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Multistate Diagnostic Exam
MB
QUESTIE
ONS
Kaplan
P
Question 1 is based on the following fact situation.
One morning Drake Dobberman and his friend, Fenwick
Friehofer, were playing golf at the Greenhill Country Club.
Drake and Fenwick were 16-year-old boys who attended
Seton Hall Preparatory School. They were members of the
golf team and were evenly matched players. After completing the first nine holes, Drake was leading Fenwick by
three strokes 40 to 43. The boys approached the 10th hole
which was a par four and 467 yards long. Drake shot first
and hit a towering tee shot down the left side of the fairway about 240 yards. Fenwick then hit his tee shot which
traveled down the middle of the fairway. The ball, however, struck a tree limb that extended over the fairway and
deflected onto Virginia Slim’s property which was adjacent
to the golf course. Virginia, who was sitting outside on a
lounge chair, was struck on the head by Fenwick’s golf
ball. Virginia suffered a bump on her head but was not
otherwise seriously injured.
1.
If Virginia brings suit against Fenwick for
trespass, she will
(A)
(B)
(C)
(D)
prevail, because the golf ball intruded onto
Virginia’s property.
prevail, because Fenwick intended the act
of hitting the golf ball.
prevail, because Virginia did suffer a
physical injury.
not prevail, because it was an accidental
entry that was unintentional.
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Question 2 is based on the following fact situation.
Vic Victory was an attorney who had an office in
Greensboro. After winning a big antitrust case,
Vic and a few associates decided to celebrate and have a
few drinks at The Rainbow Room, a popular downtown
watering hole. After having two gimlets (a cocktail
containing vodka and Rose’s lime juice), Vic left his
friends and drove home.
Vic, who was a bit tipsy, began driving in an erratic and
reckless manner. He was traveling at an excessive speed
along a residential section of town when he approached
a sharp curve in the roadway. Trying to negotiate the turn,
Vic lost control of his vehicle and it veered off the road
and landed on the front lawn of Edna Edsell’s property.
2.
If Edna asserts a claim against Vic for trespass,
she will most likely
(A)
(B)
(C)
(D)
prevail, because Vic was operating his car
recklessly.
prevail, because Vic entered onto her
property.
not prevail, unless Vic damaged her land.
not prevail, because he did not intentionally
enter onto her property.
Question 3 is based on the following fact situation.
Scottie entered onto Margo’s property without permission.
Margo now sues Scottie for trespass.
3.
Which of the following would provide Scottie
with a valid defense?
I.
Scottie honestly but mistakenly believed he
had Margo’s consent to enter the property.
II.
Scottie’s entry did not cause any damage to
the land.
III.
Scottie’s entry onto the property was nonnegligent.
(A)
(B)
(C)
(D)
I only
II only
III only
Neither I, II nor III
TRESPASS
VARIATIONS
TORTS
Question 4 is based on the following fact situation.
Question 5 is based on the following fact situation.
AgRestor was transporting toxic agricultural wastes by
tanker truck to a certified destruction site in the desert.
The route took the driver along State Highway 132 which
paralleled briefly a canal moving the residential water
supply to Catawba, a rural city of about 3,000 persons.
This was the safest available route. Suddenly, an oncoming
recreational vehicle entered the truck driver's lane.
In attempting to avoid a head-on collision, the AgRestor
driver swerved the truck to the left. He lost control of the
truck, which plummeted over the embankment into the
canal. Portions of the tank were crushed and thousands of
gallons of toxic waste were released into the water. Before
the residential system could be shut down, about one-half
of the population of Catawba had used some of the
polluted water.
Darcy Darrow was a first-year law student at the Lake
Tahoe School of Law in Nevada. In preparing for her law
school examinations, Darcy invited a few classmates to
her apartment for a study group. Darcy, who had a fetish
for arachnids, kept a pet tarantula caged in her apartment.
When Darcy purchased the tarantula, she had the poisonous venom removed so that it would be harmless.
A dozen people who drank the tainted water brought suit
against AgRestor. Medical experts testified that the single
exposure to the toxins increased the chances that an individual would suffer liver disease by 75%, but that it would
take a minimum of 10 years to develop and, once manifested, it would be difficult to determine if the liver disease was caused by the toxic waste or other natural causes.
During the study group session, Darcy brought out the
cage with the tarantula to show her friends. When she was
placing the cage down on the kitchen counter, Darcy
carelessly left the cage door slightly open. Moments later
the tarantula crawled out of the cage and crept toward
Mia Mare, one of Darcy’s study group partners. Mia, who
was deathly afraid of spiders, saw the tarantula and tried
to run away. As she did so, Mia tripped over a chair and
fell down, fracturing her wrist.
5.
If Mia brings suit against Darcy to recover
damages for her injury, judgment for whom?
(A)
(B)
(C)
4.
(D)
If the dozen people who drank the tainted water
bring suit now, what is not a significant issue in
the case?
(A)
(B)
(C)
(D)
Can the plaintiffs prove that their injuries,
assuming they suffered injuries, were
caused by this accident?
Will the court recognize that a present
interest deserving protection exists?
Can the plaintiffs prevail without a showing
that defendant was negligent?
Can plaintiffs prove the amount of damage
they have suffered?
Mia, because Darcy was negligent in
leaving the cage door open.
Mia, because Darcy is strictly liable.
Darcy, because the spider did not directly
cause Mia’s injury.
Darcy, because a spider is not a wild
animal.
Question 6 is based on the following fact situation.
Edison was an inventor who developed many interesting
creations. One of his most unique projects was an experimental methanol-powered automobile which took Edison
three years to build. Edison proudly showed the auto to his
friend, Foyt, who immediately fell in love with it. Foyt
offered to buy the car for $25,000. Although Edison
initially built the car for his own use, he couldn’t resist
Foyt’s offer and sold him his invention.
Thereafter, Foyt was taking the car for a drive when the
brakes suddenly failed. Foyt, who was driving 70 mph in
a 40 mph zone, couldn’t stop the car and it crashed into
another vehicle. Foyt was seriously injured in the accident.
6.
Assuming that the brakes were defective when the
car was sold, will Foyt succeed in a strict products
liability action against Edison?
(A)
(B)
(C)
(D)
TORTS
STRICT LIABILITY
VARIATIONS
Yes, if Edison was in the business of
selling his inventions.
Yes, because the car was sold in a defective
condition.
No, because Foyt was operating the car at
an excessive rate of speed at the time of the
accident.
No, because Edison was an inventor who
built the car for his own use.
Question 7 is based on the following fact situation.
Question 9 is based on the following fact situation.
Peters stole a diamond necklace that he gave his girlfriend,
Lucinda, as a birthday present. At the time Peters gave the
necklace to Lucinda she did not know that it was stolen.
Three weeks later, while Peters and Lucinda were passionately kissing, she whispered in his ear, “Gee, darling,
I really love the diamond necklace you gave me…it must
have cost you a fortune.” Peters responded, “Honey, the
necklace didn’t cost me anything…I stole it.” Startled by
Peters’ confession, Lucinda broke down and started
crying. Moments later, however, after regaining her
composure, Lucinda decided to keep the necklace.
Lola Oslo was an executive vice-president in the
investment banking department of the Doylestown
National Bank. One afternoon, Lola was having lunch
with her boss, Amy Alcott, at the Riverhorse Restaurant
when Amy excused herself to go to the bathroom. As Amy
stood up to leave the table, her wallet fell out of her
pocketbook onto the floor. Amy was unaware of what
occurred and proceeded to the restroom. Lola, however,
saw the wallet fall. Intending to steal it, Lola picked up the
wallet and placed it in her pocket. Before Amy returned to
the table, Lola had a change of heart and decided to give
the wallet back. Thereupon, Lola told Amy what had
happened and handed her the wallet when she returned
from the bathroom.
7.
Lucinda is guilty of
(A)
(B)
(C)
(D)
Receiving stolen property
Larceny
Larceny by trick
No crime
9.
Lola is guilty of which, if any, crime?
(A)
(B)
(C)
(D)
No crime
Larceny
Embezzlement
False pretenses
Question 8 is based on the following fact situation.
Olaf and Olga lived in Fresno after emigrating from the
nation of Uzbekistan. Olaf contracted with Olga to use her
stud to breed with his Borzoi Russian Wolfhound dog.
After the breeding, Olaf refused to pay Olga the stud fee
because he claimed that she falsely represented the quality
of her dog’s ancestry. Having not received her stud fee,
Olga went to Olaf’s home and took one of the Borzoi
puppies from the litter.
8.
If Olga is charged with larceny, which of the
following would provide her BEST defense?
(A)
(B)
(C)
(D)
Olaf and Olga recently emigrated from
Uzbekistan where self-help in collecting
debts is morally and legally acceptable.
Olga honestly believed it was lawful to
take the puppy in satisfaction of a disputed
stud fee.
Olga relied on incorrect legal advice from
an attorney who falsely advised her that
the theft of an animal did not constitute
personal property.
Olga, relying on the advice of her attorney
which later was determined to be erroneous, believed that she was justified in
taking one of the puppies because she had
a lien on the puppy for non-payment under
the contract.
Olga knowingly lied to Olaf and falsely
represented the bloodlines and ancestry of
her Borzoi stud.
Question 10 is based on the following fact situation.
Dayle believed that he could make millions by training
large, ground-dwelling baboons as guard animals which
would be more intelligent than the dog breeds normally
used for such work. Dayle obtained a young male baboon
and attempted to train it to attack “intruders.” The baboon
learned to hate and fear humans and to attack them without the slightest provocation, but Dayle was never able to
teach the baboon to distinguish between “good” humans
and “intruders” the baboon merely attacked any human it
saw other than Dayle. Dayle became so disgusted and
discouraged that one night he took the baboon, which had
grown into a large, powerful adult, to a local park and
abandoned it there. Early the next morning the baboon
attacked and killed a woman jogging through the park.
10.
THEFT CRIME
VARIATIONS
Which of the following is the most serious crime
for which Dayle can properly be convicted under
these circumstances?
(A)
(B)
(C)
(D)
Assault with a deadly weapon.
Involuntary manslaughter.
Voluntary manslaughter.
Murder.
CRIMINAL LAW
Question 11 is based on the following fact situation.
Question 12 is based on the following fact situation.
Swenson Swine was a flamboyant gigolo who preyed upon
wealthy women. One day Swenson had the good fortune of
being introduced to Babs Button, an heiress to a
$900,000,000 family inheritance. Babs was enamored by
Swenson’s charm and accepted his dinner invitation at
L’Heritage, the city’s most expensive restaurant. Hoping to
impress Babs, Swenson went so far as to lease a Rolls
Royce Corniche for the evening. He picked Babs up in his
rented Rolls and drove to L’Heritage, where they had a
delightful dinner. After a dessert featuring cherries jubilee,
Swenson was handed the check which totaled $749.87.
Realizing he didn’t have enough money to pay the bill,
Swenson excused himself and went to the men’s room.
While he pondered his predicament, Swenson decided to
set fire to the wastepaper in a trash container. He hoped
that the fire would serve as a diversion so he could run out
of the restaurant without paying. He set fire to the
wastepaper and then went back to his table. As he
anxiously waited, Wolfgang Puck, the maitre d’, grabbed
Swenson and told him that he had seen what occurred in
the bathroom. Wolfgang, who had been seated in a
bathroom stall, saw Swenson set fire through a crack in
the door. Wolfgang extinguished the fire which had
charred a portion of the ceiling. He then detained Swenson
until the police arrived. This jurisdiction defines arson as
the malicious burning of any structure.
Swenson Swine was a flamboyant gigolo who preyed upon
wealthy women. One day Swenson had the good fortune of
being introduced to Babs Button, an heiress to a
$900,000,000 family inheritance. Babs was enamored by
Swenson’s charm and accepted his dinner invitation at
L’Heritage, the city’s most expensive restaurant. Hoping to
impress Babs, Swenson went so far as to lease a Rolls
Royce Corniche for the evening. He picked Babs up in his
rented Rolls and drove to L’Heritage, where they had a
delightful dinner. After a dessert featuring cherries jubilee,
Swenson was handed the check which totaled $749.87.
Realizing he didn’t have enough money to pay the bill,
Swenson excused himself and went to the men’s room.
While he pondered his predicament, Swenson decided to
set fire to the wastepaper in a trash container. He hoped
that the fire would serve as a diversion so he could run out
of the restaurant without paying. He set fire to the
wastepaper and then went back to his table. As he
anxiously waited, Wolfgang Puck, the maitre d’, grabbed
Swenson and told him that he had seen what occurred in
the bathroom. Wolfgang, who had been seated in a
bathroom stall, saw Swenson set fire through a crack in
the door. Wolfgang extinguished the fire which had
charred a portion of the ceiling. He then detained Swenson
until the police arrived. This jurisdiction defines arson as
the malicious burning of any structure.
11.
12.
If charged with arson, Swenson should be found
(A)
(B)
(C)
(D)
guilty, if the jury determines that he was
reckless as to the restaurant being damaged
by fire.
guilty, because he set the fire for the
purpose of committing an unlawful act, i.e.,
larceny by trick for non-payment of the
dinner.
not guilty of arson, unless the jury finds
that he intended to burn the restaurant.
not guilty of arson but guilty of attempted
arson.
Question 13 is based on the following fact situation.
As a practical joke Frank took a small container, filled it
with kerosene and placed it in the wood-burning stove in
the cabin owned by Bart. That evening, as the temperature
dropped, Bart decided to light a fire in his wood-burning
stove. The kerosene exploded, causing extensive damage
to Bart and to his cabin. Frank was arrested and is being
prosecuted for arson.
If charged with attempted arson, Swenson should
be found
(A)
(B)
(C)
(D)
13.
The most likely result is that Frank will be found:
(A)
(B)
(C)
(D)
.
CRIMINAL LAW
guilty, if the jury determines that he was
reckless as to the restaurant being damaged
by fire.
guilty, because he set the fire for the
purpose of committing an unlawful act,
i.e., larceny by trick for non-payment
of the dinner.
not guilty, unless the jury finds that he
intended to burn the restaurant.
not guilty if the fire had not charred the
ceiling.
ATTEMPT VARIATIONS
Not guilty, because Frank never intended to
hurt Bart.
Not guilty, if the jury believes Frank was
playing a joke on Bart and was not aware
that damage would result.
Guilty, because Frank indirectly set fire to
Bart's cabin.
Guilty, because the injury to Bart and to
his cabin was the natural result of
Frank’s actions.
Questions 14-16 are based on the following fact situation.
15.
In the city of Southfield, Morris Avenue is a four-lane
highway that runs north to south. In the center of
Southfield’s business district, Morris Avenue intersects
with Kings Highway, a one-way street for westbound
traffic. Morris Avenue and Kings Highway intersect
at right angles with the intersection controlled by a
traffic signal.
One afternoon Dawn Doucette, a motorist, was driving
her car along Morris Avenue when she struck Pasqual
Pignatano, a bicyclist, who entered the intersection from
Kings Highway. Pignatano was seriously injured in the
accident and sued Doucette to recover damages for
personal injuries. There were no witnesses to the accident.
Doucette claims that the traffic light was green at the time
she entered the intersection. Pignatano now has amnesia
and cannot remember how the accident occurred.
14.
At trial, Pignatano’s attorney calls Toby Templer
to testify. Templer proposes to testify that she
was in the emergency room at the hospital when
Pignatano was brought in following the accident.
Templer further testifies that while Pignatano
was being treated for his injuries, the nurse asked
him, “How did you get hurt?” Pignatano replied,
“The car ran the red light and struck me as I was
riding my bike.” Upon objection, this evidence is
(A)
(B)
(C)
(D)
Assume for the purposes of this question only
that Doucette is called to testify. Doucette
proposes to testify that the day after the accident
she met with Officer Oquendo, the police officer
investigating the accident, and told him that she
(Doucette) drove through a green light and
Pignatano went through a red light at the time
of the accident. Upon objection by Pignatano’s
attorney, Doucette’s proposed testimony is
(A)
(B)
(C)
(D)
16.
admissible, as a statement made for purposes of medical treatment and diagnosis.
admissible, as a present sense impression
inadmissible, because Templer was
eavesdropping on a confidential
communication between Pignatano and a
hospital representative.
inadmissible, because it is hearsay not
within any recognized exception.
HEARSAY
VARIATIONS
admissible, because it is the statement of
the witness herself, who is subject to
cross-examination
admissible, as a statement based on
firsthand knowledge
inadmissible, because Pignatano’s amnesia
prevents him from contradicting Doucette
inadmissible, because it is hearsay not
within any recognized exception
Assume for the purposes of this question only
that Pignatano calls Hondo Hypnos, a renowned
hypnotist, to testify. Hondo proposes to testify
that after he placed Pignatano under a hypnotic
spell, Pignatano gave a detailed account of the
accident and told Hypnos that Doucette ran a red
light and that Doucette concedes that her license
plate number is GIJO-714. Hypnos’ proposed
testimony will most likely be held to be
(A)
(B)
(C)
(D)
admissible, because the license plate.
identification substantiates that the other
information is accurate and trustworthy
admissible, as a statement of past
recollection refreshed.
inadmissible, because it is hearsay not
within any recognized exception.
inadmissible, because statements procured
through hypnosis cannot be authenticated
as truthful.
EVIDENCE
Question 17 is based on the following fact situation.
Question 18 is based on the following fact situation.
Carson is the owner of a parcel of land known as Tall
Acres which is situated upon the top of Candy Rock
Mountain. Located below Tall Acres is Grasslands a
forty acre hillside estate which is owned by DuVall.
Crystal Stream is a non-navigable watercourse that
originates at the top of Candy Rock Mountain and
runs all the way down into the San Vicente Valley.
Both Tall Acres and Grasslands are within the watershed of Crystal Stream.
Outre owned Bowlacre, a one-acre, bowl-shaped,
grass-covered parcel in downtown Capital about a mile
from the civic center where all federal, state, and local
government buildings were located. Outre conveyed
Bowlacre, “To Assert, her heirs and assigns, so long as
it is used by the people to gather for purposes of public
assembly and debate, then to Bilorites and his heirs.”
When DuVall purchased Grasslands in 1990, he started
taking water from Crystal Stream and used it to irrigate
the southern half of his property which he has used as
a farm. Prior to 1990, the southern half of Grasslands
had been cleared and placed in cultivation, while the
northern half remained wooded and unused except for
an occasional hike or gathering of timber for use as domestic fuel. DuVall continued this established pattern
of use. Now (January 2002), he is still taking water from
Crystal Stream and using it to irrigate the southern half
of Grasslands.
In 2000, Carson built a home on Tall Acres and started
taking water from Crystal Stream for domestic purposes.
During that year there was heavy rainfall, and this caused
Crystal Stream to run down the mountain at a high water
level. The next year, however, there was a drought. As a
result, Crystal Stream flowed at a very low level. Consequently, there was only enough water to irrigate DuVall’s
farmland or, in the alternative, to supply all of Carson’s
domestic water needs and one-quarter of Duvall’s irrigation requirements. Candy Rock Mountain is located
in a jurisdiction where the period of prescription is
fifteen years.
17.
Inasmuch as Crystal Stream is still flowing at a
very low level and Carson is continuing to take
water for his personal needs, there is insufficient
water to irrigate Grasslands. As a consequence,
DuVall brings an appropriate action to declare
that his water rights to the stream are superior to
those of Carson. In addition, DuVall moves to
have the full flow of Crystal Stream passed to
him, notwithstanding the effect it might have on
Carson. If this state follows the common law of
riparian rights but does not follow the doctrine of
prior appropriation, judgment for whom?
(A)
(B)
(C)
(D)
18.
(A)
(B)
(C)
(D)
A fee simple absolute.
A fee simple determinable.
A fee simple subject to condition
subsequent.
A fee simple subject to executory interest.
Question 19 is based on the following fact situation.
Owen had inherited Ranch from his father, and with his
lifelong friend and ranch foreman Festus, had raised beef
cattle for thirty years. Owen owned many other properties
and interests, and when advancing age made the ranching
life too strenuous, he proposed to convey the ranch to Festus. Festus, five years younger but feeling the effects of
thirty years in the saddle, persuaded Owen to convey
Ranch to Atherton. Owen executed and delivered a warranty deed transferring Ranch to Atherton, but, unknown
to Festus or Atherton, neglected to sign the document.
Atherton moved his wife and two children from their
apartment in nearby Rabbits Foote into the main house on
the ranch, and took over the cattle raising operation.
Festus, who had moved to City with Owen, occasionally
visited, sometimes bringing Owen with him; the two old
friends would stay in the guest bungalow. On more than
one such occasion, Owen said to Atherton, “You've done
a marvelous job running your ranch.”
19.
Carson, because as an upstream landowner,
he would have superior rights to the water
than a downstream owner.
Carson, because domestic use is superior to
and is protected against agriculture use.
DuVall, because he had obtained an
easement by prescription to remove as
much water as he may need.
DuVall, because he has put the water to a
beneficial use prior to Carson’s use and has
continuously used the water.
PROPERTY
Which of the following best describes Assert’s
interest in Bowlacre?
WATER RIGHTS
VARIATIONS
Seven years later, Owen died. His will devised
Ranch to his nephew, Bartolomeo. Bartolomeo
brought a quiet title action against Atherton. The
jurisdiction has a five year statutory period for
adverse possession. Who is the owner of Ranch?
(A)
(B)
(C)
(D)
Atherton, because he has acquired title to
Ranch by adverse possession.
Atherton, because the lack of Owen’s signa
ture on the deed can be remedied by
testimony by Festus as to Owen’s intent.
Bartolomeo, because Atherton's possession
of Ranch was not hostile.
Bartolomeo, because the lack of Owen’s
signature on the Owen-Atherton deed is
fatal as to its validity.
Question 20 is based on the following fact situation.
Oscar conveyed Commerceacre to Betsy via a warranty
deed. Betsy took possession of Commerceacre, a shopping
mall, and collected the rents from various tenants for two
years. Betsy then sold Commerceacre to Carl, conveying it
via quitclaim deed. Six months later, Carl was evicted
from a portion of Commerceacre by a person with superior
title, whose interest had been wrongfully concealed by a
predecessor-in-interest of Oscar’s, without any knowledge
of or participation in by Oscar. Carl brought an action
against Oscar to recover the damages arising from the
eviction.
20.
Which of the following describes Carl’s best
theory of recovery?
(A)
(B)
(C)
(D)
The eviction violates the covenant against
encumbrances contained in the deed by
which Oscar conveyed to Betsy.
The eviction violates the covenant of quiet
enjoyment contained in the deed by which
Oscar conveyed to Betsy.
The eviction violates the covenant against
encumbrances contained in the deed by
which Betsy conveyed to Carl.
The eviction violates the covenant of quiet
enjoyment contained in the deed by which
Betsy conveyed to Carl.
Questions 21-22 are based on the following fact
situation.
Polly Parton was a sixth grade teacher at Mule Skinner
Elementary School. In her class was an eleven-year-old
child named Waylon Waggoner. One day Waylon came
home from school with red lipstick stains on his underwear. When Waylon’s mother inquired about the lipstick
stains, Waylon said that Polly had fondled and kissed his
private parts.
Thereupon, Mrs. Waggoner contacted the police who
subsequently conducted an investigation and arrested Polly
charging her with two felony counts of child molestation.
In accord with state law, a preliminary hearing was
scheduled. After Waylon was subpoenaed to testify at
the preliminary hearing, the prosecution filed a motion to
exclude Polly from the courtroom during Waylon’s
appearance. The motion with supporting affidavits from
a child psychologist claimed that having Waylon and Polly
in the same room would cause irreparable emotional and
psychological harm to the alleged victim.
21.
The trial court judge should
(A)
(B)
(C)
(D)
22.
Assume for the purposes of this question only
at trial the prosecution filed a similar motion
requesting exclusion of the defendant from the
courtroom when Waylon testified. The judge
granted the motion but ordered the defendant
to be present in an adjoining room where she
could view Waylon’s testimony by closed-circuit
television. Waylon testified for the prosecution
and was then cross-examined by Polly’s attorney.
After the defendant was found guilty, her attorney
filed an appeal seeking to have her conviction
overturned. The appellate court will likely
MORTGAGE
VARIATIONS
(A)
(B)
(C)
(D)
deny the motion, because a pretrial
proceeding is an early stage of trial and a
defendant has a constitutional right of
confrontation at “every stage of the trial.”
deny the motion, because defendant’s
exclusion from the courtroom would have
prejudicial impact on receiving effective
assistance of counsel.
grant the motion, because Polly’s attorney
still has an opportunity to cross-examine
the witness despite defendant’s absence
from the courtroom.
grant the motion, because cross-examination at a preliminary hearing is not
required by the Confrontation Clause
of the 6th Amendment.
reverse the conviction, because defendant’s
right to confront witnesses was violated.
reverse the conviction, because there was a
violation of defendant’s right to a fair trial.
sustain the conviction, because defendant’s
temporary absence at trial constituted
harmless error.
sustain the conviction, because Polly’s right
of confrontation was not violated since
her attorney had the opportunity to crossexamine Waylon.
PROPERTY
Question 23 is based on the following fact situation.
23.
Under which of the following situations would
imposition of the death penalty most likely be
justified in light of constitutional considerations?
(A)
(B)
(C)
(D)
Defendant, a convict in prison, stabbed a
prison guard to death and by statute is
mandated to receive the death penalty.
Defendant kidnapped and sexually
assaulted a 12-year old girl, who his friends
then gang raped for a week before
Defendant was arrested.
Defendant heinously raped his victim and
then savagely beat her with a baseball
bat, causing her to suffer permanent brain
damage.
Defendant shot and killed a police officer
during an attempted bank robbery.
Question 24 is based on the following fact situation.
Buyer and Seller entered a written agreement for the sale
of 100 widgets at $1.50 apiece. The contract provided that
the widgets would be shipped in ten cartons containing ten
each. Buyer became fearful that this method of shipment
would result in damage to the delicate widgets and he
therefore requested that each widget be individually
packed and shipped in its own carton. Seller grudgingly
agreed to this over the phone. Later the widgets were
shipped ten to a carton. Buyer rejected the shipment and
demanded new widgets in individual cartons. Buyer knew
the cartons of widgets would be moved several times
before they were used, so it was important to Buyer that
the widgets be individually wrapped. Seller refused.
24.
Question 25 is based on the following fact situation.
While out jogging in the park one morning before heading
off to her job at the SPCA, Barbara came across a bewildered Basset hound looking for its owner. She petted the
pooch a while hoping the owner would return to reclaim
the puppy, whose name was Jules, as inscribed on his dog
collar. Barbara decided the best way to reunite Jules with
his owner was to call the number on the dog’s tags. That
number had been temporarily disconnected. Finally
Barbara realized she would have to take the hound with
her to the SPCA. She went home and showered, then drove
him down to the animal shelter in the back of her pickup
truck. While unloading Jules in front of the SPCA, she
heard a woman calling “Jules, Jules, I found you!” Jules’
owner was so delighted to find her pup that she promised
Barbara $250 for her troubles which she would pay at the
end of the month, when she got her tax refund. Barbara
said that would not be necessary; she had picked up Jules
out of her love for animals and expected no reward.
However, Barbara later discovered she needed money to
pay her taxes, so she called the number from Jules’ dog
tag, which she had luckily written down on a scrap of
paper she had tucked into her backpack. Jules’ owner was
surprised to hear from Barbara and turned quite cool when
Barbara mentioned that she would like to collect her $250
reward. Jules’ owner made an excuse and hung up.
25.
If Barbara sues to collect the reward, what will
she recover?
(A) Nothing because there was no consideration
for the offer of reward.
(B) Nothing because Barbara rejected the offer.
(C) $250, because the technical defense of the
Statute of Frauds will be overcome by the
fact that Barbara had fully performed.
(D) $250, because the moral consideration
is sufficient here to support the promise
of a reward.
Is Seller in breach of contract?
(A)
(B)
(C)
(D)
TORTS
Yes, because a contract for the sale of
goods under $500 can always be modified
by a writing.
Yes, unless the original contract was signed
and specified that a signed written
agreement is necessary to modify.
No, because the modification must be in
writing when the sale of goods is involved.
No, because there was no consideration for
Seller's agreement to change the mode
of shipping.
CRIMINAL PROCEDURE
VARIATIONS
Explanatory Answers
1.
2.
(D)
Most general bar review outlines only review trespass in terms of intentional entries.
The Bar Examiners are “keenly” aware of this omission and thus frequently hone in on trespass.
According to Restatement of Torts 2d, Section 166, a person is not liable for trespass for an
“accidental” entry that is unintentional and non-negligent. Here, for example, the facts state
that Fenwick hit a golf ball down the middle of the fairway. The ball struck a tree limb and then
ricocheted onto Virginia’s property. Since this is an “accidental” entry, choice (D) is correct. The
Pavlov dog response is choice (B) because the general outlines advise students that intent to trespass is not required, it is only the intent to do the act that is necessary. MBE Exam Tip: This
definition applies to intentional entries that involve mistake (meaning that it is simply the intent to enter that is required). This particular question, however, does not deal with an intentional
entry, but an “accidental” entry that was unintentional.
(C)
One is subject to liability for trespass, irrespective of whether he causes harm to any
legally protected interest of the other, if he intentionally enters the land in possession of the
other. Based upon the given facts, Vic did not intentionally drive his vehicle onto Edna’s property. Rather he lost control of his vehicle while trying to negotiate a sharp curve in the highway.
In this regard, Vic may be liable for trespass because he was operating his car in a reckless
manner. However, where a person enters the land of another through negligence, recklessness
or as a result of an abnormally dangerous activity, in order to be liable for trespass he must
cause damage to the land. Therefore, choice (C) is a better answer than (A) because even
though Vic was reckless, he will not be liable unless he damaged Edna’s property. Note that
choice (B) is not correct because Vic’s entry was not intentional.
Multistate Nuance Chart:
TORTS
Intentional Entries
TRESPASS
1. One is subject to liability, regardless of whether he
thereby causes harm to the land, if he intentionally enters the
land in the possession of another.
2. A trespass covers intrusions upon, beneath and above the
surface of the earth.
Negligent or Reckless Entries
1. One who negligently or recklessly enters the land of another is subject to liability if, but only if, he causes harm
to the land or to a thing on the land.
3. Mistake is no defense. It is the intent to enter, not the intent to trespass, that determines liability
3.
(D)
Trespass to land is heavily tested on every bar exam. Trespass questions usually involve either an intentional entry or a negligent or reckless entry. If the defendant intentionally
enters onto the property of another, he or she is liable for trespass regardless of whether there
is any damage to the land. On the other hand, in negligent (or reckless) trespass situations, there
must be damage to the land in order to be held liable. In this problem Margo sued Scottie for
trespass. The unanswered question is whether this is an intentional or negligent trespass action.
As
a
general rule on the MBE, you should assume the action is for intentional trespass unless the
facts indicate otherwise. Thus, choice (D) is the best answer. Note that Statement I is wrong
because mistake is no defense for intentional trespass. Statements II and III are not applicable
because they address defenses to negligent entries. Therefore, choice (D) is correct.
EXPLANATORY ANSWERS
4.
5.
6.
7.
8.
(C)
Transportation of toxic agricultural wastes is classified as an abnormally dangerous
activity. AgRestor is engaged in an abnormally dangerous activity and will be held strictly
liable for any injuries caused by the abnormally dangerous characteristic of the activity. Toxic
wastes are dangerous precisely because they may cause disease or injury. Thus, that plaintiffs
can prevail without a showing of defendant's negligence will not be an issue. (A) is wrong. The
facts explicitly state if the plaintiffs do eventually suffer liver disease, it will be difficult to
determine whether such disease was caused by exposure to the toxic water or arose from other
causes. Thus causation will be a viable issue in the litigation. (B) is wrong because Tort law
typically attempts to compensate for concrete current injuries, not a possibility of future injury.
(D) is wrong. Demonstrating the causal connection between AgRestor's accident and each
plaintiff's liver disease will be another major issue. Some proportion of the population would
have gotten liver disease anyway. Finally, proof of the amount of damages is always an issue,
even where liability is clear.
(B)
Whenever confronted with a Torts question involving animals, it is necessary to first
determine whether the animal is domesticated or wild. A possessor of a wild animal is subject
to strict liability for the harm that results even though the possessor has exercised the utmost
care to confine the animal. According to the Second Restatement of Torts, Section 506, comment to subsection (1) the word “animal” is used in a broad sense to include “not only animals
but also birds, fish, reptiles and insects.” Therefore, choice (D) is incorrect. With respect to
choice (C), it is not necessary that the injury directly result from the animal’s dangerous propens
i
t
i
e
s
.
Liability also extends to situations where the plaintiff becomes frightened and injures herself
in an effort to escape.
(A)
In order to be held strictly liable for the sale of defective products, the seller must be
engaged in the business of selling products for use or consumption. It therefore applies to
any manufacturer, distributor, or retailer of such a product. This rule, however, does not apply
to an occasional seller of a product. In this regard, if Edison was in the business of selling his
inventions, then he would be held strictly liable. On the other hand, he would not be held liable
if on only one occasion he sold an invention to a buyer or dealer.
(D)
The crime of larceny requires the trespassory taking and carrying away of the personal
property of another with the intent to permanently deprive the owner. The mental state of
intent to steal must concur in time with the act of taking and carrying away. In this question,
Peters, not Lucinda, performed the act of stealing the diamond necklace. Lucinda decided to
keep it three weeks later. Therefore, she cannot be guilty of common law larceny. At most,
Lucinda is an accessory after the fact.
(C)
This Criminal Law question involves a difficult interplay between mistake or ignorance
of the law and incorrect legal advice as defenses for the commission of larceny. Choice (A) is
incorrect because Olga’s ignorance of the law in the United States will not provide a valid
defense. Even though self-help may be the applicable law in her foreign country, it is not a
recognizable defense to common law larceny. Choice (B) is wrong because incorrect legaladvice generally will not provide a valid defense for the commission of a crime. Choice (C) is the
best answer despite the fact that it is “cloaked” with the erroneous advice of counsel language.
Ignorance or mistake of law may provide a valid defense where it negates the mental state required for the commission of a crime. For example, LaFave states that “the crime of larceny is
not committed if the defendant, because of a mistaken understanding of the law of property,
believed that the property taken belonged to him.” Criminal Law, pg. 413. In choice (C),
Olga mistakenly believed that the puppy was her property because there was an enforceable
lien. Thus, she lacked the intent to steal which, in turn, would provide a valid defense for larceny. On the contrary, LaFave admonishes that larceny is committed “if the defendant believed
it was lawful to take certain kinds of property belonging to others because of the custom in
one’s community”. Consequently, in choice (A) the defendant still had the required mental state
(to steal) although she was unaware that such conduct was proscribed by the criminal law. To
be sure, this question typifies the fineline hornbook distinctions commonly tested on the MBE.
EXPLANATORY ANSWERS
9.
10.
11.
12.
(B)
Commission of the crime of larceny requires a taking (caption) and carrying away
(asportation) of another’s property. A taking occurs when the offender secures dominion over
the property, while a carrying away requires some slight movement away of the property. Once
Lola picked up the wallet (with the intent to steal) and placed it in her pocket (sufficient
asportation), she committed the crime of larceny despite the fact that she later returned the
property. It should be noted that even though Lola later had a “change of heart” and returned
the wallet to Amy, that would not constitute a valid defense. According to LaFave, one who
takes another’s property intending to deprive the owner permanently is nevertheless guilty of
larceny, though he later decides to return it and does so. Criminal Law, p. 639.
(D)
Murder is a homicide committed with malice aforethought and which is not justified,
excused or mitigated. “Malice aforethought” refers to the mental state or circumstances of the
defendant when he committed the homicide, and has four categories (l) intent to kill, (2) intent
to inflict serious bodily harm, (3) wanton and willful misconduct, and (4) felony murder. Thus,
a defendant acting in a wanton and willful manner and kills another human while so acting is
guilty of murder (if no justification, excuse or mitigation is present). Wanton and willful
misconduct is conduct which the defendant knows will create a very high risk of death or
serious bodily injury to others and which lacks social utility. Here, Dayle acted wantonly and
willfully by abandoning a baboon in the park who was almost certain to attack any humans it
encountered and knew such attack would cause at least serious bodily injury. (A) is incorrect.
Here, Dayle caused the victim to suffer death, a much more serious outcome than apprehension
of a battery, and thus is liable for the much more serious crime of murder. (B) is wrong. A homicide may be classified as involuntary manslaughter if "lesser" forms of malice are present
(l) criminal negligence or (2) the misdemeanor-manslaughter rule. Criminal negligence is something more than ordinary negligence; it creates a serious risk of death or serious bodily injury.
The misdemeanor-manslaughter rule applies to any homicide occurring as the result of
commission of an unlawful act not a malum in se felony. This includes homicides where the
defendant merely intended to inflict slight bodily harm. Dayle's conduct in the present
question far exceeds criminal negligence and is clearly wanton and willful misconduct. It is
therefore murder, not involuntary manslaughter. (C) is wrong. A homicide committed with
intent to kill but which is done while the defendant is subject to influences which mitigate the
wrongfulness of his conduct is voluntary manslaughter. Mitigation is generally divided into
f
o
u
r
categories-(l) provocation (heat of passion), (2) imperfect defenses, (3) necessity/coercion and
(4) diminished capacity. None of these mitigating factors are present in these facts.
(A)
At common law, arson was defined as the malicious burning of the dwelling of another. The
mens rea denoted by the term “malicious” includes both intentional conduct and reckless conduct.
Choice (A) is correct. If the jury determines that Swenson was reckless in his act of damaging the
restaurant, such conduct will be sufficient for the crime of arson inasmuch as a piece of the ceiling
was charred. The requisite degree of “burning” for arson is charring, i.e., more than blackening by
smoke. Choice (C) is incorrect because reckless burning without additional intent is sufficient for
arson. Choice (D) is incorrect because any attempted arson would have merged into the completed
crime of arson.
(C)
The “key” to this question is recognizing that Swenson is charged with attempted arson.
In order to be guilty of the inchoate crime of attempt, two requirements are necessary: (1) the
defendant must have the specific intent to commit the target offense and (2) the defendant must
perform an act that constitutes a “substantial step” in the commission or attempted commission of
the crime. Since Swenson is charged with attempted arson, he will be found not guilty unless he
intended to burn the restaurant.
EXPLANATORY ANSWERS
13.
(B)
Common law arson requires one to burn the dwelling house of another with malice. Malice
includes the intent to burn or wanton and willful misconduct which creates a plain and strong
likelihood the structure will burn. Wanton and willful misconduct requires the defendant to be
subjectively aware of the high risk he is creating. If the jury believes that Frank intended only a joke
and was not aware of the damage that would likely result, Frank would not possess the requisite
malice. Note that any facts which the jury believes must be accepted as true for purposes of
analysis even if they appear unbelievable to the student. (A) is incorrect. Arson is a crime against
structures. Frank's intentions toward Bart would be relevant if he were charged with battery or
mayhem or another crime against the person. (C) is incorrect. If Frank lacked the necessary malice
for an arson conviction, the fact that he was the indirect cause of the burning of the cabin is not
sufficient to overcome the lack of the requisite mental element. (D) is incorrect. Same as (C), it
fails to account for the lack of the requisite mental element for a conviction of arson
Multistate Nuance Chart:
SOLICITATION
1. defendant entices, advises, encourages, orders or requests another to
commit a crime;
2. the crime solicited need not be committed;
3. the crime requires no agreement or
action by the person solicited;
4. defenses: at common law no defenses were recognized; under
Model Penal Code, however, renunciation is an affirmative defense;
5. merges with the target felony.
INCHOATE CRIMES
CONSPIRACY
1. consists of (a) an agreement between two or more persons to commit a crime and (b) an intent to
achieve the criminal objective;
1. consists of (a) an intent to commit
a crime and (b) an act in furtherance or a “substantial step” toward
the commission of the offense;
3. unlike attempt, the crime does not
require a “substantial step” in the
commission of the crime;
3. “specific-intent” crime, i.e., the defendant must have the specific intent to commit the designated
crime;
2. the agreement is the “essence” or
“gist” of the crime;
4. solicitation merges into conspiracy;
5. if the conspiracy is successful, a
conspirator may be subject to conviction for both the conspiracy and
the completed crime;
6. defenses: at common law
withdrawal was not a valid defense; under the Model Penal Code,
however, withdrawal is recognized
as an affirmative defense if the defendant “thwarted the success of the
conspiracy.”
14.
ATTEMPT
2. the act in furtherance of the crime
must go beyond mere preparation;
4. defenses: at common law legal impossibility but not factual impossibility was a defense to a charge of
attempt; under the modern view,
however, impossibility is no defense
when the defendant’s actual intent
(not limited by the true facts unknown to him) was to do an act proscribed by law.
(D)
Hearsay is defined under F.R.E. 801(c) as a “statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Templer’s testimony as to declarant Pignatano’s out-of-court reply to the nurse’s question
is hearsay since it is being offered for its truth, namely to prove that defendant Doucette’s car ran a
red light. By process of elimination, choice (D) is correct. Pignatano’s reply is inadmissible as hearsay,
since no exceptions apply. First of all, choice (A) is incorrect because under F.R.E. 803(4) a
statement made for purposes of medical diagnosis or treatment must describe “medical history, or past
or present symptoms, pain, or sensations, or the inception or general character of the cause or
external source thereof insofar as reasonably pertinent to diagnosis or treatment.” However,
statements pointing to persons responsible for the conditions are considered irrelevant to medical
diagnosis or treatment and do not fall within the exception. Federal Rules of Evidence Manual p.
830. Pignatano’s statement implicated Doucette and will therefore be inadmissible as a statement
relating to the cause of the accident. Choice (B) is incorrect because under F.R.E. 803(1), a present
sense impression must describe or explain an event or condition while the declarant was perceiving
the event or condition or immediately thereafter. Here Pignatano’s statement was made in the
emergency room following the accident. Choice (C) is incorrect because the presence of a
non-essential third-person such as Templer would destroy whatever confidentiality existed between
Pignatano and the nurse.
EXPLANATORY ANSWERS
15.
16.
17.
(D)
In this case Doucette is the out-of-court declarant proposing to testify as to the truth of the
matter asserted that she (Doucette) drove through a green light. As in the previous example, the
statement itself is hearsay and will be inadmissible since no exceptions apply. Choice (D) is
therefore correct. Choice (A) is incorrect because Doucette is proposing to testify in-court as to
what she said at another prior time out-of-court. Doucette’s prior statement is therefore hearsay,
despite the fact that she is both the witness as well as the out-of-court declarant. By the same
reasoning, choice (B) is incorrect because Doucette is not testifying as to firsthand knowledge but
rather as to an out-of-court statement. Note that Doucette’s testimony is not a prior consisten
statement because Pignatano’s proposed reply in the previous question will not be admissible since
it is hearsay. Choice (C) is incorrect because amnesia does not per se render Pignatan
incompetent under the federal rules. Furthermore, had Pignatano’s testimony been admissible,
Doucette could have contradicted such testimony. Finally, learn to keep the parties straight no matter how much the Examiners try to trick you—note that it is Doucette attempting to contradict Pignatano, not vice versa as answer choice (C) suggests.
(C)
Once again, Hypnos’ testimony as to what Pignatano told him while under the hypnotic
spell is an out-of-court assertion being offered for its truth. The statement will be inadmissible as
hearsay, since no exceptions apply.
MBE Exam Tip: Many students will out-psych themselves and not choose (C) because three
consecutive answers are inadmissible hearsay. On the MBE it is important to disregard the
sequence of previous answer choices. You may have four (A) answer choices in a row or four (B)
answer choices in a row as correct. Moreover, there may be two larceny answers in a row or three
consecutive hearsay answers as correct. The “key” is don’t out-psych yourself by answering
questions based upon previous answer choices!
(B)
Under the doctrine of riparian rights there are two theories, the “natural flow” theory and
the “reasonable use” theory. The former stresses the right of each owner to have the natural state
of the stream or lake undiminished in both quality and quantity. The latter stresses maximum use
by each owner provided it does not interfere with like use by other owners. Also, under the
riparian doctrine, use of water for natural purposes—domestic use, watering of stock—is superior
to use of water for artificial purposes—irrigation, mining, industry. Smith and Boyer, Survey of
the Law of Property, pp. 186-189. Therefore, based on these rules, Carson will prevail over DuVall in accordance with answer choice (B). Choice (A) is incorrect because the theory of riparian
rights allows a lower riparian (DuVall) to sue an upper riparian (Carson) where the latter’s use materially affects the quantity or quality of water—the natural flow—or unreasonably causes damages—reasonable use. Choice (C) is incorrect because DuVall’s use was only “adverse” since 1990,
not for the statutory 15 years. Choice (D) is incorrect since it states the rule under the prior appropriation theory.
EXPLANATORY ANSWERS
18.
19.
(B)
The language of conveyance to Assert creates a fee simple determinable. It contains
language of duration “so long as” or “until” a limiting event or circumstances arises. Once the
event or circumstance occurs, the fee automatically reverts to the grantor or his successors.
No other language, such as an explicit right of reentry, is required to qualify it as a fee simple
determinable. Here, the conveyance to Assert appears to be a fee simple determinable. When the
limiting event occurs, the property will pass to Bilorites, a third person. Commentators have
suggested this be called a fee simple determinable with an executory limitation. Unlike a reversion
to a grantor, a contingent future interest owned by someone other than the grantor (an executory
interest) is subject to the Rule Against Perpetuities. Since Bilorites’ ownership interest could vest
long after a life in being plus 21 years, the purported conveyance to him is void. Removing the
language creating that gift, a fee simple determinable is created. Thus, Assert takes a fee simple
determinable with possibility of reverter in Outre, the grantor. (A) is incorrect. When the void gift
to Bilorites is removed, the remaining language of conveyance creates a fee simple determinable.
(If Outre had conveyed Bowlacre, “To Assert, her heirs and assigns, so long as it is used by the
people to gather for purposes of public assembly and debate,” this would have directly created a
fee simple determinable.) (C) is incorrect. Where the conveyance language contains “condition,”
or “but if,” the resulting estate is a fee simple subject to a condition subsequent. If the condition
occurs, and an express right of reentry has been included, the grantor has a right to reenter.
Here, if the grantor had used language of condition and then purported to pass this right to a third
party, a fee simple subject to an executory limitation would have been created, which, when the gift
to Bilorites was voided as in violation of the Rule Against Perpetuities, would have left a fee
simple absolute. Removing the language containing the void gift to Bilorites, what would have
been left would not be sufficient to create a fee simple subject to condition subsequent-there being
no express language of reentry. However, since Outre used words of limitation, a fee simple
determinable was left after the Rule Against Perpetuities operated, as discussed above. (D) is
incorrect. An executory interest is subject to the Rule Against Perpetuities. A fee simple subject to
an executory interest is created whenever the grantor limits or conditions the fee so that title will
pass, upon occurrence of the event or condition, to a third party (rather than reverting to herself).
Analysis difficulties arise, such as the present problem, when the executory interest created is void
under the Rule Against Perpetuities. The language of the remainder of the conveyance must be
examined to seeif it is sufficient to create a fee simple determinable, a fee simple subject to
condition subsequent, or will result in a fee simple absolute being conveyed.
(A)
Adverse possession claimant’s must satisfy a physical, a mental, and a time element. The
physical element requires the claimant’s possession be “actual, open and notorious,” meaning that
the true owner, acting reasonably, would become aware of the claim and could bring an action to
eject the claimant. Atherton satisfied this element. He took possession of Ranch and operated it with
Owen’s knowledge. The mental element requires the claimant's possession be “hostile”; he must
assert a claim to the property which is in derogation of the true owner's rights. Atherton satisfied
this element, since he took possession of Ranch under a good faith claim of right, believing that he
had taken title via the (unknown to him) defective deed from Owen. The time element is
established by statute; the claimant's qualifying possession must be continuous for the statutory
period. Here, Atherton has been in possession for seven years, two years more than required by the
statutory period. Since Atherton satisfied the three elements for adverse possession, he is the owner
of Ranch. (B) is incorrect. To be valid, among other requirements, a deed must bear the grantor's
signature. A deed which lacks the grantor’s signature is invalid, and cannot be “remedied” in any
way after the grantor’s death. The existence of the invalid deed and the circumstances
surrounding its creation and delivery to Atherton establish his good faith in taking possession of
Ranch. This is important in some jurisdictions as to the mental element of adverse possession, but
the deed cannot be the basis for Atherton’s ownership of Ranch. (C) is incorrect. “Hostile”
requires the claimant to assert a claim in derogation of the true owner's rights. If, as in this
EXPLANATORY ANSWERS
20.
21.
22.
problem, the claimant believes that he has a valid deed to the property and is the true owner, and
takes possession as if he were the true owner, this is sufficient “hostility” to meet the mental
element of adverse possession. (D) is incorrect. Choice (D) correctly points out that the deed
from Owen to Atherton is invalid because it lacked Owen’s signature. However, since Atherton’s
claim to ownership of Ranch is based upon his adverse possession of it, the validity of the deed
is immaterial.
(B)
The covenant of quiet enjoyment promises that the grantee’s possession and enjoyment of
the property will not be disturbed by any third party asserting a valid claim to the property. It is
one of the “future” covenants of title, which means that it runs with the land and benefits remote
grantees, and that it is not breached (and the statute of limitations does not begin to run) until there
is an actual eviction or other harm to the grantee. Thus, when Carl was evicted from a portion of
the property by a person with superior title, the covenant of quiet enjoyment contained in Oscar’s
deed to Betsy was breached, and Carl could enforce it against Oscar, because the covenant runs with
the land. (A) is incorrect. The covenant against encumbrances warrants that there are no
visible or invisible encumbrances existing as to the property at the time conveyance. The covenant
against encumbrances is a “present” covenant; it can be breached, if at all, only at the moment of
conveyance. It does not run with the land to benefit future grantees. Only Betsy could assert a claim
against Oscar for violation of the covenant against encumbrances. (C) and (D) are incorrect. Betsy
conveyed to Carl via quitclaim deed. A quitclaim deed purports only to convey whatever interest
the grantor owns in the property, without making any representations about the quality of that
interest. A quitclaim deed does not contain any covenants of title. Carl is not seeking recovery from
Betsy, and thus would not base his claim upon any covenants made by her.
(D)
All jurisdictions grant the defense a right to cross-examine those witnesses presented by
the prosecution at the preliminary hearing. The right is based on local law (usually by statute or
court rule). However, the Supreme Court has long held that cross-examination at a preliminary
hearing is not required by the confrontation clause of the Sixth Amendment. LaFave, Criminal
Procedure, pg. 677. It is important to note that the purpose of a pretrial hearing is to determine
probable cause not at obtaining discovery. Thus, the magistrate has broad discretion to limit or
cut-off cross-examination of witnesses. Note that choice (C) is wrong because it indicates that
Polly’s attorney can still effectively cross-examine the witness at the preliminary hearing despite
her absence. Though this may be true, nonetheless there is no constitutional right of confrontation
at the preliminary hearing stage. Thus, choice (D) provides the correct rule of law.
(D)
According to the Sixth Amendment Confrontation Clause, “in all criminal prosecutions
the accused shall enjoy the right to be confronted with witnesses against him.” Many students will
be “tempted” to choose choice (A) based upon the decision in Coy v. Iowa, 108 S.Ct. 2798 (1988)
where the placement of a screen between the complaining child witness and a criminal defendant
charged with a child-sex offense was held to violate the defendant’s right to face-to-face confrontation. However, in Craig v. Maryland, 497 U.S. 836 (1990) the Court held that there was no
violation of the right to confrontation where the defendant was placed in an adjoining room
with a closed-circuit television as long as the accused was able to see the witness and the witness
was subject to cross-examination.
EXPLANATORY ANSWERS
23.
24.
25.
(D)
Choices (B) and (C ) are wrong because in Coker v. Georgia, 433 U.S. 584 (1977), the
Supreme Court concluded that “death is indeed a disproportionate penalty for the crime of raping an adult woman.” Coker is, to be sure, a most significant decision because it
“announced a principle of morality in law, namely, society may not take the life of a defendant
who has not taken the life of his victim.” Interestingly, choice (A) is wrong because in
Sumner v. Shuman, 483 U.S.66 (1987), a statute that mandates the death penalty for a particular category of defendants (prison inmates) is unconstitutional because there is no
meaningful opportunity for considering mitigating factors. Thus, by process of elimination,
choice (D) is the only possible correct answer
(B)
UCC §2-209 provides that an agreement for the sale of goods may be modified without
consideration. It also addresses the need for a writing in subsection (2) which provides “a signed
agreement which excludes modification or rescission except by a signed writing cannot be
otherwise modified or rescinded, but except as between merchants such a requirement on a form
supplied by the merchant must be separately signed by the other party.” Here, the best answer is
(B) because it explains the need for a signed writing to modify if the original agreement so
required. (A) is incorrect. While it states the general rule, it ignores the exception noted in answer
(B). (C) is incorrect. Not all agreements involving sale of goods require written modification.
IF the amount is below the threshold for the Statute of Frauds ($500) then a writing would be
unnecessary unless it fell within UCC §2-209(2). Although we do not conclusively know if the
modification was effective here, because we do not know all the terms of the original agreement,
(B) is still the most accurate answer. (D) is incorrect. As discussed, under the UCC, an agreement
for the sale of goods may be modified without consideration.
(A)
Barbara will recover nothing because the “moral consideration” here is insufficient to
support the promise of a reward. This is not one of the situations where the courts will depart
from the general rule that moral consideration is inadequate. Note that Barbara could have
collected a reward for her efforts if she had known there was an offer for reward when she
rescued Jules; however, her services were complete when the owner promised a reward, so there
was no bargained for exchange here. (B) is incorrect. This is not really a mutual assent
problem; whether or not there was an acceptance, the consideration issue would still be the
stumbling block to Barbara’s enforcement of the promise to pay a reward. (C) is incorrect. The
Statute of Frauds does not even apply here; if this were a contract, it would be in the nature of
a service contract, which is not covered by the statute unless it cannot be performed within a
year. (D) is incorrect. Choice (D) is wrong for the reasons stated in support of choice (A).
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