Mixed Questions - Set 7 Flashcards
A husband was on trial for the murder of his wife. During the course of the trial, the prosecution sought to introduce evidence that, six months before the wife’s death, the husband had purchased a large insurance policy on her life, and two weeks prior to her death he purchased two more large policies on the wife’s life from separate insurance carriers.
If the defense objects to admission of such evidence, should the objection be sustained?
A Yes, because such evidence would be more prejudicial than probative.
B Yes, because evidence of insurance is inadmissible as a matter of public policy.
C No, because the evidence tends to establish motive.
D No, because the evidence tends to establish criminal propensity.
C
Evidence of the husband’s purchases of insurance on the wife’s life shortly before her death is admissible because it has a tendency to make the husband’s murder of his wife more probable than it would be without the evidence. As a general rule, all relevant evidence is admissible if offered in an unobjectionable form or manner, as is the case here. This evidence is relevant because it establishes a motive for the murder, and facts showing motive for doing an act are circumstantial evidence that the act was done. Because there are no other grounds for excluding the evidence, it should be admitted. (A) is incorrect because exclusion of evidence on the ground of prejudice is a matter within the trial judge’s broad discretion, and Federal Rule 403 requires that the evidence’s probative value be substantially outweighed by the danger of unfair prejudice for it to be excluded. While all evidence is prejudicial to the adverse party, “unfair” prejudice refers to evidence that suggests a decision on an emotional or otherwise improper basis; evidence of the purchase of life insurance policies does not fall within this category. (B) is incorrect because it misapplies the rule excluding evidence of insurance. Federal Rule 411 excludes evidence of liability insurance on the issue of whether a person acted negligently or wrongfully. Evidence of insurance coverage (particularly where it is life insurance on the life of a homicide victim) is relevant and admissible for other purposes. (D) is incorrect for two reasons: First, the purchase of insurance does not establish a criminal disposition or a propensity to do criminal acts. Second, evidence of conduct offered to show criminal propensity is inadmissible character evidence under Federal Rule 404. Thus, if the evidence were offered to show criminal propensity, the objection should be sustained, not overruled. On the other hand, evidence of prior conduct (or misconduct) is specifically admissible under Rule 404(b) to show the defendant’s motive, which is what the insurance evidence is intended to show.
A city council passed an ordinance providing: “No person may contribute more than $100 annually to any group organized for the specific purpose of supporting or opposing referenda to be voted on by the city electorate or regularly engaging in such activities.”
If the ordinance is challenged in federal court, how should the court rule on the constitutionality of this ordinance?
A Strike it down, because it violates First Amendment rights of free speech and freedom of association.
B Strike it down as a violation of due process, because no hearing mechanism has been provided for.
C Uphold it, because the city council has a legitimate interest in controlling such contributions.
D Dismiss the case, because it involves a political question and is thus a nonjusticiable matter.
A
The federal court should strike the ordinance for violating the First Amendment. While the government may limit the amount of contributions that an individual can contribute to a candidate’s campaign (to avoid corruption or the appearance of corruption), the government may not limit the contributions to a political committee that supports or opposes a ballot referendum, because such a law does not serve a sufficiently important interest to outweigh the restraints that it puts on the First Amendment freedoms of speech and association. (B) is incorrect because the Due Process Clause does not require that every law provide for a hearing, but rather only those laws involving the deprivation of life, liberty, or property of an individual. The law here does not involve a deprivation of life or property, and liberty is not being denied to individuals on a judicial basis (i.e., according to the facts of each case), but rather is being denied to all persons on a legislative basis. In such a case, individual hearings are not required to satisfy due process; as long as the law was lawfully adopted (e.g., with notice to all interested parties), the Due Process Clause has been satisfied. (C) is incorrect because a legitimate interest in controlling contributions to a political committee for ballot referendum is not enough. The statute must be “closely drawn” to match a “sufficiently important interest,” which is an intermediate scrutiny standard, and the Supreme Court has invalidated limitations on contributions to influence referendum elections. (D) is incorrect because political questions, which are nonjusticiable, arise when the issue is committed to another branch of the government by the Constitution or is incapable of resolution and enforcement by the judiciary. Determining whether a law is valid is within the realm of the judiciary and certainly is capable of resolution (i.e., the law could be invalidated). Thus, there is no political question here.
A competitor of a restaurant obtained the restaurant’s secret recipe for fried chicken and began using it. The restaurant commenced a diversity action in federal court against the competitor for misappropriation of trade secrets.
After the pleadings were served, but before discovery was commenced, the restaurant moved for a preliminary injunction to prevent the competitor from using the recipe. In support of its motion, the restaurant submitted an affidavit of a former employee of the restaurant, who admitted that he stole the recipe from the restaurant and sold it to the competitor. The court granted the restaurant’s motion.
May the competitor immediately appeal the court’s decision?
A No, because the court’s decision was based on substantial evidence.
B No, because the grant of a motion for a preliminary injunction is not a final order.
C Yes, because the grant of a preliminary injunction is immediately appealable as of right.
D Yes, because the court should have allowed the competitor to depose the former employee before granting the motion.
C
The competitor may immediately appeal. A party may appeal as of right any order granting, continuing, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction. (B) is incorrect because, although generally only final orders are appealable, there are exceptions for certain orders, including orders granting injunctions. (A) is incorrect because this choice states a standard of review on appeal, not a basis for an appeal. (D) misconstrues the question. At best, this reason states grounds for asking the appeals court to vacate the injunction. The court’s order is appealable because the grant of the injunction is appealable as of right. The grounds for the appeal are not pertinent.QUESTION ID: MJ194
A plaintiff read of the success of a box-office hit movie about aardvarks in various entertainment journals. The movie was enormously popular among young children, and cartoon figures from the movie began appearing on T-shirts, soft drink mugs, and other novelties. The plaintiff filed suit against the studio alleging that the production company unlawfully used his ideas for the movie. The studio admitted that it had received a clay model of a cartoon animal from the plaintiff, but denied that the model had any substantial similarity to the now-famous aardvarks. The studio had returned the model to the plaintiff, but he had destroyed it.
For the plaintiff to testify at trial as to the appearance of the model, which of the following is true?
A The plaintiff can testify as to the appearance of the model because he has personal knowledge of it.
B The plaintiff must show that the destruction of the model was not committed in bad faith.
C The plaintiff must introduce a photograph of the model, if one exists.
D The plaintiff must give advance notice to the opposing party that he plans to use such oral testimony in his case.
A
The plaintiff can testify as to the appearance of the model because he has personal knowledge of it. A witness must be competent to testify, which includes the requirement that he have personal knowledge of the matter he is to testify about. Here, the plaintiff has personal knowledge of the model, as he is the person that had submitted it to the studio. Thus, he is competent to testify as to the model’s appearance. (B) is wrong because it states the foundation requirement for the admissibility of secondary evidence under the best evidence rule (also called the original document rule), which does not apply under these circumstances. The best evidence rule covers writings and recordings, which are defined as “letters, words, numbers, or their equivalent, set down in any form.” A clay model clearly does not fit within that definition. Similarly, (C) states an acceptable form of secondary evidence under the best evidence rule, which does not apply here. Note, however, that under the Federal Rules (unlike most states), there are no degrees of secondary evidence. Therefore, this choice would be wrong even if the best evidence rule were applicable, because the plaintiff would not be limited to photographic evidence. (D) is wrong because it incorrectly assumes that notice must be given. This type of notice is not a prerequisite for the plaintiff’s testimony even had the best evidence rule been applicable.
Two landowners owned adjacent lots A and B. Both lots were located in State Red, which has a 20-year adverse possession statute. Thirty years ago, the lot A owner married and left State Red to reside in State Blue. The lot A owner did not return to view the property during her period of residence in State Blue. One year after the lot A owner left, the lot B owner built a driveway on his land. The driveway extended three feet over onto lot A. The lot B owner mistakenly believed that this three-foot strip of land was his property. The lot B owner regularly used the driveway and was continuing to use it when the lot A owner, having been widowed, recently returned to State Red. The lot A owner discovered the encroachment on her return.
What are the lot A owner’s rights against the lot B owner?
A The lot A owner has no action against the lot B owner, because the lot B owner’s title to the three-foot strip has been established by adverse possession.
B The lot A owner has no action against the lot B owner, because her prolonged absence from State Red establishes a presumption of abandonment of her rights in the property.
C The lot A owner has an action against the lot B owner, because the lot A owner had no knowledge of the lot B owner’s encroachment.
D The lot A owner has an action against the lot B owner, because the lot B owner mistakenly thought he owned the three-foot strip.
A
The lot B owner had exclusive, continuous possession of the three-foot strip for the requisite statutory period. This possession was open and notorious; it was also hostile (adverse). Though the lot B owner was mistaken as to the ownership of the three-foot strip, possession under claim of right is still hostile and adverse possession. The lot B owner has held adversely because his actions appear to the community to be a claim of ownership and he is not holding with permission of the owner. Thus, (D) is incorrect. (C) is incorrect because the open and notorious nature of the lot B owner’s possession was sufficient to put the true owner on notice that a possession adverse to her title had been taken. (B) is an incorrect statement of the law; there is no such presumption.
A landowner leased 150 acres of farmland to a produce company for 15 years. The produce company used the land for crops along with several other contiguous acres that it owned or leased. About four years into the lease, the state condemned a portion of the leased property because it intended to build a highway. As a result, too little property remained for the produce company to profitably farm, although there still existed the farmhouse on the property, which was being used by one of its foremen. The produce company gave the landowner 30 days’ written notice that it considered the lease to have been terminated because of the condemnation.
In a suit for breach of contract, is the landowner likely to win?
A No, because the condemnation made it economically undesirable for the produce company to continue to lease the property.
B No, because when there is a condemnation, the tenant’s obligation to pay rent is extinguished.
C Yes, because the produce company can still use the farmhouse, and the rental value would be adjusted accordingly.
D Yes, because the condemnation did not affect the produce company’s obligation to pay the full rental price, although it is entitled to share in the condemnation award.
D
The landowner probably will win in a breach of contract suit. In partial condemnation cases, the landlord-tenant relationship continues, as does the tenant’s obligation to pay the entire rent for the remaining period of the lease. The tenant is, however, entitled to share in the condemnation award to the extent that the condemnation affected the tenant’s rights under the lease. Therefore, (B) and (C) are incorrect. (A) is not correct because the law of landlord and tenant traditionally refuses to recognize frustration of purpose as grounds for termination of a lease.
A woman sued her ex-husband for installments due under their divorce property settlement agreement. The ex-husband defended the suit on the ground that the ex-wife was in breach of the agreement. However, the court granted judgment for the ex-wife. Now, the ex-wife is suing her ex-husband for other installments due under the agreement. The ex-husband raises the defense that the agreement was void and illegal because of fraud perpetrated by his ex-wife at the time the agreement was signed. The ex-wife moves to strike her ex-husband’s defense, claiming issue preclusion.
Should the court grant the motion?
A No, because the issue was never litigated.
B No, because judgment on one installment does not bar subsequent actions on other installments.
C Yes, because the husband should have raised the defense in the first action.
D Yes, because the issue of fraud is never waived.
A
The court should not grant the motion. Generally, issues actually litigated between the parties are binding on them in subsequent actions concerning the same claim. If the second suit involves a different claim, the first judgment may be invoked as to all matters actually litigated and determined in the first action, provided that the findings were essential to the first judgment. Here, the fraud issue was not actually litigated in the first action, and thus it can be raised with respect to the later installments. (B) is incorrect. The general principle recited in this answer is true for claim preclusion (unless there is an acceleration clause). However, even if claim preclusion does not apply, if the defendant raises the same issues as in the first case, he may be prevented by issue preclusion (collateral estoppel) from re-litigating those issues in that subsequent case. (C) is incorrect. Claim preclusion (res judicata) would bar claims arising out of the same transaction or occurrence. Here, claim preclusion does not apply because a defense, not a claim, is involved, and the second installment is a separate transaction or occurrence. (D) is incorrect because there is no such rule.
The federal government recently constructed a radio telescope in Puerto Rico. In addition to receiving radio signals, the telescope was set up to beam radio waves far out into space. As part of the bill providing for operational funding for the facility, Congress provided for a program to “inform any aliens who might be listening in outer space of the ‘American Way of Religion.’” A $10 million appropriation was provided; any religious group whose membership exceeded 500 members in the United States was permitted to prepare a five-minute presentation, and the federal government would pay for the recording of the presentations and broadcast them into space using the transmitter in Puerto Rico. The President signed the bill and it became law. A religious group with a large following in Europe, but only 100 members in the United States, protested and filed suit.
Will the court find the religious broadcasts to be constitutional?
A Yes, because the power to regulate commerce with foreign nations and among the several states implies that commerce with outer space is included as well.
B Yes, because the commerce power is not limited by First Amendment prohibitions.
C No, because the requirement of a minimum number of members violates the First Amendment.
D No, because the broadcasts are a waste of money and exceed the spending powers of Congress.
C
The court will find that the requirement of a minimum number of members violates the Establishment Clause of the First Amendment. The Establishment Clause prohibits any law “respecting an establishment of religion.” While usually a three-part test based on Lemon v. Kurtzman is used to determine whether legislation creates improper government involvement with religion, the “compelling government interest” test is used if a law or government program discriminates among religions. Here, the law differentiates among different religious groups, allowing only those with larger memberships to record presentations. There is no compelling government interest for discriminating among the religious groups in this way; thus the legislation is unconstitutional. (A) is incorrect despite the fact that the federal power to regulate commerce could be interpreted as extending to commerce with outer space should the occasion arise. Nevertheless, the commerce power does not override independent constitutional restrictions (e.g., the Establishment Clause) on the conduct in question here. (B) is an incorrect statement of law. The federal commerce power cannot be used to abrogate freedom of speech or to discriminate in favor of religious groups. An exercise of the commerce power generally is subject to all limitations placed on government by the Constitution, including those of the First Amendment. (D) is incorrect. Regardless of merit, almost all expenditures made by Congress are permissible under its spending power. [U.S. Const. art. I, §8] Rather than limit the power only to spending for accomplishment of other enumerated powers, this provision grants Congress broad power to spend for the “general welfare” (i.e., any public purpose). As long as the expenditure is not conditioned on requiring a recipient to forgo an individual constitutional right, it is within the spending power of Congress.
A dairy farm operated a small processing plant that supplied premium ice cream to nearby specialty shops and ice cream parlors. It entered into a written agreement with a local ice cream parlor to sell “all output” of its Extra Rich ice cream to the ice cream parlor, and the ice cream parlor agreed to sell exclusively the dairy farm’s Extra Rich frozen desserts. The agreement stated that the ice cream parlor would pay $25 for each five-gallon container of Extra Rich ice cream that it ordered from the dairy farm. Several months after the parties entered into this contract, demand for high-fat ice creams dropped sharply among the health-conscious consumers who had formerly patronized the ice cream parlor, and the proprietor had to throw out some of its product because the reduced demand meant that opened containers were not used up before the taste of the ice cream became affected. The ice cream parlor wanted to stop selling the dairy farm’s Extra Rich ice cream and instead sell a frozen yogurt product produced by another dairy.
Can the dairy farm enforce its agreement against the ice cream parlor?
A Yes, because changing demand is one of the standard risks of business that both parties assumed.
B Yes, because the court will imply a promise on the part of the ice cream parlor to use its best efforts to sell the dairy farm’s Extra Rich ice cream.
C No, because there was no consideration on the part of the ice cream parlor to support an enforceable contract.
D No, because the total price and total quantity terms were never established.
A
The ice cream parlor has no grounds for avoiding its obligations under the contract with the dairy farm. In effect, the ice cream parlor is advancing the position that its duty to perform under the contract is discharged by impracticability. In contracts for the sale of goods under the UCC, a party’s duty to perform may be discharged where performance would be impracticable. Impracticability exists where a party encounters extreme and unreasonable difficulty and/or expense, and such difficulty was not anticipated. Duties will not be discharged where performance is merely more difficult or expensive than anticipated. The facts giving rise to impracticability must be such that their nonoccurrence was a basic assumption on which the contract was made. Where, as here, parties enter into a contract for the sale of goods to be supplied to the public through a retail outlet, both parties must anticipate the possibility that there will be a change in market conditions, resulting in either an increased or decreased demand for the product. Although the decreased demand results in increased expense to the ice cream parlor in performing its contract because of waste, such difficulties arising from changing demand are to be anticipated. Thus, the ice cream parlor does not have the right to no longer buy any of the dairy farm’s Extra Rich ice cream. Note that under the UCC, a shutdown by a requirements buyer for lack of orders may be permissible if the buyer is acting in good faith [UCC §2-306, comment 2], but this right would arise only if there were no longer a market for frozen desserts entirely, and that is not the case here. Here, the ice cream parlor simply wants to curtail its losses by selling a more popular type of frozen dessert, which is forbidden by the exclusivity provision. Thus, the ice cream parlor continues to be bound by its duties under the agreement with the dairy farm. (B) is incorrect because, although a court will imply a promise on the part of the ice cream parlor to use its best efforts to sell the dairy farm’s products, the facts do not indicate that the ice cream parlor did not use its best efforts. At issue here is whether, despite those efforts, circumstances exist that were unanticipated and now create extreme and unreasonable difficulty or expense for the ice cream parlor in the performance of its contractual duties. (C) is incorrect because the ice cream parlor relinquished its legal right to sell any frozen desserts other than those of the dairy farm. This giving up of a legal right constitutes legal detriment to the ice cream parlor, so there is consideration. (D) is incorrect because an agreement to buy or sell all of one’s requirements or output is capable of being made certain by reference to objective, extrinsic facts (i.e., the buyer’s actual requirements or the seller’s actual output). There is an assumption that the parties will act in good faith; thus, there may not be a tender or demand for a quantity unreasonably disproportionate to a stated estimate or prior output or requirements. Here, the agreement by the dairy farm to sell all of its output of Extra Rich ice cream to the ice cream parlor can be made certain by referring to such factors as the normal output of such product by the dairy farm. In addition, the ice cream parlor agreed to pay $25 for each container of Extra Rich ice cream, so the total price is also ascertainable. Thus, it is not a ground for avoiding enforcement that the total price and quantity were not established.
While driving in a city in State A, a citizen of State B struck a pedestrian who was a citizen of State C. The pedestrian sued both the driver and the State A city in federal district court, seeking $100,000. The pedestrian alleged that the driver was liable for negligently operating his car and that the State A city was liable for negligently maintaining a traffic signal. The driver, who owns an office supply wholesaler, also has a contract claim against the State A city for $80,000 worth of furniture that the city allegedly purchased and received but never paid for. Assume that State A has waived any applicable governmental immunity.
If the driver files a cross-claim for negligence against the State A city to recover damages for his injuries in the accident with the pedestrian, can the driver join with that cross-claim his contract claim for the purchase price of the furniture and maintain the claim in the same federal action?
A No, because defendants cannot add claims against co-defendants that are not related to the original claims asserted by the plaintiff.
B No, because the court does not have supplemental jurisdiction over the driver’s contract claim against the State A city.
C Yes, the driver must assert the contract claim or he will be foreclosed from asserting it later.
D Yes, the driver may join his contract claim with his negligence cross-claim against the State A city, but is not required to do so.
D
The driver can join his contract claim with his negligence cross-claim, but he is not required to do so. As a general rule, a party may assert a cross-claim against a co-party only if the cross-claim arises from the same transaction or occurrence as that of the original action or of a counterclaim. However, once the party has filed such a cross-claim, he also may join with it any other claim that he has against the same party. Here, the driver’s contract claim is unrelated to the pedestrian’s negligence claim; however, the driver’s negligence claim is related to the pedestrian’s negligence claim. Thus, the contract claim also can be asserted in this case. (A) is therefore incorrect. (B) is incorrect because the court would have diversity jurisdiction over the contract case. (C) is incorrect because the contract claim is not a compulsory counterclaim.
A state Occupational Health and Safety Board recently issued regulations valid under its statutory mandate requiring that all employers in the state provide ionizing air purification systems for all employee work areas. These regulations replaced previous guidelines for employee air quality that were generally not mandatory and did not specify the method of air purification used.
The requirements regarding air purification systems are likely to be unconstitutional as applied to which of the following employers?
A A wholly owned subsidiary of a Japanese corporation with seven retail outlets within the state.
B The state supreme court, which recently completed construction of its new courthouse with a non-ionizing air purification system which the builder is contractually bound to maintain for the next three years.
C A United States Armed Forces Recruiting Center located adjacent to the state capitol building.
D A privately operated community service center funded by donations and constructed through use of a loan provided by the United States Veterans Administration and repayable to that agency.
C
The armed forces recruiting center is least likely to be required to comply with the new state law. A state has no power to regulate activities of the federal government unless Congress consents to the regulation. Accordingly, agents and instrumentalities of the federal government, such as the armed forces recruiting center, are immune from state regulations relating to performance of their federal functions. (D) is incorrect because, although the recreation center’s construction was funded by a loan from the Veterans Administration, the center itself is privately operated and funded by donations. As a result, the center has only a tenuous connection with the federal government, so that it cannot claim the immunity afforded to a federal agency or instrumentality. Accordingly, in the same sense as is employed in the federal tax immunity cases, the agency does not “stand in the shoes” of the federal government. Thus, the application of the state regulations to the recreation center would not present constitutional problems. (A) apparently refers to the principle that the power to regulate foreign commerce lies exclusively with Congress. However, the mere fact that the regulated outlets are part of a wholly owned subsidiary of a Japanese corporation does not mean that the state regulations affect foreign commerce. The subsidiary’s activities are conducted entirely within the state, and do not touch upon foreign commerce in any way. Therefore, application of the regulations so as to require the subsidiary to provide an ionizing air purification system for its employee work areas will not constitute a proscribed state regulation of foreign commerce. Thus, (A) is incorrect. (B) is more troubling, but does not offer as compelling an argument as (C). The Contract Clause limits the ability of states to enact laws that substantially impair contract rights (i.e., destroy most or all of a party’s rights under an existing contract). Under the Clause, the Supreme Court will subject state actions that impair their own contracts to strict scrutiny. In any case, even if state action substantially impairs rights under an existing contract, the action still may be upheld if it: (i) serves an important and legitimate public interest; and (ii) is a reasonable and narrowly tailored means of promoting that interest. Here, the state supreme court, as an instrumentality of the state, would probably not have grounds for complaining that its rights under the contract have been impaired, but the builder might have grounds (e.g., the builder might have future economic interests during the three-year service period that will be substantially impaired if the court is required to install an ionizing system). Nevertheless, the regulation still may be valid if the state can prove that it truly serves the important public interest of protecting the health and safety of workers in the state and is narrowly tailored to promoting that interest. In any case, because it is uncertain whether the vendor’s rights have been substantially impaired and, if so, whether the state can prove the worth of the regulation, (C) is a better choice.
A minor league ballplayer hit a fly ball over the wall and out of the park during a game and struck a woman riding along the adjacent street on a bicycle. The woman sued the ballplayer for negligence. The woman alleged that the ballplayer had often hit balls out of the park and was aware that he had previously struck a car driving down the street.
Assuming the woman’s allegations are correct, is she likely to prevail?
A Yes, because the ballplayer was aware that someone on the street could be struck by a ball he hit.
B Yes, because the woman was in the zone of danger from the balls flying out of the park.
C No, because the ballplayer was not aware of the woman’s presence on the street.
D No, because the ballplayer did not breach a duty of care towards the woman.
D
The woman will not prevail because the ballplayer’s conduct did not breach any duty owed to the woman. The prima facie case for negligence requires the plaintiff to show: (i) a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury; (ii) breach of that duty by the defendant; (iii) that the breach was the actual and proximate cause of the plaintiff’s injury; and (iv) damage to the plaintiff’s person or property. Whenever a person engages in an activity, he is under a legal duty to act as an ordinary, prudent, reasonable person engaged in the same or similar activity. If a defendant’s conduct creates an unreasonable risk of injury to persons in the position of the plaintiff, the general duty of care extends from the defendant to the plaintiff. Here, there is some risk of injury to those outside the park based on previous occurrences. However, there are no precautions that the ballplayer could have undertaken that would not directly conflict with the requirements of his job and harm his career. On balance, the burden on the ballplayer to avoid any risk of injury far outweighs the likelihood of a ball hit by him clearing the wall and causing injury to someone. Hence, the ballplayer’s conduct did not create an unreasonable risk of injury to the woman and he did not breach a duty of care owed to her. Thus, she is not likely to prevail.
The defendant was on trial for murder. The defendant called a witness to testify to an alibi. On cross-examination of the witness, the prosecutor asked, “Weren’t you on the jury that acquitted the defendant of another criminal charge?”
What is the best reason for sustaining an objection to this question?
A The question goes beyond the scope of direct examination.
B The probative value of the answer would be substantially outweighed by its tendency to mislead.
C The question is a leading question.
D Prior jury service in a case involving a party renders the witness incompetent.
B
This question raises several different issues: competency of witnesses, use of leading questions on cross-examination, the proper scope of cross-examination, and the probative value/prejudicial impact balancing test. Through a process of elimination, (B) emerges as the correct answer. (D) is incorrect. Under the Federal Rules, virtually all witnesses with personal knowledge are competent to testify. [Fed. R. Evid. 601] A witness is not rendered incompetent simply by having served on a jury in a prior case involving a party to the current suit. Such prior jury service might render the witness’s testimony unpersuasive, but it would not make it inadmissible. (C) is incorrect because ordinarily, leading questions are permitted on cross-examination. [Fed. R. Evid. 611(c)] The prosecutor’s question is a leading question, but that is perfectly permissible, especially in a case like this, where the alibi witness is not “friendly” toward the prosecution. (A) is incorrect because cross-examination is generally limited in scope to the subject matter of the direct examination and matters affecting the credibility of the witness [Fed. R. Evid. 611(b)], and the prosecutor’s question is, in a roundabout way, an attempt to impeach the witness’s credibility. The implication behind the question is that if the witness had served on a jury that acquitted the defendant of another criminal charge, the witness would be inclined to think the defendant innocent of the pending charge. Alternatively, the implication behind the question could be that the witness is the kind of person who is “soft on crime” and for that reason is not a credible witness. In either event, because the question is an attempt to impeach the witness’s testimony, it is within the proper scope of cross-examination. This leaves (B) as the remaining correct answer. (B) is not unquestionably correct, because the probative value/prejudicial impact balancing test found in Rule 403 is weighted heavily toward admission of evidence. For evidence to be excluded under this balancing test, its probative value must be substantially outweighed by its prejudicial impact. Nevertheless, in this case, a plausible reason for sustaining an objection to the prosecutor’s question is that the probative value of the answer would be substantially outweighed by its tendency to mislead. The question and answer would inevitably let the jury know that the defendant had been previously charged with a crime. This information could be highly prejudicial to his defense. Because the question and answer have little probative value (the negative inferences pertaining to the witness’s credibility being very weak), it is reasonable to sustain an objection to the question on the basis that its probative value is substantially outweighed by its prejudicial impact.
While at a party, the defendant ran into an acquaintance. The acquaintance proceeded to ridicule the defendant about his looks. After an hour of verbal abuse by the acquaintance, the defendant suddenly took a champagne bottle that was on a nearby table and struck the acquaintance over the head, killing him instantly. At his arrest, the defendant told the police that voices inside his head told him to shut the acquaintance up, permanently.
The defendant was tried in a jurisdiction that follows the Model Penal Code test for insanity. At trial, the defendant’s lawyer introduced psychiatric testimony indicating that the defendant suffered from a mental illness.
Which of the following, if proved by the defense, would most likely relieve the defendant of criminal responsibility?
A The defendant’s actions were a product of his mental illness.
B The defendant could not appreciate the criminality of killing the acquaintance, or he could not conform his conduct to the requirements of the law.
C The defendant did not know that killing the acquaintance was wrong, or he could not understand the nature and quality of his actions.
D The defendant was unable to control himself or conform his conduct to the law.
B
This choice states the Model Penal Code test. Pursuant to the Model Penal Code, a defendant is entitled to acquittal if he suffered from a mental disease or defect and as a result lacked substantial capacity to either: (i) appreciate the criminality of his conduct; or (ii) conform his conduct to the requirements of law. (A) is wrong because it would be helpful only if the jurisdiction followed the Durham insanity test, pursuant to which a defendant is entitled to acquittal if his crime was the product of mental disease or defect. (C) is wrong because it presents a valid defense under the M’Naghten rule, which provides for acquittal if a disease of the mind caused a defect of reason, such that the defendant lacked the ability at the time of his actions to either: (i) know the wrongfulness of his actions; or (ii) understand the nature and quality of his actions. (D) is wrong because it presents the irresistible impulse test, which provides for acquittal if, because of mental illness, the defendant was unable to control his actions or to conform his conduct to the law. Note that the Model Penal Code test combines the M’Naghten and irresistible impulse tests. Thus, choices (C) and (D) contain elements of the Model Penal Code test, but are not as good as (B) because the question asks for the set of facts that gives the defendant the greatest likelihood of being relieved of criminal liability. Therefore, (B), which sets forth the complete test used in the jurisdiction, is the best choice.
To secure a loan of $100,000 from a bank, the owner in fee simple of a parcel of land conveyed a deed of trust for the land to the bank. The deed of trust contained a “power of sale” clause, permitted by the jurisdiction, which allowed the bank to sell the property in the event of default without the necessity of a judicial foreclosure action. After several years, the owner defaulted on his loan payments to the bank. The bank informed the owner that it was exercising its power of sale. After appropriate notices, the bank conducted a public sale of the land. The bank was the sole bidder and obtained the property for $80,000, which was $10,000 less than the outstanding balance on the loan plus the expenses of the sale. One month later, the owner notified the bank that he wanted to pay off the loan and extinguish the deed of trust, and was prepared to tender $80,000 to do so. The bank insisted that the owner must tender $90,000 to pay off the loan.
If a court in the jurisdiction will require the bank to accept only $80,000 under the circumstances above, what is the likely reason?
A The owner had the power to revoke the trust as long as he was alive.
B The bank did not have the authority to bid on the property at other than a judicial foreclosure sale.
C The owner was exercising a statutory power rather than an equitable power.
D The bank does not have the power to clog the equity of redemption.
To secure a loan of $100,000 from a bank, the owner in fee simple of a parcel of land conveyed a deed of trust for the land to the bank. The deed of trust contained a “power of sale” clause, permitted by the jurisdiction, which allowed the bank to sell the property in the event of default without the necessity of a judicial foreclosure action. After several years, the owner defaulted on his loan payments to the bank. The bank informed the owner that it was exercising its power of sale. After appropriate notices, the bank conducted a public sale of the land. The bank was the sole bidder and obtained the property for $80,000, which was $10,000 less than the outstanding balance on the loan plus the expenses of the sale. One month later, the owner notified the bank that he wanted to pay off the loan and extinguish the deed of trust, and was prepared to tender $80,000 to do so. The bank insisted that the owner must tender $90,000 to pay off the loan.
If a court in the jurisdiction will require the bank to accept only $80,000 under the circumstances above, what is the likely reason?
A The owner had the power to revoke the trust as long as he was alive.
B The bank did not have the authority to bid on the property at other than a judicial foreclosure sale.
C The owner was exercising a statutory power rather than an equitable power.
D The bank does not have the power to clog the equity of redemption.
