Mixed Questions - Set 31 Flashcards
A homeowner sued a contractor in federal court for damages resulting from an unsuccessful roof repair. However, the homeowner failed to attend status conferences and failed generally to prosecute the action. As a result, the court dismissed the case with prejudice for want of prosecution. The homeowner then filed her complaint in a different federal court. In his answer the contractor asserts the affirmative defense of claim preclusion.
Should the court dismiss the case?
A No, because the merits of the case were not determined.
B No, because the court erred in designating the dismissal as one with prejudice.
C Yes, because the dismissal was with prejudice.
D Yes, because dismissals for want of prosecution are on the merits.
C
The court should dismiss the case. For claim preclusion to apply, (i) the earlier judgment must be a valid, final judgment on the merits; (ii) the cases must be brought by the same claimant against the same defendant; and (iii) the same cause of action must be involved in the later suit. Under Federal Rule of Civil Procedure 41, dismissals for lack of prosecution are with prejudice and operate as an adjudication on the merits unless the court designates otherwise. As a result, the judgment has claim preclusion effect on subsequent cases between the parties. (A) is incorrect. Although the factual merits of the case were not determined, Rule 41 dictates that the judgment is on the merits unless the court states otherwise. (B) is factually incorrect, as the court complied with Rule 41. (D) is incorrect as too broad. The court may designate a dismissal for want of prosecution as an adjudication on the merits but is not required to do so. Here, the court could have designated the dismissal as one without prejudice, meaning that the plaintiff could bring her action in another court.
A snowmobiler, who lives in State A, hit a skier with a snowmobile while on vacation in the skier’s home state of State B, causing damages in excess of $80,000. Although the skier has never been to State A, he sued the snowmobiler in State A federal court.
Which of the following statements is true regarding the skier’s State A lawsuit?
A The State A federal court lacks personal jurisdiction over the parties because the skier has insufficient contacts with State A.
B The State A federal court is an improper venue because the claim did not arise there.
C The State A federal court may exercise personal jurisdiction over the parties because the skier consented to such personal jurisdiction.
D The skier waived his claim against the snowmobiler by filing it in the wrong forum.
C
The federal court may exercise personal jurisdiction over the parties because the skier consented to personal jurisdiction. Either party may consent to personal jurisdiction of local courts as a sufficient statutory basis for in personam jurisdiction. Here, the skier filed the lawsuit in State A, thereby consenting to in personam jurisdiction. Moreover, the State A federal court has general personal jurisdiction over the snowmobiler because it is where the snowmobiler is domiciled. Therefore, the State A federal court may exercise personal jurisdiction over the parties. (A) is wrong because although the skier did not have any contact with State A prior to filing the lawsuit, he consented to in personam jurisdiction, making a minimum contacts evaluation irrelevant. Moreover, the constitutional limitations focus on the defendant, not the plaintiff, in terms of whether sufficient minimum contacts exist between the defendant and the forum so that maintenance of the suit against the defendant does not offend “traditional notions of fair play and substantial justice.” State A has general in personam jurisdiction for any cause of action against a defendant in the defendant’s home state, even for actions arising from an out of state activity. In general jurisdiction cases, the claim need not arise out of the contacts. Here, State A is the snowmobiler’s domicile, and as such State A has general jurisdiction. Moreover, it is fair and convenient for him to defend the lawsuit in his home state. (B) is wrong because venue in State A federal court is proper because a judicial district in which any defendant resides (so long as all defendants reside in the same state) is a proper venue in civil actions in federal court. (D) is wrong because the skier did not file in the wrong forum for all the reasons previously stated.
A landowner executed a will, devising a parcel of land “to my sister for life, then to my brother for life, then to my nieces and nephews.” When the landowner died, he was survived by the sister and the brother’s son. The sister and the brother’s son contracted to sell the land to a buyer for $225,000. At the time set for closing, the sister and the brother’s son tendered a quitclaim deed to the buyer, who refused to complete the sale. The sister and the brother’s son bring suit against the buyer for specific performance. The jurisdiction in which the land is located does not follow the Doctrine of Worthier Title.
Will specific performance likely be granted?
A Yes, because a quitclaim deed conveys whatever interest the grantors have in the property.
B Yes, because the interests involved are freely alienable.
C No, because the jurisdiction does not follow the Doctrine of Worthier Title.
D No, because title is unmarketable.
D
The sister and the brother’s son will not prevail in a suit against the buyer for specific performance because title is unmarketable. Marketable title is title reasonably free from doubt, i.e., title that a reasonably prudent buyer would be willing to accept. Title may be unmarketable where the owners of the present and future interests attempt to convey a fee simple absolute title if the future interests are held by persons who are unborn or unascertainable. Here, the sister has a life estate, and the brother’s son has a vested remainder subject to open because there may be other nieces and nephews born during the sister’s life who become entitled to share in the remainder. Life estates and vested remainders are freely transferable, which means that the sister and the brother’s son together can transfer the land to a purchaser, but the title is not marketable. It may turn out that the sister has a child, who is entitled to share in the remainder, but who did not join in the conveyance to the buyer. Because the child would not be bound by the conveyance, he would own an interest in the land. Thus, although the interests are considered alienable, the sister and the brother’s son cannot convey good title because there are outstanding interests in the unborn nieces and nephews. (A) is incorrect because, although a quitclaim deed does convey whatever interest the grantors have in the property, it does not affect the covenant to provide marketable title. (B) is incorrect because, although the interests involved are transferable (as explained above), the interests of the unborn nieces and nephews are not represented in the conveyance. While most courts will appoint a guardian ad litem to represent unborn persons in litigation, such an appointment will not be made for purposes of conveying land. (C) is incorrect because the Doctrine of Worthier Title is inapplicable here. The doctrine invalidates remainders that are limited to the grantor’s “heirs.” Here, the remainder is in the grantor’s nieces and nephews.
A landowner conveyed her parcel of land to a buyer. The buyer placed the deed in her safe deposit box but did not record the instrument before leaving town. Six months later, the landowner conveyed the same parcel of land to a farmer, who promptly recorded his deed. The farmer had heard that the landowner previously sold the land to a different buyer, but he was sure that the landowner would not sell him property she had already sold to someone else. Six months later, the buyer returned to the land and found the farmer there. A statute of the jurisdiction in which the land is located provides: “No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof whose conveyance is first recorded.” The buyer now sues the farmer in ejectment.
Who owns the land?
A The farmer, because his recording cured any possible defect of his knowing of the earlier sale.
B The farmer, because he recorded first.
C The buyer, because the farmer is not protected by the recording act.
D The buyer, because her deed from the landowner came earlier than the farmer’s.
C
The buyer owns the land because the farmer is not protected by the recording act. In a race-notice jurisdiction such as described, a subsequent purchaser must have taken without notice of the earlier sale and must have been the first to record. Otherwise the recording act will not apply. The farmer was indeed the first to record, but he took with notice that the property had been sold before. It does not matter how the subsequent purchaser learns of the earlier sale; if that person knows about it, he loses. Because the recording act does not apply to protect the farmer, the common law rule of first-in-time, first-in-right gives title to the buyer. Thus, (C) is correct and (B) is incorrect. (A) is incorrect because recording does not cure the problem of the farmer taking with notice. (D) is not as good an answer as (C) because if the recording act did apply, the buyer’s receiving a deed before the farmer would not give her superior rights to the land.
An antiques purchaser who did not speak English sued a dealer for breach of contract, alleging that he had agreed to sell her an antique chair for $15,000 but had refused to accept her certified check when she came to pick up the chair. At the trial, the purchaser, through an interpreter, testified that she asked her brother to communicate to the dealer her offer to purchase the chair. She wishes to testify that her brother told her, “The dealer has agreed to sell you the chair for $15,000.” The agreement was not reduced to writing and the brother died a few days after that conversation.
If the jurisdiction has a typical “Dead Man Act,” what effect will the Act have upon the admissibility of the purchaser’s conversation with her brother?
A It will render the conversation inadmissible because a civil action is involved.
B It will render the conversation inadmissible because the purchaser is an interested party.
C None, because the dealer is not a protected party.
D None, because a civil action is involved.
C
The Dead Man Act will have no effect on the admissibility of the purchaser’s conversation with her brother because the dealer is not a protected party. A typical Dead Man Act provides that a party or person interested in the event, or her predecessor in interest, is incompetent to testify to a personal transaction or communication with a deceased when such testimony is offered against the representative or successor in interest of the deceased. Such statutes are designed to protect those who claim directly under the decedent from perjured claims. Here, the dealer is not a representative or successor in interest of the brother, such as an executor, administrator, heir, legatee, or devisee. Therefore, the dealer is not a protected party for purposes of a Dead Man Act. Because the testimony of the purchaser is not being offered against a representative or successor in interest of the decedent (her brother), the Dead Man Act is inapplicable. Regarding (A), it is true that the bar to competency created by a Dead Man Act applies only to civil cases. However, the mere fact that a civil action is involved will not trigger applicability of a Dead Man Act. As explained above, the absence of someone who is deemed to be a protected party will prevent a Dead Man Act from having any effect. Thus, (A) is incorrect. Regarding (B), it is true that the purchaser is an interested party (i.e., she stands to gain or lose by the direct and immediate operation of a judgment in this case). Nevertheless, (B) is incorrect because a Dead Man Act requires not only an interested person but a protected party. As has been noted, the dealer is not a protected party. (D) is incorrect because it is based on the assumption that a Dead Man Act does not apply to civil cases. In fact, such statutes apply only to civil cases, and not to criminal cases.
The plaintiff sued the defendant on a breach of contract theory. A witness testified for the plaintiff.
On cross-examination, which of the following questions is the trial judge most likely to rule improper?
A “Weren’t you convicted last year of forgery?”
B “Isn’t it true that you and the plaintiff have been best friends for many years?”
C “Isn’t it true that you are known in the community as an alcoholic?”
D “Didn’t you cheat your business partner out of a large amount of money last month?”
C
Asking if the witness is known as an alcoholic is most likely improper. This answer can best be understood by examining the permissible questions first. (A) asks about a prior conviction for forgery. Under Federal Rule 609, prior convictions of crimes requiring proof or admission of an act of dishonesty or false statement may be inquired into if they are less than 10 years old. This crime is one of dishonesty and is not too old; therefore, the question is proper. (B) is also a proper question. It goes to bias, which is always a permissible line of inquiry. (D) relates to prior bad acts for which there is no conviction. Federal Rule 608(b) permits cross-examination concerning prior bad acts if, in the discretion of the court, they are probative of truthfulness. Cheating a business partner is dishonest, and the witness is not a party; therefore, this question is proper. That leaves alternative (C). If the ability to observe, relate, or recall were at issue, then this question could be a permissible line of inquiry, especially because the witness is not a party and is not likely to be prejudiced by the question. On the other hand, the probative value of the other questions is obvious. Because the other questions are all obviously right, this is the one most likely to be ruled improper.
A public school teacher was hired without a written contract. The school district handbook provides that all newly hired employees are at-will employees for their first year of service and may be dismissed for any reason or without reason. Six months after being hired, the teacher was dismissed without any prior notice or a hearing.
Which of the following, if true, most strongly supports the teacher’s argument that she should have been afforded notice and a hearing before dismissal?
A She was the only newly hired teacher not to have survived the probationary period for the past three years.
B There is no evidence that teachers with permanent status are any more competent than this teacher.
C The teacher moved her household from out of state in reliance on an oral promise by the school board that the job would be permanent and that she could be dismissed only for cause.
D She was the only teacher there over the age of 50.
C
The teacher’s argument is most strongly supported if she moved in reliance on an oral promise that she could be dismissed only for cause. Under the Due Process Clause, a person has a right to notice and a hearing if the government deprives the person of life, liberty, or property. The Supreme Court has held that a government employee will have a property interest in continued employment only if the employee has a legitimate claim to (as opposed to a mere expectancy of) continued employment. To have such a claim, there must be a contract, clear practice, mutual understanding, etc., that the employee can be terminated only for cause. If someone in a position of authority promised that the teacher could be dismissed only for cause and the teacher relied on this promise by moving, a case can be made that the teacher had a legitimate claim to continued employment despite the employee handbook. (A) would also support the contention of a legitimate claim to continued employment. If every teacher over the past three years has survived the probation period, an argument can be made that there was a policy of retaining all newly hired teachers. However, this argument is weaker, factually, than the contract argument and so is not as good an answer choice as (C). (B) and (D) are incorrect because they are irrelevant—whether other teachers are more or less competent or younger than the teacher involved here does not factor into whether the teacher here has a legitimate claim to continued employment. The teacher needs to point to a contract or policy providing for dismissal only for cause.
A state enacted a statute to provide financial aid for residents of the state who attend public or private colleges and universities in the state. Under this statute, eligible students receive varying amounts of money, depending on need. A student living in the state who has never paid taxes applied for a grant of funds under this statute to attend a private college in a different state. His application was denied because the college was outside of his home state. The student filed suit in federal court against the appropriate state official, challenging the constitutionality of the denial on equal protection grounds and to compel the granting of his application.
Which of the following statements is most correct?
A The suit is barred by the Eleventh Amendment.
B The student has standing to maintain the action despite the fact that he has never paid taxes in the state.
C The federal court will not grant the injunctive relief sought by the student in the absence of “extraordinary circumstances.”
D The doctrine of sovereign immunity bars the student’s action.
B
The student has standing. A person challenging the constitutionality of a government action must have standing to raise the issue. To have standing, a person must show that he is injured by a government action (injury in fact) and that a favorable decision will eliminate the harm. Generally, a taxpayer does not have standing to challenge the way tax money is spent because any alleged injury is too remote. However, here the student is not bringing suit as a taxpayer; rather he is alleging that the state policy of providing financial aid only for residents who attend schools in the state injures him by depriving him of such aid solely on the basis of attending a college outside the state, thus violating his right to equal protection. A ruling in the student’s favor will eliminate the harm to him. Therefore, the student has a concrete stake in the outcome of this controversy, entirely independent of whether he has ever paid taxes in the state. Regarding (A), the Eleventh Amendment prohibits a federal court suit against a state by a citizen of that state or by a citizen of another state. However, the Eleventh Amendment does not bar a suit against a state official acting pursuant to state law but allegedly in violation of the plaintiff’s constitutional rights. Here, the student is seeking an order that a particular state official be compelled to act in conformity with the student’s right to equal protection. The lawsuit is not brought against the state, nor does it seek a retroactive recovery from state funds. The prospective payment of state funds that the student seeks through the compelled granting of his application for aid is not prohibited by the Eleventh Amendment. Thus, (A) is incorrect. Regarding (D), the doctrine of sovereign immunity refers to the rule that a governmental entity may not be sued unless it consents to be sued (which consent is generally afforded by statute). Here, the facts do not state whether the state has consented to be sued. However, as detailed above, the student is not actually suing the state. He is suing a state official who is allegedly enforcing an unconstitutional enactment, and is seeking to compel the official to grant his application. Because the suit is not against the state, the doctrine of sovereign immunity is not applicable. (C) is incorrect because it is only with regard to state criminal statutes or prosecutions that a party seeking to enjoin such statutes or prosecutions must show irreparable injury or exceptional circumstances (i.e., a showing of significant harm that could not be avoided by state adjudication and appellate review of the proceedings). Here, there is no criminal statute or prosecution at issue. Thus, there is no need to show “extraordinary circumstances.”
A woman purchased a bottle of hair dye at a drugstore. The bottle was labeled “ash blonde,” but due to a packaging mistake at the factory, the bottle actually contained a “rose gold” shade of dye. The two colors appear identical while still in the bottle, but are noticeably different once applied to hair. The woman discovered the mistake later that week when her hair turned to a perfect shade of rose gold after applying the dye.
Can the woman recover damages from the drugstore for breach of the implied warranty of merchantability?
A Yes, because the woman had a particular purpose in mind when selecting that shade of dye and relied on the packaging when she selected it.
B Yes, because the bottle was mislabeled.
C No, because the hair dye worked properly.
D No, because the factory, not the drugstore, was responsible for the mistake.
B
The drugstore breached the implied warranty of merchantability because the bottle was mislabeled. Implied in every contract for sale by a merchant who deals in goods of the kind sold, there is a warranty that the goods are merchantable. To be merchantable, goods must be adequately contained, packaged, or labeled according to the contract and must conform to any promises or affirmations of fact made on the label. The bottle the woman purchased was labeled “ash blonde” when it actually contained “rose gold” dye. The product did not conform to its label, thus the drugstore breached the warranty of merchantability with the sale. (A) is not the correct answer because it mistakenly attempts to argue that there was a breach of the warranty of fitness for a particular purpose, rather than addressing the warranty of merchantability. The implied warranty of fitness for a particular purpose is implicated in a sale of goods whenever the seller has 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 the buyer in fact relies on the seller’s skill or judgment. A particular purpose differs from the ordinary purpose for which goods are used in that it envisages a specific use by the buyer which is peculiar to the nature of her use, whereas the ordinary purposes for which goods are used are those envisaged in the concept of merchantability. (C) is also incorrect. While the implied warranty of merchantability requires that goods are fit for the ordinary purpose for which such goods are used, this does not mean that mislabeled goods, that are not otherwise defective, meet this standard. As discussed above, to be merchantable goods must conform to any promises or affirmations of fact made on the label. (D) is incorrect because it makes no difference that the factory was responsible for the mistake and that the drugstore did not know of the defect or could not have discovered it. Implied warranties are not based on negligence but rather on absolute liability that is imposed on sellers who deal in goods of the kind sold, such as the drugstore here.
A landowner orally agreed to sell 100 acres of land to a buyer for $10,000. As a condition of the sale, the buyer agreed to pay $5,000 of the purchase price to the landowner’s creditor. The buyer’s attorney drafted the contract, which both the landowner and the buyer read before signing. The signed document made no reference to the payment to the landowner’s creditor, and neither party noticed the oversight.
In an action by the creditor against the buyer for $5,000, which of the following facts, if proved, would be most important?
A The buyer was negligent in not having carefully read the written agreement.
B The landowner-buyer agreement was completely integrated.
C The terms of the signed document are unambiguous.
D The omission of any reference to the creditor from the written document was accidental.
D
In making a determination as to who would prevail in an action by the creditor against the buyer, the most important fact would be that the omission of any reference to the creditor in the written document was accidental. If there is an agreement between the parties, the agreement is put into writing, and there is a variance between the original agreement and the writing, the writing can be reformed to reflect the intent of the parties. A plaintiff who wants to obtain reformation of a contract must show that there was an antecedent agreement that is not correctly reflected in the writing (e.g., by mistake). These requirements are met here because the writing fails to include a provision that was included in the earlier oral agreement concerning payment of part of the purchase price to the landowner’s creditor. (A) is wrong because the negligence of either the buyer or the landowner should not adversely affect the creditor’s claim where the facts do not suggest that either party assumed the risk of the mistake. (B) is wrong because, even if the landowner-buyer agreement was completely integrated, the contract could still be reformed for mutual mistake if the omission of any reference to the creditor from the written document was accidental. Under the parol evidence rule, completely integrated writings cannot be contradicted or supplemented by either written or oral expressions made prior to the writing or oral expressions made contemporaneously with the writing, but the parol evidence rule does not apply if a party to a written agreement alleges facts that entitle him to reformation of the agreement. (C) is wrong because, while it is true that the terms of the writing are unambiguous, the answer turns on a mutual mistake involving omission of a material term and not on an ambiguity in the writing, and, as explained above, such mutual mistake allows for reformation of the contract.
A homeowner looked out his front window one day and saw a neighbor standing on a narrow ledge on the second story of the house across the street. He also saw a ladder lying on the ground beneath where the neighbor was stranded. The homeowner ran out and picked up the ladder and placed it against the side of the house. However, he set it atop a patch of ice. As the neighbor started down the ladder, a rotten rung broke and he fell to the ground and was injured.
If the neighbor sues the homeowner for damages for his injuries, will he recover?
A Yes, because the homeowner’s action caused the injury to the neighbor.
B Yes, because the homeowner assumed the duty of aiding the neighbor.
C Yes, because it was foreseeable that the neighbor would be injured as a result of the homeowner’s negligent conduct.
D No, because the homeowner’s negligence did not cause the injury to the neighbor.
D
The neighbor will not recover from the homeowner because even if the homeowner acted negligently in setting the ladder atop a patch of ice, this negligence did not cause the injury to the neighbor. A person generally is under no duty to assist another. Therefore, the homeowner was under no duty to assist the neighbor. However, having gratuitously undertaken to do so, the homeowner came under a duty to act as an ordinary, reasonable person while rendering such assistance. He breached this duty by setting the ladder atop the patch of ice, thus creating an unreasonable risk that the ladder would slip while the neighbor was climbing down, causing him injury. However, the homeowner is not liable for the neighbor’s injuries unless the homeowner’s breach of duty caused those injuries. Before a defendant’s conduct can be considered a proximate cause of the plaintiff’s injury, it must first be a cause in fact (actual cause) of the injury. An act is the cause in fact of an injury when the injury would not have occurred but for the act. Here, the neighbor’s fall and injuries would not have occurred but for the rotten rung. There is no indication that the homeowner’s negligence in placing the ladder on the ice contributed in any manner to the injuries. If the homeowner had carefully placed the ladder on a solid, ice-free surface, the neighbor would have incurred the same injury by stepping on the rotten rung. Therefore, the homeowner’s negligence was not a cause in fact of the neighbor’s injuries. Because the element of causation is missing, the homeowner will not be liable for the injuries to the neighbor. (A) is wrong because the homeowner’s negligent placement of the ladder was not the cause of the neighbor’s injury. Rather, the neighbor fell as a result of stepping on the rotten rung. Thus, it cannot be said that the homeowner’s negligent conduct caused the injury to the neighbor. (B) is wrong because the homeowner’s assumption of the duty to aid the neighbor does not render him absolutely liable for all injuries incurred. As explained, the homeowner did assume the duty to act reasonably in aiding the neighbor, and he did breach his duty by placing the ladder on ice. Nevertheless, this breach of duty did not cause the injuries to the neighbor. Thus, if the homeowner’s negligence did not cause the injury to the neighbor, he cannot be held liable, even if he was negligent. Regarding (C), while it is true that it was foreseeable that the neighbor would be injured as a result of the homeowner’s negligent conduct (i.e., that the ladder would slip on the ice, causing the neighbor to fall and be injured), it is also true that the neighbor was not injured as a result of the homeowner’s negligence. The homeowner cannot be held liable for something that was not in any way caused by his negligent conduct. Therefore, (C) is incorrect.
Two law students ranked high in their class were competing for one opening at a prestigious law firm. During the interview with the hiring partner, one student was asked what he thought of the other's work as an editor of the law review. The student responded that there was a rumor around the school that the editor got outside help on her law review comment. Based in large part on his statement, that student was chosen over the law review editor, who later accepted a less lucrative position with another firm. If the law review editor brings a slander action against the other student and establishes the above facts, will she prevail?
A Yes, because the student’s statement to the hiring partner was defamatory.
B Yes, because the law review editor suffered special damages.
C No, because the hiring partner asked the student for his opinion.
D No, because the law review editor did not establish that the student made the statement with at least negligence.
A
The student’s statement constitutes slander per se and therefore the student will be liable. To establish a prima facie case for defamation, the following elements must be proved: (i) defamatory language on the part of the defendant; (ii) the defamatory language must be “of or concerning” the plaintiff (i.e., it must identify the plaintiff to a reasonable reader, listener, or viewer); (iii) publication of the defamatory language by the defendant to a third person; and (iv) damages to the reputation of the plaintiff. Here, the student’s suggestion that the law review editor received outside help on an article she authored impeaches her integrity and legal skills. The defamatory language directly related to the editor. The publication requirement is satisfied because the student made the statement to the hiring partner. To recover damages for slander, special damages must be pleaded and proved unless the spoken defamation falls within one of four categories, characterized as slander per se. Hence, a defamatory statement adversely reflecting on the plaintiff’s abilities in his business, trade, or profession is actionable without pleading or proof of special damages. The student’s statement adversely reflected on the law review editor’s honesty and capability in her profession, and as such is slander per se. (B) is incorrect because, as noted above, the student’s defamatory statement adversely reflecting on the editor’s abilities in her profession is actionable without proof of special damages. (C) is incorrect because the mere fact that the interviewer asked the student his opinion does not justify a defamatory response. The student did not have a common law qualified privilege to make the statements because he was not a former employer of the law review editor and was not yet a member of the hiring partner’s firm (negating any common interest privilege). Furthermore, once publication is established, it is no defense that the defendant had no idea that the publication was defamatory. It is the intent to publish, not the intent to defame, that is the requisite intent. Thus, even if the student thought that his comments did not constitute defamation because they were in response to the interviewer’s question, he could still be found liable for defamation assuming all other elements of the tort were satisfied. (D) is incorrect because it states a standard for private persons suing on matters of public concern. Private plaintiffs must show that the defendant was at least negligent as to truth or falsity in making the statement, but here no matter of public concern is involved, so fault need not be shown. Also, since a matter of public concern is not involved, the plaintiff does not need to establish that the statement was false; a defamatory statement is presumed false at common law.
A shoplifter set a small fire in a store’s trash basket. The shoplifter knew that the store’s automatic sprinkler system would promptly douse the fire, but his purpose was merely to create a distraction so he could walk out with an expensive watch, which would constitute felony theft. The shoplifter was stopped after he set the fire but before he could take any merchandise. No serious damage was done to the store by the fire, but the flame charred the wall next to the trash basket and blistered the paint on the surrounding area. A statute in the jurisdiction extends the crime of arson to buildings other than dwellings.
If the shoplifter is tried for the crime of arson, should the court find him guilty?
A No, because the shoplifter did not intend to burn the building.
B No, because the shoplifter’s act was sufficient only for attempted arson.
C Yes, because the shoplifter’s conduct demonstrated the requisite state of mind for the crime.
D Yes, because the shoplifter started the fire during the act of perpetrating another felony.
C
The shoplifter’s conduct satisfies the mens rea of “malice” required for arson. At common law, arson was defined as the malicious burning of the dwelling of another. The mens rea required for arson is malice, which is broader than the intent required for specific intent crimes and has nothing to do with ill will or evil motive. The defendant need not have intended to burn down the building; it is sufficient if he intended a burning that creates an obvious fire hazard to the building. Here, the shoplifter knew that the store had an automatic sprinkler system, and he was not motivated by an intent to burn down the building. Nevertheless, he intended to start a fire with reckless disregard of a high risk that it would cause damage to the building. The risk or hazard is not that the building will burn down, merely that damage to the structure from a burning will occur. The “burning” required for arson means a “charring” of the combustible material; mere “scorching” is insufficient. Here, the wall next to the trash basket was charred. This satisfies the “burning” requirement. The common law requirement that the structure be a dwelling has been broadened by the statute in this question to include other buildings. Thus, the shoplifter’s conduct satisfies all of the elements of the crime of arson. (A) is incorrect because the mens rea for arson can be satisfied even in the absence of a specific intent to burn the building. He acted with the requisite intent—malice—by intentionally starting a fire that created a high risk that a burning of the structure would occur. (B) is incorrect because, as discussed above, all of the elements of the prima facie case for arson have been established; the charring of the wall next to the trash basket satisfies the “burning” requirement. (D) is incorrect because there is no “felony arson” rule like the felony murder rule. It has no bearing on the prima facie case for arson that he started the fire while perpetrating another felony.
A bookie testified before a grand jury regarding allegedly illegal gambling activities. As a result, the bookie was indicted and a warrant was issued for the bookie’s arrest, along with a search warrant for the bookie’s home. The police went to the bookie’s home, informed him of the charges against him, and placed him in handcuffs. The officers then conducted a search of the bookie’s home and found a desk calendar, which had possibly incriminating information written on it relating to appointments. They seized the desk calendar and one of the officers asked the bookie what he had to say about their find. The bookie made an incriminating statement in response. Before trial, the prosecutor obtained an exemplar of the bookie’s handwriting to compare it with the handwriting on the calendar.
If introduced at trial, which of the following would most clearly violate the bookie’s Fifth Amendment self-incrimination rights?
A The grand jury testimony.
B The bookie’s response to the police officer.
C The bookie’s handwriting exemplar.
D The bookie’s desk calendar.
B
The bookie’s response to the police officer is the only evidence that was clearly taken in violation of the bookie’s Fifth Amendment self-incrimination rights. The Fifth Amendment privilege against compelled self-incrimination forms the basis for ruling on the admissibility of a statement obtained while a defendant is in custody. A person in custody must, prior to interrogation (except for standard booking questions), be clearly informed that: he has the right to remain silent, anything he says can be used against him in court, he has the right to an attorney, and if he cannot afford an attorney, one will be appointed for him if he so desires. These Miranda warnings are a prerequisite to the admissibility of any statement made by the defendant during a custodial interrogation. Here, the bookie was in custody (handcuffed) and was questioned (“what do you have to say . . .”) and the facts do not indicate that Miranda warnings were given. Thus, there has been a direct violation of the Fifth Amendment privilege against compelled self-incrimination. (A) is wrong because use of a defendant’s grand jury testimony at trial does not violate the Fifth Amendment. Pursuant to the Fifth Amendment, a criminal defendant may invoke the privilege against self-incrimination by refusing to answer grand jury questions on the grounds that it may incriminate him. If he testifies, he has waived his privilege. Here, the bookie testified at the grand jury proceeding and thus waived the privilege. (C) is wrong because the Fifth Amendment protects only testimonial or communicative evidence, not real or physical evidence. Thus, the state may compel a person to give a handwriting exemplar without violating the Fifth Amendment, even if the evidence may be incriminating. (D) is wrong because the Fifth Amendment protects against being compelled to communicate information, not against disclosure of communications made in the past. Thus, the police may search for and seize documents tending to incriminate a person. Here, the bookie was not compelled to give any testimony. Rather, the police, pursuant to a valid search warrant, seized the calendar with the appointments marked on it.
