Practice Questions Flashcards
D commits a battery. D marries W. D moves and marries S without divorcing W. D tells S about the battery. D arrested for theft. Does S have to testify?
Yes, because her marriage to D was invalid (bigamy)
The communication must have been made during a VALID marriage, but divorce will not terminate the privilege retroactively
D stole property. D marries W. D tells W about theft. D arrested for theft. Does W have to testify?
No, because she is still married to D
Spousal immunity can be asserted during the marriage, although the matters at issue may have occurred prior to the marriage
D commits a trespass. D marries W. D tells W about the trespass. W and D get divorced. D arrested for trespass. Can W invoke spousal privilege?
No for two reasons, spousal privilege only applies in CRIMINAL cases and can only be asserted DURING the marriage, although the matters at issue may have occurred prior to the marriage
D marries W. D commits a trespass. D arrested for trespass. Can W invoke spousal privilege not to testify?
No, spousal privilege only applies in CRIMINAL cases
D marries W. D commits a trespass. D tells W about trespass. D and W get a divorce. D arrested for trespass. Can W invoke confidential marital communications privilege?
Yes, because the privilege applies in BOTH civil and criminal cases and divorce does not terminate the privilege retroactively if it was made during a valid marriage
D and W are married. W commits an assault and battery against D. D sues W for assault and battery. Can W invoke spousal immunity privilege so she does not have to testify? What about the confidential marital communications privilege?
No, falls under exception to marital privileges
No marital privilege in legal actions between the spouses for either type of marital privilege
P has motion sensors at her front and back doors. The motion sensors let out a loud “beep” when activated, and begin to collect audio until whatever it had detected has gone. Every time the sensor is activated, the recording is timestamped and logged.
While P is out, her house is broken into and burglarized. The burglar entered by kicking in the backdoor. At trial, the prosecution seeks to enter the motion sensor (beeps, audio, and timestamps) to prove the specific time frame of the burglary.
The defense objects on the grounds of hearsay. Should the objection be sustained?
No, there is no such thing as machine hearsay
Hearsay is an out-of-court statement, made by a human, being offered for the truth of the matter.
Evidence is being offered to for the truth of the matter, but it is a nonhuman declaration, and therefore not hearsay
P owns a parrot. While P is out, her house is broken into and burglarized. During the burglary, one of the burglars exclaims, “Wow! This is too easy, I’m really glad we told D the wrong time. Now we don’t have to share the stuff!” P’s parrot picks up, and mimics “Wow!” and “Told D the wrong time.” At trial, the prosecution seeks to enter the parrot’s statements into evidence to prove D was involved in a conspiracy to burglarize P’s house, even though he was not present.
The defense objects on the grounds of hearsay. Should the objection be sustained?
No, there is no such thing as animal hearsay
Hearsay is an out-of-court statement, made by a human, being offered for the truth of the matter.
Evidence is being offered to for the truth of the matter, but it is a nonhuman declaration, and therefore not hearsay
D intends to kill V. D lures V to a secluded alley and shoots V twice in the chest. D runs away. Some time later, W comes upon V and “Who did this to you?!” V responds, “D finally got me.” and promptly passes out. Fortunately, help arrived and V was transported to the hospital and is in the ICU at time of D’s criminal trial.
At trial, the prosecution seeks to admit V’s statement into evidence. The defense objects on the grounds of hearsay. Should the objection be sustained?
No. A dying declaration can be an exception to the hearsay rule. V is unavailable to testify against D in court as he is still in the ICU. It is reasonable to assume V believed his death was imminent, and V’s statement was concerning the cause of his death. The fact that V did not actually die is immaterial to the exception.
Dying declarations fall under the exception when the declaration concerns the cause or circumstances of death, the belief that death is imminent, and are admissible only for homicide and civil cases.
The victim need not have actually died for the statement to be admissible, but the exception only applies when the declarant is unavailable to testify (this is usually because they are dead, though).
An out-of-court statement is referred to as hearsay. A dying declaration is a type of hearsay. However, unlike regular hearsay, a dying declaration is admissible in court. As such, a dying declaration is as an exception to the hearsay rule.
Hilda borrows $20,000 from First Bank to buy some additional inventory for her retail hat shop. First Bank and Hilda execute a document that grants to First Bank a lien on the hats being purchased, and in addition to all other inventory now owned or hereafter by Hilda to secure the loan and any future indebtedness of Hilda to First Bank. First Bank also files a form in the public records that indicates First Bank has a lien on Hilda’s inventory.
Identify the following:
a) Who is the debtor?
b) Who is the secured party?
c) What is the security agreement?
d) What is the security interest?
e) What is the collateral?
a) Hilda
b) First Bank
c) The document executed between Hilda and First Bank that creates the security interest
d) First Bank’s interest in Hilda’s inventory for the loan
e) Hilda’s inventory
Creditor loans debtor $1,000 for the purpose of buying a TV and take a security interest in the TV. Debtor actually uses the $1,000 from creditor to buy the TV. Is there a purchase money security interest (PMSI)?
Is there an ‘after-acquired property clause’?
Yes, the secured party (creditor) sells debtor collateral ($1,000) on credit and retains a security interest in the item sold (TV)
Yes, secured party has interest in property that the debtor will obtain in the future
Creditor loans debtor $1,000 for the purpose of buying a TV and take a security interest in the TV. Debtor actually uses the $1,000 from creditor to go to Las Vegas, and uses $1,000 from his saving’s account to buy the TV. Does the creditor have a security interest in the TV?
Is it a purchase money security interest (PMSI)?
Yes, the creditor has interest in personal property or fixtures which secures a payment or performance of an obligation
No, because debtor has to use creditor’s ACTUAL dollars to buy that item
Are ‘after-acquired property’ clauses permissible in secured transaction agreements?
Yes, in fact, they typically include them
Are ‘future-advance’ clauses permissible in secured transaction agreements?
Yes, in fact, they typically include them
In this case, a new security agreement is not needed when a future advance is made
Do you need a new security agreement for future loans to the debtor when there is a future-advance clause in the old agreement?
No
When is a security interest effective against the debtor? What rights does the creditor obtain?
It becomes effective at attachment against the debtor
The creditor now has all of the rights of a secured creditor under Article IX of the UCC
When does a creditor become a secured creditor?
Not until attachment of the security interest
When does collateral attach?
When the security agreement meets the following requirements:
1) Contain an express agreement between the debtor and secured party;
2) Be in writing;
3) Be signed by both parties;
4) Contain a description of the collateral that will attach;
5) Contain express language granting the security interest; and
6) Give something of value from the secured party to the debtor
THEN collateral may attach
How many types of semi-intangible and intangible collateral are there? What are they? (Mnemonic)
There are 8 types
Mnemonic: “I don’t care that Paddy ate David’s gherkin.”
1) Instruments
2) Documents
3) Chattel paper
4) Investment property
5) Accounts
6) Deposit accounts
7) Commercial tort claims
8) General intangibles
Does the definition of “goods” include the unborn young of animals and growing crops?
Yes
How would you classify a guitar purchased by Harry Homebody as a present for his son Marvin in terms of collateral?
As a consumer good
Consumer goods are goods used or bought for use primarily for personal, family, or household purposes
Test: What is this collateral in the hands of the debtor?
How would you classify a guitar purchased by Sterling Studly, a professional rock musician, in terms of collateral?
As equipment
Goods used or bought for use in business
Test: What is this collateral in the hands of the debtor?
How would you classify milk in the hands of a farmer (who got it from his cows) in terms of collateral?
As farm products
Crops or livestock or supplies used or produced in [farming] operations or products of crops or livestock in their manufactured states, if they are in the possession of a debtor engaged in farming operations
Test: What is this collateral in the hands of the debtor?
How would you classify milk in the hands of the grocery store’s customer who is buying for his family’s consumption in terms of collateral?
As a consumer good (PMSI!)
Consumer goods are goods used or bought for use primarily for personal, family, or household purposes
Test: What is this collateral in the hands of the debtor?
How would you classify automobiles held by a local car rental agency in terms of collateral?
As inventory
[Held by a person who holds them for sale or lease] or to be furnished under service contracts; materials used or consumed in a business in a short period of time (like raw materials)
Test: What is this collateral in the hands of the debtor?
How would you classify pencils and other stationary supplies used by Sears or some other large retailer in its credit offices in terms of collateral?
As inventory OR as equipment
Could argue both ways. On exam if you think it could be either, write out explanation for both
(i.e.: Inventory because it is materials used or consumed in a business in a short period of time. Equipment because used or bought for use in business)
Test: What is this collateral in the hands of the debtor?
How would you classify milk in the hands of a grocery store or restaurant in terms of collateral?
As inventory
[Held by a person who holds them for sale or lease] or to be furnished under service contracts; materials used or consumed in a business in a short period of time (like raw materials)
Test: What is this collateral in the hands of the debtor?
Who retains a security interest when a secured party sells a debtor collateral on credit? What is this called?
The secured party
One of two types of PMSI (purchase money security interest)
Who takes a security interest in the specific collateral in an enabling loan? What is this called?
The creditor
One of two types of PMSI (purchase money security interest)
