for his fee, based on an agreed hourly rate. The client subpoenaed the lawyer’s time records for the days on which he purported to have worked for the client to show that the lawyer had billed an impossible number of hours to the client and others on those days. The client’s subpoena provided that any information concerning the matters handled for other clients be deleted or masked. The lawyer moved to quash the subpoena on the ground of attorney-client privilege.
Should the subpoena be upheld?
A Yes, because the information about hours billed is not within the privilege.
B Yes, because a lawyer has no right to invoke his client’s privilege without instructions from the client.
C No, because a lawyer is entitled to a right of privacy for the work product in his files.
D No, because no permission was obtained from the other clients to divulge information from their files.
A
The subpoena should be upheld because the information about hours billed is not within the privilege. There is no privilege regarding a communication that is relevant to an issue of breach of duty by the lawyer to his client or by the client to her lawyer. Thus, the billing data does not fall within the ambit of the privilege. (B) is incorrect because the information here is not covered by the privilege. Furthermore, if the privilege were applicable, the lawyer would be able to invoke the privilege on behalf of his clients. The lawyer’s authority to do this is presumed in the absence of any evidence to the contrary. (C) is a correct statement of law, but the work product rule does not apply to these facts. Documents prepared by the lawyer for his own use in prosecuting his client’s case are protected by this rule. Time records are not prepared for litigation purposes; they are not related to the substance of the client’s case. (D) is incorrect because the other clients are protected by the blacking out of confidential information. Moreover, because the time records are not communications to or from the client and the identity of clients is often not considered to be within the privilege, the billing records of other clients may not be privileged and their consent may not have been necessary even without the deletions.
A town with a population of 30,000 merged with a city of 60,000. To protect voting rights of the citizens of the former town, a proposal was made that for a period of 20 years, beginning at the date of the merger, the city council of the merged city would consist of six persons. Each formerly separate municipality would be divided into three council districts. Each district from the former town would have approximately 10,000 residents, and each district from the former city would have 20,000 residents. A mayor would be elected at large. Before this proposal was placed on the ballot, the state attorney general issued an advisory opinion stating that the proposal was not in violation of any state statutory or constitutional provision. The proposal was placed on the ballot and was carried by large majorities in both the town and the city, and the districts were carved out.
Three taxpayers filed suit to enjoin the holding of an election with council districts of such disparate proportions. The suit reached the state supreme court, which ruled that the governmental formula was constitutional under both the state and United States Constitutions. The plaintiffs wish to take the case to the United States Supreme Court.
How should the Supreme Court proceed?
A Rely on the attorney general’s opinion and not hear the case on its merits.
B Not hear the case, because it was decided below on an independent state ground.
C Not hear the case, but remand it to federal district court.
D Hear the federal issues involved, but decline to rule on state issues.
D
The Supreme Court may grant certiorari to review a case from the highest court in a state that can render an opinion on the matter if a state statute’s validity is called into question under the federal Constitution. [28 U.S.C. §1257] The Court may decide the federal issues, but cannot rule on the state law issues. (A) is incorrect for several reasons: (i) the attorney general evaluated only the proposal’s validity under the state constitution; and (ii) even if her opinion had addressed the proposal’s federal constitutional validity, the Supreme Court is not bound by advisory opinions of state attorneys general. (B) is incorrect even though the state supreme court may have had an independent state ground for finding the law constitutional under its state constitution. The Supreme Court will refuse to hear the case only if the state ground is adequate by itself to support the decision as well as independent, so that the Court’s review of the federal ground for the decision would have no effect on the outcome of the case (such as if the state court had found the law invalid under both the state and federal Constitutions). Here, the Supreme Court’s review of the state court opinion on the law’s federal constitutional status may have an outcome on the case regardless of the state court’s decision on the state constitutional issue; the Court therefore will hear the federal issues involved. (C) is incorrect because 28 U.S.C. section 1257 provides that appellate review of a matter from a state’s highest court is to the Supreme Court by petition for a writ of certiorari, rather than to a federal district court.
The President of the United States issued an executive order banning conversation by all executive employees with members of the press unless prior permission had been obtained from a supervisor. Executive Department employees were subject to dismissal for violation of the order. An employee of the United States Department of Agriculture spoke to a reporter and told the reporter that the USDA sanctioned the approval of a dangerous pesticide because of payoffs made by lobbyists to a high-ranking USDA official. The newspaper printed the story and quoted the employee by name. After a hearing in line with civil service regulations, the employee was found to have violated the executive order barring unauthorized conversations with news media reporters, and the employee was fired. The employee brought suit in federal court for reinstatement, back pay, and other benefits and also prayed that the court should strike down the executive order as unconstitutional.
If the employee’s case reaches the United States Supreme Court, how should the Court rule?
A The executive order is constitutional, because the President has plenary power to control Executive Department employees.
B The executive order is constitutional, because government employment is a privilege and not a right.
C The executive order is unconstitutional, because Congress, rather than the President, has authority to set the terms of federal employment.
D The executive order is unconstitutional, because the President cannot broadly limit all executive employees’ freedom of speech and association.
D
The President’s order is unconstitutional because it is too broad a limit on the freedom of speech and association of government employees. No government employees were allowed to have even a conversation with the press without the permission of a supervisor. Thus, it is unconstitutional. (A) is incorrect because the President’s plenary power to control executive employees is limited by the Constitution. For example, the President cannot violate the First Amendment (or other constitutional guarantees) in regulating federal employees. (B) is incorrect because the Court no longer draws a distinction between rights and privileges. Furthermore, government employees would retain their First Amendment rights even if government employment were termed a “privilege.” (C) is incorrect because the President has authority to enact some regulations for federal employees. The problem with this regulation is that it unduly restricts freedom of speech.
A man put his leaf mulcher back into his garage after finishing his yard and then got into his car and drove away, accidentally leaving his garage door standing wide open. An envious neighbor raking his leaves across the street noticed the open garage and decided to help himself to the use of the man’s leaf mulcher. The neighbor thought he could quickly finish his own leaves before the man returned without the man ever realizing that it had been used. However, the man pulled up in the driveway before the neighbor had taken three steps with the mulcher in hand. The neighbor quickly put down the mulcher and exited the garage, but the man was furious and called the police.
Why will the neighbor be found not guilty of larceny?
A The neighbor had not used the mulcher.
B The garage door was left standing wide open when the neighbor took the mulcher.
C The neighbor planned to return the mulcher before the man found out.
D The neighbor was still in the garage when the man stopped him.
C
The neighbor should be found not guilty of larceny because he did not have the requisite intent. Larceny consists of a taking and carrying away of tangible personal property of another by trespass, with intent to permanently deprive the person of his interest in the property. If the defendant intends to return the property within a reasonable time and at the time of the taking has a substantial ability to do so, the unauthorized borrowing does not constitute larceny. Hence, the neighbor is not guilty of larceny because he planned to return the mulcher. (A) is incorrect because the fact that the neighbor had not yet used the mulcher would be irrelevant if he had formed the intent to steal it. (B) is incorrect because the fact that the garage door was open is irrelevant. The act of breaking into a dwelling is an element of burglary, not larceny. (D) is incorrect because the neighbor had taken possession of the mulcher and started to carry it away, which satisfies the asportation requirement. It is irrelevant that he had not yet exited the garage.
A pedestrian was struck and seriously injured by a car driven by an intoxicated driver. The driver had been served several alcoholic drinks by a bartender at a local bar. The pedestrian sued the bartender in a jurisdiction that does not have a dramshop act.
Is the bartender vicariously liable for the pedestrian’s injuries?
A No, because the driver acted recklessly by driving while intoxicated.
B No, because there is no dramshop act in the jurisdiction to impose liability.
C Yes, because there is no dramshop act in the jurisdiction to limit liability.
D Yes, because the intoxicated driver caused the pedestrian to suffer personal injuries.
B
Because the jurisdiction does not have a dramshop statute, the bartender will not be liable for the injuries caused to the pedestrian by the intoxicated driver. At common law, no liability was imposed on vendors of intoxicating beverages for injuries resulting from the vendee’s intoxication, whether the injuries were sustained by the vendee or by a third person as a result of the vendee’s conduct. Many states, in order to avoid this common law rule, have enacted “dramshop acts.” Such acts create a cause of action in favor of any third person injured by the intoxicated vendee. Without a dramshop act, the bartender will not be vicariously liable. (A) is incorrect because it implies that the bartender would be vicariously liable if the driver was not reckless. Without a dramshop act, however, there can be no vicarious liability imposed on the bartender regardless of whether the driver’s actions are characterized as reckless or simply negligent. (C) is incorrect because a dramshop act exists to impose liability on, rather than limit liability of, a tavernkeeper. (D) is incorrect. While several courts have imposed liability on tavernkeepers even in the absence of a dramshop act, this liability is based on ordinary negligence principles (the foreseeable risk of serving a minor or obviously intoxicated adult) rather than vicarious liability. The question here is attempting to establish liability based on vicarious liability principles rather than negligence principles. Thus, without a dramshop act, the bartender cannot be vicariously liable for any personal injuries caused by the driver.
A driver was operating his vehicle along a residential street at the posted speed limit when he saw a ball roll across the street. The driver did not slow down because the ball cleared his path before he reached it. A few seconds later, a child darted out into the street after the ball without looking for cars. The driver’s car struck the child, and the child was injured.
The child’s parents brought an action on the child’s behalf against the driver in a jurisdiction that follows traditional contributory negligence rules. At trial, the above facts were established. At the close of the evidence, the driver moved for a directed verdict.
What should the court do?
A Deny the driver’s motion, because it will be up to the jury to determine whether he should have slowed down to below the speed limit.
B Deny the driver’s motion, because it will be up to the jury to determine whether the child’s parents were negligent in supervising the child.
C Grant the driver’s motion, because the child was negligent in darting into the street without looking out for traffic.
D Grant the driver’s motion, because he was going no faster than the posted speed limit.
A
The court should deny the driver’s motion because a jury could find that a reasonable person, observing a ball roll into the street, would slow down further to avoid the foreseeable risk of hitting a child darting into the street. (B) is wrong because the parents’ potential negligence, even if it gave rise to a contribution claim by the driver against them, would not cut off the child’s claim against the driver, because the driver’s negligence would remain both an actual and a proximate cause of the accident—even if parental negligence was also a cause. A parent’s negligence ordinarily is not imputed to a child, and no other basis appears from the fact pattern for doing so. Hence, the driver’s motion would not be denied for that reason. (C) raises the possibility of a contributory negligence defense. A child, however, is usually held to the standard of a reasonable child of like age, intelligence, and maturity. The facts tell us nothing about the child’s age, intelligence, and maturity, and it will be up to the jury to determine whether the child was negligent. (D) is wrong because reasonable care in the circumstances could require driving at less than the speed limit, as noted above.
On April 10, the owner of a small farm mailed a letter to a new resident of the area who had expressed an interest in buying the farm. In this letter, the farm owner offered to sell the farm to the resident for $100,000. The offer expressly stated that the offer expires on June 1, “if acceptance by the offeree has not been received by the offeror on or before that date.”
On the morning of June 1, the resident sent a written acceptance to the farm owner by messenger. However, through negligence of the messenger company, the acceptance was not delivered to the farm owner until June 2. On June 4, the farm owner entered into a contract to sell the farm to another buyer for more money but did not inform the resident of the transaction. When the resident followed up by phone on June 10, the farm owner told him that he had sold the farm to another buyer.
Which of the following is the most correct statement?
A No contract between the farm owner and the resident arose on June 2.
B An enforceable contract arose on June 1.
C The farm owner’s silence constituted an acceptance of the resident’s message on June 2.
D A voidable contract arose on June 1.
A
No contract arose on June 2 because the farm owner’s offer expired on June 1, when the farm owner did not receive the resident’s acceptance. If a period of acceptance is stated in an offer, the offeree must accept within that period to create a contract. Failure to timely accept terminates the power of acceptance in the offeree (i.e., a late acceptance will not be effective and will not create a contract). Under the mailbox rule, an acceptance generally is effective upon dispatch (i.e., the acceptance creates a contract at the moment it is mailed or given to the delivery company). However, the mailbox rule does not apply where the offer states that acceptance will not be effective until received. In the latter case, acceptance is effective only upon receipt. Here, the farm owner’s offer specifically stated that the acceptance must be received by June 1 to be effective. Thus, the farm owner opted out of the mailbox rule, and no contract was created by delivery of the acceptance on June 2. Note that the resident will not be able to successfully argue that the acceptance was valid because the late delivery was the messenger company’s fault. This would be a valid argument if the mailbox rule applied here, because the acceptance would have been effective on June 1, when the message was given to the messenger company. However, by opting out of the mailbox rule, the farm owner put the burden of any negligence in delivery on the resident. Thus, there was no valid acceptance. (B) is incorrect because of the requirement that acceptance be received by June 1. This requirement obviates the mailbox rule, so that the mere mailing of a letter (or sending of a message) does not operate as an effective acceptance. (C) is incorrect because the farm owner was not obligated to respond in any way to the message received on June 2. Once the specified time passed without receipt of acceptance, the offer (as well as the resident’s power of acceptance) was terminated. Thus, receipt of the message on June 2 created neither a contract nor an obligation on the part of the farm owner to respond to the message. (D) is incorrect because no contract, voidable or otherwise, arose on June 1. As explained above, there could be no contract because acceptance of the offer was not received as specified by the offer. Also, the facts do not indicate circumstances under which a contract is usually held to be voidable. A voidable contract is a contract that one or both parties may elect to avoid or to ratify (e.g., contracts of infants). The facts of this question provide no basis for concluding that any contract that might have arisen between these parties would be voidable.
A homeowner contracted with a local builder to build a wooden deck onto the back of her house. The contract called for half of the contract price of $20,000 to be paid to the contractor before he began work and the other half to be paid to him when the job was completed. The contractor began the work but, partway through the job, he got an offer for a rush job that paid better and abruptly quit.
The homeowner sues the contractor for specific performance. Will she prevail?
A Yes, because there has been a novation.
B Yes, because the contract between the parties was valid and the contractor had no legal justification for abruptly quitting.
C No, because by not paying the contractor for the second half of the job, the homeowner has not satisfied all of her conditions under the contract.
D No, because the contract is for personal services.
D
The homeowner will not prevail in her suit for specific performance because the contract is for personal services. Specific performance is available only where the legal remedy (i.e., money damages) is inadequate. Money damages can be inadequate for a number of reasons, such as where the goods or services sought are unique. Nevertheless, specific performance is not available as a remedy regarding a contract for services. If the services contracted for are not unique, then money damages would be adequate because the nonbreaching party could use the damages to hire someone else to perform. However, even if the services are unique, courts generally will not grant a decree of specific performance to force someone to work because of problems in overseeing performance and because it would be tantamount to involuntary servitude. (A) is wrong because a novation is a substitution of a third party for one of the parties to a contract by agreement of all the parties involved, and nothing in the facts indicates that such a substitution was involved here. Moreover, if a novation were involved, the homeowner would not be able to force the contractor to work because the contractor would have been the party released. (B) is wrong because a valid contract and no legal justification for breaching it do not, by themselves, mean that specific performance is available, as discussed above. (C) is wrong because, under the contract, the homeowner was not required to make the second half of the payment to the contractor until the contractor’s work was completed. One of the prerequisites for specific performance is that all of the plaintiff’s contractual conditions have been fulfilled. This includes the fulfillment of all conditions precedent and a readiness to perform any conditions concurrent. Here, the homeowner stood ready and able to perform under the contract when the contractor performs, so the homeowner’s failure to pay the contractor for the second half of the job would not be a bar to specific performance.
While fleeing from an armed robbery he had just committed, a man struck a pedestrian with his car, seriously injuring the pedestrian. The robber was soon apprehended and charged with armed robbery and reckless driving, both felonies. Just prior to trial, the pedestrian died from his injuries. The trial on the robbery and driving charges proceeded, and the robber was convicted of the armed robbery charge and acquitted of the reckless driving charge. The robber was then indicted under the jurisdiction’s felony murder statute for causing the death of the pedestrian during the course of committing an armed robbery. The robber moved to dismiss the indictment on the ground that a second trial would violate double jeopardy.
Is the robber’s claim correct?
A Yes, because he was acquitted of the reckless driving charge.
B Yes, because the pedestrian died before the robber’s first trial had begun.
C No, because he was convicted of the armed robbery charge.
D No, because felony murder requires proof of an additional element not required by the felony itself.
B
The robber’s claim is correct because the victim died before jeopardy attached for trial on the lesser included offense. The Fifth Amendment right to be free of double jeopardy provides that once jeopardy attaches for an offense, the defendant may not be retried for the same offense. Under the Blockburger test, two crimes do not constitute the same offense if each crime requires proof of an additional element that the other crime does not require. Under this test, a lesser included offense and the greater offense would be considered the “same offense,” because the lesser included offense consists entirely of some, but not all, elements of the greater crime. Hence, under double jeopardy rules, attachment of jeopardy for the greater offense bars retrial for lesser included offenses, and attachment of jeopardy for a lesser included offense generally bars retrial for the greater offense. An exception to this latter rule exists if all of the elements for the greater offense had not occurred at the time of prosecution for the lesser offense, but in this case the final element for the felony murder charge—the death of the victim—occurred before jeopardy had attached in the first trial, so the prosecution could have added a charge of felony murder prior to proceeding with the first trial. Thus, the underlying felony of armed robbery was a lesser included offense of the felony murder and the robber’s being placed in jeopardy for it bars the subsequent trial for the felony murder. (A) is incorrect because the reckless driving charge was not the basis for the felony murder charge. Under principles of collateral estoppel embodied in the double jeopardy rule, a subsequent trial would be barred if it would require a factual determination inconsistent with the one in the prior prosecution. If the reckless driving charge were the underlying felony for the felony murder charge, the robber could argue that proving felony murder based on reckless driving would require a determination that he was guilty of the underlying felony, which would appear inconsistent with his acquittal. However, this principle is not applicable here because the armed robbery charge was the underlying felony for the felony murder charge. (C) is incorrect. As discussed above, double jeopardy applies regardless of the outcome of the trial on the robbery charge, because jeopardy attached for the robbery charge as soon as the trial started, barring a second trial for the greater offense of felony murder. (D) is incorrect because, as discussed above, two crimes are not the “same offense” for double jeopardy purposes only if each crime requires proof of an additional element that the other crime does not require. Because the underlying felony is a lesser included offense of the felony murder charge, i.e., it has no other elements not required by the felony murder charge, it constitutes the “same offense” for purposes of double jeopardy.
