Mixed Questions - Set 23 Flashcards
A restaurant owner properly sued a food supplier in federal district court for breach of contract and timely demanded a jury trial. The complaint asserted both legal and equitable claims.
Which of the following statements correctly states the proper order for trying both claims?
A All legal claims should be tried first by the jury.
B All equitable claims should be tried first by the court.
C Legal and equitable claims may not be tried together, so the order does not matter since there will be separate trials.
D It is up to the federal district court judge’s discretion which claim will be tried first.
A
If legal and equitable claims are joined in one action involving common fact issues, the legal claim should be tried first to the jury and then the equitable claim to the court (the jury’s finding on fact issues will bind the court in the equitable claim). (B) is wrong, because it misstates the rule. As stated above, the legal claim will first be tried by the jury followed by the equitable claim. (C) is wrong because legal and equitable claims can be consolidated together when the actions have a common question of law and fact. (D) is wrong because the Supreme Court has held that if legal and equitable claims are joined in one action involving common fact issues, the legal claim should be tried first.
The plaintiff is a State A corporation that entered into a contract with the defendant under which the defendant agreed to manufacture and sell equipment to the plaintiff. The equipment is heavily regulated by the federal government. The plaintiff plans to sue the defendant for $1 million because the equipment does not conform to the contract specifications and does not operate properly. The defendant is incorporated in State B, but all of its facilities and offices are in State A.
Would a federal district court have subject matter jurisdiction over the plaintiff’s action?
A Yes, because the two corporations were incorporated in different states.
B Yes, because there is federal question jurisdiction.
C No, because the defendant voluntarily conducted business in State A.
D No, because all of the defendant’s facilities and offices are in State A.
D
The court does not have subject matter jurisdiction. Diversity of citizenship jurisdiction is available when: (i) there is complete diversity of citizenship, meaning that each plaintiff is a citizen of a different state from every defendant; and (ii) the amount in controversy exceeds $75,000. For diversity purposes, a corporation is considered to be a citizen of every state in which it was incorporated and the one state in which it has its principal place of business. In the instant case, the plaintiff is a State A corporation. The defendant corporation was incorporated in State B, but all of its facilities and offices, and presumably its headquarters, are in State A. Thus, the plaintiff corporation is a citizen of State A, while the defendant corporation is a citizen of both State A and State B. The State A-State A connection destroys complete diversity. (A) is incorrect because, as stated above, a corporation may have multiple citizenships for diversity purposes; the place of incorporation is just one citizenship for diversity purposes. (B) is incorrect. Federal courts do have subject matter jurisdiction when the plaintiff’s claim arises from federal law. However, the fact that the equipment is heavily regulated is not sufficient to raise a federal question. The cause of action is still a state law breach of contract claim. (C) is incorrect. Contacts with a state are used to determine whether a court has personal jurisdiction over a particular defendant. Contacts are not used to determine whether there is subject matter jurisdiction. Thus, the fact that the defendant voluntarily conducted business in State A is irrelevant.
A landowner conveyed his land “to my son for life, then to my son’s widow for her life, then to my son’s children.” At the time of the conveyance, the son was 20 years old and unmarried. The son eventually married and had two children, the landowner’s grandson and granddaughter.
Many years later, the landowner and the grandson were involved in a train accident. The landowner was killed instantly. The grandson died a short time later of his injuries. The landowner left his entire estate by will to his friend. The grandson’s will devised his entire estate to the city zoo. The son’s wife was so grief-stricken that she became ill and died the next year, leaving her entire estate to her husband.
Eventually the son met and married a 21-year-old. Ten years later, the son died, leaving everything to his second wife. When the second wife moved onto the land, the granddaughter filed suit to quiet title to the land, joining all of the appropriate parties.
If the jurisdiction recognizes the common law Rule Against Perpetuities, unmodified by statute, in whom will the court most likely find that title to the land is held?
A One-half in the granddaughter and one-half in the city zoo, subject to the second wife’s life estate.
B One-half in the granddaughter and one-half in the second wife, because the second wife took the son’s interest.
C Entirely in the friend, subject to the second wife’s life estate, because the gift to the son’s children violates the Rule Against Perpetuities.
D Entirely in the granddaughter, subject to the second wife’s life estate, because the grandson did not survive the son.
A
The granddaughter and the city zoo each own one-half of the land, subject to the second wife’s life estate. At the time of the conveyance by the landowner, the son had a life estate, the son’s widow had a contingent interest (because the son’s “widow” cannot be ascertained until the son’s death), and the son’s children had a contingent remainder (because they have not yet been born). When the grandson and the granddaughter were born, however, their interests became vested subject to open (i.e., if the son had more children). Thus, when the grandson died, he had a vested remainder subject to open that he was free to devise by will; the city zoo took his vested remainder subject to open. At the son’s death, the class of his “children” closed (because the son could not have any more children), and the granddaughter’s and the zoo’s vested remainders subject to open became indefeasibly vested. Also at the son’s death, his widow was ascertained and her interest vested in possession. Because the second wife was the son’s widow, she is entitled to the valid life estate. Thus, the granddaughter and the city zoo hold one-half interests, subject to the second wife’s life estate. (B) is wrong because the son had no interest in the land when he died. He merely had a life estate, which ended at his death. He did not inherit any interest in the property from anyone else. The only person he inherited from in these facts was his first wife, and she had no interest in the land. Furthermore, this choice overlooks the city zoo’s interest, which was inherited from the grandson. (C) is wrong because the son’s children’s interest does not violate the Rule Against Perpetuities. To be valid under the Rule, an interest must vest if at all within a life in being at its creation plus 21 years. The son is a life in being. At the son’s death, his children’s interest is certain to vest or fail: If the son had any children, at his death, the children’s interest would become indefeasibly vested (i.e., the class would close and the children’s interest would no longer be subject to open). Note that the children need not come into possession within the perpetuities period; the only requirement is that their interests vest within the period. Likewise, if the son had no children, the gift to them was certain to fail at his death. Thus, the children’s interest does not violate the Rule. Because the son had children and their interest was valid, there was no interest to revert to the landowner and to be devised to the friend. Note that the unborn widow aspect of this question is a red herring. The fact would be relevant only if the children’s gift were conditioned on their surviving the widow, in which case the takers would remain unascertained and their interest would remain contingent until that time. But because the children’s interest vested at the son’s death, it is irrelevant that the son’s “widow” was not a life in being at the creation of the interest. (D) is wrong because the gift to the son’s children was not conditioned on their survival of the son. The law does not imply such a condition. The grandson’s interest was vested subject to open and could be disposed of by his will.
A landowner was declared insane and committed to a state mental hospital 30 years ago. Five years after that, a trespasser entered onto the landowner’s 200-acre parcel of land, which was enclosed by a barbed wire fence. A solid wood fence ran through the middle of the land, separating the property into approximately equal east and west parcels. The trespasser began grazing cattle on the west parcel; no one else has been in possession of any part of the 200 acres. The period of time to acquire title by adverse possession is 15 years. Thirteen years ago, the landowner was declared competent and released from the hospital, but he did nothing until this year, when he brought an action to eject the trespasser. The trespasser counterclaimed to quiet title in him.
In this action, will the trespasser likely prevail?
A Yes, because he has acquired title to the 200 acres by adverse possession.
B Yes, but only as to the west parcel, because that is the portion of the land he actually occupied during his adverse possession.
C No, because the landowner can assert the defense of laches, as the trespasser did not bring an action to quiet his title within a reasonable time after the statute had run.
D No, because the landowner was insane for 12 of the 25 years that the trespasser was in possession.
D
The trespasser will lose because the landowner’s insanity delayed the running of the statute of limitations. The insanity disability prevents the running of the statute of limitations for adverse possession if the disability existed on the day the adverse possession began. Because the landowner was insane when the trespasser began the period of adverse possession, the clock did not begin to run until the landowner was free of the disability 12 years later; thus, the clock has run 13 years to the present. That is not enough to satisfy the statute, so the trespasser gets nothing. (A) is incorrect because the disability keeps the trespasser from getting any of the property. In the absence of the disability, however, the trespasser could have obtained title only to that portion of the land that he actually possessed, the west portion. He did not enter under a color of title, which could have given him title to all of the land even though he actually possessed only a part of it. Thus, (B) is also incorrect. (C) is incorrect because there is no specified time in which an adverse possessor has to bring an action to quiet title; the doctrine of laches does not apply.
In litigation over whether an uncle conveyed a parcel of land to his nephew, the nephew wishes to offer into evidence a tape recording of his uncle made by a well-known oral historian at the nearby state university. The voice on the tape is discussing various conveyances of the parcel of land and other property owned by the uncle. The nephew wishes to have the historian testify that the voice on the tape is the uncle’s.
If the court allows the historian to testify, it will be because:
A The historian is testifying regarding an admission by a party-opponent.
B The historian has heard the uncle speak before.
C The historian became familiar with the uncle’s voice before the dispute over the property arose.
D The historian’s experience as an oral historian qualifies him as an expert in voice recognition.
B
The court will allow the historian to testify as to the identity of the voice simply because he is familiar with the uncle’s voice. Where the identity of a speaker is important, the oral statements require authentication as to the identity of the speaker. A voice, whether heard firsthand or through a tape recording, may be identified by the opinion of anyone who has heard the voice at any time. As long as such a foundation is laid to show familiarity with the voice, a lay opinion as to the identity of the speaker is permissible. Thus, because the historian became familiar with the uncle’s voice when he made the tape recording, he will be permitted to testify that the voice on the tape was the uncle’s. (A) is incorrect because, even assuming that the uncle is a party opponent, the historian is only testifying as to the identity of the speaker rather than any admissions that the uncle may have made. (C) is incorrect because, in contrast to the rule for handwriting verification, a person can become familiar with a voice after litigation has begun and for the sole purpose of testifying. Hence, the fact that the historian became familiar with the uncle’s voice before the dispute arose is not critical to admissibility of his testimony. (D) is incorrect because expert testimony is not required for identifying a voice on a tape recording. Because the historian’s testimony is based on his previous familiarity with the uncle’s voice and is needed to authenticate the tape recording, it will be admissible as opinion testimony under Federal Rule 701.
A decedent died without having executed a will, leaving a substantial estate to be distributed by the probate court. The jurisdiction’s applicable statute provides that where a decedent leaves neither issue nor spouse, nor parents, his estate goes to his brothers and sisters and their descendants. The decedent was never married, had no children, and both of his parents are dead. A woman whose birth certificate was destroyed by fire seeks to establish that she is the daughter of the decedent’s only sibling, who is now also deceased. The woman offers into evidence a statement in a properly recorded trust instrument. The instrument was executed by the decedent’s father and recited that certain specified real property conveyed by the decedent’s father into the trust should be held for her benefit, as “my loving granddaughter.” The document actually offered is an enlarged print photocopy of microfilm records, authenticated by an employee of the county.
What should the trial court do?
A Exclude the evidence, because it is not the best evidence.
B Exclude the evidence, because it is inadmissible hearsay not within any recognized exception.
C Admit the evidence, because it is a record of a document affecting an interest in property.
D Admit the evidence, because it constitutes a past recollection recorded.
C
The court should admit the evidence. Statements in a document affecting an interest in property are admissible, pursuant to Federal Rule 803(15), if they are relevant to the purpose of the document. Thus, (B) is incorrect. (A) is incorrect because properly authenticated copies of recorded writings may be used in lieu of originals. [Fed. R. Evid. 902(4)] (D) is incorrect because the trust instrument cannot qualify as a recorded recollection; there is no witness testifying that he made or adopted the writing while the events were fresh in his mind and he has no present recollection.
An employee of the United States Department of Labor was instructed by his superior to solicit subscriptions to the Department’s bulletin on a door-to-door basis in the city in which he worked. While doing so, the employee was arrested for violation of a city ordinance that prohibited commercial solicitation of private residences.
What is the employee’s best defense?
A Intergovernmental immunity.
B The First Amendment freedom of expression as it applies to the states through the Fourteenth Amendment.
C The Equal Protection Clause as it applies to the states through the Fourteenth Amendment.
D The city ordinance effectively restricts interstate commerce.
A
The employee’s best defense is intergovernmental immunity. State and local governments cannot tax or regulate the activities of the federal government. This principle is often termed “intergovernmental immunity.” The arrest and prosecution of a federal employee who was on the job violates this principle, which is based on the supremacy of the federal government and federal law. (B) is not a bad answer because door-to-door solicitation is protected by the First Amendment. However, at best, (B) would subject the city’s actions to strict scrutiny and allow the city to prevail if it could prove that its action was necessary to achieve a compelling government purpose. In contrast, (A) would automatically invalidate the city’s enforcement of the law against the employee, and so (A) is a better answer. (C) is irrelevant because the Fourteenth Amendment’s restriction on the states has to do with persons, not the federal government, and here there is no claim that the city was discriminating against the employee. The city’s ordinance, as briefly described, does not seem to provide the basis for an equal protection claim. (D) is wrong because nothing in the facts shows any burden on interstate commerce. Moreover, at most such a claim would trigger heightened scrutiny; it would not automatically invalidate the enforcement of the law as would (A).
A small group of terrorists hijacked a foreign airliner. Ten prominent bankers from the United States were among the airline passengers. The terrorists demanded that three individuals imprisoned in a state prison be released. Although these individuals were properly convicted of violation of state laws, the terrorists contended that they were political prisoners and that their convictions were merely a subterfuge to prevent them from inciting the local populace. After negotiations between the State Department and the terrorists, the President of the United States agreed to release the three prisoners in return for the freedom of the 10 bankers. He issued official pardons and ordered that the prisoners be released.
What is the strongest argument that the President’s order is invalid?
A The President lacks the power to enter into executive agreements with non-state actors.
B Executive orders do not enjoy supremacy unless they are passed into law by Congress or signed and approved as treaties.
C Executive orders affecting only named individuals are invalid because they are bills of attainder.
D The President lacks the power to pardon the prisoners.
D
The strongest argument against validity is based on federalism principles. Under Article II, Section 2 of the Constitution, the President has the power to “grant reprieves and pardon offenses against the United States, except in cases of impeachments.” Thus, the President’s pardon power is limited to violations of federal law. The President has no authority to pardon those convicted of state crimes or held in state custody. The President lacks the authority to grant these pardons. Although the President’s ability to negotiate treaties only extends to dealing with other nations, (A) is wrong because the President possesses other powers that would allow him to negotiate such deals. For example, the President’s powers as Commander in Chief and other inherent powers (such as the ability to negotiate executive agreements) would justify this action. (B) is wrong because, under the doctrine of federal supremacy, federal law will govern state law when there is an inconsistency between the federal and the state laws. Therefore, the governor could be required to do an act that is a violation of state law, but a requirement of federal law. (C) is wrong because a bill of attainder is a legislative act that inflicts punishment without a judicial trial on individuals who are designated either by name or in terms of past conduct. Here, even if the President’s act were considered “legislative,” it does not inflict punishment.
A pedestrian walking along an unpaved road on his way to work saw a school bus coming in the opposite direction suddenly begin to careen toward him. The bus driver had momentarily lost control of the bus while attempting to light a cigarette.
To avoid being hit by the bus, the pedestrian jumped off the road into a landowner’s yard. Unfortunately, he landed in a bed of prize-winning zinnias and damaged them extensively.
In a suit by the landowner against the bus driver for the damages to her zinnias, what is the likely result?
A The bus driver is liable for trespass because his driving caused the pedestrian to enter the landowner’s yard and damage her zinnias.
B The bus driver is liable on the theory of negligence.
C The bus driver is not liable because the landowner’s zinnias were not within the scope of any duty he owed in operating a bus on a public road.
D If the bus driver is held liable on any theory, he is entitled to indemnity from the pedestrian, who did the damage.
B
The bus driver is liable to the landowner in a negligence action. The driver of a vehicle on a public road owes to foreseeable plaintiffs a duty of ordinary, reasonable care to refrain from creating an unreasonable risk of injury in the operation of the vehicle. In trying to light a cigarette while driving the bus, the bus driver created an unreasonable risk that he would lose control of the bus, thus endangering the physical safety and the property of other drivers on the road, pedestrians, and owners of property adjoining the road. There was a foreseeable risk of injury to the landowner or her property arising from the manner in which the bus driver drove the bus; thus, the duty of care extended from the bus driver to the landowner. This duty was breached when the bus driver drove the bus so as to create an unreasonable risk of injury to the landowner or her property. It was reasonably foreseeable that a pedestrian endangered by the manner in which the bus driver drove the bus would be compelled to enter the landowner’s property and would damage the zinnias. By forcing the pedestrian to jump off the road to save his life, the bus driver actually and proximately caused the damage to the zinnias; where a defendant’s actions cause another to react, liability will attach for any harm inflicted by the reacting person on another. Thus, the bus driver can be held liable in negligence for the damage to the landowner’s zinnias. (C) is incorrect because the manner in which the bus driver operated the bus created a foreseeable risk of injury to the person or property of someone who owns property adjoining the road. Therefore, the general duty of due care owed by the bus driver in his operation of the bus extended to the landowner and her zinnias. (A) is incorrect because the bus driver lacked the intent to bring about a physical invasion of the landowner’s property. Absent such intent, there can be no liability for trespass. The bus driver was negligent in his operation of the bus, and this caused the pedestrian to enter the landowner’s land. However, the bus driver neither acted with the purpose of forcing the pedestrian onto the landowner’s land nor did he act knowing with substantial certainty that this consequence would result. Therefore, the bus driver did not have the intent needed to support an action for trespass. (D) is incorrect because none of the circumstances in which indemnity is available is present. Indemnity involves shifting the entire loss between or among tortfeasors. One held vicariously liable may obtain indemnification from the person whose conduct actually caused the damage. The bus driver will be held liable for his own negligence in driving the bus, not vicariously for any conduct of the pedestrian’s. Thus, this basis for indemnity does not apply. It is also possible for one tortfeasor to recover against a co-joint tortfeasor where there is a considerable difference in degree of fault. Here, the bus driver is primarily at fault. He was negligent in driving the bus, while the pedestrian merely reacted to save himself from death or serious injury, and was apparently not negligent at all. Thus, it is the bus driver who is the “more wrongful” tortfeasor, thereby precluding recovery of indemnity from the pedestrian on this basis as well.
An owner and a builder executed a contract providing that the builder was to construct a residence on a specified lot according to plans and specifications. The total contract price was $800,000. No date was included in the contract for completion of the home. After the builder completed 60% of the residence, a flash flood from a nearby river partially eroded the lot but left the construction undamaged. The builder determined that it would cost an additional $1.7 million to repair the lot so that the residence can be constructed according to the plans. Without the additional lot repair work, the residence cannot be constructed at all.
Which of the following states the probable legal consequences of the lot erosion?
A The builder may avoid the contract if the increased costs of construction would bankrupt him.
B The contract is void because of mutual mistake.
C The builder is discharged from his duties under the contract because of impracticability.
D The builder remains obligated to perform under the contract, but he may bring an action against the owner for the increased costs of construction.
C
The builder will be discharged from his duties under the contract. Modern courts recognize that impracticability due to excessive and unreasonable difficulty or expense is a defense to breach of contract for nonperformance. Since the cost to the builder to perform under the original contract would exceed more than double what he would be paid, he likely would be excused from performance by commercial impracticability. (D) is therefore incorrect. Unlike destruction of the building itself before completion, which will not discharge a contractor’s duty, the erosion of the lot, which destroys the means of performing the contract, will generally not be one of the risks that a builder will be deemed to have assumed. (A) is wrong because the builder’s bankruptcy is irrelevant for this purpose. (B) is wrong because there is no mutual mistake here.
Two neighbors owned summer homes adjacent to each other on the lake. After a week-long stay by the son of one of the property owners, the neighbor called the owner and said that his boat dock had been badly damaged and was told by another resident that the owner’s son and some friends had gotten drunk and accidentally crashed their boat into his dock. The owner was surprised at the accusation because he was sure that if his son had caused the damages, he would have told him. However, he did not want to get into a dispute with his neighbor, so he told his neighbor that he would have the dock repaired and pay for the repairs if the neighbor agreed not to bring a claim against his son for the damage to the dock. The neighbor agreed, and the owner hired a local carpenter to do the work. Later, however, the owner discovered that his son did not damage the dock because the damages occurred after his son had returned to college.
Is the owner obligated to pay for the repairs?
A No, because the owner never really believed that his son caused the damage.
B No, because his son in fact did not cause the damage.
C No, because the neighbor was wrong when he accused his son of causing the damage and it would be unfair to enforce an agreement when there was a mutual mistake of fact.
D Yes.
D
Modern courts would hold that a promise to forbear suit on a claim that the promisor honestly and reasonably believes to be valid is good consideration to support an agreement, even if the claim ultimately turns out not to be valid. Hence, (A) and (B) are wrong. (C) is wrong because mutual mistake is not a defense when the adversely affected party bore the risk that the parties’ assumption was mistaken. To be a defense, it must be a true mistake, not merely an uncertainty. Here, the owner always had the right to investigate the truth of the facts before he agreed to pay for the dock.
A three-year-old girl attending nursery school punched a boy in the face because he was teasing her about wearing glasses. The blow knocked out the boy’s newly acquired front teeth.
If the boy’s parents sue the girl’s parents for the injury, what is their best defense?
A The boy was the initial aggressor.
B The girl is too young to be responsible for her actions.
C A parent cannot be liable for damages due to the child’s conduct.
D The parents were unaware of any potentially violent behavior by the girl.
D
The best defense of the girl’s parents is that they were unaware of any potentially violent behavior by the girl. At common law, parents are not vicariously liable for the torts of their child. (Statutes in most states allow for limited liability for intentional torts, but there is no indication of such a statute here.) Parents can be liable, however, for their own negligence, i.e., in not exercising due care under the circumstances. Thus, if the parents know their child may be violent, they could be negligent if they do not take precautions to prevent that behavior or injury from that behavior. However, if the parents have no reason to know their child could be violent, they have no duty to protect against such behavior. Here, if the girl had never done anything like this before, and her parents had no idea that she would be violent, they were not negligent in allowing her to attend nursery school. (A) is wrong because, although the boy’s teasing may have provoked the girl, he did not initiate the violence. He did nothing to allow the girl a right of self-defense, and so his actions would not provide the girl’s parents with a good defense. (B) is wrong because there is no general tort immunity for children. As long as the child is old enough to intend the act, she can be held liable. Here it seems that the girl intended to cause a battery. She either intended or knew with substantial certainty that swinging her fist would strike the boy in the face, i.e., would cause a harmful or offensive contact. Thus, this choice does not present the best defense for the defendants. (C) is wrong because parents can be liable for damages due to their child’s conduct. As explained above, although the parents are not vicariously liable at common law, they can be liable based on their own negligence (e.g., for negligent supervision).
While the defendant was committing a robbery, he shot and killed the victim. The defendant is charged with first degree murder in a state that defines first degree murder as murders committed with premeditation or deliberation or during the commission of burglary, arson, rape, or robbery, and defines second degree murder as all other murders. The state also defines voluntary manslaughter as the unlawful killing of a human being with malice upon a sudden quarrel or heat of passion, and it defines involuntary manslaughter as the unlawful killing of a human being without malice in the commission of an unlawful act, not amounting to an enumerated felony, or in the commission of a lawful act that might produce death in an unlawful manner or without due caution and circumspection.
Assuming evidence to support, what explanation for the shooting would best help the defendant in avoiding conviction for first degree murder?
A In an act of resistance, the victim suddenly attacked the defendant and knocked him down, so the defendant pulled the trigger because he was afraid the victim was going to hit him again.
B The defendant had the gun for many years, it was old and rusty, and he did not think it would fire.
C The defendant had taken “angel dust” before the incident and does not remember getting a gun or holding up the victim.
D When the defendant tried to hold up the victim, the victim said, “Get out of here, you dirty bum, or I’ll kill you,” and the defendant became so upset that he did not know what he was doing.
C
Because the defendant was charged with first degree murder, the theory of the case is most likely felony murder, and (C) is the only choice that sets out a theory to avoid a felony murder conviction. If the defendant was so intoxicated that he could not form the intent to steal, then he is not guilty of robbery, and there would be no “felony” from which the felony murder rule is to arise. (A) and (B) are incorrect because even though the defendant could argue that no premeditation or deliberation was present, he would still be guilty of first degree murder under the felony murder rule because the felony was robbery. (D) is wrong because insulting someone is not adequate provocation that would mitigate a homicide to voluntary manslaughter; neither would this “threat” suffice, in all likelihood. At most, the circumstances might produce the sort of unreasonable anger that would negate premeditation and deliberation. However, because the defendant clearly caused the homicide while committing the felony of robbery, his crime remains first degree murder.
Acting with probable cause, the police arrested a man in connection with the armed robbery of a liquor store. After being given Miranda warnings, the man confessed to the robbery but denied his involvement with several other recent armed robberies of businesses in the area. He was formally charged with the one robbery and put into a cell with a paid informant working undercover for the police. The informant had been instructed to find out what he could about the other robberies but not to ask any questions. The informant began talking about a convenience store robbery in which a bystander was shot and seriously injured by the robber, and he deliberately misstated how it happened. The man, unaware that his cellmate was an informant, interrupted to correct him, bragging that he knew what really happened because he was there, and proceeded to make incriminating statements about the robbery. The man was subsequently charged with armed robbery and attempted murder in the convenience store robbery.
At a motion-to-suppress hearing on that charge, if the man’s attorney moves to exclude the statements made to the informant, should the motion be granted?
A Yes, because the informant deliberately elicited incriminating statements in violation of the man’s Sixth Amendment right to counsel.
B Yes, because the informant’s conduct constituted custodial interrogation in violation of the man’s Fifth Amendment privilege against self-incrimination.
C No, because the man had not yet been charged with the robbery of the convenience store when he made the statements to the informant.
D No, because the informant’s conduct did not constitute interrogation.
C
The man’s motion should be denied because neither his Fifth nor Sixth Amendment rights were violated by the informant’s conduct. The Sixth Amendment right to counsel applies to all critical stages of a criminal prosecution after formal proceedings have begun, but does not apply in precharge custodial interrogations. Because this right is “offense specific,” the fact that the right to counsel has attached for one charge does not bar questioning without counsel for an unrelated charge. Because the man has not been charged with the convenience store robbery, his Sixth Amendment right to counsel has not been violated. The Fifth Amendment privilege against self-incrimination requires Miranda warnings and a valid waiver before any statement made by the accused during custodial interrogation can be admitted. However, this requirement does not apply where interrogation is by an informant who the defendant does not know is working for the police, because the coercive atmosphere of police-dominated interrogation is not present. [Illinois v. Perkins (1990)] Because the man was not aware of the informant’s status, the informant’s conduct did not constitute a police interrogation. (A) is wrong despite the fact that the informant’s conduct may have been deliberately designed to elicit incriminating remarks. As discussed above, the man’s right to counsel did not attach for purposes of the convenience store robbery. (B) is incorrect because, as discussed above, the Miranda warnings need not be given before questioning by a cellmate working covertly for the police. (D) is incorrect because interrogation refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. Here, the informant, working for the police, made statements about the convenience store robbery that were intended to, and reasonably likely to, prompt a response from his cellmate. Hence, it is not the absence of “interrogation” that avoids the Miranda problem, but the fact that the man did not know that his cellmate was working for the police.
