More Missed Questions

Question 1

A gardener entered a garden center during regular business hours. He intended to steal some heirloom parsley plants for his garden. He noticed a display of regular parsley plants at the back of the store, but mistakenly believed they were a very valuable type of heirloom parsley. When no one was looking, he took two small parsley plants from the sales display, put them under his sweatshirt, and left the store.

At the register, there was a sign that advertised, “Like parsley? We like it so much that we grew more than we need this season! Today only, we are offering each visitor two free parsley plants from our surplus!” The gardener never saw the sign.

Burglary in the jurisdiction is defined as “entering any building unlawfully with the intent to commit a crime.” The jurisdiction follows the common-law definition of larceny. The following crimes are listed in descending order of seriousness.

Which is the most serious crime(s) of which the gardener may be convicted?

Answer 1

Attempted larceny only.

However, the gardener can be convicted of attempt, which occurs when a person:

• has the specific intent to commit a crime (here, larceny)
• acts in furtherance of that crime (by taking and leaving the store with two parsley plants) but
• does not complete it (the plants were free, so no larceny occurred).

Burglary requires proof that a person unlawfully entered a building, so a person cannot burglarize a building by entering an area that is open to the public at the time. And larceny requires a trespassory taking, so a person cannot commit larceny by taking property freely given by another—even if the person was unaware of this fact. However, this factually impossibility would not absolve the person of attempted larceny.

Question 2

A man who worked nights was unable to sleep during the day because of the persistent barking of a neighbor’s dog. Despite repeated requests to the neighbor to address the problem, the barking persisted. The man decided to purchase a pistol to kill the dog. Unfamiliar with firearms, the man bought a pistol but accidentally bought blank ammunition. Standing in his own yard, the man fired several shots at the barking dog that was about 10 feet away in his neighbor’s yard, thinking he was firing real bullets. The dog was unharmed because the blanks were incapable of inflicting harm.

In the applicable jurisdiction, malicious destruction of property is a statutory crime. The highest court of this jurisdiction has ruled that this statutory crime requires the reckless destruction, injury, or defacement of the property of another.

Is the man likely to be found guilty of attempted malicious destruction of property?

Answer 2

Yes, because the man was unaware that the blank bullets would not harm the dog.

Here, the man formed the specific intent to kill the neighbor’s dog. To do so, the man purchased a pistol and fired it at the dog (acts). And though it was factually impossible for the man to kill the dog—because he unknowingly bought blanks—this is no defense to attempt. Therefore, the man is likely to be found guilty of attempted malicious destruction of property.

A defendant is guilty of an attempted crime if he/she (1) had the specific intent to commit a crime, (2) performed an act in furtherance of that crime, but (3) did not complete it. Factual impossibility is no defense to attempt.

Answer 3

Factual impossibility—i.e., the existence of an unknown condition that makes the unlawful objective impossible to complete—is never a defense to conspiracy.

Question 4

A man was married to his childhood sweetheart, but after 20 years of marriage, they were no longer in love and the man took a mistress. One day, the man’s wife disappeared. Two months later, believing his wife to be dead, the man married his mistress at the local courthouse. However, the wife was not dead but had merely been visiting her sister abroad. When the wife returned home, she found the man married to the mistress. The man told the wife that because their religion required polygamy, being married to two women was his religious duty. The wife disagreed and subsequently reported the man to the police.

Will the man likely be convicted of bigamy?

Answer 4

Therefore, the man will likely be convicted of bigamy.

Bigamy is a strict liability offense that arises from the voluntary act of marrying someone while still legally married to someone else. Here, the man committed bigamy when he voluntarily married the mistress while still married to the wife. Although he mistakenly believed that the wife was dead, that mistake of fact is no defense to this strict liability crime

Mistake of fact is a defense to specific intent and general intent crimes, but it is never a defense to strict liability crimes like bigamy—i.e., the voluntary act of marrying someone while still legally married to another.

Question 5

What are specific intent crimes for the MBE?

Answer 5

Specific intent refers to a mental state where the defendant has an objective or purpose to bring about a particular result. It requires that the defendant intended not only to commit the act but also to achieve a specific outcome or result from that act. Specific intent is often required for crimes where proving the defendant’s precise mental state at the time of the crime is essential.

Specific intent crimes for the MBE include:

1. First-degree murder
2. Inchoate offenses (attempt, solicitation, conspiracy)
3. Assault
4. Larceny
5. Embezzlement
6. False pretenses
7. Robbery
8. Burglary
9. Forgery

Question 6

What are general intent crimes for the MBE?

Answer 6

General intent refers to the intention to perform the physical act itself, without needing to prove that the defendant intended the specific result of the act. It requires that the defendant acted voluntarily and knowingly, but it does not require an intent to cause a particular outcome. General intent crimes focus on the defendant’s actions rather than their purpose or desire to achieve a specific result.

General intent crimes for the MBE include:

1. Battery
2. Rape
3. Kidnapping
4. False imprisonment

Question 7

What are strict liability crimes for the MBE?

Answer 7

Strict liability crimes for the MBE include:

1. Statutory rape
2. Selling alcohol to minors
3. Bigamy (in some jurisdictions)
4. Traffic offenses

Question 8

What type of intent is required for common law murder on the MBE?

Answer 8

Common law murder requires malice aforethought, which can be demonstrated through:
1. Intent to kill
2. Intent to inflict serious bodily harm
3. Reckless indifference to an unjustifiably high risk to human life (depraved heart)
4. Intent to commit a felony (felony murder rule)

Question 9

A woman suffered from a debilitating disease, and her husband convinced her that having sexual intercourse with him would cure the disease. The husband knew that his statement was false. Relying on this statement, the woman gave her consent, and the two had sexual intercourse. Later, the woman learned that intercourse could not and did not cure her disease, and she notified the police.

Rape is statutorily defined in this jurisdiction as “sexual intercourse with a female against her will.” The husband was convicted of rape.

If the husband appeals the conviction, how should the appellate court rule on the appeal?

Answer 9

Reverse the conviction, because the intercourse was not against the woman’s will.

Fraud in factum occurs when the fraud pertains to the nature of the act itself and negates a rape victim’s consent. In contrast, fraud in the inducement occurs when fraud is used to gain consent to what the victim knows is an act of sexual intercourse and does not negate the victim’s consent.

You chose: Affirm the conviction, because the husband obtained the woman’s consent through fraudulent means.

Rape is a general intent crime requiring only the intent to perform the unlawful act—i.e., to have intercourse without the alleged victim’s consent. In contrast, specific intent crimes require the intent to perform the unlawful act to accomplish a prohibited result.

Question 10

A woman’s husband told her that he was divorcing her, leaving the woman distraught. The woman and her sister decided to burn down the husband’s new house while he was at work. The next day, the woman and her sister purchased the necessary supplies and drove to the husband’s house. The sister waited in the car and served as a lookout while the woman started the fire. They then drove off to avoid being noticed. Although the woman and her sister believed that the husband was at work, in fact he had stayed home sick, and he was killed in the fire. The woman and her sister were arrested and charged with both arson and felony murder.

May the woman and her sister be convicted of both arson and felony murder?

Answer 10

The woman and her sister may be convicted of arson OR felony murder, but not both.

Felony murder is an unintended killing that is proximately caused by and occurs during the commission of an inherently dangerous felony—e.g., arson, which is the malicious burning of another’s dwelling. In a majority of jurisdictions, the underlying felony is deemed a lesser-included offense of felony murder. As a result, when a defendant is convicted of felony murder, the underlying felony merges into that conviction—meaning that a defendant cannot be convicted of both the underlying felony and felony murder.

An accomplice is liable to the same extent as the principal for the encouraged crime (arson) and any crimes that are the natural and probable consequences of the accomplice’s conduct (felony murder)

Question 11

Robbery elements

Answer 11

Robbery requires proof of three elements:

• The defendant committed larceny—i.e., a trespassory taking and carrying away of a victim’s personal property with the specific intent to permanently deprive the victim of that property.
• The property was taken from the victim’s person or in the victim’s presence.
• The taking was accomplished by force or intimidation.

Answer 12

A motion to suppress should be granted if the contested evidence was seized during an unreasonable Fourth Amendment search. A search is unreasonable if it was conducted without a warrant or an exception to the warrant requirement.

One such exception is a search incident to arrest. This exception allows police to conduct a warrantless search of a person who has been lawfully arrested and the immediate surrounding areas for concealed weapons or destructible evidence. Here, after the defendant was lawfully arrested, the police conducted a thorough search of the apartment and found cocaine in his bedroom. Since the search went beyond areas immediately surrounding the defendant, this exception does not apply.

Another exception applies to exigent circumstances, under which police may act without a warrant when there is an immediate threat of harm to police or the public. It allows police to conduct a protective sweep to search for injured persons and continued threats. They also can seize illegal items that are in plain view. But once the emergency ends, the search must end unless the police obtain a warrant or another exception applies.

Answer 13

Exceptions to warrant requirement
* Search incident to arrest
* Administrative search
* Stop and frisk
* Plain view
* Automobile exception
* Consent
* Exigent circumstance
* Special government purpose

Mnemonic: SAD SPACES

Answer 14

Police may conduct a warrantless search incident to an arrest of the arrestee and the immediate surrounding areas. And the exigent-circumstances exception allows police to conduct a protective sweep to search for injured persons and continued threats.

Question 15

While on patrol one night, two officers noticed the car of a known drug dealer in the drive-through lane of a fast-food restaurant. Based on prior discussions with informants, the officers had probable cause to believe that the drug dealer had drugs in his vehicle since he regularly made drug deliveries from the trunk of his car. Noticing that the drug dealer’s headlight was out, the officers pulled him over once he left the restaurant and searched his car. The officers did not find any evidence of drugs, but they did find several illegal weapons in the trunk.

Did the officers’ seizure of the weapons violate the drug dealer’s Fourth Amendment rights?

Answer 15

No, as a valid application of the automobile exception to the warrant requirement.

The automobile exception to the warrant requirement allows police to conduct a warrantless search of a vehicle if they have probable cause to believe it contains evidence of a crime. Officers can search any area within the vehicle where the evidence might be located, including the trunk and locked containers.

You chose an attractive wrong answer: Under the automobile exception, a search is not limited to areas that the driver can access. This limitation is present only when there is a search incident to a lawful arrest (not seen here).

Question 16

A grand jury is investigating a corporation for tax fraud. The grand jury subpoenaed several types of corporate records, including emails from several of the corporation’s officers and other business papers. The subpoena was served on the corporation’s chief operating officer (COO), who acted as the custodian of the corporate records. The business papers would implicate several members of the corporation, including the COO, in criminal misconduct. Further, many of the emails written by the COO contained statements about the officers of some of the corporation’s competitors; these statements were defamatory and would likely result in civil liability if they were released. The COO filed a motion to quash the subpoena, arguing that being forced to turn over these corporate records would violate his Fifth Amendment privilege against self-incrimination.

Should the court grant the COO’s motion?

You arrived at the correct answer for the wrong reasons. Look at this one again

Answer 16

No as to both the emails and the business papers.

The Fifth Amendment privilege against self-incrimination protects suspects in criminal proceedings from being compelled to provide self-incriminating evidence that is testimonial in nature—e.g., via a grand jury subpoena (as seen here). However, this privilege does not apply to evidence that might subject a person to civil liability. Therefore, the court should deny the COO’s motion to quash as to the emails that would subject the COO to civil liability for defamation.

Additionally, the privilege against self-incrimination applies only to individuals—not corporations. This means that when a corporation is the target of an investigation (as seen here), the custodian of corporate records (or other corporate officer) cannot refuse to produce subpoenaed documents by citing this privilege. This is true even if the documents would incriminate the custodian (or officer) personally.

Question 17

Following the armed robbery of a local bank, the police identified the defendant as a suspect and brought him to the police station for questioning. As soon as they sat down in the interrogation room, the police read the defendant his Miranda rights. The defendant noted that “this seems like the kind of thing where you should have a lawyer.” The police responded that the defendant had that right. The defendant noted that he “didn’t even know a good lawyer” and dropped the issue. In response to each question, the defendant simply repeated, “I don’t know anything about it.” Frustrated, the police discontinued questioning after an hour and left the defendant in the interrogation room alone. Three hours later, the police returned and, without repeating the Miranda warnings, told the defendant that his best friend, who was also a suspect, had already told them all about the robbery and the defendant’s involvement. In fact, the police were searching for the defendant’s best friend to bring him in for questioning but had not been able to locate him. The defendant immediately blurted out, “It was all his idea. I didn’t even want to rob that bank.”

What is the defendant’s best argument that his statement was taken in violation of his Fifth Amendment rights?

Answer 17

The defendant did not receive fresh Miranda warnings after the break in questioning.

Police must protect a suspect’s Fifth Amendment privilege against self-incrimination by informing the suspect of his/her Miranda rights (e.g., the right to an attorney) prior to a custodial interrogation. The suspect may then choose to specifically and unambiguously invoke those rights (not seen here) (Choice D). Alternatively, the suspect who understand his/her Miranda rights may waive those rights by voluntarily speaking to the police (as seen here).

However, when the interrogation of a suspect who has waived his/her Miranda rights is stopped for a long duration, police should re-Mirandize the suspect prior to resuming the interrogation. That is because the passage of time can possibly invalidate the suspect’s earlier waiver, rendering any incriminating information obtained after the break in interrogation inadmissible. Therefore, the defendant’s best argument is that he did not receive fresh Miranda warnings after the break in questioning.

Question 18

A defendant was arrested and charged with robbery. While he was awaiting trial, an inmate in the jail in which he was housed was assaulted, and the police suspected that the defendant was involved. They brought the defendant in for questioning about the assault and provided him with Miranda warnings. The defendant said that he was willing to talk and did not ask for his attorney. He proceeded to tell the police that he had provided another inmate with information about how to obtain a weapon and believed that inmate had been involved in the assault. The defendant was later charged as a co-conspirator in the assault and sought to suppress his statement to the police. He argued that his attorney should have been present during the interrogation.

Is the defendant’s statement likely to be suppressed?

Answer 18

No, because the defendant did not specifically invoke his Fifth Amendment right to counsel.

The Constitution guarantees the right to counsel in two places—the Fifth Amendment and the Sixth Amendment. The Fifth Amendment right to counsel applies when a suspect is subjected to a custodial interrogation prior to the commencement of judicial proceedings. However, this right is not automatic. A suspect must invoke this right by making a specific, unambiguous statement requesting counsel. If the suspect does not do so and answers questions after being Mirandized, then this right is waived.

In contrast, the Sixth Amendment right to counsel attaches automatically upon the commencement of judicial proceedings and applies at all critical stages of prosecution. However, this right applies only to the specific offense(s) at issue in those proceedings—not to other crimes in which judicial proceedings have yet to commence. And though this right can be waived, a waiver cannot occur until the right has attached.

Question 19

What is the function of a grand jury?

Answer 19

In United States v. Williams, the U.S. Supreme Court held that a prosecutor is not required to present exculpatory evidence to a grand jury. That is because the grand jury’s function is merely to determine whether enough evidence exists to bring a criminal charge—not to determine guilt or innocence. Accordingly, the grand jury need only hear evidence that supports the prosecutor’s side.

Question 20

When may a peremptory challenge be sustained?

Answer 20

A peremptory challenge is an objection to a potential juror that can be raised without any reason or explanation during the jury-selection process. However, the Fourteenth Amendment equal protection clause prohibits striking potential jurors based solely on their race, ethnicity, or sex. In Batson v. Kentucky, the Supreme Court set forth a three-prong test to determine if the use of a peremptory challenge was discriminatory. That test employs the following burden-shifting scheme:

The moving party must establish a prima facie case of discrimination (e.g., the prosecution used peremptory challenges to strike only nonwhite jurors).

The party who exercised the peremptory challenge must then provide a neutral reason for the peremptory challenge (e.g., the strikes were based on age, not race).

If it does so, then the burden shifts back to the moving party to prove that the other party’s reason was pretextual (e.g., the prosecution struck a 21-year-old black man but not a 21-year-old white man).

Question 21

Two police officers responded to a domestic-disturbance call. When the officers arrived at the home in question, they found a man and a woman screaming at each other in the front yard. One officer took the man aside, while the other spoke with the woman. The woman told the officer that she had a restraining order against the man and that he was a convicted felon who often carried a gun. The officers confirmed the restraining order and placed the man under arrest, without giving him Miranda warnings. While the man was in the back of the police car, an officer asked the man if he owned a gun. The man replied that he always keeps a gun in his car for self-protection. The officer then retrieved the gun from the man’s car, which was parked nearby.

The man was later charged with possession of a firearm as a felon. At trial, the man moved to suppress his statement about always having a gun and the gun itself, arguing that he did not receive Miranda warnings prior to being questioned by the officer.

Is the man likely to succeed in having the evidence suppressed?

Answer 21

Yes, as to the statement only.

A suspect’s incriminating statement during a custodial interrogation without Miranda warnings cannot be used against the suspect at a subsequent trial. However, physical evidence obtained as a result of the non-Mirandized statement is admissible so long as that statement was not coerced.

The Fifth Amendment requires that police provide a suspect with Miranda warnings prior to a custodial interrogation. A custodial interrogation occurs when a defendant is in custody (e.g., under formal arrest) and subjected to interrogation. When, as here, the police fail to provide Miranda warnings, an incriminating statement made as the result of the custodial interrogation can be suppressed at a subsequent trial.

The U.S. Supreme Court held that physical evidence obtained as a result of a non-Mirandized statement is admissible so long as that statement was voluntary (i.e., not coerced). A statement was coerced if it was the product of physical force, threats, or psychological pressure by police.

Question 22

A state adopted a “three-strikes” law imposing a mandatory minimum sentence of 25 years upon conviction of a third felony. Subsequently, an individual committed and was convicted of two felonies, for which he served a total of ten years in prison. After being released, the individual committed a third felony, which by itself carries a minimum penalty of two years in prison.

If the state seeks to apply the “three-strikes” law to the individual upon his conviction for the third felony, what is the most likely result?

Answer 22

The law will be upheld.

The Fifth Amendment double jeopardy clause prohibits multiple punishments for the same offense. However, in Witte v. United States, the U.S. Supreme Court held that the use of a defendant’s prior convictions to enhance the sentence imposed for a current conviction does not violate the double jeopardy clause.

That is because the enhancement does not impose an additional punishment for the first two crimes. Instead, it imposes a stiffer punishment for a new crime to deter repeat offenders from committing additional crimes in the future. Therefore, the law will not be overturned on double jeopardy grounds

Answer 23

Due process requires that any fact (e.g., aggravating circumstances) that exposes a criminal defendant to a greater punishment than authorized by the jury’s guilty verdict is an element that must be submitted to and decided by the jury.

Question 24

A defendant was charged with both battery and robbery of a victim. The defendant was found guilty of battery but acquitted of the robbery charge. Subsequently, the victim died from the injuries inflicted by the defendant. The defendant has been charged with felony murder of the victim. The defendant has moved for dismissal of this charge on double jeopardy grounds.

How is the court likely to rule on this motion?

Answer 24

Grant the motion, because the defendant was acquitted of robbery.

Felony murder is an unintentional killing during the commission of an inherently dangerous felony. A proper conviction for felony murder requires the prosecution to prove that the defendant committed the underlying felony. Robbery—i.e., the unlawful taking and carrying away of personal property from the victim by force or intimidation—is an inherently dangerous felony upon which a felony-murder charge can be based.

However, a felony-murder prosecution predicated upon an underlying felony for which the defendant was acquitted in a previous trial (as seen here) is improper. That is because such a prosecution would require retrying the underlying felony in violation of the double jeopardy clause—which prohibits multiple prosecutions for the same offense.

Question 25

An internet start-up company began marketing a line of products under a trade name that was identical to a manufacturer's protected trademark. The manufacturer filed an action in federal district court for injunctive relief against the start-up company, seeking to put a stop to the company's use of the protected trade name. The district court granted a preliminary injunction in favor of the manufacturer and scheduled a hearing to consider a permanent injunction. The start-up company wants to immediately appeal the preliminary injunction. Which of the following is most accurate concerning the start-up company's potential appeal?

Answer 25

**Immediate appeal is allowed by right.** The final-judgment rule generally precludes federal appellate courts from hearing an appeal until the federal district court has entered a final judgment. But the interlocutory appeals statute (28 U.S.C. § 1292) provides exceptions to this rule that allow certain equitable orders to be immediately appealed as a matter of right. These include: * orders granting, modifying, refusing, or dissolving injunctions * orders appointing or refusing to appoint receivers and * decrees determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.

Question 26

personal jurisdiction

Answer 26

Personal jurisdiction can be established through the defendant's express consent, implied consent, waiver, or appearance—i.e., by voluntarily appearing in court to litigate the merits of the case.

Question 27

Two business partners, who were citizens of neighboring states, entered into an agreement in which one partner would pay 70% of the initial start-up costs of a new solar energy business, while the other would pay 30% up front and repay 20% to the other partner after two years. The parties signed a promissory note outlining this agreement. After the two-year term outlined in the agreement had passed, the debtor-partner had not paid anything to the creditor-partner, so the creditor-partner appropriately filed suit in federal district court based on diversity jurisdiction. The forum state's partnership statute contains substantive and procedural provisions that vary somewhat from a federal statute that regulates certain lending in the solar energy industry, though the existence of an actual conflict between the statutes is dependent upon the facts of the matter. How should the court proceed?

Answer 27

Evaluate the facts to determine whether a conflict between the statutes exists.

Question 28

A spectator at a professional hockey game was injured when an errant hockey puck flew over the glass boards and struck him in the head, causing permanent eye damage. The spectator brought an action for negligence against the facility owner in federal district court under diversity. By statute, the state in which the federal court is located allows a facility owner to raise assumption of the risk as a defense when a spectator is injured at a sporting event. Although no valid federal statute or rule governs this issue, federal courts have generally not permitted facility owners to raise an assumption of the risk defense in order to encourage facility owners to take more stringent precautions regarding spectator safety. The federal court opted to apply federal common law to resolve the issue, and the resolution was in the spectator's favor. Was the court's application of federal common law proper?

Answer 28

No, because state law is outcome determinative. When an issue is not clearly substantive or procedural and no federal law directly applies, Erie requires that federal courts sitting in diversity apply state law if (1) it would be outcome determinative—i.e., failure to apply it would result in forum-shopping or inequitable administration—and (2) there is no contrary federal interest.

Answer 29

Venue is proper in any federal district where (1) any defendant resides so long as all defendants reside in the same state, (2) a substantial portion of the events occurred, (3) a substantial part of the property at issue is located, or (4) any defendant is subject to personal jurisdiction—but only if the first three provisions do not exist.

Question 30

A plaintiff brought suit in a federal district court sitting in diversity jurisdiction against a law firm and a lawyer for legal malpractice. The law firm moved to dismiss the claims against it, and the district court granted the motion on August 15. On August 20, the district court directed entry of a final judgment as to the law firm, including language in the judgment that it was expressly determining that there was no just reason for delay in entering the judgment. On September 30, the plaintiff filed a notice of appeal with the district court clerk. Can the court of appeals hear the plaintiff's appeal?

Answer 30

No, because the appeal is untimely. When an action involves multiple claims or parties, a district court may enter final judgment as to fewer than all claims or parties if it expressly determines that there is no just reason for delay. A party may then appeal that judgment if the notice of appeal is filed with the district court clerk within **30 days** after the entry of final judgment.

Question 31

A consumer brought a federal diversity action in a federal district court in State A against a corporation for negligence in failing to warn of the potential dangers of a product it sold. Following a jury trial, the district court entered judgment in favor of the consumer. The corporation appealed and posted bond to stay the judgment. The court of appeals affirmed the judgment. The consumer then filed a motion for penalty under the law of State A. By statute, State A requires a party who loses on appeal to pay a 10 percent penalty. A federal rule addressing this issue states that such a penalty is discretionary with the court. In response to the consumer's motion, the corporation contends that the State A law is not applicable to the action. What action should the court of appeals take?

Answer 31

Determine whether the federal rule abridges, enlarges, or modifies the substantive rights of the parties. Under federal-rule analysis, a federal court sitting in diversity must apply a valid federal law (e.g., federal rule) that directly addresses an issue so long as the law is arguably procedural and does not abridge, modify, or enlarge a substantive right.

Answer 32

Issue preclusion (i.e., collateral estoppel) bars the relitigation of issues that were actually litigated, determined, and necessary to a valid final judgment. This doctrine can only be asserted against parties to the first action because they have had an opportunity to fully and fairly litigate their claims/defenses.

Question 33

In a civil action tried in federal district court, the judge determined that, due to the anticipated length of the trial, nine jurors were needed to ensure that six jurors remained when the case was sent to the jury for deliberation. The judge's determination was made in good faith and based on her experience as a judge dealing with juror requests for dismissal from a case. Consequently, nine individuals were selected as members of the jury. However, after each attorney had made his closing argument, all nine jurors remained. Without consulting either party, the judge, acting without discriminatory intent with regard to race or gender, excused the three jurors who had been selected last to reduce the jury to six jurors. Was this action proper? ## Footnote Freshin up on the rules about juries

Answer 33

No, because the judge did not excuse the three jurors for **good cause**. A juror must participate in the verdict unless excused by the court for good cause during trial or after jury deliberations have begun. **Good cause exists when the juror has an illness or family emergency or has committed juror misconduct that might cause a mistrial.**

Question 34

A plaintiff filed a complaint in federal court alleging that a cell phone application sold by the defendant infringed upon a patent held by the plaintiff. The complaint was signed by an associate at the large law firm that represented the plaintiff. The defendant filed a motion to dismiss, arguing that the cell phone application at issue did not actually perform as described in the complaint and thus did not violate the plaintiff's patent. The court held a hearing on the motion to dismiss. At the hearing, the defendant presented evidence that the application performed only functions not covered by the plaintiff's patent. The defendant also showed that the plaintiff's attorney had never actually used the application but had drafted the complaint based solely on his client's description of the application. The court granted the motion to dismiss. The court also issued an order requiring the plaintiff's attorney and his law firm to pay the defendant's attorney's fees, finding that the plaintiff's attorney had not conducted a reasonable inquiry into the factual contentions in the complaint. Which of the following is the best argument that the court erred in its order requiring payment of attorney's fees?

Answer 34

A court may not impose a monetary sanction under Rule 11 on its own initiative without issuing a show-cause order. Here, the court found that the plaintiff's attorney had not conducted a reasonable inquiry into the factual contentions in the complaint—a violation of FRCP 11(b)(3). The court then ordered the plaintiff's attorney and his law firm to pay the defendant's attorney's fees. However, a court cannot impose a monetary sanction under Rule 11 on its own initiative without issuing a show-cause order. Since the court failed to do so, this is the best argument that the court erred in its order requiring payment of attorney's fees.

Question 35

third party impleader

Answer 35

Impleader (i.e., third-party practice) allows a defendant to add a nonparty to a suit who may be liable to the defendant for all (i.e., indemnity) or part (i.e., contribution) of the plaintiff's claim (Choice C). This means that the nonparty would reimburse the defendant for any damages paid to the plaintiff. To initiate impleader, the defendant must file a third-party complaint (1) within 14 days of serving his/her original answer or (2) after this deadline with the court's leave (i.e., permission).

Question 36

supplimental jurisdiction visual

Answer 36

Question 37

A customer who was injured by a fall at a retailer's store sued the retailer for negligence. The action was properly brought in federal district court based on diversity jurisdiction. After the trial began, the customer, due to a death in the family, requested an extended continuance. The court granted the customer's request. Due to the continuance, the court dismissed, for good cause, a juror who had prepaid a vacation trip that was scheduled to begin during the period of the continuance and run through the anticipated completion of the trial. The dismissal left the jury with six members. After the case was given to the jury for deliberation, a juror took ill. The court dismissed this juror for good cause. Given the possibility of a mistrial, both the customer and the retailer agreed to the return of a verdict by a five-person jury. After the jury returned a unanimous verdict for the customer, the retailer filed a motion for a new trial based on the size of the jury. How will the court likely rule on the retailer's challenge?

Answer 37

Deny the motion, because the parties stipulated to a five-person jury. A jury verdict must be unanimous and returned by a jury of at least 6 (but no more than 12) members **unless the parties stipulate** otherwise. | * this implies that the parties can agree to something else.

Question 38

A plaintiff filed a complaint in federal district court alleging that a city police officer had violated the plaintiff's constitutional rights during a traffic stop. The complaint, which asserted claims against the city and a named police officer, was filed the day before the statute of limitations for the claims was set to expire. The named defendants filed an answer, and the parties engaged in expedited discovery. During discovery, the plaintiff learned that he had misidentified the officer in his complaint, and that it was actually the named officer's partner who had stopped him. Discovery also revealed that the named officer's partner was aware of the suit and the fact that he was the intended defendant. Sixty days after filing the complaint, the plaintiff filed a motion to amend his complaint to remove the named police officer and add the officer's partner as a defendant. The plaintiff had process served on the officer's partner. The officer's partner objected, arguing that the amendment was not timely and the claims were barred by the statute of limitations. The applicable statute of limitations for the claims does not mention relation back. Should the court allow the plaintiff to amend his complaint?

Answer 38

Yes, because the amendment relates back to the date the original pleading was filed. An amended complaint will "relate back" to the date of the original complaint if (1) the same occurrence is at issue, (2) the new party received notice of the suit within 90 days after the original complaint was filed, and (3) the new party knew or should have known that it would have been sued but for a mistake about its identity.

Answer 39

An appellate court may hear an appeal from a district court order that grants or denies class action certification. If the appellate court permits the appeal, the district court proceedings are **stayed** pending the appeal only when ordered by the **district court or the appellate court**.

Question 40

A defendant charged with conspiracy to commit murder requested a meeting with the prosecutor to discuss the defendant's cooperation. At the beginning of this pretrial meeting, the prosecutor indicated that she would talk with the defendant only if he agreed that statements made by him during the meeting could be used to impeach his testimony if a plea deal could not be reached and he chose to testify at trial. The defendant, after consulting with his attorney, knowingly and voluntarily agreed. No plea agreement was subsequently reached. At trial, the defendant testified. When the prosecutor attempted to impeach the defendant's testimony with statements that the defendant had made during the pretrial meeting, the defendant's attorney objected. Should the court permit the prosecutor to ask the defendant about such statements?

Answer 40

Yes, because the defendant knowingly and voluntarily waived his right to have his statements during a plea negotiation excluded. A defendant's statements during plea negotiations are generally inadmissible against the defendant. However, a defendant may waive this protection if the waiver is made knowingly and voluntarily.

Answer 41

A witness's character for truthfulness can be attacked with a specific instance of conduct (SIC) involving a criminal conviction for a felony or crime of dishonesty—regardless of whether the SIC is introduced intrinsically or extrinsically. However, a SIC involving a mere bad act can only be introduced intrinsically.

Question 42

A man sued his neighbor for assault. The man testified that on the three nights that his neighbor had threatened to hurt him, his wife had recorded the events in her diary. However, the man could not remember the dates of the events or the reasons that the neighbor made the threats. The man's attorney permitted the man to examine his wife's diary while on the stand. After a brief examination of the diary, the man then testified to the exact dates of the threats and the reasons that the neighbor made the threats. The neighbor seeks to introduce the relevant portions of the diary into evidence to prove that the man was lying. Can the diary be entered into evidence?

Answer 42

Yes, because the neighbor is entitled to enter into evidence any portion of the diary relevant to the assault claim to impeach the man. Once a witness has used a writing to refresh his/her recollection, the adverse party is entitled to (1) have the writing produced for inspection, (2) cross-examine the witness about the writing, and (3) introduce into evidence any portion of the writing that relates to the witness's testimony.

Question 43

Answer 43

Evidence of a criminal defendant's prior crimes or bad acts is inadmissible if it is offered to show the defendant's propensity to commit the charged crime. But it may be admissible for a relevant, noncharacter purpose (i.e., MIMIC).

Answer 44

Under the "bursting bubble" approach, a rebuttable presumption "bursts" when the opposing party in a civil case produces sufficient evidence to contradict the presumed fact. The fact finder must then weigh the evidence to decide the issue.

Question 45

A plaintiff hopes to introduce an original x-ray image of his broken arm at trial to help prove the injury element of his negligence claim against the defendant. The plaintiff called a doctor to lay the foundation in order to enter the image into evidence. The doctor testified that the image was an accurate depiction of the plaintiff's arm taken the day after the alleged injury. The doctor also testified that he had taken the x-ray image himself. If the above testimony is the only testimony presented about the x-ray image, is the image admissible?

Answer 45

No, because the image has not been properly authenticated. All tangible evidence must be authenticated before it can be admitted at trial. This requires a prima facie showing that the object is what the proponent claims it to be. For example, a simple photograph is authenticated by having a witness with personal knowledge of the thing depicted testify that the photograph fairly and accurately depicts that thing. But when the evidence sought to be admitted is a physical representation of something that could not otherwise be seen—e.g., an electrocardiogram or x-ray image (as seen here)—authentication requires proof that: the process for creating the evidence was accurate the machine that produced the evidence was working properly and the operator of the machine was qualified to operate it.

Answer 46

The hearsay exception for former testimony allows admission of testimony (1) given at a trial, hearing, or deposition in the same case or a different proceeding and (2) offered against a party who had an opportunity and similar motive to develop that testimony through direct or cross-examination.

Question 47

A defendant is on trial for the crime of menacing due to allegedly making threatening phone calls to a woman living in his apartment building. The prosecution called a female witness who lived in the defendant's prior apartment building to testify that she also received a number of unidentified but identical threatening phone calls while the defendant lived in her building. The defense objected to the testimony on the ground of relevance. The prosecution responded by explaining that it plans to introduce further evidence establishing that the calls received by this witness were made by the defendant. Is the witness's testimony admissible?

Answer 47

When the relevance of evidence depends on whether a fact exists, proof must be introduced to allow the court to determine whether the jury could reasonably find the conditional fact by a preponderance of the evidence. However, the court may admit the proposed evidence on the condition that such proof be introduced later.

Question 48

Answer 48

A judge must determine the admissibility of evidence and can consider any relevant evidence—even if it is otherwise inadmissible—to do so. But the jury must decide the weight and credibility of the admitted evidence.

Question 49

# Judicial notice of adjudicative facts

Answer 49

A court may take judicial notice of any adjudicative fact that is not subject to reasonable dispute because it (1) is generally known within the territorial jurisdiction of the trial court or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

Answer 50

Compromise offers (and acceptances), as well as conduct or statements made during compromise negotiations, are generally inadmissible to (1) prove or disprove the validity or amount of a disputed claim or (2) impeach by a prior inconsistent statement or contradiction.

Question 51

what kind of a statements count as hearsay?

Answer 51

The rule against hearsay bars the admission of out-of-court statements offered to prove the truth of the matter asserted therein unless excluded or excepted from the rule. A statement is defined as a person's (1) oral or written assertion or (2) nonverbal conduct that was intended as an assertion.

Question 52

Hung jury

Answer 52

The double jeopardy clause does not bar a second prosecution for the same offense when a mistrial is declared at the defendant's request, with the defendant's consent, or due to manifest necessity (e.g., a hung jury).

Question 53

## Footnote I'm not sure why this question fooled you but read carefully.

Answer 53

An accomplice to felony murder who did not kill, attempt to kill, or intend to kill cannot be sentenced to the death unless the accomplice (1) significantly participated in the commission of the underlying felony and (2) acted with reckless indifference to human life.

Question 54

Answer 54

Miranda warnings are not required when a suspect who is subjected to a custodial interrogation is not aware that the interrogator is a police officer—i.e., when the officer is undercover.

Question 55

An officer pulled over the defendant for speeding. When he ran the defendant's driver's license, the officer saw that there was an outstanding warrant for the defendant's arrest based on her failure to pay child support. The officer arrested the defendant and placed her in the backseat of his squad car. The officer then returned to the defendant's car and saw that her purse was sitting on the passenger seat. The officer searched the purse and found a small amount of marijuana, which the defendant was not entitled to have. The defendant was later charged with drug possession. She has moved to suppress evidence of the marijuana. Is the defendant likely to succeed in having evidence of the marijuana suppressed? ## Footnote You talked yourself out of choosing the correct answer. Read carefully

Answer 55

Yes, because the officer did not have a reasonable belief that the purse on the passenger seat of the defendant's vehicle contained evidence of the offense. Here, the defendant was lawfully arrested for failing to pay child support and placed in the backseat of the squad car. Therefore, the defendant's car was beyond her reach when the officer searched it. And since the officer could not reasonably believe that evidence of the defendant's child-support evasion would be found in her vehicle or the purse therein, this was not a valid search incident to arrest. Police may conduct a warrantless search incident to arrest when a person has been lawfully arrested and the search is limited to the person's body and areas within the person's immediate reach. The vehicle may also be searched if it is reasonable to believe that evidence of **the crime** may be found therein.

Question 56

Question 57

Question 58

A college student was inducted into a secret society. After an oath ceremony, the active members told the inductee that they were planning to raid an animal lab and set all of the animals free. The inductee agreed to help and told the active members how noble their mission was. He encouraged them to bring as many people as possible to the animal lab, all the better to set more animals free. The active members and the inductee agreed to meet at the animal lab at midnight. At 11:00 p.m., the inductee decided not to join the secret society. He did not go to the animal lab, and he did not communicate his decision to the active members. He decided that they would know he had changed his mind when he did not show up. As planned, the active members broke into the animal lab at midnight and set the animals free. The next day, the police arrested the inductee for burglary. They told him that the active members had turned him in. In a state that has expanded burglary by statute to include non-dwellings, will the inductee likely be convicted of burglary?

Answer 58

To legally withdraw (and therefore avoid liability for the substantive crime), an accomplice must (i) repudiate prior aid, (ii) do all that is possible to countermand prior assistance, and (iii) do so before the chain of events is in motion and unstoppable. A mere change of heart, a flight from the crime scene, an arrest by law enforcement, or an uncommunicated decision to withdraw is ineffective.

Question 59

Model penal code conspiracy nuance

Answer 59

Under the Model Penal Code to complete a specific intent crime of conspiracy an overt act need not necessarily be performed by the defendant, but may be performed by any party to the conspiracy.

Answer 60

At common law, false pretenses requires obtaining title to the property of another person through the reliance of that person on a known false representation of a material fact, and the representation is made with the intent to defraud. Larceny by trick occurs when a defendant obtains possession of but not title to property owned by another through fraud or deceit, with the intent to permanently deprive the victim of that property, resulting in the conversion of the property.

Question 61

A federal law provides that all employees of the federal library system whose job descriptions include cataloging or disseminating materials will be required to take a reading comprehension test. The law provides that employees who do not meet a minimum standard of reading comprehension will either be fired or reassigned to a different position. The law does not provide for a hearing process for these employees, who are not at-will employees. An employee whose job description included cataloging materials failed to meet the minimum standard and was reassigned to a different position at a lower grade. The government denied his request for a hearing. He sued to enjoin the government from reassigning him, arguing that his constitutional rights had been violated. Which of the following constitutional provisions provides the best support for the employee's suit?

Answer 61

The due process clause of the Fifth Amendment. Public employees have a protected property right in their employment if they have an ongoing employment contract, can only be fired for cause, or receive assurances of continued employment. Employees are then entitled to due process—i.e., notice and a meaningful opportunity to be heard—if the government seeks to discharge them.

Question 62

In response to a highly publicized incident involving a local sonographer who failed to correctly read a sonogram, and at the urging of a state association of medical technicians, the state legislature enacted a bill that lengthened the period of education required to receive a license to be employed as a sonographer from one year to two years. Prior to the enactment of this law, an obstetrician with a private practice had promised a clerk who worked in her office that she would employ him as a sonographer if he obtained the necessary state license. Three months before the passage of the law, the clerk had begun his coursework in order to satisfy the then one-year educational requirement to become a sonographer. Although discussed at the hearing that the legislative committee had held on this legislation, the statute did not contain a provision that delayed its effective date for those already enrolled in an educational program to become a sonographer. The clerk has filed suit challenging the constitutionality of the state statute as applied to him due to its failure to grant him an exemption from the two-year educational requirement. How is the court likely to rule?

Answer 62

**Substantive due process** principles are based upon the idea that laws should be reasonable and not arbitrary.* As a result, states cannot deprive individuals of life, liberty, or property without adequate justification—even if adequate procedures are employed. The required level of justification depends on whether the law deprives the individual of: **an ordinary right** – under the rational basis test, the law is presumed valid until the challenger shows that the law has no rational relation to any legitimate government interest or **a fundamental right** – under the strict scrutiny test, the law is presumed invalid until the government shows that the law is necessary to achieve a compelling government interest.

Question 63

Answer 63

Under the equal protection clause, a statute is subject to intermediate scrutiny if it discriminates against a quasi-suspect class (i.e., sex/gender, legitimacy). Intermediate scrutiny requires that the government prove that the statute is substantially related to an important government interest.

Question 64

THE ESTABLISHMENT CLAUSE

Answer 64

The establishment clause of the First Amendment, as applied to the states through the Fourteenth Amendment, prohibits the government from expressing a preference for a particular religion (or for religion over nonreligion) by participating in or aiding religious affairs. But the government may engage in conduct that indirectly aids a religious organization if that conduct comports with historical practices and understandings of the establishment clause.

Question 65

Answer 65

The First Amendment free speech clause prohibits the government from unduly restricting an individual's right to freely communicate information and ideas. Regulations based on the content of speech (i.e., its message, subject, or ideas) are presumptively invalid and will be upheld only if they survive strict scrutiny.

Question 66

FREE SPEECH ANALYSIS

Answer 66

Question 67

Distinguish between the proximate-cause theory and the agency theory regarding the felony murder rule.

Answer 67

Felony murder is an unintended killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony (e.g., robbery). When a victim's death is caused by someone other than the defendant (as seen here), the defendant's liability for felony murder depends on whether the jurisdiction follows: * the proximate-cause theory of liability – whereby the defendant is responsible for any death that is the natural and probable consequence of the felony or * the agency theory of liability – whereby the defendant is only responsible for deaths caused by the defendant's agent (e.g., an accomplice). ## Footnote Under the proximate-cause theory of liability, a felony-murder defendant is responsible for any death that is a natural and probable consequence of the felony. Conversely, under the agency theory of liability, the defendant is only responsible for deaths caused by the defendant's agent.

Answer 68

Under the proximate-cause theory of liability, a felony-murder defendant is responsible for any death that is a natural and probable consequence of the felony. Conversely, under the agency theory of liability, the defendant is only responsible for deaths caused by the defendant's agent.

Question 69

Felony Murder (reckless disregard) vs. involuntary manslaughter (criminal negligence)

Answer 69

depraved-heart murder-a killing that results from **reckless indefference** to an unjustifiably high risk to human life. (high risk to human life and proceeded nonetheless) grossly negligent conduct that puts another in significant risk of serious bodily injury or death.

Question 70

Majority rule for conspiracy

Answer 70

Under the majority rule, a defendant is guilty of conspiracy if: * the defendant entered an agreement to accomplish an unlawful purpose * the defendant had the specific intent to accomplish that purpose and * at least one coconspirator committed an overt act in furtherance of the conspiracy. The crime of conspiracy is complete upon commission of the overt act. As a result, in most jurisdictions, withdrawal is impossible once an overt act has been committed.

Question 71

Two police officers detained a woman at the scene of the murder of a gas station attendant. They suspected the woman of committing the crime and brought her to the police station, over her strong objection, for questioning. After one question, asking why she had been present at the crime scene, the woman suddenly burst into tears and shouted out, "That liar cheated on me and I wanted him dead." One of the officers immediately interrupted the woman, realizing that they had forgotten to give her a Miranda warning at the scene of the crime because of the difficult time they had in detaining her. The officer then gave the woman a full Miranda warning and asked her if she wanted to continue with her statement. The woman then refused to talk any further and demanded to see her attorney. At trial, the woman took the stand in her own defense and testified that she did not know the gas station attendant and had no reason to kill him. If the court allows the prosecutor to use the statement the woman made to the officers during her interrogation, how may it be used?

Answer 71

Statements taking in violation of Miranda cannot be used directly in deciding ultimate issues of guilt or innocence. However, such a statement can be used for the limited purpose of impeaching a criminal defendant's inconsistent testimony if the statement was voluntary and trustworthy.

Question 72

Police in a rural community obtained an anonymous tip that a resident of the community was producing opium from poppies grown in flowerbeds immediately behind his house. Since police could not access or view the beds without trespassing on the resident's property, the police contacted a local crop duster who used a helicopter in his business. At the police's behest, the crop duster took an officer in his helicopter and flew over the residence at a height of 500 feet, confirming that illegal poppies were growing in the flowerbeds behind the house. The police then obtained a warrant to search the area directly behind the house and seized the illegal plants. If the resident moves to suppress this evidence as a violation of his Fourth Amendment rights, how is the court likely to rule?

Answer 72

Deny the motion, because the inspection did not violate a reasonable expectation of privacy.

Answer 73

The Sixth Amendment guarantees a criminal defendant the right to be tried by an impartial jury—i.e., a jury pool selected from a fair cross section of the community and an unbiased impaneled jury. Therefore, a potential juror whose views would substantially impair his/her ability to impartially decide the case can be challenged for cause.

Question 74

What is a structural error? How does it relate to the Sixth Amendment right to consel?

Answer 74

Structural errors include: * Biased judge * Deprivation of right to counsel * Attorney enters guilty plea over defendant's objection * Discriminatory selection of jurors * Exclusion of defendant from courtroom during trial * Denial of public trial and/or jury trial * Improper jury instruction on burden of proof The Sixth Amendment right to counsel protects non-indigent criminal defendants' right to choose the attorney who will represent them. The erroneous denial of a defendant's choice of counsel constitutes structural error and requires automatic reversal of the defendant's conviction. ## Footnote *Indigent criminal defendant entitled to effective advocate but not counsel of choice.

Question 75

Answer 75

A "question first, warn later" interrogation is one in which police fail to Mirandize an in-custody suspect until after an interrogation has elicited a confession. The deliberate use of this strategy to circumvent Miranda also requires suppression of any post-warning confession unless the police took steps to cure the initial violation. Here, however, the bank vice-president was not in custody during the initial interrogation.

Question 76

Police coercion

Answer 76

A statement can be challenged as involuntary when the totality of the circumstances establish that it was the product of police coercion. Factors to consider include the level of police coercion, the length of the interrogation, as well as the suspect's age, education, maturity, and mental and physical condition. A statement is not coerced just because it was made as a result of trickery. And since there are no other facts to indicate that the drug dealer's statement was involuntary, the court should not suppress it on that basis. *Even if the drug dealer had been in custody, his statement would not be excluded as a violation of the Fifth Amendment because Miranda warnings are not required if the suspect is **not aware** that the interrogator is a police officer.*

Question 77

describe the particularity requriement under the US Constitution.

Answer 77

the U.S. Supreme Court explained that the Fourth Amendment requires particularity in the warrant—particularity in the supporting documents will not suffice. And though a warrant can cross-reference supporting documents, the warrant here failed to: reference the supporting affidavit describing the items to be seized use appropriate words of incorporation or attach the affidavit or any other supporting documents.

Question 78

Good faith exception to the warrant requirement...

Answer 78

For the good faith exception to apply, the officers must have a reasonable belief that their conduct was lawful. This belief must be based on objectively reasonable grounds, not just a subjective belief of the officers. Limitations: The good faith exception does not apply in certain circumstances, such as: * If the magistrate issuing the warrant was misled by information that the officer knew was false or would have known was false except for reckless disregard of the truth. * If the issuing magistrate wholly abandoned their judicial role. * If the warrant was based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." * If the warrant is so facially deficient that the executing officers cannot reasonably presume it to be valid.

Question 79

Common items & areas with no reasonable expectation of privacy

Answer 79

Common items & areas with no reasonable expectation of privacy include: 1. Bank records 1. Things exposed to public view (e.g., open fields, abandoned property) 1. Physical characteristics (e.g., handwriting, vocal sound) 1. Conversations with undercover officers & informants 1. Pen registers (i.e., records of dialed telephone numbers) 1. Smells emanating from cars & other items 1. Prison inmate's cell 1. Automobile's vehicle identification number (VIN)

Question 80

A police officer sought from an independent magistrate a warrant to search a liquor store owned by the defendant for evidence of a murder. The affidavit submitted by the officer specified the premises to be searched and the items to be seized, and it established probable cause on the basis of a reliable informant's tip that such evidence would be found on those premises. The warrant issued by the magistrate set forth the premises to be searched but neither identified the items to be seized nor made reference to the affidavit. Evidence seized by the officer during the search conformed to the evidence specified in the affidavit. The defendant was charged with murder. The defendant moved to suppress the items seized by the police officer on the ground that the warrant was constitutionally defective. How should the court rule?

Answer 80

Correct Answer: No, because a prison inmate has no reasonable expectation of privacy in his cell. Convicted inmates have no reasonable expectation of privacy in their prison cells or possessory interest in the items therein that would entitle them to Fourth Amendment protections. Therefore, prison officials may search an inmate's cell without implicating the Fourth Amendment. ## Footnote You chose: No, because prison inmates do not have constitutional rights. Prison inmates **do** retain constitutional rights—e.g., the right against cruel and unusual punishment, due process rights. However, none of those rights were implicated when the guards conducted a warrantless search of the murderer's cell.

Question 81

curative admission

Answer 81

Under the doctrine of curative admission, when inadmissible evidence is improperly admitted against a party, the court may permit that party to introduce additional inadmissible evidence for the purpose of rebuttal. This is meant to remedy the prejudicial effect caused by the previously admitted evidence.

Question 83

What is a collateral matter

Answer 83

Under the 403 balancing test, a court may refuse to admit extrinsic impeachment evidence related to a collateral matter—i.e., a matter that is irrelevant to the outcome of the case. Instead, the party must accept the witness's testimony.

Question 84

Answer 84

nonhearsay statements by a party-opponent

Answer 85

A hearsay declarant need not be available as a witness to be impeached with an inconsistent statement.

Question 86

WHat is the federal inadvertent-waiver rule?

Answer 86

Under the federal inadvertent-waiver rule, an inadvertent disclosure of protected information does not waive the attorney-client privilege or the attorney work-product doctrine if (1) the disclosure was in a federal proceeding or to a federal agency and (2) the privilege holder attempted to prevent disclosure and promptly tried to rectify the error.

Question 87

MIMIC Evidence

Answer 87

Noncharacter purposes for admitting crime or bad act (MIMIC) Motive To show purpose for committing charged crime Intent To establish guilty mind or negate good faith Absence of Mistake To negate mistake or accident & prove deliberate act Identity To connect defendant to crime with unique pattern of behavior (ie, criminal signature) Common plan or scheme To show preparation or planning Other To show knowledge of crime, opportunity to commit crime, consciousness of guilt, etc.

Answer 88

The Seventh Amendment right to a jury trial applies to federal civil cases when the amount in controversy exceeds 20 dollars and a party asserts a legal claim (i.e., a claim seeking a monetary remedy). However, this right does not apply when a party asserts an equitable claim (i.e., a claim seeking a nonmonetary remedy).

Question 89

Answer 89

The doctrine of claim preclusion (i.e., res judicata) provides that a valid final judgment on the merits precludes identical parties from relitigating identical claims. Claims are identical if they (1) arise from the same transaction, occurrence, or series thereof and (2) could have been raised in the first action because the claim existed and could have been joined. Factors considered in determining what constitutes the same transaction or series include: * whether the facts are related in time, space, origin, or motivation * whether the facts form a convenient trial unit and * whether treating the facts as a unit conforms to the parties' expectations.

Question 90

Answer 90

Under the two-dismissal rule, a voluntary dismissal is with prejudice when the plaintiff (1) voluntarily dismissed an action in federal or state court without a court order and (2) filed a notice of voluntary dismissal in a second action on the same claim in federal court.

Question 91

A party cannot file a motion for sanctions until 21 days after serving that motion on the alleged violator. This safe-harbor rule gives a violator time to correct the violation.

Question 92

Service of process timing

Answer 92

A defendant generally must serve an answer within 21 days after being served with process. But when the defendant timely waives service of process (as seen here), the defendant receives extra time to respond to the complaint—60 days from the date the request was sent instead of 21 days from the date of service.

Question 93

The final-judgment rule generally precludes federal appellate courts from hearing an appeal until the federal district court has entered a final judgment. A final judgment is a decision that fully resolves a dispute on the merits and leaves nothing for the court to do but enforce the judgment. An order denying summary judgment (as seen here) is not final because it merely determines that there is some dispute of material fact—it does not fully resolve the underlying claim. As a result, these orders are typically not appealable. However, an exception to this final-judgment rule arises when the district court certifies an order for interlocutory appeal by stating in writing that: there is a substantial difference of opinion on a controlling question of law and an immediate appeal may materially advance the ultimate termination of the litigation.

Question 94

Requesting jury instructions

Answer 94

A party may request jury instructions before or at the close of evidence unless the court sets an earlier, reasonable deadline. Even after the close of evidence, a party can request instructions (1) on issues that could not reasonably have been anticipated by the deadline or (2) with the court's permission.

Question 95

Special Venue Rules

Answer 95

The general venue statute applies when a federal officer or employee is sued in his/her individual capacity. But special venue rules apply when a federal officer or employee is sued for acting in an official capacity or under color of legal authority.

Question 96

Answer 96

In a bench trial, the judge acts as both the finder of fact and the interpreter of the law. As a result, Federal Rule of Civil Procedure 52 requires that the judge provide those factual findings and legal conclusions on the record (orally or in writing) after the close of evidence. If an appeal is later filed, the appellate court can review the trial judge's decision under the following standards:

Question 97

Question 98

Issue preclusion (i.e., collateral estoppel) bars the relitigation of issues of fact or law that were actually litigated, determined, and essential to a valid final judgment in a prior lawsuit. An issue is essential if it provided a clear and necessary component of the ultimate decision or, stated differently, if the final judgment depended on the determination of that issue.