Mixed Questions - Set 34 Flashcards
A customer slipped and fell in a store and was severly injured. As required by state regulation, the store’s manager conducted an investigation into the cause of the accident and filed the report with the appropriate state agency. The customer subsequently retained an attorney, who filed a civil action against the store in federal district court. The complaint alleged that the store negligently left a spill on the floor of the store, which caused the customer’s fall. The customer’s attorney served on the store a request for production of documents, which included a request for all documents and reports prepared by the store that relate to the customer’s fall and injury.
If the store believes that the report prepared by the store manager is protected from discovery under the work product doctrine and the store wants to withhold disclosure of the report, what should the store do?
A Produce all the documents that respond to the request that are not protected and simply not include the report in the documents produced.
B File a motion for a protective order with the court before its response to the request for documents is due, to avoid waiving any protection from discovery that it might have had.
C Describe the nature of the report so that the customer and her lawyer can assess the validity of the store’s claim that the report is protected from discovery.
D File the report with the court under seal so that the court may assess whether it is protected from discovery.
C
The store should describe the nature of the report so that the customer and her lawyer can assess the store’s claim that the report is protected from discovery. When a party claims that certain discoverable information is privileged trial preparation material, it must disclose the existence of the material in sufficient detail to the opposing party so that the opposing party may assess the claim of privilege. (A) is incorrect because a party must disclose the existence of material it claims is protected by privilege. (B) and (D) are incorrect because they do not describe the proper procedure for claiming that material is privileged work product.
An employee sued her employer in federal court for sexual harassment. The jury returned a verdict in favor of the employer. Three months after the verdict, the employee’s attorney received an anonymous letter stating that a key document presented at trial by the employer had been altered. The employee moved for relief from judgment, alleging that a document presented by her employer at trial had been altered.
Assuming that the employee can show that the alteration was intentional, how should the court rule?
A Deny the employee’s motion, because, while fraud and misconduct of an adverse party are proper grounds for relief, such motions must be brought within 28 days of the final judgment.
B Deny the employee’s motion, because her claim fails to state a proper ground for relief from judgment.
C Grant the employee’s motion, because fraud and misconduct of an adverse party are proper grounds for relief, and she filed within the appropriate time frame.
D Grant the employee’s motion, because fraud and misconduct of an adverse party are proper grounds for relief, and there is no time limit on such actions.
C
The court should grant the employee’s motion. A court may relieve a party from a final judgment or order based on fraud, misrepresentation, or other misconduct of an adverse party, and such a motion must be made within a reasonable time not to exceed one year. Here, the employee filed her motion based on the adverse party altering a document, which amounts to fraudulent misconduct by the adverse party, and she properly filed her motion within a year. Therefore, the court should grant her motion. (A) is wrong because it states the wrong time frame by which a motion for relief from judgment based on fraud or misconduct of the adverse party must be filed. The 28-day time period applies to a motion to reconsider a prior order or renew a prior motion, which is inapplicable to these facts. (B) is wrong because, as stated above, fraud or other misconduct of an adverse party is a proper ground for granting relief from judgment. (D) is wrong because there is a one-year time limit to file a motion for relief from judgment based on fraud, misrepresentation, or other misconduct of an adverse party. There is no time limit for such a motion if it is based on a clerical mistake, but that is not the ground that applies to this question.
The owner of a hotel in a resort town was approached by a seminar speaker who wanted to lease space in which to conduct a two-week seminar. The owner leased to the speaker the hotel’s grand ballroom, the period of the lease being August 1 through August 14. To provide the proper atmosphere for the seminars, the speaker attached curtain rods to the walls of the ballroom, using lightweight screws to attach the rods. The speaker then strung light blue ring curtains through the rods. After the seminar, on August 16, the speaker arrived to remove the curtains and rods. The owner brought an action to enjoin the speaker from removing the curtains and the rods from the grand ballroom.
How should the court rule?
A In favor of the speaker, because he had a short-term lease and the curtains and rods were easily removable.
B In favor of the speaker, because curtains and rods are trade fixtures.
C In favor of the owner, because the curtain rods were attached by screws, and as such were fixtures, which became part of the realty.
D In favor of the owner, because the speaker did not remove the curtains and rods before the lease expired.
D
The court should rule in the owner’s favor. A tenant must remove annexed chattels before the termination of the tenancy or they become the property of the landlord. Although the seminar speaker was probably entitled to remove the curtains and rods at the end of the lease, he forfeited them by waiting for two days after the lease expired to remove them. (A) is wrong because it goes to whether the curtains and rods were intended to be fixtures. Because of the delay in their removal, whether the curtains or rods were fixtures is irrelevant. This choice would be correct, however, had the speaker attempted to remove the curtains on August 14. The short-term lease and the fact that the rods are easily removable constitute evidence that the speaker lacked the requisite intent to permanently improve the property, and thus he could have removed them if he had acted promptly. (B) is wrong for the same reason. The delay in the removal of the items results in their becoming the property of the landlord regardless of whether they are trade fixtures. Trade fixtures (i.e., fixtures installed for the purpose of carrying on a trade or business) are removable prior to the end of the lease term. Thus, because the speaker installed the curtains to carry on his business, this would have been a correct choice had the speaker attempted to remove the curtains prior to the end of his lease term. (C) is wrong because the mere fact that the curtain rods were attached by screws does not make them fixtures that must remain with the realty. “Fixtures” are chattels affixed to the land that become part of the land. The intent of the person affixing the chattel is relevant. The curtains and rods would probably not be considered fixtures because the speaker did not have the requisite intent to permanently improve the property, as evidenced by the short-term lease and the easily removable nature of the attached chattels. In the absence of an express agreement to the contrary, if removal of the chattel does not leave unrepaired damage to the premises or cause destruction of the chattel, the tenant has not manifested an intention to permanently improve the property. Here, removing the screws, rods, and curtains would not result in substantial damage to the premises or destruction of the chattels. Also, even if the curtains and rods were found to be fixtures, they would be trade fixtures, which are removable by the tenant.
A cyclist was injured when a driver ran a red light. The cyclist subsequently sued the driver to recover for her injuries, and obtained a money judgment of $50,000. The state where the cyclist and the driver reside has the following statute: “Any judgment properly filed shall, for 10 years from filing, be a lien on the real property then owned or subsequently acquired by any person against whom the judgment is rendered.”
The cyclist filed the judgment in the county where the driver owned a valuable ranch. Sometime later, the driver, who was also injured in the accident, undertook to remodel all the buildings on the ranch to make them wheelchair-accessible. The driver borrowed $30,000 from a bank for the improvements, securing the loan with a mortgage on the ranch. The bank properly recorded its mortgage. Before he paid any principal on the bank’s loan, the driver decided to build a new barn. He borrowed $20,000 from a financing company for this purpose, also secured by a mortgage on the ranch. The financing company properly recorded its mortgage.
The driver subsequently defaulted on the bank’s mortgage, and the bank brought a foreclosure action, joining the financing company in the proceeding. The foreclosure sale resulted in $90,000 in proceeds after all expenses and fees were paid. The driver still owes the cyclist $50,000, the bank $30,000, and the financing company $20,000.
How should the foreclosure proceeds be distributed?
A The cyclist is entitled to $50,000, the bank is entitled to $30,000, and the financing company is entitled to the remaining $10,000.
B The cyclist is entitled to $50,000, the bank is entitled to $30,000, and the driver is entitled to the remaining $10,000.
C The bank is entitled to $30,000, the financing company is entitled to $20,000, and the driver is entitled to the remaining $40,000.
D The bank is entitled to $30,000, and the driver is entitled to the remaining $60,000.
C
The bank is entitled to $30,000 of the foreclosure proceeds, the financing company is entitled to $20,000 of the proceeds, and the driver is entitled to the $40,000 balance. When an interest is foreclosed, after the expenses and fees are paid, the proceeds of the sale are first used to pay the principal and accrued interest on the loan that was foreclosed, next to pay off any junior liens, and finally any remaining proceeds are distributed to the mortgagor. Here, there are enough proceeds to satisfy the bank’s (the foreclosing party’s) $30,000 mortgage and the financing company’s (the junior lienor’s) $20,000 mortgage. The remaining balance ($40,000) is distributed to the driver (the mortgagor). (A) and (B) are wrong because the cyclist’s interest, an interest senior to the bank’s, is not affected by the foreclosure. Although foreclosure destroys all interests junior to the mortgage being foreclosed, it does not affect any senior interests. The buyer at the foreclosure sale takes subject to such interests. Without the cyclist foreclosing her lien, she is not entitled to a share of the proceeds, and her lien continues on the property in the buyer’s hands. (B) and (D) are wrong because the financing company is entitled to have its mortgage fully discharged.
In a contract suit by the plaintiff against the defendant, the plaintiff offers into evidence a document purporting to have the defendant’s signature.
Which of the following will the court NOT accept as a method of authenticating the defendant’s signature?
A A nonexpert who, in preparation for trial, has familiarized himself with the defendant’s usual signature testifies that, in his opinion, the questioned signature is genuine.
B The jury, without the assistance of an expert, compares the questioned signature with an admittedly authentic sample of the defendant’s handwriting.
C A witness offers proof that the signature is on a document that has been in existence for at least 20 years, that was in a place where it would likely be if it was authentic, and that has no suspicious circumstances surrounding it.
D A witness testifies that the defendant admitted that the signature was his.
A
Pretrial familiarization of a signature by a nonexpert is not an accepted method of authentication because lay opinion as to the authenticity of handwriting must be based on personal familiarity with the handwriting. Here, the nonexpert’s only familiarity with the defendant’s usual signature has come from pretrial preparation. An expert witness or the trier of fact can determine the genuineness of a writing by comparing the questioned writing with another writing proved to be genuine. Thus, (B) would be an accepted method of authenticating the defendant’s signature. (C) is an accepted method of authentication because it describes the requirements under the Federal Rules for authentication of an ancient document. (D) is acceptable as an admission by a party-opponent—i.e., a statement made by a party and offered against that party.
A truck driver collided with a motorcyclist in a busy intersection. A police officer present at the scene cited the trucker for running a red light. At the preliminary hearing, the trucker initially pleaded guilty, but he withdrew his plea when the judge told him what she had in mind for a sentence. The judge let the trucker change his plea to not guilty. The trucker, however, had no success at his trial and was convicted. The motorcyclist is now suing the trucker in a civil action for the injuries he sustained in the accident.
If the motorcyclist tries to introduce evidence of the trucker’s original guilty plea, on proper motion, should this evidence be excluded?
A Yes, because it is hearsay not within any exception.
B Yes, because the plea was withdrawn.
C No, because an admission is not hearsay.
D No, because it described the trucker’s state of mind.
B
The evidence should be excluded because the plea was withdrawn. A plea of guilty which is later withdrawn may not be used against the defendant who made the plea, except in special cases not applicable to this fact pattern. [Fed. R. Evid. 410] (A) is wrong; because the trucker’s statement constitutes an admission (i.e., his own statement is being offered against him), it is not considered hearsay under the Federal Rules. Rather, the statement will be excluded under Rule 410, which prohibits the use of the withdrawn guilty plea. (C) is wrong because, although an admission is not hearsay, this evidence is excluded by Rule 410. (D) is wrong. While the trucker’s state of mind might be relevant in the civil suit, the evidence will still be excluded under Rule 410.
One of the employees of a department store informed the chief of security that he suspected a customer of shoplifting. The employee pointed out the suspected shoplifter, but the security chief thought that the employee was pointing at a different woman. He waited until the woman had left the store and then followed her outside. He went up to the woman, pointed a gun at her, and told her she needed to return with him to the department store’s security office. The woman did so, even though she insisted that she had not done anything wrong. The woman was kept waiting in the office for a few minutes until the employee informed the security chief that he had arrested the wrong woman.
If the woman sues the department store on the theory of false imprisonment, will she prevail?
A Yes, unless the security chief’s belief that she was the shoplifter is judged to be reasonable.
B Yes, because she was intentionally detained.
C No, because the period for which the woman was detained was the minimal period necessary to establish her identity.
D No, because the woman suffered no harm.
B
The facts satisfy the requirements of false imprisonment. False imprisonment requires an act or omission that confines or restrains the plaintiff to a bounded area, intent, and causation. As discussed below, no privilege applies, so the store is vicariously liable for the actions of its security chief. (A) is wrong because reasonable belief is not sufficient by itself to establish a shopkeeper’s privilege to detain a suspected shoplifter; the means of restraint must be reasonable and the use of force intended or likely to cause serious bodily harm may not be used. Here, the security chief pointed a gun at the woman. (C) is wrong because even if the period of confinement was reasonable for purposes of the shopkeeper’s privilege, it is not available here because the detention was accomplished by the threat of deadly force. (D) is wrong because “harm” is not required.
After months of bilateral talks, the President entered into a treaty with a foreign nation previously designated by the President as a terrorist state. Under the treaty, the foreign nation agreed to curtail its nuclear testing program and the United States agreed to lift trading sanctions against the foreign country. The treaty was approved by a vote of more than two-thirds of the Senate. Subsequently, it was revealed that the government of the foreign nation had been sponsoring the copying and black market trade of products patented in the United States and protected by international law. Outraged, Congress approved a bill purporting to repeal the treaty. When the bill was presented to the President, he vetoed it, citing national security interests. Both houses of Congress then repassed the bill by a more than two-thirds vote.
As a result of the foregoing, which of the following statements is correct?
A The treaty is still valid, because it was both negotiated by the President and passed by Congress.
B The treaty is still valid, because the President still supports the treaty and the President’s power over foreign affairs is paramount.
C The treaty was effectively repealed, because acts of Congress are the supreme law of the land, and any United States treaty in conflict with a congressional act is invalid.
D The treaty was effectively repealed, because the repeal was approved over the President’s veto after the treaty was made.
D
The treaty was effectively repealed because the bill was passed over the President’s veto. Valid treaties are on a “supremacy parity” with acts of Congress, meaning that they are both considered to be the “supreme law of the land.” If a conflict exists between them, it is resolved by order of adoption—the last in time prevails. Here, the bill to repeal the treaty was approved by Congress over the President’s veto by a more than two-thirds vote. Thus, the President’s veto was overridden, and because the bill was passed after the treaty, the bill prevails. (A) is incorrect because, as stated above, acts of Congress and treaties are on a supremacy parity—the fact that a treaty is approved by both the President and the Senate does not make it supreme over conflicting legislation that is validly enacted at a later point. (B) is incorrect because of the parity rule discussed above. It is true that the President’s power over foreign affairs is paramount, and the President might be able to enter into an executive agreement to get around the repeal of the treaty, but such a possibility does not change the status of the treaty in question. (C) is incorrect because, although it states the correct result, its rationale is too broad. Acts of Congress are on parity with treaties; they do not automatically invalidate all treaties (e.g., treaties that are entered into after the act of Congress is approved).
Congress enacted legislation prescribing the specifications for various types of containers that all suppliers of nonprescription drugs were required to use in marketing their products.
From where does Congress’s power to pass this legislation derive?
A The Necessary and Proper Clause.
B The Commerce Clause.
C The General Welfare Clause.
D The Tenth Amendment.
B
Congress’s power is derived from the Commerce Clause. The Supreme Court has construed the scope of the Commerce Clause very broadly, so that it covers the regulation of drug packaging, which has a substantial economic effect on interstate commerce. (A) is wrong because this type of regulation definitely falls under the Commerce Clause, and there is no need to imply a power (under the Necessary and Proper Clause) when an enumerated power controls. Moreover, the Necessary and Proper Clause, by itself, does not grant Congress the power to do anything. (C) is wrong because the General Welfare Clause presents a limitation on Congress’s spending and taxing powers, which are not relevant here. (D) is wrong because the Tenth Amendment is not a grant of power to Congress; rather, it reserves the powers not granted to Congress to the states.
A retailer and a wholesaler entered into an agreement under which the wholesaler would supply the retailer with goods and the retailer would make payment to one of the wholesaler’s creditors. Before the creditor became aware of the agreement, the retailer and wholesaler agreed that the retailer instead would pay the wholesaler directly. The creditor sued to enforce the original agreement between the retailer and the wholesaler.
Which of the following statements best describes the rights of the creditor?
A The creditor is an incidental beneficiary only and has no rights under the agreement between the retailer and the wholesaler.
B The creditor is an intended beneficiary and has rights against both parties under the agreement between the retailer and the wholesaler.
C The creditor is an intended beneficiary of the agreement but has no rights against the retailer.
D The creditor’s rights as a third-party beneficiary vested when it brought suit to enforce the agreement between the retailer and the wholesaler.
C
The creditor is an intended beneficiary but has no rights against the retailer because of the modification. A third-party beneficiary of a contract can enforce a contract only when its rights have vested. Vesting occurs when the third party (i) manifests assent to the promise; (ii) brings suit to enforce the promise; or (iii) materially changes its position in reliance on the promise. Prior to vesting, the original parties are free to modify or rescind the third-party beneficiary’s rights. Here, the third-party beneficiary (the creditor) did not become aware of the original agreement until after the wholesaler and the retailer modified the agreement. Because the creditor’s rights had not vested, the parties were free to modify the agreement, which they did. The modification rescinded the creditor’s rights under the contract. (A) is wrong because performance was to be given to the creditor under the agreement; hence, the creditor is an intended beneficiary rather than an incidental beneficiary. (B) is wrong because, as discussed above, the creditor no longer has rights against the retailer after the modification of the agreement. Note that the creditor still may sue the wholesaler on the original debt. (D) is wrong because, as stated above, the modification of the agreement between the retailer and the wholesaler ended the creditor’s rights as a third-party beneficiary. Hence, bringing suit did not vest any rights for the creditor.
A bulk retailer of accessories for musical instruments placed an advertisement in a trade magazine popular with those in the music business, offering for sale 50-count boxes of a particular type of mouthpiece for use with the French horn, minimum purchase 10 boxes, at $100 per box. In response to the advertisement, the owner of a large store that sold brass and woodwind instruments in its shop and over the Internet sent a written order to the bulk retailer for 12 boxes (50-count) of the mouthpiece. In his letter that accompanied the order, the store owner stated that he would send the bulk retailer his payment of $1,200 upon delivery. The letter also said that the mouthpieces must fit onto three specified models of French horn.
The day after receiving the written order and letter from the store owner, the bulk retailer shipped 12 boxes (50-count) of the mouthpiece to him. Accompanying the invoice on the boxes was a letter from the bulk retailer stating that the mouthpieces are compatible with two of the models of French horn, but that the retailer makes no warranties as to the compatibility of the mouthpieces with any other model of French horn. Shortly after accepting shipment of the boxes, the store owner realized that the mouthpieces did not fit onto the third model of French horn that it had specified and instituted an action against the bulk retailer.
Which of the following statements would offer the strongest support in favor of the store owner’s position?
A The store owner’s letter was an offer, and shipment of the units was an acceptance.
B The store owner’s letter was an offer, and the bulk retailer’s letter accompanying the invoice was an acceptance.
C The bulk retailer’s letter was an offer, and acceptance of the units by the store owner was an acceptance of the offer.
D Shipment of the units was a counteroffer, and acceptance of the units by the store owner was an acceptance of the counteroffer.
A
The store owner’s best position is that his letter was an offer, and shipment of the mouthpieces was an acceptance; thus, the shipment of nonconforming goods both created a contract and a breach of that contract, affording the store owner an immediate cause of action. The contract at issue involves the sale of goods, and is thus governed by Article 2 of the UCC. Under UCC section 2-206, an offer to buy goods for current or prompt shipment is construed as inviting acceptance either by a promise to ship or by current or prompt shipment of conforming or nonconforming goods. The shipment of goods, even though they are nonconforming, is an acceptance creating a bilateral contract and a breach unless the seller reasonably notifies the buyer that the nonconforming goods are offered only as an accommodation to the buyer. Here, the store owner’s letter was an offer that invited the bulk retailer to accept by either a promise to ship or a prompt shipment. The bulk retailer’s shipment of the mouthpieces is an acceptance of the store owner’s offer, because the bulk retailer’s letter accompanying the shipment was probably not sufficient as an accommodation notice (which would have made the shipment a counteroffer rather than an acceptance). The shipment contains nonconforming goods, because the mouthpieces are not compatible with the third type of French horn specified in the store owner’s offer. The shipment of nonconforming goods as an acceptance both created a bilateral contract between the parties and constituted a breach of that contract by the bulk retailer, thus allowing the store owner to sue for any appropriate damages for breach of contract. (B) is incorrect because, since the bulk retailer’s letter was an acceptance, there is a chance that the store owner will be bound by the terms of the letter. Between merchants, additional proposed terms in an acceptance become part of the contract unless: (i) they materially alter the original contract; (ii) the offer expressly limits acceptance to its terms; or (iii) the offeror has already objected to the particular terms, or objects within a reasonable time after receiving notice of them. [UCC §2-207] The bulk retailer and the store owner are both merchants, in that they deal in goods of the kind involved in the contract. Insofar as the bulk retailer’s letter is an acceptance of the store owner’s offer, the sentence disclaiming compatibility of the mouthpieces with other models of French horns is an additional proposed term. The store owner’s offer did not expressly limit acceptance to its terms, nor did the store owner object to the additional terms. Thus, the additional terms will become part of the contract unless the court finds that they materially alter the original contract. If these terms are held to be part of the contract, the store owner will have no cause of action for the incompatibility of the mouthpieces with one of the French horn models. Because (B) creates a framework in which the store owner might lose (i.e., if it is found that the additional terms do not materially alter the original contract), (B) is not as good an answer as (A). (C) and (D) represent the worst scenarios for the store owner. If the bulk retailer’s letter was an offer as stated in (C) and acceptance of the mouthpieces by the store owner was an acceptance of the offer, there is a contract based on the terms in the bulk retailer’s letter; i.e., no warranties as to the compatibility of the mouthpieces with any other model of French horn. In that event, the store owner would have no cause of action against the bulk retailer based on the mouthpieces’ incompatibility with one of the French horn models. The same result would arise if shipment of the mouthpieces were treated as a counteroffer as stated in (D) (this would be the result if the bulk retailer’s letter were held to be a sufficient accommodation notice under UCC section 2-206(1)(b)). Acceptance of the mouthpieces would be acceptance of the counteroffer according to the terms of the letter accompanying the shipment, so that the store owner could not bring an action based on the mouthpieces’ incompatibility with one of the French horn models.
The defendant was at a bus station on a stopover between two cities. An officer of the Federal Drug Enforcement Administration noticed that the defendant was tightly clutching a small bag and making numerous phone calls from a public telephone. The officer approached the defendant, identified himself, and began asking the defendant questions about his destination. The defendant agreed to follow the officer into an office for an inspection of his bag. In the office, the officer searched the defendant’s bag and found nothing suspicious. He then proceeded to pat down the defendant and found a pouch around the defendant’s stomach, which proved to contain cocaine. The defendant was charged with possession of cocaine.
If the defendant seeks to have the cocaine excluded from evidence, how should the court rule?
A The cocaine is admissible, because of the emergency conditions arising from the growing menace of drugs to the public.
B The cocaine is admissible, because, in consenting to the search of his bag, the defendant impliedly consented to a body search.
C The cocaine is inadmissible, because the officer had neither probable cause nor reasonable suspicion to search the defendant.
D The cocaine is inadmissible, because the officer had no right to search the bag.
C
The cocaine is inadmissible because it is the product of an unconstitutional search of the defendant. The Fourth Amendment prohibition against unreasonable searches and seizures applies to an investigatory detention and any type of search during the detention. Under Terry v. Ohio (1968), police have the authority to briefly detain a person for investigative purposes, even if they lack probable cause to arrest, as long as they have an articulable and reasonable suspicion of criminal activity. However, an investigatory detention does not create the right to search the person being detained. The officer may conduct a protective frisk (a patdown of the outer clothing) only if he reasonably believes that the person may be armed and presently dangerous. A full search of the person is only permitted if the detention establishes probable cause for a lawful arrest. In this case, the officer may have had sufficient grounds to detain the defendant and to ask him questions. Whether police have a reasonable suspicion—supported by articulable facts—of criminal activity is judged by the totality of the circumstances. [United States v. Sokolow (1989)] Here, the defendant’s conduct may have made the officer reasonably suspicious that he was smuggling drugs. However, after finding nothing in his search of the bag, and having no reason to believe that the defendant was armed and presently dangerous, the officer had neither probable cause nor reasonable suspicion to either search or frisk the defendant. Hence, under the exclusionary rule, the cocaine obtained as a result of the unlawful search of the defendant is inadmissible against him. (A) is incorrect because there is no general emergency exception justifying searches without probable cause, and the search at issue here had none of the exigent circumstances that the Supreme Court has relied on in prior cases to permit warrantless searches (such as the hot pursuit of a fleeing felon or the evanescent nature of the evidence). (B) is incorrect because the scope of a search permitted by consent is limited by the scope of the consent. The defendant’s consent to the search of his bag created no implication of a consent to a body search. (D) is incorrect because the officer had the defendant’s consent to search his bag. Police may conduct a valid and warrantless search if they have a voluntary consent to do so from the individual being searched; the defendant’s consent here satisfies these requirements.
A consultant operated a consulting firm from an office in his home. An employee asked if she could stay late one night to use one of the firm’s computers. The consultant replied that she could consider the computer hers. The employee mistakenly believed that the consultant was giving her the computer. Late the next night, when the employee could borrow her roommate’s car, she drove to the consultant’s house to pick up the computer. She went to the door leading directly to the office, which was unlocked. She let herself in and took the computer. The next day, the consultant reported the computer as stolen, and the police arrested the employee.
What crime has the employee committed?
A Burglary.
B Attempted burglary.
C Larceny.
D None of the listed crimes.
D
The employee is guilty of none of the listed crimes. To be guilty of burglary, a person must break and enter the dwelling of another at nighttime with the intent to commit a felony therein. Attempted burglary requires the same specific intent. Because the employee merely intended to retrieve what she believed was her own property, she did not intend to commit a felony. Thus, (A) and (B) are wrong. Likewise, (C) is wrong because the employee lacked the intent necessary for larceny. Larceny is the taking and carrying away of tangible personal property of another by trespass, with intent to permanently deprive the person of his interest in the property. Since the employee believed the computer was her own, she lacked the intent to permanently deprive the consultant of his interest in the computer. Thus, (D) is correct.
A local physician who was prominent in the community and beloved by her patients died suddenly of a heart attack. A reporter with the local newspaper was assigned to write an obituary before the next day’s edition went to press. The reporter talked briefly with the physician’s widower, and then called the state medical school, from which the physician had always said she had graduated. As it was late in the afternoon, the reporter did not speak with any administrators but with a secretary in the office of the dean. When asked about the physician, the secretary replied that she did not think the physician ever graduated.
The local newspaper printed this information in the next day’s edition. On reading the obituary, the physician’s widower became very angry, as the physician had, in fact, graduated with high honors. He demanded a retraction from the newspaper. The next day, on the front page, the newspaper admitted its error and stated that the physician graduated with high honors from the state’s medical school. They also fired the reporter. Nonetheless, both the executor of the physician’s estate and her widower sued the local newspaper for defamation.
What is the local newspaper’s best defense?
A There was no malice on the part of the defendant.
B The newspaper’s retraction negated any harm.
C The reporter got his information from a secretary at the medical school.
D The physician is dead.
D
The local newspaper’s best defense is that the physician is dead. Only living persons can be defamed; defamation of a deceased person is not an actionable tort. Thus, because the physician is dead, the newspaper can obtain dismissal of the defamation action without having to establish any defamation defenses. Therefore, (D) is correct. (A) is not as good a defense as (D) because, in order to use the defense of absence of malice, the newspaper would have to establish that the physician was a public figure, which would be more difficult than showing that the physician is dead. Moreover, it is not conclusive from the facts that the physician is a public figure because the facts merely state that she was prominent in the community. (B) is incorrect because a retraction, while it may show lack of actual malice in mitigation of damages, would not necessarily eliminate all of the harm to the physician’s reputation. (C) is incorrect because the fact that the reporter got his information from a secretary at the medical school does not preclude liability for defamation. At most, that fact may be asserted to disprove malice if the physician was a public figure or negligence if the physician’s death was a matter of public concern.
