Mixed Questions - Set 21 Flashcards
A utility company constructed a building costing approximately $2 million that encroached on a rancher’s property. The rancher is suing the company in federal district court to force the company to remove the office building. In the same action, the rancher is asking for $200,000 in damages incurred because of the trespass. The court has diversity of citizenship jurisdiction.
Is the company entitled to a jury trial?
A Yes, for all issues.
B Yes, but only for issues involving the trespass action.
C Yes, but only for issues involving the action to require the company to move its building.
D No, because the equitable issue predominates.
B
The company is entitled to a jury trial only for issues involving the trespass action. In this case, both legal and equitable issues exist. The defendant is entitled to a jury trial on the legal issues in the case, even though the equitable issue of whether an injunction mandating removal of the building should be issued clearly predominates. Hence, (D) is incorrect. (A) and (C) are incorrect because, as stated, the issue regarding removal of the building is equitable, and thus there is no right to answer it to a jury.
A plaintiff sued a defendant for negligence, seeking $100,000 in the federal court of State A, after the two were involved in a car accident while driving through State B. The defendant’s defense was that the plaintiff was contributorily negligent; contributory negligence is a complete defense under the applicable state law. The plaintiff won after a full trial.
May the defendant now bring a negligence claim against the plaintiff in a new suit for injuries from the accident that was previously litigated?
A Yes, because the defendant’s claim is not the same as that of the plaintiff.
B Yes, because claim preclusion (res judicata) applies only if the claims are brought by the same parties.
C No, because the counterclaim is barred as an unasserted compulsory counterclaim.
D No, because the defendant’s claim merged with the prior judgment and is now barred.
C
The defendant may not bring a negligence claim against the plaintiff. This question asks not only about preclusion, but about the related concept of compulsory counterclaims. If a counterclaim arises out of the same transaction or occurrence as one of the plaintiff’s claims, it is a compulsory counterclaim and must be pleaded or it will be barred. Any other counterclaim is permissive and may be asserted (assuming there is subject matter jurisdiction) even though there is no connection at all between it and the plaintiff’s claim. Although the defendant’s compulsory counterclaim is not claim precluded under preclusion principles (as discussed below), it is barred as an unasserted compulsory counterclaim. (A) and (B) are incorrect because, while they correctly note that there is no claim preclusion for claims against the defendant, that is not the only issue, as discussed above. (D) is incorrect because claims by the opposing party cannot be merged. Once a final judgment on the merits is reached on a claim, the claimant is barred by claim preclusion (also known as res judicata) from asserting the same claim in a subsequent suit against the same defendant. In this case, there is a final judgment on the plaintiff’s negligence claim, which would bar the plaintiff from asserting any other claims relating to the same facts in a subsequent suit against the same defendant. Any such claims are considered to be “merged” with the adjudicated claim and thus bar the plaintiff from properly asserting them. However, this bar is only against the plaintiff’s claim. Claim preclusion does not bar a claim by an opposing party.
A landlord leased residential property to a tenant. The written lease was for a period of one year, with the monthly rent of $1,000 payable on or before the first of each month. The termination date set out in the lease was October 1. On August 10 of the first year of her tenancy, the tenant received a letter from the landlord along with a new lease form. The lease was for a period to terminate on October 1 of the following year, and the rent stated in the new lease was $1,200 per month. Both the rent increase and the notice given were in full compliance with relevant state statutes. An accompanying letter, signed by the landlord, asked the tenant to sign the lease on the line marked “tenant.” On September 15, the tenant sent the lease back to the landlord unsigned. On September 20, the tenant sent a letter to the landlord by certified mail. The landlord signed the return receipt, which the post office duly sent to the tenant. Enclosed with the tenant’s letter was a check for $1,000 for “next month’s rent.” The landlord deposited the check into his bank account. With the landlord’s acquiescence, the tenant remained in possession after October 1.
Which of the following statements is most accurate?
A The tenant has a month-to-month tenancy at $1,000 monthly rent.
B The tenant has a month-to-month tenancy at $1,200 monthly rent.
C The tenant has an annual tenancy at $1,200 per month rent.
D The tenant has a tenancy at will.
B
The tenant has a month-to-month tenancy at $1,200 per month. When a tenant continues in possession after termination of her right to possession, the landlord may bind the tenant to a new periodic tenancy. While the terms and conditions of the expired tenancy generally apply to the new tenancy, if the landlord notifies the tenant before termination that occupancy after the termination date will be at an increased rent, the tenant will be held to have acquiesced to the new terms if she does not surrender. This is so even if the tenant objects to the increased rent, as long as the rent increase is reasonable. (A) is therefore incorrect. (C) is also incorrect. In commercial leases, where the original lease term was for a year or more, a year-to-year tenancy results from holding over. In residential leases, however, most courts would rule that the tenant is a month-to-month tenant, irrespective of the term of the original lease. Hence, the tenancy would be month-to-month rather than annual. (D) is incorrect because a tenancy at will generally arises from a specific understanding between the parties that either party may terminate the tenancy at any time. Unless the parties expressly agree to a tenancy at will, the payment of regular rent will cause a court to treat the tenancy as a periodic tenancy.
A buyer entered into a contract with a seller to purchase the seller’s farm. The contract of sale referred to the farm as containing 250 acres. The agreed-on price was $1 million. Before the date on which escrow was to close, the buyer learned from a surveyor he had hired that the farm actually contained 248 acres. On the date the sale was to close, the buyer instructed the escrow agent to release all but $8,000 of the purchase money because he was not getting what he bargained for. The seller refused to proceed with the sale. The buyer brings an action for specific performance and also seeks an $8,000 reduction of the agreed-upon contract price.
What will be the probable outcome of the litigation?
A The seller will win, because the buyer refused to tender the contract price when the seller tendered substantially what the contract called for her to perform.
B The seller will win, because both parties had seen the farm before the contract was formed.
C The buyer will win, because he is not receiving what he bargained for under the contract.
D The buyer will win, if the court finds that the $8,000 reduction in price is a fair reflection of the title defect.
D
This answer states the traditional rule where the amount of land in a land sale contract is less than as agreed. When a buyer has a remedy of specific performance in a land sale contract, a court of equity will order a seller to convey the title if the buyer tenders the purchase price. If the seller cannot provide marketable title under the terms of the contract, but the buyer wishes to proceed with the transaction, the buyer can usually get specific performance with an abatement of the purchase price in an amount reflecting the title defect. A defect as to the quantity of land conveyed is usually corrected by a pro rata abatement of the price. (D) states the factors that a court of equity will look for when deciding whether to grant specific performance with abatement. (A) is incorrect because the parties’ contract did not merely refer to the farm as a named parcel of land; it recited that it contained 250 acres. Based on this recital, a court could readily conclude that the difference of two acres is a material change in the terms of the contract and that the seller’s tender of 248 acres was not substantial performance. (B) is incorrect because viewing the property did not put the buyer on notice as to the discrepancy; the buyer is not required to visually calculate the amount of acreage a parcel of land contains. (C) is not as good an answer as (D) even though it is probably a true statement. Not only must the defect as to quantity be material, so that the buyer is not receiving what he bargained for, but the abatement amount must be appropriate and not an excessive reduction of the purchase price, as choice (D) states.
At a victory party after a hard-fought election, the campaign director consumed several drinks. A campaign worker who had also been drinking took the director to her hotel room for a nightcap. They later had intercourse. The worker filed a complaint with the police, claiming that the director had intercourse with her against her will, and the director was charged with rape.
Which of the following is most likely to be admitted in the director’s defense?
A The worker has a reputation in the community as being sexually promiscuous.
B Since the incident occurred, the worker has had sexual intercourse with two other campaign workers.
C Two years ago during the candidate’s previous campaign, the worker maintained a sexual relationship with the former campaign director.
D The director and the worker had had consensual sex on two prior occasions.
D
Evidence of prior consensual sexual relations between the director and the worker is most likely admissible. Although Federal Rule 412 generally excludes evidence of an alleged victim’s sexual behavior, evidence of specific instances of sexual conduct between the alleged victim and the accused may be admitted to show consent. Thus, if the director raises consent as a defense to the rape charge, evidence of his previous consensual sexual encounters with the worker is admissible. (A) is incorrect because it presents evidence that Federal Rule 412 specifically intends to exclude; i.e., evidence of the alleged victim’s sexual behavior. The Federal Rules also contain an exception for specific instances of the alleged victim’s sexual conduct tending to show that someone other than the accused was the source of semen, injury, or other physical evidence. (B) does not fit this exception because the worker had intercourse with two other workers after the incident with the director occurred. Likewise, (C) is not likely to fit this exception as the worker’s relationship with the previous campaign director occurred two years ago, and is therefore probably not helpful in explaining the presence of physical evidence.
A drug dealer is being tried in federal court for criminal conspiracy with a friend to violate a federal narcotics law. At trial, the prosecutor calls the drug dealer’s new wife and asks her to testify about a meeting between the drug dealer and the friend that she observed before she married the drug dealer.
Which of the following is the most accurate statement of the applicable rule concerning whether the wife may testify?
A The choice is the wife’s.
B The choice is the drug dealer’s.
C The wife is permitted to testify only if both the wife and the drug dealer agree.
D The wife may be compelled to testify even if both the wife and the drug dealer object.
A
The choice to testify will be the wife’s. In federal court, one spouse may testify against the other in a criminal case, with or without the consent of the party-spouse. Thus, the witness-spouse may not be compelled to testify, but neither may she be foreclosed from testifying (except as to a confidential communication made between the spouses while they were married). Here, the wife is being asked to testify about a meeting in which her husband participated that took place before her marriage to him. Thus, the privilege for confidential marital communications is inapplicable, making (C) incorrect. Of (A), (B), and (D), only (A) reflects the fact that the wife may not be compelled to testify, nor may she be foreclosed from testifying.
A township located in a farming community was composed mostly of persons belonging to a specific religious sect. To help instill proper respect for authority in children, which was a central tenet of the sect, and to maintain order in the classroom, the local school board allowed teachers to inflict corporal punishment. Such punishment was inflicted on a fourth grader in a township school immediately after his teacher saw him pulling a girl’s hair. Neither he nor his parents belonged to the religious sect. When the boy’s parents learned of the incident, they hired an attorney. Rather than suing the teacher for battery as permitted under state law, the attorney brought an action against the teacher under a federal statute providing a cause of action for damages against any government employee who deprives a person of his constitutional rights.
Should the court find the policy allowing corporal punishment to be constitutional?
A No, because the punishment policy violates the First Amendment Establishment Clause.
B No, because the boy was denied any kind of hearing, in violation of his right to procedural due process under the Fourteenth Amendment.
C Yes, because under the doctrine of parens patriae states may impose any punishment they see fit.
D Yes, because the punishment was not grossly disproportionate under the Eighth and Fourteenth Amendments.
D
The punishment here is constitutional because it does not violate any constitutional provision. The best answer reflecting this reasoning is (D)—there was no Eighth Amendment violation here—because paddling students as a disciplinary measure has not been found to be cruel and unusual punishment. (A) is incorrect because there is no Establishment Clause violation here. Under the Establishment Clause, if there is no sect preference, government action generally will be upheld if the action serves a secular purpose, its primary effect neither advances nor inhibits religion, and it does not excessively entangle government with religion. There is no sect preference under the school board’s corporal punishment rule here, the rule has the secular purpose of maintaining order in the classroom (the fact that this coincides with the tenets of a local religion does not change that conclusion), its main purpose neither advances nor inhibits religion, and there is no excessive entanglement. (B) is incorrect because there has been no deprivation of procedural due process. The Supreme Court has held that although corporal punishment may involve a liberty interest, no hearing is required prior to inflicting such punishment; the possibility of a common law action in tort is sufficient procedural protection. [Ingraham v. Wright (1977)] (C) is incorrect because it is too broad. The doctrine of parens patriae allows the state to stand in the shoes of a parent, but even a parent may not impose any punishment he sees fit (e.g., a parent may not break a child’s arm as punishment for stealing).
The United States Surgeon General was cited for contempt for refusing to answer questions as part of a Senate investigation regarding an issue in the Food and Drug Administration.
His contempt citation will be dismissed if he can show which of the following?
A As a member of the executive branch, he is immune from prosecution.
B If he answered the questions, he could be subject to dismissal from his position as Surgeon General.
C The questions do not relate to any matter concerning which the Senate may legislate.
D The questions do not relate to any matter concerning current or planned legislation.
C
His contempt citation will be dismissed if he can show that the questions do not relate to any matter concerning which the Senate may legislate. Congress’s power to investigate is limited to matters on which it can legislate. Therefore, if the Surgeon General can demonstrate that the questions concerned matters upon which Congress could not legislate (not an enumerated power under Article I, Section 8), then this contempt citation must be dismissed. (A) is wrong because Congress can question a member of the executive branch concerning his duties, and he is not immune from prosecution. (B) is wrong because he would have a privilege not to answer only if he is subject to criminal liability. Merely because he may get fired is not sufficient grounds for him to refuse to answer a lawful question posed by a member of the Senate in an appropriate hearing. (D) is wrong because it is too narrow. As explained above, Congress may investigate any matter on which it may legislate; current or planned legislation is not required.
A 13-year-old boy who lived on a farm with his parents in a rural area had learned to drive the family’s tractor when he was 11. A state statute permitted persons without a driver’s license to operate farm vehicles on public roads for short distances. One morning the boy took the tractor onto a public road to reach one of the outlying fields a few hundred yards away. As he neared the field he was distracted by a girl riding by on a bicycle, and cut in front of a milk delivery truck that was starting to pass him. The truck swerved off the road, injuring the driver.
If the driver sues the boy to recover damages for his injuries, which of the following statements is most correct regarding the standard of care to be applied?
A The state statute replaces the general common law standard of care with a statutory standard.
B The trier of fact should take into account the boy’s experience at driving a tractor when considering the applicable standard of care.
C Persons 13 years of age or older are held to the same standard as adults.
D An adult standard of care will not be applied because it is common in that region for children of that age to be operating tractors.
B
The most correct statement is that the trier of fact should take into account the boy’s experience when considering the applicable standard of care. Regardless of the specific standard of care that is applied, someone with knowledge superior to that of the average person is required to use that knowledge. Hence, the trier of fact should take into account the fact that the boy had driven a tractor since he was 11 years old. (A) is incorrect. The precise standard of care in a common law negligence case may be established by proving the applicability to that case of a statute providing for criminal penalties, so that the statute’s specific duty will replace the more general common law duty of due care, and a violation of the statute will establish duty and breach of duty. Here, nothing in the facts indicates that the boy violated any provisions in the statute, but he still may be liable to the truck driver for breach of a general duty of care. (C) is incorrect. The usual standard of conduct to which a child must conform is that of a child of like age, education, intelligence, and experience. While a child must conform to an adult standard of care when engaging in a potentially dangerous activity in which usually only adults engage, there is no blanket rule that children 13 years of age or older are held to the same standard of care as adults. (D) is incorrect because the fact that 13-year-olds commonly drive tractors in that region does not preclude the court from applying an adult standard of care when a tractor is driven on a public road.
A consumer purchased a new television set from an electronics store. When he got home, he opened the box and found an owner’s manual that contained operation instructions, warnings regarding the danger of electricity, and a warranty that stated:
“The store expressly warrants that this set shall be free of manufacturing defects for 30 days. If a set is defective, the store’s liability shall be limited to the cost of repair or replacement of defective parts. The store “HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF FITNESS FOR PARTICULAR PURPOSE AND THE WARRANTY OF MERCHANTABILITY.””
Five weeks later, after the set was properly installed, the consumer turned on the set, heard a crackling noise, and watched as his television exploded and was destroyed.
Under which of the following theories will the consumer most likely recover?
A Breach of express warranty.
B Breach of the implied warranty of merchantability.
C Breach of the implied warranty of fitness for a particular purpose.
D Breach of the warranty of reasonable workmanship.
B
The consumer will most likely recover for breach of the implied warranty of merchantability. In every sale of goods, unless expressly disclaimed, there arises a warranty that the goods will be merchantable, which means that they will be fit for the ordinary purposes for which such goods are used. A television that explodes after five weeks of use likely breaches this warranty. The warranty will not be disclaimed because, to be effective, a disclaimer must be part of the offer and acceptance process or must be agreed to by the buyer as a modification. Here, the “disclaimer” was in the box, and the consumer did nothing to accept the disclaimer. Thus, (B) is correct. (A) is wrong because no express warranty was made as to quality at a time sufficient to become part of the bargain. An express warranty will arise from any affirmation of fact or promise made by the seller to the buyer, or from any description of the goods, and any sample or model if the statement, description, sample, or model is part of the basis of the bargain. Here, there was no such affirmation, promise, description, sample, or model indicating that the television would not explode; that is something that would be understood (implied). (C) is wrong because an implied warranty of fitness for a particular purpose arises when (i) the seller had reason to know the particular purpose for which the goods are to be used and that the buyer is relying on the seller’s skill and judgment to select suitable goods; and (ii) the buyer in fact relies on the seller’s skill or judgment. The facts in this case do not point to such a warranty; on the contrary, the consumer selected the television himself. (D) is wrong because the warranty of reasonable workmanship is a common law doctrine generally applied to builders. This is a contract for the sale of goods and is governed by the UCC, not common law.
The owner of a pet shop received an e-mail from a professional bird breeder that included the following offer: “Lovebirds! $120 a pair! Delivery in 4-6 weeks. Terms of sale, cash within 30 days of delivery.” The shop owner e-mailed the bird breeder on April 26, agreeing to purchase one pair of lovebirds for $120. After looking over the e-mail the next day, the bird breeder sent a reply e-mail to the shop owner indicating that there was a mistake in the initial e-mail; it should have read “$120 per bird.” The bird breeder went on to state that she would ship the pair of birds to the shop owner if she would pay the additional $120. In her e-mailed reply, the shop owner authorized the breeder to ship the pair of lovebirds and agreed to pay the additional $120, but she noted that they must be delivered on or before May 21. The bird breeder immediately e-mailed the shop owner agreeing to deliver the birds to her by May 21. However, the birds did not arrive at her shop until June 1, and the shop owner refused to accept them.
In an action by the bird breeder against the shop owner for breach of contract, which of the following awards is most likely?
A Nothing, because the birds did not arrive at the shop owner’s store by May 21.
B $120, because the promise to pay the additional amount with a new delivery date was only a counteroffer.
C $120, because the bird breeder had a preexisting legal obligation to ship the birds to the shop owner.
D $240, because consideration is not required to modify a contract for the sale of goods.
A
The bird breeder will most likely recover nothing in the suit. The bird breeder is not entitled to recover anything because she has breached the modified contract. As discussed below, the parties validly modified the contract and agreed to a delivery date. The breeder’s failure to tender the birds by that date constituted a breach of the contract, which excused the shop owner’s duty of counterperformance (that is, to pay the additional amount). Perfect tender is required under the UCC, which governs contracts for the sale of goods. This means that if the goods or their delivery fail to conform to the contract in any way, there is a breach. In that case, the buyer may accept all, reject all, or accept any commercial units and reject the rest. Therefore, the breeder breached the contract, and the shop owner was free to reject the birds. (B) is incorrect because under the UCC, an acceptance is valid even if it contains additional terms. Therefore, the shop owner’s promise would be enforceable if not for the breach. Note that even if the common law rule applied and the shop owner’s acceptance were considered a counteroffer, it was accepted by the breeder when the breeder replied by e-mail agreeing to the delivery date. (C) is incorrect because the common law preexisting legal duty rule does not apply to modifications under the UCC. Under the UCC, a promise to modify an existing contract is enforceable even without consideration. The only requirement is that the proposal to modify be made in good faith. Here, the proposal was made in good faith, because it was to correct an error in the e-mail. (D) is incorrect because the nonconforming delivery was a breach by the breeder. If the breeder were not in breach, (D) would be correct.
A feed store owner agreed to purchase several tons of grain products at a specified price from a large supplier of cattle feeds. The supplier later failed to deliver the promised grains, and the owner was forced to cover by purchasing from local producers at a higher price. The owner contacted a large law firm in the city and obtained their agreement to represent him in connection with his possible claims against the supplier. Due to error, the applicable statute of limitations period passed without the filing of any action on the owner’s behalf. The owner retained another lawyer and sued the large law firm for malpractice. The jurisdiction retains traditional contributory negligence.
In addition to the firm’s negligence, what else does the owner have to establish as part of his prima facie case?
A He had a good faith claim against the supplier that was lost by the law firm’s dilatoriness.
B He would have recovered from the supplier if an action had been timely filed.
C He did not contribute to the failure to timely file an action through his own negligence.
D The losses resulting from breach of the sales agreement by the supplier severely harmed his financial situation.
B
The owner will have to show that he would have recovered damages in his lawsuit. The following elements must be proved for a prima facie case of negligence: (i) the existence of a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against unreasonable risk of injury, (ii) breach of that duty by the defendant, (iii) that the breach of duty was the actual and proximate cause of the plaintiff’s injury, and (iv) damage to the plaintiff’s person or property. Here, the owner can establish that the law firm breached its professional duty of care by failing to file a claim within the statute of limitations. He must also establish that this breach was an actual and proximate cause of his damages, which here would be the loss of the contract damages that he could have recovered from the breach by the supplier. (A) is incorrect because merely having a good faith claim that was lost because of the firm’s negligence is not sufficient. The owner has to show by a preponderance of the evidence that he suffered damages because of the firm’s negligence. (C) is incorrect because it states a defense rather than part of the prima facie case; any contributory negligence on the owner’s part must be pleaded and proved by the law firm to either defeat or reduce his recovery. (D) is incorrect because it is irrelevant whether the breach by the supplier severely harmed the owner’s financial situation. The only issue is whether he would have been able to recover any of his losses had he timely filed a breach of contract action. If he establishes that he would have recovered, then the law firm’s negligence was an actual and proximate cause of his suffering damages.
An athlete lent his swim fins to a friend. The friend promised to return the fins in a week, but two months had passed and, despite many reminders, the friend still failed to return the fins. The athlete went to the friend’s house one night to retrieve them. After knocking on his friend’s door several times with no response, the athlete tried the door and found it unlocked. He opened the door and entered the house. He looked around for 20 minutes, but he could not locate the swim fins. He concluded that his friend was probably using them and left the house, taking nothing from it and closing the door behind him.
If the athlete is later charged and tried for burglary, his best defense to the charge is which of the following?
A He left the house without doing anything.
B He took nothing from the house.
C The swim fins belonged to him.
D His friend’s door was unlocked.
C
The fact that the athlete was seeking to retrieve swim fins that belonged to him negates the requirement in burglary of entry with intent to commit a felony. At common law, a burglary is defined as a breaking and entry of the dwelling of another at nighttime with the intent of committing a felony therein. If the athlete entered the house believing that the swim fins were his and intending only to retrieve them, he did not enter with intent to commit a felony, since it is not a felony to recover your own property. (A) is wrong because if the other elements of burglary were present, the fact that the athlete did nothing in the house would be immaterial; the burglary would have been committed the moment he entered the house with the requisite intent. (B) is wrong for a similar reason. The fact that he did not commit a felony does not negate the prima facie case for burglary. (D) is wrong because the requirement of a breaking is satisfied as long as some degree of force is used to gain entry. Opening a closed door is sufficient for this element; there is no requirement that the door be locked.
A defendant was arrested for murder and given Miranda warnings. After seeming to struggle with his decision, the defendant stated that he did not want to say anything. The arresting officer then gave him her card, telling him that if he ever changes his mind and needs to get anything off his chest about the crime, to call her at any time. After the defendant was put into a jail cell, he asked a guard to call the police officer because he wanted to talk. The officer met with the defendant and again gave him Miranda warnings. The defendant indicated that he was waiving his rights and provided details about the murder that had not been made public.
If the defendant’s counsel brings a pretrial motion to suppress those statements, how should the court rule?
A Deny the motion, because the defendant reinitiated the interrogation.
B Deny the motion, because the defendant provided details that had not been made public.
C Grant the motion, because the police officer’s act of giving the defendant her card constituted an interrogation.
D Grant the motion, because the defendant was not free to leave.
A
The court should deny the motion. Miranda warnings and a valid waiver are prerequisites to the admissibility of any statement made by the accused during a custodial interrogation. Once a person explicitly and unequivocally invokes his right to remain silent, all questioning related to the particular crime must stop. However, the police may reinitiate questioning after the defendant has invoked his right to remain silent, as long as they “scrupulously honor” the defendant’s request. This means, at the very least, that the police may not badger the defendant into talking and must wait a significant time before reinitiating questioning. Here, the police immediately ceased questioning once the defendant invoked his right to remain silent, and they scrupulously honored the defendant’s right to remain silent. The act of giving the defendant the police officer’s business card would most likely be viewed as simply a way of making it easier for the defendant to reinitiate questioning of his own volition rather than an impermissible interrogation. There was no “badgering” of the defendant to forgo his rights; the defendant himself initiated the relevant discussions and appears to have freely and knowingly waived his right to remain silent after again receiving Miranda warnings. Thus, (A) is correct and (C) is incorrect. (B) is incorrect because the fact that the second statement seems trustworthy would not make it admissible in the face of a constitutional violation. (D) is an irrelevant fact, given that Miranda warnings were provided. Miranda warnings are required before custodial interrogation; the fact that the defendant was in custody (i.e., not free to leave) would be relevant only to a determination of whether Miranda warnings were required.
