Adaptibar - Missed Qs Flashcards
(31 cards)
A woman and a man, who were professional rivals, were attending a computer industry dinner where each was to
receive an award for achievement in the field of data processing. The man engaged the woman in conversation away
from the rest of the party and expressed the opinion that if they joined forces, they could do even better. The woman
replied that she would not consider the man as a business partner and when the man demanded to know why, she
told him that he was incompetent.
The exchange was overheard by another person who attended the dinner. The man suffered emotional distress but
no pecuniary loss.
If the man asserts a claim against the woman based on defamation, will the man prevail?
A: No, because the man suffered no pecuniary loss.
B: No, because the woman’s statement was made to the man and not to the person who
overheard the statement.
C: No, because the woman did not foresee that her statement would be overheard by
another person.
D: No, because the woman did not intend to cause the man emotional distress.
C: No, because the woman did not foresee that her statement would be overheard by
another person.
To establish a prima facie case for defamation, the following elements must be proved: (i) defamatory language on the
part of the defendant; (ii) that the defamatory language was of or concerning the plaintiff; (iii) publication of the
defamatory language by the defendant to a third person; and (iv) damage to the reputation of the plaintiff. Where
defamation refers to a public figure or involves a matter of public concern, the plaintiff also needs to prove (v) falsity
and (vi) fault by the defendant.
Further, where defamation is spoken (slander), the plaintiff must prove special (i.e., pecuniary) damages, unless the
verbal defamation falls within one of four exceptions, which are considered slander per se: (i) criminal activity; (ii)
occupational misconduct; (iii) sexual misconduct; or (iv) loathsome disease.
In this case, a woman and man who were professional rivals both attended an awards dinner. At the dinner, while in
conversation away from the rest of the party, the man suggested a business partnership. The woman rejected this
offer and explained that she considered the man incompetent. Another attendee heard the exchange and the man
suffered emotional distress but not a pecuniary loss.
C is correct. A threshold requirement of a claim for defamation is that the statement is published to a third party.
Publication may occur both intentionally or through negligence. Here, although another attendee heard the exchange
between the man and the woman, she did not foresee being overheard. Under the facts as presented, the two spoke
away from the rest of the party. To this end, not only did the woman not intentionally publish her defamation, but she
was also unlikely to have negligently published her statement. She had no reason to think she would be heard by
anyone except for the man himself. Consequently, if the woman did not intend to publish defamation and was also not
negligent, the man will not recover.
A is incorrect. Although the man will likely not prevail, because the woman’s publication of defamation was neither
intentional or negligent, he would not be barred from recovery based on the absence of pecuniary loss. To prevail on
a claim for verbal defamation (slander), a plaintiff must prove a pecuniary loss, also known as special damages.
Where the defamatory statement at issue is slander per se, it is considered so offensive that damage to reputation is
presumed, and no proof of special damages is required. Here, the woman called the man incompetent, which would
qualify as an accusation of professional misconduct, and therefore slander per se. Consequently, because the
defamation at issue was slander per se, the man would not need to prove special damages/pecuniary loss to prevail.
B is incorrect. Although the man would likely not recover on his claim against the woman, his claim would not fail
simply because the woman spoke to him and not the third party that overheard. The man’s claim will likely fail,
because not only was the woman’s publication of the defamation unintentional, but it was also not negligent. The
woman had no reason to expect that anyone besides the man would hear her. To this end, the woman would not
avoid liability merely because she only intended to speak to the man. Instead, she would avoid liability, because she
did not intend her communication to be published to a third party.
D is incorrect. Although the man would not recover damages, his claim would not fail based on the woman’s lack of
intent to cause emotional distress. As an aspersion on the man’s occupational competence, the woman’s defamatory
statement was slander per se. Consequently, it would be assumed that the statement caused damage to the man’s
reputation. Therefore, the man would not need to prove that he suffered emotional distress, nor that the woman
intended to cause him emotional distress.
A defendant, an inexperienced driver, borrowed a car from the plaintiff, a casual acquaintance, for the express
purpose of driving it several blocks to the local drug store. Instead, the defendant drove the car, which then was worth
$12,000, 100 miles to another city. While the defendant was driving in the other city the next day, the car was hit by a
negligently driven truck and sustained damage that will cost $3,000 to repair. If repaired, the car will be fully restored
to its former condition.
If the plaintiff asserts a claim against the defendant based on conversion, the plaintiff should recover a judgment for
A: $12,000.
B: $3,000.
C: $3,000 plus damages for the loss of the use of the car during its repair.
D: nothing, because the defendant was not negligent.
A: $12,000.
Liability for an intentional tort requires the plaintiff to prove that the defendant acted, with intent, and his action caused
the result that gave rise to liability.
To establish a prima facie case for conversion, the following elements must be proved: (i) an act by the defendant
interfering with the plaintiff’s right of possession in the chattel; (ii) intent to perform the act to bring about the
interference with the plaintiff’s right of possession; (iii) causation; and (iv) damages, meaning an interference that is
serious enough in nature or consequences to warrant that the defendant pay the full value of the chattel.
Conversion includes, for example, wrongful acquisition (e.g., theft, embezzlement), wrongful transfer (e.g., selling,
misdelivering, pledging), wrongful detention (e.g., refusing to return to owner), substantially changing, severely
damaging or destroying, and misusing the chattel.
A is correct. If the plaintiff alleges that the defendant is liable for conversion, the plaintiff should recover the full value
of the car at $12,000. Conversion occurs when a defendant intentionally commits an act depriving the plaintiff of
possession of her chattel or interferes with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff use of
the chattel. The damages are the full value at the time of the conversion. In this case, when the defendant intentionally
drove the car beyond the local drug store to the other city, he interfered with the plaintiff’s possessory interest by using
the car beyond the scope of the plaintiff’s permission. When the defendant kept the car overnight and continued to
drive it the next day in the other city, the conduct constituted such a substantial possessory interference that the
plaintiff had a claim for conversion as a result. The conversion occurred even if the defendant did not intend to get into
an accident and was not negligent while driving the car. The plaintiff may, therefore, recover the fair market value of
the car, which was $12,000 before it was damaged.
B is incorrect. Damages in the amount of $3,000 (the amount of damages incurred in the accident to the car while it
was in the defendant’s possession) would be insufficient for remedying the conversion of the plaintiff’s car by the
defendant. As stated above, damages for conversion include the full market value of the chattel at the time of the
conversion. Here, the value of the car was $12,000, which is what the plaintiff is entitled to here.
C is incorrect. The defendant’s actions amount to a claim of conversion, and the appropriate damages are the fair
market value of the car at the time of the conversion, which is the full $12,000, not merely the repairs plus the loss of
use value.
D is incorrect. Whether the defendant was negligent is not the issue, the issue is whether the defendant intentionally
acted in a way that amounted to a conversion of the plaintiff’s car. If the defendant had been negligent, his intentional
use of the car still makes him liable. As such, the plaintiff is entitled to the full fair market value of the car, as explained
above.
A plaintiff suffered from a serious, though not immediately life-threatening impairment of his circulatory system. The
plaintiff’s cardiologist recommended a cardiac bypass operation and referred the plaintiff to a surgeon. The surgeon
did not inform the plaintiff of the 2% risk of death associated with this operation. The surgeon defended his decision
not to mention the risk statistics to the plaintiff because the plaintiff “was a worrier and it would significantly lessen his
chance of survival to be worried about the nonsurvival rate.”
The surgeon successfully performed the bypass operation and the plaintiff made a good recovery. However, when the
plaintiff learned of the 2% risk of death associated with the operation, he was furious that the surgeon had failed to
disclose this information to him, saying that he would have refused the operation if he had known of the risk.
If the plaintiff asserts a claim against the surgeon based on negligence, will the plaintiff prevail?
A: No, because the surgeon used his best personal judgment in shielding the plaintiff from the risk
statistic.
B: No, because the operation was successful and the plaintiff suffered no harm.
C: Yes, because the plaintiff would have refused the operation had he been informed of the risk.
D: Yes, because a patient must be told the risk factors associated with a surgical procedure
in order to give informed consent.
B: No, because the operation was successful and the plaintiff suffered no harm.
To prove negligence, a plaintiff must establish duty, breach, causation, and damages. To establish causation, the
plaintiff must address both types: actual causation and proximate causation.
B is correct. Here, the damages element is not satisfied. Although the plaintiff was offended and unhappy that the
surgeon did not inform him of the risk, the surgery succeeded, and the facts do not state there was any other injury
the patient suffered aside from emotional affront. In negligence claims, if the plaintiff suffered emotional distress and
no other harm, damages for that emotional distress are not recoverable. One exception to that rule is negligent
infliction of emotional distress, but even for that tort, most jurisdictions require that there was a physical injury that
came from the emotional distress - the facts do not indicate the plaintiff’s distress here led to any physical symptoms.
A is incorrect. This answer choice misstates the law. Surgeons are not immune to a negligence action merely because
they used their best personal judgment. If the surgeon used his best personal judgment but still failed to conform to
the applicable standard of care, the surgeon is still liable for negligence if the other elements of the claim are met.
C is incorrect. The fact that the patient would have refused the surgery if properly informed of the risk does not alter
the fact that the plaintiff-patient has no damages beyond emotional distress.
D is incorrect. This answer provides a generally accurate statement of the law but it fails to address the plaintiff’s
inability to satisfy the damages element. Generally, doctors owe a duty to patients to explain the relevant risks of a
procedure except in certain circumstances (such as when risk is obvious, the patient is not able to respond due to an
emergency situation, informing the patient would worsen the condition, etc.). Jurisdictions differ in what risks they
consider relevant, but a 2% risk of death arguably meets most tests. Even if it was a risk that should have been
disclosed, however, that fact does not alter that the plaintiff cannot establish damages here.
A hiker, although acting with reasonable care, fell while attempting to climb a mountain and lay unconscious and
critically injured on a ledge that was difficult to reach. The plaintiff, an experienced mountain climber, was himself
seriously injured while trying to rescue the hiker. The plaintiff’s rescue attempt failed, and the hiker died of his injuries
before he could be reached.
The plaintiff brought an action against the hiker’s estate for compensation for his injuries. In this jurisdiction, the
traditional common-law rules relating to contributory negligence and assumption of risk remain in effect.
Will the plaintiff prevail in his action against the hiker’s estate?
A: Yes, because his rescue attempt was reasonable.
B: Yes, because the law should not discourage attempts to assist persons in helpless peril.
C: No, because the hiker’s peril did not arise from his own failure to exercise reasonable
care.
D: No, because the plaintiff’s rescue attempt failed and therefore did not benefit the hiker.
C: No, because the hiker’s peril did not arise from his own failure to exercise reasonable
care.
The issue in this question is the negligence doctrine for rescuers. A rescuer is a foreseeable plaintiff as long as the
rescue is not done recklessly. Therefore, a defendant (the “rescuee”) is liable if he negligently puts himself or a third
party in peril and the plaintiff (the “rescuer”) is injured attempting a rescue. The rescuee, therefore, owes a duty of
care to the rescuer because danger invites being rescued. If the defendant breached that duty by tortiously creating
his own or another’s peril, a negligence claim is possible so long as the other elements (causation and damages) are
met and no other limitations apply (for example, if the rescuer caused his own injuries by attempting the rescue in a
grossly negligent manner it will negatively affect the rescuer’s recovery).
C is correct. The hiker is stated to have been “acting with reasonable care.” He breached no duty to the mountain
climber who attempted a rescue. When the mountain climber was subsequently injured, the hiker’s estate was under
no legal obligation to pay, and the hiker’s estate will prevail.
A is incorrect. This answer does not provide a basis for recovery against the hiker’s estate. The mere fact that the
plaintiff acted reasonably in attempting to rescue the hiker does not alter that the hiker did not breach any duty to the
mountain climber. No other torts apply for these facts and answer choices.
B is incorrect. This answer is not relevant to whether the plaintiff can prevail against the hiker’s estate. As a policy
matter, it might be true that the law should not discourage attempts to assist persons in helpless peril. But that
principle alone does not create a basis for the hiker’s estate’s liability. No such basis is presented on these facts with
these answer choices.
D is incorrect. This answer choice is not relevant to whether the plaintiff can prevail against the hiker’s estate. As
explained above, there is no legal basis presented here that would sustain a cause of action by the plaintiff against the
hiker’s estate. That is true even if the plaintiff had succeeded in the rescue attempt - even if the plaintiff successfully
rescued the hiker and was then suing the hiker instead of hiker’s estate, there would still be no basis for recovery in
law because hiker breached no duty to the plaintiff.
Similarly, the fact that the plaintiff failed does not change the outcome. For example, suppose the facts in the question
were different and the hiker had created his peril by acting negligently, and the mountain climber then reasonably
attempted a rescue but failed and the hiker died. Even though the rescue attempt failed, because the hiker in this
example created his own peril, the hiker’s estate would still be liable for the injuries the mountain climber sustained in
the attempted rescue.
A builder purchased a large tract of land intending to construct residential housing on it. The builder hired a contractor to build a large in-ground swimming pool on the tract. The contract provided that the contractor would carry out
blasting operations that were necessary to create an excavation large enough for the pool. The blasting caused
cracks to form in the walls of the plaintiff’s home in a nearby residential neighborhood.
In the plaintiff’s action for damages against the builder, the plaintiff should
A: prevail, only if the builder retained the right to direct and control the contractor’s construction of
the pool.
B: prevail, because the blasting that the contractor was hired to perform damaged the plaintiff’s home.
C: not prevail, if the contractor used reasonable care in conducting the blasting operations.
D: not prevail, if the builder used reasonable care to hire a competent contractor.
B: prevail, because the blasting that the contractor was hired to perform damaged the plaintiff’s home.
The doctrine of vicarious liability provides that in some situations, the tortious act of one person may be imputed to
another because of some special relationship between the two. The latter will be held liable even though his conduct
may have been blameless. For example, vicarious liability commonly applies in employer/employee relationships,
family relationships, or joint enterprises.
The distinction between an employee and an independent contractor often hinges on whether he is subject to control
by the supervising party, meaning whether the supervisor exercises control over the physical details of the work. An
independent contractor is generally considered his own boss.
A person who hires an independent contractor is generally not liable for the torts of that person. However, there are
exceptions to this rule. For example, there are duties considered to be “non-delegable,” meaning the
employer/delegator will be vicariously liable, irrespective of the fact that he hired an independent contractor to perform
the work. When the independent contractor is specifically engaged in work that is abnormally dangerous, such as
blasting, the employer will be strictly liable, as if he had done the work himself.
B is correct. Although the general rule is that the employer of an independent contractor will not be vicariously liable
for the contractor’s tortious conduct, this does not apply where there is a non-delegable duty. Abnormally dangerous
work is considered non-delegable and will be subject to strict liability. One type of inherently dangerous activity that
falls under this category is blasting. Here, the contractor’s blasting operations necessary to excavate for the pool
triggers strict liability, which imposes liability on the builder for the plaintiff’s property damage.
A is incorrect. This answer reaches the correct answer with the wrong reasoning. The plaintiff will recover damages
from the builder regardless of the degree of control the builder had over the contractor’s blasting operations. This
issue - the degree of control over a project - normally applies to a determination of whether someone is classified as
an employee or independent contractor for purposes of vicarious liability. However, this distinction is irrelevant in
cases involving abnormally dangerous work, which triggers vicarious strict liability regardless of whether the worker is
an independent contractor or employee. Blasting is so dangerous that courts will not allow the builder to delegate
liability for the harm it causes.
C is incorrect. The reasonableness of the contractor’s conduct is irrelevant because strict liability applies, which holds
actors liable for harm in situations where even reasonable care cannot alleviate all risk of harm. The builder’s nondelegable duty to make safe the blasting operations renders him liable for the damage to the plaintiff’s property,
regardless of whether the contractor acted reasonably.
D is incorrect. As explained above, when strict liability applies, the reasonableness of the actions becomes irrelevant.
The builder had a non-delegable duty of care to the plaintiff because blasting is an inherently dangerous activity, and
whether he acted reasonably will not disrupt his liability for the damages.
A real estate developer was trying to purchase land on which he intended to build a large commercial development.
An elderly widow had rejected all of the developer’s offers to buy her ancestral home, where she had lived all her life
and which was located in the middle of the developer’s planned development. Finally, the developer offered her
$250,000. He told her that if she rejected it, state law authorized him to have her property condemned. He
subsequently parked a bulldozer in front of her house.
The widow then consulted her nephew, a law student, who researched the question and advised her that the
developer had no power of condemnation under state law. The widow had been badly frightened by the developer’s
threat, and was outraged when she learned that the developer had lied to her.
If the widow sues the developer for damages for emotional distress, will she prevail?
A: Yes, because the developer’s action was extreme and outrageous.
B: Yes, because the widow was frightened and outraged.
C: No, because the widow did not suffer emotional distress that was severe.
D: No, because it was not the developer’s purpose to cause emotional distress.
C: No, because the widow did not suffer emotional distress that was severe.
Intentional infliction of emotional distress (“IIED”) is an intentional tort defined as the intentional or reckless infliction,
by extreme and outrageous conduct, of severe emotional or mental distress, even in the absence of physical harm. To
establish intent for IIED, the plaintiff must show one of three possible mental states by the defendant, including that
he: (i) desired to cause the plaintiff emotional distress; (ii) knew with substantial certainty that the plaintiff would suffer
emotional distress; or (iii) recklessly disregarded the high probability that emotional distress would occur.
Regarding the element of severe emotional or mental distress, the plaintiff must show that she, in fact, suffered severe
emotional distress. At a minimum, this requires a showing that the mental distress was sufficiently severe that she
sought medical aid for it. The plaintiff must also show that the conduct was such that a reasonable person would suffer such distress. If she is an unusually sensitive person who suffered severe distress when a normal person would
not, there will be no recovery. Most modern courts do not require a showing of actual physical harm to establish
severe distress.
Note: Negligent infliction of emotional distress only applies in situations where the defendant created a foreseeable
risk of physical injury to the plaintiff, that the plaintiff was within the “zone of danger” and experienced distress
accompanied by physical symptoms.
C is correct. The widow will not prevail in a suit for damages based on emotional distress. The only applicable claim
would be intentional infliction of emotional distress (“IIED”), which requires a showing that the defendant acted with
extreme and outrageous conduct, with the intent to cause severe emotional distress, and that the conduct, in fact,
caused severe emotional distress. Although actual physical injury is not required for an IIED claim, the distress must
be sufficiently severe that the plaintiff sought medical aid for it and that a reasonable person would suffer severe
distress. In this case, the widow was “badly frightened by the developer’s threat” and “outraged when she learned that
the developer had lied to her.” Being badly frightened and outraged, without more, is not enough to show severe
emotional distress. Moreover, the widow sought her nephew’s opinion after the developer acted the way he did, which
does not support a finding that she was severely distressed given her ability to seek advice.
A is incorrect. Although extreme and outrageous conduct must be shown to support an IIED claim, this alone is not
enough. The plaintiff must also show that she suffered severe emotional distress. As explained above, the widow here
did not suffer severe emotional distress by merely feeling badly frightened and outraged.
B is incorrect. As previously explained, the widow’s distress of being badly frightened and outraged, without more, is
not enough to show severe emotional distress. She made no showing that she required any outside medical attention
for her suffering, only that she was upset and that she even sought her nephew’s advice about the situation after the
threat. This does not support a finding that her distress was severe.
D is incorrect. This answer reaches the correct answer with the wrong reasoning. Although the widow will not prevail
on a claim for damages resulting from emotional distress, it is not because the developer lacked the intent to cause
emotional distress. Intent for an IIED claim may be shown by proof that the defendant merely knew with substantial
certainty that the plaintiff would suffer emotional distress or that he recklessly disregarded a high probability that it
would result. Nevertheless, the widow will still lose on an IIED claim because she lacks sufficient proof that she
suffered severe emotional distress.
A plaintiff suffered a serious injury while participating in an impromptu basketball game at a public park. The injury
occurred when the plaintiff and the defendant, on opposing teams, each tried to obtain possession of the ball when it
rebounded from the backboard after a missed shot at the basket. During that encounter, the plaintiff was struck and
injured by the defendant’s elbow. The plaintiff now seeks compensation from the defendant.
At the trial, evidence was introduced tending to prove that the game had been rough from the beginning, that elbows
and knees had frequently been used to discourage interference by opposing players, and that the plaintiff had been
one of those making liberal use of such tactics.
In this action, will the plaintiff prevail?
A: Yes, because the defendant intended to strike the plaintiff with his elbow.
B: Yes, because the defendant intended to cause harmful or offensive contact with the plaintiff.
C: No, because the plaintiff impliedly consented to violent play.
D: No, because the defendant did not intentionally use force that exceeded the players’
consent.
D: No, because the defendant did not intentionally use force that exceeded the players’
consent.
A defendant is not liable for an otherwise tortious act if the plaintiff consented to the defendant’s act. The plaintiff’s
consent may be express (actual) or implied from the plaintiff’s conduct, custom, and/or surrounding circumstances.
Actual consent exists where the plaintiff has expressly shown a willingness to submit to the defendant’s conduct.
Implied consent may be apparent, meaning it reasonably seemed to the defendant that the plaintiff consented,
regardless of the plaintiff’s subjective state of mind (e.g., someone who voluntarily engages in sports). If the plaintiff
does give consent, the defendant will not be privileged if he goes beyond the scope of that consent. That is, the
plaintiff generally consents to the defendant’s performing of acts of a certain nature, and not others. If the defendant invades the plaintiff’s interests in a way that is substantially different from that which is consented to, he will be liable.
D is correct. The plaintiff consented to physical contact with the defendant and the defendant’s conduct remained
within the scope of that consent. Consent may be implied by taking into account the plaintiff’s conduct, customary
behavior in the situation, and other surrounding circumstances. Here, the plaintiff and the defendant were voluntarily
participating in a basketball game that “had been rough from the beginning,” which included the use of elbows and
knees to block opposing players, and the plaintiff made “liberal use of such tactics.” By taking part in the physically
interactive basketball game in this way, the plaintiff gave his implied consent to contact that, outside the game, might
have otherwise been considered a harmful or offensive.
A is incorrect. It is true that the plaintiff’s consent was limited to ordinary game conduct. Had the defendant’s
intentional contact reached a level of force that fell outside the scope of ordinary gamesmanship among the group of
players, he would have exceeded his privilege. But that was not the case, as the game was rough from the beginning
and the plaintiff had participated in similar tactics, which implies consent to the defendant’s similar level of contact.
B is incorrect. The privilege of consent shields a defendant from liability where the parties had impliedly agreed to a
certain level of intentional contact that would otherwise amount to battery. This often applies to sports, where the
parties impliedly consent to a certain amount of physical contact with one another.
C is incorrect. This answer reaches the correct answer with the wrong reasoning. The plaintiff will not prevail in an
action against the defendant, but not because the plaintiff’s consent was to “violent play.” The defendant did not have
the plaintiff’s blanket consent to any “violent play.” The game had been rough from the beginning, which included
blocking with elbows and knees. Had the defendant engaged in “violent play” that exceeded the scope of the implied
consent, the plaintiff could prevail in a claim for damages. However, the facts indicate that the defendant’s contact with
the plaintiff was within the scope of consent, which is why the plaintiff will lose.
A driver, returning home from a long work shift at a factory, fell asleep at the wheel and lost control of his car. As a result, his car collided with a police car driven by an officer who was returning to the station after having responded to
an emergency. The officer was injured in the accident and later sued the driver in negligence for her injuries. The
driver has moved for summary judgment, arguing that the common law firefighters’ rule bars the suit.
Should the court grant the motion?
A: No, because the firefighters’ rule does not apply to police officers.
B: No, because the police officer’s injuries were not related to any special dangers of her job.
C: Yes, because the accident would not have occurred but for the emergency.
D: Yes, because the police officer was injured on the job.
B: No, because the police officer’s injuries were not related to any special dangers of her job.
B is correct. The driver could be held liable for his negligence because being struck by a car in normal traffic is not one
of the special risks inherent to dangerous police work. The firefighters’ rule bars only claims for injuries that result from
risks that are unique or special to the plaintiff’s inherently dangerous work.
A is incorrect. This answer correctly states that the driver’s motion should be denied, but it misstates the legal basis
for this conclusion. The firefighters’ rule, although named with reference to firefighters, also covers police officers.
They, too, are public servants at risk of injury by the perils that they have been employed to confront. Instead, the
motion should be denied because being struck by a car in normal traffic is not one of the special risks inherent to
dangerous police work. The firefighters’ rule bars only claims for injuries that result from risks that are unique or
special to the plaintiff’s inherently dangerous work.
C is incorrect. But-for causation is not sufficient to support the firefighters’ rule defense when the risk that materialized
was not one of the unique risks inherent to the officer’s dangerous work. The firefighters’ rule bars only claims for
injuries that result from risks that are unique or special to the plaintiff’s inherently dangerous work. The fact that the
officer was returning from an emergency when she was struck is just a coincidence.
D is incorrect. The firefighters’ rule bars only claims for injuries that result from risks that are unique or special to the
plaintiff’s inherently dangerous work. Workers’ compensation, not the common law of torts, is the compensation
system for on-the-job injuries. The driver could be held liable for his negligence because being struck by a car in
normal traffic is not one of the special risks inherent to dangerous police work.
A defendant entered a guilty plea to a charge of embezzlement. Her attorney hired a retired probation officer as a
consultant to gather information for the preparation of a sentencing plan for the defendant that would avoid jail. For
that purpose, the consultant interviewed the defendant for three hours.
Thereafter, the prosecution undertook an investigation of the defendant’s possible involvement in other acts of embezzlement. The consultant was subpoenaed to testify before a grand jury. The consultant refused to answer any questions concerning her conversation with the defendant. The prosecution has moved for an order requiring her to
answer those questions.
The motion should be
A: denied, on the basis of the attorney-client privilege.
B: denied, due to the absence of probable cause to believe the interview developed evidence
relevant to the grand jury’s inquiry.
C: granted, because the consultant is not an attorney.
D: granted, because exclusionary evidentiary rules do not apply in grand jury proceedings.
A: denied, on the basis of the attorney-client privilege.
The attorney-client privilege applies indefinitely and extends not only to discussions between the attorney and the
client, but also to any representatives of the attorney who are advised of confidential information at the direction of the
attorney, including consultants and investigators. The attorney-client privilege requires that the attorney-client
relationship exists at the time of the communications. The privilege belongs solely to the client and he alone can waive
it.
A is correct. The consultant obtained confidential information gathered at the direction of the defendant’s attorney and
in the preparation for a criminal case and is thus privileged; attorney-client privilege extends to representatives of the
attorney (directed by or employed by the attorney). The consultant cannot be ordered to divulge privileged information
absent a valid waiver from the defendant.
B is incorrect. This answer reaches the correct answer with the wrong reasoning. The prosecutor’s motion should be
denied based on attorney-client privilege, which extends to the consultant hired by the attorney. Furthermore, there is
no requirement that probable cause exists in order to believe the evidence is relevant before the inquiry can be made
before the grand jury.
C is incorrect. As explained above, the attorney-client privilege extends beyond just the attorney to include any
representatives of the attorney that receive confidential information in preparation for the case. Thus, the fact that the
consultant was not an attorney does not bar the privilege from applying.
D is incorrect. Although some evidentiary rules do not apply during grand jury proceedings, the attorney-client
privilege does apply. The attorney-client privilege carries fewer exceptions than any other privilege and covers any
communications between a client (or potential client) and the attorney or her representatives.
A bank teller was fired by the president of a bank. The teller wanted to take revenge against the president, but
decided against attempting it personally, because he knew the president was protected around the clock by bank
security guards. The teller knew that a man had a violent temper and was very jealous. The teller falsely told the man
that the man’s wife was having an affair with the bank president. Enraged, the man said, “What am I going to do?” The
teller said, “If it were my wife, I’d just march into his office and blow his brains out.” The man grabbed a revolver and
rushed to the bank. He walked into the bank, carrying the gun in his hand. One of the security guards, believing a
holdup was about to occur, shot and killed the man.
If charged with attempted murder of the bank president, the teller should be found
A: guilty, because he intended to kill the president and used the man to carry out his plan.
B: guilty, because he was extremely reckless as to the president.
C: not guilty, because the president was never in imminent danger of being killed.
D: not guilty, because the man, if successful, would be guilty of no more than manslaughter and an accessory cannot be guilty of a higher crime than the principal.
A: guilty, because he intended to kill the president and used the man to carry out his plan.
A is correct. Attempted murder requires that a defendant have the specific intent for a murder to occur and that the
defendant take a substantial step toward the commission of the murder. The teller intended that the president be
murdered by the man, and by lying to the man, whom he knew to be violent and jealous, and encouraging him to kill the president, the teller took substantial steps toward the commission of murder.
B is incorrect. A charge of attempt requires that the defendant have the intent that the crime be committed; extreme
recklessness is insufficient.
C is incorrect. It misstates the requirements for “substantial step” and although the man failed to murder the president,
the steps the teller took in his attempt to murder the president were “substantial” and could have resulted in the
murder of the president. Even if it were factually impossible for the man to murder the president, factual impossibility is
not a defense to a charge of attempt, and the teller would still be convicted of attempted murder.
D is incorrect. An accessory can be guilty of a higher crime than the principal.
The owner of a house told his neighbor that he was going away for two weeks and asked the neighbor to keep an eye
on his house. The neighbor agreed. The owner gave the neighbor a key to use to enter the house.
The neighbor decided to have a party in the owner’s house. He invited a number of friends. One friend, a pickpocket,
went into the owner’s bedroom, took some of the owner’s rings, and put them in his pocket.
Which of the following is true?
A: The neighbor and the pickpocket are guilty of burglary.
B: The neighbor is guilty of burglary and the pickpocket is guilty of larceny.
C: The neighbor is guilty of trespass and the pickpocket is guilty of larceny.
D: The pickpocket is guilty of larceny and the neighbor is not guilty of any crime
D: The pickpocket is guilty of larceny and the neighbor is not guilty of any crime
D is correct. The neighbor is not criminally responsible for the pickpocket’s theft, and the neighbor had permission to
be in the residence. Since the neighbor was given permission to watch the house, and without additional facts, the
neighbor cannot be presumed to have exceeded the scope of his authority. Therefore, the neighbor is not guilty of any crime. The pickpocket, however, took the owner’s property, without the owner’s consent, put it in his pocket, and is
thus guilty of larceny.
While trespass is mostly taught in the context of tort law, this question is classified under criminal law. A hint that this
is a criminal law question is that the answer choices each use the word “guilty,” which is a term that will appear in
criminal law questions. On the contrary, if it was a torts question the answer choices would generally use the word “liable” instead of “guilty.”
A is incorrect. Neither the neighbor nor the pickpocket committed a burglary. At common law, burglary is defined as
the breaking and entering into a dwelling of another, at nighttime, with the intent to commit a felony therein. The
neighbor had the owner’s permission to be in the residence, and there is no evidence that the neighbor had the intent
to commit a felony or theft in the residence. The neighbor is not guilty of burglary. Likewise, the pickpocket had
permission to be in the residence and, since he was invited into the dwelling, there is no evidence that the pickpocket
broke into the house. There is also no evidence that the pickpocket entered the party with the intent to commit a
felony or a theft.
B is incorrect. The neighbor did not commit burglary and is not criminally responsible for the pickpocket’s actions. He
did not have the intent that the larceny occur and he did not knowingly aid and abet the pickpocket in the commission
of the crime. However, the pickpocket did take and carry away the owner’s rings with the intent to deprive the owner of
them, and he is thus guilty of larceny.
C is incorrect. The neighbor did not commit a trespass. A criminal trespass occurs when a defendant does any of the
following: (i) intentionally enters a person’s land without permission; (ii) intentionally remains on the person’s land
without the right to be there; or (iii) intentionally puts an object on the person’s land without permission. However, a defendant will not be guilty of trespass if he is privileged. The privilege implicated in this fact pattern is “consent.” A
defendant’s action is privileged if the entry to the land is with the consent of the person who has rightful and legal possession of the land. The action becomes trespass if it is beyond the scope of the consent of the rightful owner.
Consent can be implied from custom, usage or conduct.
Here, the neighbor had permission to be in the residence by the owner. The owner’s consent was not limited by time
or day or reason for being in the house. This constitutes a privilege of consent, so the neighbor being present in the
house cannot be a trespass. The pickpocket is guilty of larceny, but the neighbor committed no crime.
A customer asked to see an expensive watch in a jewelry store. In conversation with the store clerk, the customer
falsely claimed to be the son of the mayor. When handed the watch, the customer asked if he could put it on, walk
around a bit so he could see how it felt on his wrist, and then briefly step outside to observe it in natural light. The
clerk agreed, saying, “I know I can trust someone like you with the merchandise.” The customer walked out of the
store wearing the watch and did not return. A week later, the clerk was at a gathering when she spotted the customer wearing the watch. She told him that he must either pay for the watch or give it back. He hissed, “You’ll be sorry if you
mess with me.” Intimidated, the clerk backed off.
The following list of crimes is in descending order of seriousness.
What is the most serious crime the customer committed?
A: Robbery.
B: Larceny.
C: False pretenses.
D: Embezzlement.
B: Larceny.
Larceny requires: (i) the taking (obtaining control or possession) and carrying away (the slightest movement is
sufficient); (ii) without consent (against the victim’s free will, which includes duress because duress negates consent);
(iii) with the intent to permanently deprive the owner of the property (the specific intent to dispossess must exist during
the taking).
Larceny by trick is an extension of larceny and is defined by obtaining possession of another’s personal property using
false statements of past or existing fact. Larceny by trick is distinguished from false pretenses in that larceny by trick is
where a defendant acquires possession of the property of another, whereas, for false pretenses, the defendant
acquires the title of another’s property through fraud.
Robbery requires: (i) the wrongful taking of; (ii) another’s property from his person or presence; (iii) through force or
threat of injury; and (iv) with the intent to permanently deprive the person of his property. Robbery is an assault or
battery PLUS larceny and requires force or threat to obtain the victim’s property (whereas larceny does not require
force or threats).
Theft by false pretenses requires: (i) the obtaining title to another’s property (this requires obtaining ownership, not mere possession); (ii) by the use of false statements of past or existing fact; with (iii) the intent to defraud (victim must
be deceived by the false statement and pass title to the defendant).
Embezzlement is the fraudulent conversion of another’s personal property by one in lawful possession of that property
at the time of conversion. Fraudulent conversion means that the defendant uses another’s property beyond the scope
of the defendant’s rights. Embezzlement and larceny both involve obtaining property through misappropriation, but
with embezzlement, the conversion of the other’s property occurs when the defendant is in rightful possession,
whereas larceny requires the taking of property not in the defendant’s lawful possession.
B is correct. The most serious crime the customer committed is larceny. All of the elements of larceny are met here:
the customer committed a trespassory taking and carrying away of another’s property with the intent to steal it. He
obtained possession of, but not title to, the watch by lying about a present fact, also known as “larceny by trick.”
A is incorrect. There was no robbery because the customer did not take the watch by force or threat of force. Instead,
the customer committed larceny - a trespassory taking and carrying away of another’s property with the intent to steal
it. He obtained possession of, but not title to, the watch by lying about a present fact.
C is incorrect. The customer did NOT obtain TITLE to the property of another by an intentional (or knowing) false
statement of past or existing fact with the intent to defraud the other. Here, the crime larceny was committed, not false
pretenses, because the customer obtained possession of, but not title to, the watch.
D is incorrect. The customer never had lawful possession of the watch. Accordingly, the customer committed the
crime of larceny, not embezzlement, because there was a trespassory taking because the customer never was in
lawful possession of the watch.
A state legislature recently enacted a statute forbidding public utilities regulated by the state’s public service
commission to increase their rates more than once every two years. A power company, a public utility regulated by
that commission, has just obtained approval of the commission for a general rate increase. The power company has
routinely filed for a rate increase every ten to 14 months during the last 20 years. Because of uncertainties about
future fuel prices, the power company cannot ascertain with any certainty the date when it will need a further rate
increase; but it thinks it may need such an increase sometime within the next 18 months.
The power company files an action in the federal district court in the state requesting a declaratory judgment that this
new state statute forbidding public utility rate increases more often than once every two years is unconstitutional.
Assume no federal statute is relevant.
In this case, the court should
A: hold the statute unconstitutional, because such a moratorium on rate increases deprives
utilities of their property without due process of law.
B: hold the statute constitutional, because the judgment of a legislature on a matter
involving economic regulation is entitled to great deference.
C: dismiss the complaint, because this action is not ripe for decision.
D: dismiss the complaint, because controversies over state-regulated utility rates are outside of
the jurisdiction conferred on federal courts by Article III of the Constitution.
C: dismiss the complaint, because this action is not ripe for decision.
C is correct. There is no injury yet to the power company. It has not yet been denied a rate increase, and it does not
even know whether it will need to seek a rate increase before the statute will allow it to. Therefore, there is not yet an
actual or imminent injury, and the claim is not yet ripe for decision.
A is incorrect. There is no vested property right that the company can claim has been injured.
B is incorrect. There has been no injury that would allow a court to really determine whether this legislation is rationally
related to a legitimate interest.
D is incorrect. Article III provides no exemption for state-regulated utility rates. And, in fact, if the parties presented a
case or controversy, the constitutionality of the rate regulation would raise a federal question.
A federal statute provides that the United States Supreme Court has authority to review any case filed in a United
States Court of Appeals, even though that case has not yet been decided by the court of appeals. The Environmental
Protection Agency (EPA), an agency in the executive branch of the federal government, issued an important
environmental rule. Although the rule had not yet been enforced against them, companies that would be adversely
affected by the rule filed a petition for review of the rule in a court of appeals, seeking a declaration that the rule was
invalid solely because it was beyond the statutory authority of the EPA. The companies made no constitutional claim.
A statute specifically provides for direct review of EPA rules by a court of appeals without any initial action in a district
court. The companies filed a petition for a writ of certiorari in the Supreme Court requesting immediate review of this
case by the Supreme Court before the court of appeals has actually decided the case. The EPA acknowledges that
the case is important enough to warrant Supreme Court review and that it should be decided promptly, but it asks the
Supreme Court to dismiss the petition on jurisdictional grounds. The best constitutional argument in support of the
EPA’s request is that
A: the case is not within the original jurisdiction of the Supreme Court as defined by Article
III, and it is not a proper subject of that court’s appellate jurisdiction because it has not yet
been decided by any lower court.
B: the case is appellate in nature, but it is beyond the appellate jurisdiction of the Supreme Court,
because Article III states that its jurisdiction extends only to cases arising under the Constitution.
C: Article III precludes federal courts from reviewing the validity of any federal agency rule
in any proceeding other than an action to enforce the rule.
D: Article III provides that all federal cases, except those within the original jurisdiction of the
Supreme Court, must be initiated by an action in a federal district court.
A: the case is not within the original jurisdiction of the Supreme Court as defined by Article
III, and it is not a proper subject of that court’s appellate jurisdiction because it has not yet
been decided by any lower court.
Under Article III, the U.S. Supreme Court shall have original jurisdiction in cases involving ambassadors, ministers and
consuls, and cases in which a state is a party. Article III itself suggests that Congress may place certain limits on both
the Supreme Court’s appellate jurisdiction and on the jurisdiction of the lower federal courts. Section 2 of Article III
states that in all cases not falling within the Supreme Court’s original jurisdiction (but falling within the federal judicial
power), “in all other Cases before mentioned, [i.e., arising under the Constitution, Act of Congress, or treaty], the
Supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such
Regulations as the Congress shall make.” Congress has the general power to decide what types of cases the
Supreme Court may hear, as long as it doesn’t expand the Court’s jurisdiction beyond the federal judicial power as
established by Article III, Section 2.
A is correct. This is the strongest argument in support of the EPA’s jurisdictional challenge to the action because
Article III defines the scope of the Supreme Court’s original jurisdiction, and although Congress may regulate the
appellate jurisdictional scope of the Court, it may not expand the Court’s original jurisdiction as outlined by Article III.
This argument properly recognizes that it is not an appellate jurisdictional issue because no lower court has decided it,
so it’s not coming up on appeal. Without a provision allowing for the expansion of the Court’s original jurisdiction, the
case should be dismissed on jurisdictional grounds.
B is incorrect. This would not be an effective argument for the EPA because if the case were appellate in nature, the
fact that it raises a federal question would bring it within the scope of the Court’s appellate review powers.
C is incorrect. This is an incorrect statement of the law. Federal courts can, in fact, review the validity of a rule issued
by a federal agency through a declaratory judgment as long as other requirements for justiciability are met. As such,
this would not be the strongest argument for the EPA in dismissing the case on jurisdictional grounds.
D is incorrect. This is also an incorrect statement of the law. Article III has no such requirement that all federal cases
not under the Court’s original jurisdiction be initiated in a federal district court. In fact, Congress need not have created
district courts at all.
With the advice and consent of the Senate, the President entered into a self-executing treaty with a foreign country.
The treaty provided that citizens of both nations were required to pay whatever tort damages were awarded against
them by a court of either nation.
A man and a woman who were U.S. citizens and residents of the same state were traveling separately in the foreign
country when their cars collided. The foreign court awarded the woman a judgment for $500,000 in damages for her
injuries from the accident.
The woman filed suit against the man in federal district court in their home state to enforce the judgment. The man
filed a motion to dismiss for lack of jurisdiction.
Should the court grant the motion to dismiss?
A: Yes, because the citizenship of the parties is not diverse.
B: Yes, because the traffic accident was a noncommercial transaction outside interstate
commerce.
C: No, because the case falls within the federal question jurisdiction of the court.
D: No, because the treaty power is plenary and not subject to judicial review.
C: No, because the case falls within the federal question jurisdiction of the court.
The federal government is a government of limited powers, which means that for federal action to be legitimate, it
must be authorized. The Constitution is the instrument that authorizes the federal government to act. Therefore,
whenever a question involves action by an entity of the federal government, the action will be valid only if authorized
by the U.S. Constitution. Under Article III of the U.S. Constitution, federal courts shall have judicial power over all
“cases and controversies” arising under the Constitution, laws, or treaties of the U.S. The President can make treaties
with foreign nations (but only if two-thirds of the Senate approves).
C is correct. Federal question jurisdiction gives federal district courts original jurisdiction in all civil actions arising
under the Constitution, the laws of the United States, and treaties made under their authority. The court, therefore,
has federal question jurisdiction over this case because it “arises under” a treaty of the United States, as provided for
by Article III of the Constitution. The self-executing treaty is valid because it was entered into by the President and a
foreign country with the advice and consent of the Senate. Therefore, the court should deny the motion to dismiss.
A is incorrect. Federal courts are courts of limited jurisdiction; the only two ways to get into federal court are by
diversity jurisdiction and federal question jurisdiction. While the federal district court does lack diversity jurisdiction in
this case because the man and the woman are citizens of the same state, the court still has original jurisdiction
because it “arises under” a treaty of the United States, as provided for by Article III of the U.S. Constitution.
B is incorrect. The relationship of a matter to interstate commerce is relevant to the legislative power of Congress
pursuant to Article I, but not to the jurisdiction of federal courts pursuant to Article III. As stated above, the court has
federal question jurisdiction over the case because it “arises under” a treaty of the United States, as provided for by
Article III of the Constitution.
D is incorrect. The scope of the President’s power to enter into treaties with the advice and consent of the Senate is
quite broad, but this is irrelevant to the question, which concerns the power of a federal court to hear a case. As
explained above, the court has federal question jurisdiction here because it “arises under” a treaty of the United
States, as provided for by Article III of the Constitution.
A state owned a large natural gas field and took bids for its exploitation. The highest bid came from an interstate
pipeline company that distributed natural gas to providers throughout the country. A local gas company submitted the
next highest bid, which included the commitment that it would pass along to local customers any savings if it was
awarded the contract. The state awarded the contract to the local company. The interstate company sued to overturn
this decision.
Should the interstate company prevail?
A: No, because the state has a compelling interest in reducing the cost of gas for state
citizens.
B: No, because the state acted as a market participant.
C: Yes, because the state acted irrationally by not choosing the highest bidder and thus denied
the interstate company due process of law.
D: Yes, because the state discriminated against interstate commerce.
B: No, because the state acted as a market participant.
B is correct. When the state participates in the economic marketplace, it may decide with whom it wishes to contract
without regard to the restrictions of the Dormant Commerce Clause. Here the state is a market participant because it
is selling the rights to exploit a natural gas field that it owns. The usual rules of the Dormant Commerce Clause
restricting the power of the state to prefer local economic actors over interstate companies therefore do not apply.
A is incorrect. The state does not need to demonstrate a compelling interest in order to justify its decision to accept
the local company’s bid because it is acting as a market participant, not a market regulator.
C is incorrect. The commitment by the local company that it would pass along to local customers any savings if it was
awarded the contract provided a rational basis for the state’s selection of the local company, even though the local
company’s bid was lower than that of the interstate pipeline company.
D is incorrect. Although the state selected the local company’s bid over that of the interstate pipeline company, its
action did not violate the Dormant Commerce Clause. As discussed above, when the state participates in the
economic marketplace, it may decide with whom it wishes to contract without regard to the restrictions of the Dormant
Commerce Clause.
A threatening telephone call that purports to be from a defendant to a witness is most likely to be admitted against the
defendant if
A: the caller identified himself as the defendant.
B: the witness had previously given damaging testimony against the defendant in another lawsuit.
C: the witness had given his unlisted number only to the defendant and a few other
persons.
D: the witness believes that the defendant is capable of making such threats.
C: the witness had given his unlisted number only to the defendant and a few other
persons.
Statements made during a phone conversation may be authenticated by one of the parties to the call who testifies that
the speaker has knowledge of certain facts that only a particular person would have.
A phone call may also be authenticated if a party called, for example, Mr. A’s telephone number, and a voice
answered, “This is Mr. A” or “This is the A residence.” This authenticates the conversation as being with Mr. A or his
agent. Self-identification by the caller, however, is insufficient evidence to allow for the admission of the telephone call
against the speaker.
C is correct. One method of authenticating a phone call is when the speaker has knowledge of certain facts that only a
particular person would have. Here, because the witness had given his unlisted number only to the defendant and a
few other people, it severely limited the number of individuals who knowingly could call and threaten the witness.
Therefore, this is the best basis to support a finding that the telephone call is what the witness claims it to be.
A is incorrect. As explained above, the self-identification exception will not work here, because the defendant, who
was the caller, not the receiver of the call, identified himself. This does not prove that the caller is the defendant, as it
could easily be someone pretending to be the defendant to blame him.
B is incorrect. Damaging testimony by the witness against the defendant, although it provides a motive for the
defendant to retaliate against the witness, is insufficient to allow for the admission of the telephone call against the
defendant.
D is incorrect. The witness’s subjective belief that the defendant is capable of making such threats is virtually
irrelevant to the identification of the caller and the admissibility of the telephone call, and as such, would not be the
most effective basis for admitting the phone call against the defendant
A plaintiff sued a defendant for injuries received when she fell down a stairway in the defendant’s apartment building.
The plaintiff, a guest in the building, alleged that she caught the heel of her shoe in a tear in the stair carpet. The
plaintiff calls a tenant to testify that another resident had said to the tenant a week before the plaintiff’s fall: “When I paid my rent this morning, I told the manager he had better fix that torn carpet.”
The resident’s statement, reported by the tenant, is
A: admissible, to prove that the carpet was defective.
B: admissible, to prove that the defendant had notice of the defect.
C: admissible, to prove both that the carpet was defective and that the defendant had notice of the defect.
D: inadmissible, because it is hearsay not within any exception.
D: inadmissible, because it is hearsay not within any exception.
The Federal Rules of Evidence (FRE) define hearsay as a statement, other than one made by the declarant while
testifying at the current trial or hearing, offered into evidence to prove the truth of the matter asserted. Fed. R. Evid.
801(c). If a statement is hearsay and meets no exception to the rule, the evidence must be excluded. A statement that
contains hearsay within hearsay may be admissible as long as each part of the combined statement conforms to a
hearsay exception. Fed. R. Evid. 805.
An out-of-court statement offered for a purpose other than to prove the truth of the matter asserted will not be
considered hearsay. One such purpose is to show the effect on the listener. In a negligence case, a statement of
warning may be admissible for the limited purpose of showing notice on the part of the listener.
D is correct. The question asks if the statement made by the resident to the tenant, which contains another statement
by the resident to the manager, is admissible. The issue, then, is whether these two separate statements are hearsay, and if so, do they fall within any applicable exception? First, as to the statement the resident made to the manager, it
was made out-of-court, but it may be admissible as being offered to show the effect on the listener: that the defendant
had notice of the need to fix the carpet. Even if this statement is admissible, however, the other statement the resident
made to the tenant must also be admissible. This second statement is not being offered to show the effect on the
listener, who was the tenant (not the defendant) and does not fit within any other applicable exception to the hearsay
rule. Because multiple hearsay requires that every individual hearsay statement is admissible separately, the
testimony is inadmissible.
A is incorrect. When out-of-court statements, such as the two contained within the proffered testimony, are being
offered as substantive evidence of the truth of the matter asserted, there must be applicable exceptions to the hearsay
rule for them to be admissible. This answer choice states that the testimony is admissible for the truth of the matter
asserted: to prove that the carpet was defective. Neither statement falls within an applicable exception.
B is incorrect. Although the resident’s statement to the manager may have been admissible to show the effect on the
manager of notice of the condition, the resident’s statement to the tenant is inadmissible because the listener is the
tenant. The tenant having notice of the tear in the carpet does not affect the defendant’s liability. Therefore, the
tenant’s testimony, containing hearsay not within any exception, is inadmissible.
C is incorrect. As explained above, the tenant’s testimony is inadmissible. The testimony contains a hearsay
statement (by the resident to the tenant) that cannot be offered for the truth of the matter asserted: that the carpet was
defective. Nor can it be offered to show the effect on the listener because, in this statement, the listener was the
tenant.
A defendant is charged with mail fraud. At trial, the defendant has not taken the witness stand, but he has called a
witness who has testified that the defendant has a reputation for honesty. On cross-examination, the prosecutor seeks
to ask the witness, “Didn’t you hear that two years ago the defendant was arrested for embezzlement?”
Should the court permit the question?
A: No, because the defendant has not testified and therefore has not put his character at issue.
B: No, because the incident was an arrest, not a conviction.
C: Yes, because it seeks to impeach the credibility of the witness.
D: Yes, because the earlier arrest for a crime of dishonesty makes the defendant’s guilt of the mail
fraud more likely.
C: Yes, because it seeks to impeach the credibility of the witness.
When a witness tells a story at trial, the opposing lawyer will often confront him with a previous out-of-court statement,
in which the witness told a different story. Such an impeachment use of an out-of-court statement is not hearsay,
because the out-of-court statement is introduced not for the purpose of showing that it contains the truth, but rather, to
suggest that a witness who changes his story is not credible.
The general rule is that the prosecution cannot initiate evidence of the bad character of the defendant merely to show
that he is more likely to have committed the crime of which he is accused. However, the accused may introduce
evidence of his good character to show his innocence of the alleged crime.
Federal Rule of Evidence (FRE) 404(a)(2)(A) lists an exception to the rules governing character in criminal cases,
specifically that “a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the
prosecutor may offer evidence to rebut it . . . .”
A defendant puts his character in issue by calling a qualified witness to testify to the defendant’s good reputation (or
that he has heard nothing bad) for the trait involved in the case. Under FRE 405, the witness may also give his
personal opinion concerning the trait of the defendant. However, the witness may not testify to specific acts of conduct
of the defendant to prove the trait in issue.
If the defendant puts his character in issue by having a character witness testify as to his opinion of the defendant or
the defendant’s reputation, the prosecution may rebut by: (i) cross-examination into the basis for the opinion or knowledge of the reputation, and whether the witness has heard of particular instances of the defendant’s misconduct;
or (ii) calling its own character witness to testify to the defendant’s bad reputation or their opinion of the defendant’s
character for the trait involved. Fed. R. Evid. 405.
C is correct. The court should permit the question because it is a proper method of impeachment. The defendant
decided to call the witness to testify about the defendant’s reputation for honesty, which constitutes “opening the door”
to the prosecution discrediting the defendant’s character for honesty. Under FRE 405, the prosecutor may rebut the witness by inquiring into specific instances of conduct on cross-examination as a way of undercutting the witness’s basis of knowledge of the defendant’s reputation. If the witness answers that she had not heard about the arrest, that
admission could indicate that she is not very knowledgeable about the defendant’s reputation in the community,
because such an arrest would likely have had a negative effect on that reputation.
A is incorrect. The defendant need not testify to put his character at issue. By calling a witness for the purpose of
establishing his reputation in the community for honesty, the defendant “opened the door” to attack on that issue.
Under FRE 405, the prosecution may properly rebut the witness’s testimony by inquiring into specific instances of
conduct on cross-examination, as explained above.
B is incorrect. For purposes of testing the witness’s knowledge of the defendant’s reputation for honesty, the bad act
need not have resulted in a conviction. An arrest is considered a specific instance of prior conduct which, if
established, would be sufficient to have an impact on the community’s view of the defendant’s honesty.
D is incorrect. This answer reaches the correct answer with the wrong reasoning. The court should permit the
question, but not because the earlier arrest is evidence of the defendant’s guilt. This would be an improper use of
character evidence, in the form of a prior bad act, to show conformity therewith under FRE 404. Rather, this question
is permitted for impeachment purposes, not substantively, to attack the witness’s basis of knowledge regarding the
defendant’s reputation for honesty.
A defendant was prosecuted in federal court for making threats against the President of the United States. The
defendant was a voluntary patient in a private psychiatric hospital and told a nurse, shortly before the President came
to town, that the defendant planned to shoot the President. The nurse reported the threat to FBI agents.
The defendant’s motion to prevent the nurse’s testifying is likely to be
A: successful, because the statement was made in a medical setting.
B: successful, because the nurse violated a confidence in reporting the statement.
C: unsuccessful, because the statement was not within any privilege.
D: unsuccessful, because the defendant had not been committed involuntarily by court order.
C: unsuccessful, because the statement was not within any privilege.
C is correct. Although federal courts do recognize a psychiatrist-patient privilege, the defendant’s statement to the
nurse that he planned to shoot the President was not confidential and was not made to obtain treatment. Therefore,
the statement is unprivileged and the nurse should be allowed to testify about the statement.
A is incorrect. Although the statement was made in a medical setting, the privilege only covers confidential
communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment. Not
every statement in a medical setting is privileged, and the defendant’s statement to the nurse was not a confidential
communication made in the course of diagnosis or treatment.
B is incorrect. Whether or not the statement was made in confidence is not the legal standard to determine its
admissibility. The statement was not subject to the privilege.
D is incorrect. Whether the defendant was there voluntarily or committed involuntarily has no relevance to the
determination of whether the privilege applies.
A defendant is being prosecuted for conspiracy to possess cocaine with intent to distribute. At trial, the government
seeks to have its agent testify to a conversation that he overheard between the defendant and a coconspirator
regarding the incoming shipment of a large quantity of cocaine. That conversation was also audiotaped, though critical
portions of it are inaudible. The defendant objects to the testimony of the agent on the ground that it is not the best
evidence of the conversation.
Is the testimony admissible?
A: No, because the testimony of the agent is not the best evidence of the conversation.
B: No, because the testimony of the agent reports hearsay not within any exception.
C: Yes, because the best evidence rule does not require proof of the conversation through
the audiotape.
D: Yes, because the audiotape is partly inaudible.
C: Yes, because the best evidence rule does not require proof of the conversation through
the audiotape.
The best evidence rule is more accurately called the “original document rule.” The rule is as follows: In proving the
terms of a writing (recording, photograph, or X-ray), where the terms are material, the original writing must be
produced. However, when a witness has personal knowledge that is not reliant on the contents of the writing, recording, photograph, etc., he may testify based on such firsthand knowledge and the best evidence rule will not apply.
Under Federal Rule of Evidence (FRE) 801(d)(2), a statement by an opposing party (traditionally known as an “admission by a party-opponent”) is not hearsay. Under this Rule, when the opposing party’s statement is offered
against that same opposing party and was made in either an individual or representative capacity, it is admissible.
Under FRE 801(d)(2)(E), admissions of one conspirator, made to a third party in furtherance of a conspiracy to commit
a crime, at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators. See
United States v. Inadi, 475 U.S. 387 (1986).
C is correct. Because the agent personally heard the conversation, he is not relying on the contents of the audiotape
for his testimony. Therefore, the best evidence rule does not apply. The conversation could also be proved by
introducing the audiotape itself, and it can be argued that the audiotape is “better” evidence than the agent’s
testimony, but the testimony itself is not subject to the best evidence rule.
A is incorrect. Although the best evidence rule would typically require the production of the original recording when its
contents are being introduced, here, the agent’s testimony is based on his own firsthand perception of listening to the
conversation, not the tape itself. As such, the best evidence rule does not apply.
B is incorrect. While the defendant’s statements were made out-of-court and are being offered for the truth of the
matters asserted, they are admissible as non-hearsay admissions by a party-opponent under FRE 801(d)(2)(A). The
statements made by the co-conspirator are also admissible under FRE 801(d)(2)(E).
D is incorrect. This answer reaches the correct answer with the wrong reasoning. The testimony of the agent is
admissible because it is based on his personal perception of the conversation, not because the audiotape is partly
inaudible. Therefore, the agent is allowed to testify regardless of any recording or any defects in the recording.
A high-volume, pleasure-boat retailer entered into with a boater, a written contract signed by both parties, to sell the
boater a power boat for $12,000. The manufacturer’s price of the boat delivered to the retailer was $9,500. As the
contract provided, the boater paid the retailer $4,000 in advance and promised to pay the full balance upon delivery of
the boat. The contract contained no provision for liquidated damages. Prior to the agreed delivery date, the boater
notified the retailer that he would be financially unable to conclude the purchase; the retailer thereupon resold the
same boat that the boater had ordered to a third person for $12,000.
If the boater sues the retailer for restitution of the $4,000 advance payment, which of the following should the court
decide?
A: The boater’s claim should be denied, because, as the party in default, he is deemed to
have lost any right to restitution of a benefit conferred on the retailer.
B: The boater’s claim should be denied, because, but for his repudiation, the retailer would have
made a profit on two boat-sales instead of one.
C: The boater’s claim should be upheld in the amount of $4,000 minus the amount of the
retailer’s lost profit under its contract with the boater.
D: The boater’s claims should be upheld in the amount of $3,500 ($4,000 minus $500 as statutory
damages under the UCC).
C: The boater’s claim should be upheld in the amount of $4,000 minus the amount of the
retailer’s lost profit under its contract with the boater.
Under the Uniform Commercial Code (UCC), when a buyer has breached a contract for the sale of goods, the seller
may recover the difference between the contract price and the re-sale price or lost profits. When a buyer repudiates
before the goods are shipped, the seller will typically re-sell them to a third party. If the re-sale is “made in good faith
and in a commercially reasonable manner,” the seller may recover “the difference between the resale price and the
contract price together with any incidental damages . . . but less expenses saved in consequence of the buyer’s
breach.” UCC § 2-706(1). This puts the seller in approximately the same position he would have been in had the buyer performed under the original contract. If the buyer paid a deposit, a typical seller can keep it up to a maximum
of 20% of the original contract price or $500, whichever is less, even without a showing of actual damages, but must
return the balance to the buyer. UCC § 2-718(2)(b).
A special situation arises when, in the course of business, a seller makes or acquires enough supply to meet all
foreseeable demand, deeming him a “lost volume” seller. Someone who has a large volume of supply will typically be
able to re-sell an item to another customer promptly and at the same price. However, as a result of the breach, the
seller loses a customer (i.e., only sells one item instead of the two items he would have sold had the original contract
been performed). As such, when a buyer breaches a contract with a lost volume seller, the seller will be entitled to
damages in the amount of that lost sale. See UCC § 2-708(2).
C is correct. When the boater repudiated his duty to pay the remainder of the contract price, he breached the contract,
which entitles the retailer to expectation damages. In the context of the sale of goods by a “lost volume” seller who resells the item at the same price to another customer, the seller will be entitled to the profits lost by selling one less
item. As such, even though the retailer was able to sell the boat at the same price, he would be entitled to expectation
damages in the amount of lost profit from selling one less boat. So, the boater would recover anything beyond that,
meaning the $4,000 he paid as a deposit minus the lost profits.
A is incorrect. This is a misapplication of the law. The seller is entitled to lost profits in the course of selling a large
volume of products, but any enrichment beyond that would be unjust. Furthermore, the UCC allows a normal buyer of
goods to recover a percentage of a deposit in certain situations. This demonstrates that even buyers who have
breached may be entitled to restitution. Here, denying any recovery to the buyer would unjustly enrich the seller, who
is entitled only to lost profits, as explained above.
B is incorrect. This answer reaches the incorrect answer with the correct reasoning. It is true that without the buyer’s
repudiation, the seller would have made a profit from two boat sales rather than one, and he is entitled to those lost
profits. However, the seller is not entitled to damages beyond that, with the remaining amount going to the boater.
D is incorrect. Although the UCC does generally allow for a buyer to recover a deposit less 20% of the original
contract price or $500, whichever is less, this case is a special situation involving a “lost volume” seller. As explained
above, this entitles the seller to lost profits from selling one less boat, with the remaining amount awarded to the
boater as restitution.
On June 1, a seller and a buyer contracted in writing for the sale and purchase of the seller’s cattle ranch (a large
single tract) and to close the transaction on December 1.
On October 1, the buyer told the seller, “I’m increasingly unhappy about our June 1 contract because of the current
cattle market, and do not intend to buy your ranch unless I’m legally obligated to do so.”
If the seller sues the buyer on October 15 for breach of contract, the seller will probably
A: win, because the buyer committed a total breach by anticipatory repudiation on October 1.
B: win, because the buyer’s October 1 statement created reasonable grounds for the seller’s
insecurity with respect to the buyer’s performance.
C: lose, because the parties contracted for the sale and conveyance of a single tract, and the
seller cannot bring suit for breach of such a contract prior to the agreed closing date.
D: lose, because the buyer’s October 1 statement to the seller was neither a repudiation nor
a present breach of the June 1 contract.
D: lose, because the buyer’s October 1 statement to the seller was neither a repudiation nor
a present breach of the June 1 contract.
Anticipatory repudiation occurs if a promisor, prior to the time set for performance of his promise, indicates that he will
not perform when the time comes. If the requirements of anticipatory repudiation are met, it can be treated as an
immediate breach of contract (or an excuse of a condition).
Anticipatory repudiation requires:
(i) The existence of a bilateral contract with executory (unperformed) duties on both sides; and
(ii) Words or conduct by the promisor that unequivocally indicate that he cannot or will not perform when the time comes, and the statement must be positive. Doubts of doubt or fear will not suffice (i.e., it will not amount to
anticipatory repudiation where one party says to another, “Business has been bad and I’m not sure whether I’ll be able
to perform under the contract.”)
The non-repudiating party has four options upon a showing of anticipatory repudiation:
(i) treat it as a total repudiation and sue immediately;
(ii) suspend his own performance and wait to sue until the performance date;
(iii) treat the repudiation as an offer to rescind and treat the contract as discharged; or
(iv) ignore the repudiation and urge the promisor to perform.
D is correct. Under the doctrine of anticipatory repudiation, an unequivocal statement of unwillingness or inability to
perform a future contractual obligation, if material, may be treated as a total breach of that obligation and give rise to a
right to immediately recover damages for that breach. In order to amount to a repudiation, however, the statement
must be unequivocal and affirmative; a statement that merely expresses doubt over a party’s ability or willingness to
perform is not sufficient. The buyer’s October 1 statement to the seller was, “I’m increasingly unhappy about our June
1 contract because of the current cattle market, and do not intend to buy your ranch unless I’m legally obligated to do
so.” This may very well have given rise to insecurity over his willingness to perform under the contract, but it was not
sufficiently unequivocal to give rise to repudiation. It was also not a breach because performance was not due until
December 1, which means the buyer could still come through and perform on time.
A is incorrect. This is an incorrect application of the law to these facts. The buyer’s October 1 statement was not a
total breach via anticipatory repudiation because it was not a clear manifestation of a prospective unwillingness to
close the contract on December 1. The statement certainly established insecurity around whether the buyer would
perform, but it was not sufficiently unequivocal to constitute anticipatory repudiation, as explained above.
B is incorrect. Although it may be true that the buyer’s October 1 statement created reasonable grounds for the seller’s
insecurity regarding the buyer’s performance, this alone is not sufficient to be considered an anticipatory repudiation
that would allow the seller to treat it as a total breach.
C is incorrect. This answer reaches the correct answer with the wrong reasoning. The seller will lose, but not solely
because there was no breach. It is true that there was no breach by the buyer given that the time for performance had
not yet passed. However, the seller may have been able to bring a suit if the alleged repudiation had been truly
unequivocal, even if it had occurred prior to December 1.
