OBJECTION YOUR HONOR!
The declarant must be unavailable in order to admit hearsay under all of the following hearsay exceptions except:
a. Former Testimony
b. Dying Declaration
c. Statement Made for Medical Diagnosis or Treatment
d. Statement Against Interest
c. Statement Made for Medical Diagnosis or Treatment is from 803 where the declarant's availability is irrelevant.
Chef was plating a fancy dish when Waiter knocked into her carrying a tray of drinks. The drinks spilled all over Chef, who angrily jabbed Waiter with a rolling pin in the stomach. Chef did not intend to cause an injury, but unbeknownst to Chef, Waiter had a kidney condition and this caused acute renal failure. Waiter was rushed to the hospital and survived. Waiter sued. Is Chef liable for the all damages from the kidney failure and why?
Yes, under the eggshell skull theory, a defendant is liable for all of the damages caused by their intentional conduct. The defendant takes the victim as they find them.
What scrutiny is used to determine the constitutionality of affirmative action programs?
Strict Scrutiny
Denny sees Vin flirting with his wife at a bar. Denny flies into a rage and leaves. He sits in his car for 30 minutes and plots his next move. Finally he reenters the bar with a gun and shoots Vin, killing him. Denny is likely guilty of what?
Intentional / premeditated murder. The cooling off period was sufficient to stop if from being downgraded to manslaughter.
Which of the following promises is not supported by valid consideration?
A. I promise to sell you my condo in Florida for $1
B. I promise to withdraw my action against you if you promise to sell me your condo in Florida
C. I promise to pay you $1 if you promise to sell me your condo in Florida
D. I promise to give you my condo in Florida when you turn 18
D. I promise to give you my condo in Florida when you turn 18.
Is the grand jury testimony of an unavailable declarant admissible against them under the former testimony exception to the hearsay rule and why?
No, because grand jury proceedings don't allow cross-examination.
Pam slipped on a puddle of milk in the dairy section of a grocery store and was injured. If she sues the store for damages, which is correct?
A. Pam will not recover unless the store had reason to know that there was a puddle
B. Pam's only recourse is against the party that negligently spilled the milk and left it on the floor
C. Pam will recover if the store could have discovered the puddle via reasonable inspection
D. Pam will recover, but only if the store had actual notice of the condition and failed to exercise due care
C. Pam will recover if the store could have discovered the puddle via reasonable inspection.
Duty owed from a business owner to an invitee.
A statute allows legitimate children to sue to challenge the administration of a will, but prohibits illegitimate children from doing so. An illegitimate child challenges this in court, and their best argument is:
A. Substantive Due Process
B. Equal Protection Clause
C. Privileges and Immunities
D. Procedural Due Process
B. Equal Protection Clause. Similarly situated groups being treated differently. Illegitimacy is subject to intermediate scrutiny.
Gilbert was illegally growing marijuana in a field behind his house. He grew tall crops around it so it was not visible to the neighbors or the nearest street. The police conducted aerial surveillance and were able to spot the marijuana plants. They then entered the property and seized the marijuana. Gilbert moves to suppress the evidence under the Fourth Amendment. What is the likely result?
A. Not granted because no Fourth Amendment right was violated
B. Not granted because aerial surveillance is not an invasive search
C. Granted because he had a reasonable expectation of privacy
D. Granted because unless there was probable cause and a warrant to seize the marijuana
A. Not granted because no Fourth Amendment right was violated.
Open Fields rule.
According to the common law mailbox rule, (1) when is acceptance effective, and (2) when is rejection effective?
Must answer both for points.
Acceptance: when mailed
Rejection: when received
Which is incorrect regarding writing used for the present recollection refreshed rule?
A. The writing must meet certain foundational requirements before it is used
B. A witness may not read out loud from the writing while testifying
C. The writing is not offered into evidence
D. The writing does not need to be authenticated
A. The writing must meet certain foundational requirements before it is used. No need to lay foundation because we're not offering it into evidence.
Lumber Company entered into an agreement with an independent contractor to demolish existing structures on land that it had recently acquired. The contractor negligently goes past the property border with the explosives, and blows up a house and a barn on the neighboring property. The neighbor sues Lumber Company, what is the result?
A. Lumber Company is liable.
B. Lumber Company is only liable if the scope of the independent contractor's duties were so intricately involved with the Lumber Company that they were not acting as independent contractors.
C. Lumber Company is not liable because an employer is not vicariously liable for tortious acts of independent contractors.
D. Lumber Company is not liable because independent contractor was grossly negligent and acted outside the scope of their duties
A. Lumber Company is liable.
The general rule is "C" (Lumber Company is not liable because an employer is not vicariously liable for tortious acts of independent contractors.) However, there is an exception for ultra hazardous activities, which demolition / explosives will always qualify for.
A state statute allows all grandparents the right to visit their grandchildren. Father bars grandfather from visiting and grandfather sues under the statute. What is the result?
A. Grandfather wins since custody is a matter reserved to states under the Tenth Amendment
B. The statute will be struck down as not rationally related to a legitimate government interest.
C. The statute violates Father's substantive due process rights
D. The statute will be upheld because it is substantially related to an important government interest
C. The statute violates Father's substantive due process rights
Tricky one! The SC has held that it is technically a substantive due process violation. Note that this is a privacy right and strict scrutiny must be met which is why B and D are incorrect.
Adam and Karen went to rob a jewelry store. Adam went in with a gun and Karen kept the car running and acted as a lookout. When Adam entered the store with his gun drawn and demanded money and jewels, the retail clerk shot Adam, killing him instantly. If Karen is charged with murder, what is her best defense?
Under the majority view, liability for felony murder cannot be based on the death of a co-felon from resistance by the victim or police pursuit.
There are many defenses against formation of a contract: name four (4)
Infancy, insanity, intoxication, duress, misrepresentation, lack of consideration, illegality of the subject matter, public policy, and unconscionability
Dan is charged with robbing his Vic's house on May 1st. At trial, a prosecution witness begins to testify that on the evening of May 1st, Dan said, "I'm going over to Vic's house because I haven't seen him around lately." Defense counsel objects. How should the court rule on admissibility?
A. Admissible under a hearsay exception
B. Admissible under a non-hearsay exemption
C. Admissible as it is not being offered for the truth of the matter
D. Inadmissible hearsay
A. Admissible because of an exception to hearsay: Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan).
Monte and Brian were racing at 120 miles per hour down a busy road when Monte lost control of his car and went off the side of a bridge into a lake. Francis saw this, dove into the lake. While rescuing Monte, Francis injured his arm, and sues Monte. Which is true?
A. Francis had no duty to rescue, so he is an unforeseeable plaintiff and cannot recover
B. Rescuers are barred from recover under the Rescue Doctrine
C. Francis can recover since Monte created the peril
D. Francis can recover if he can show Monte breached his duty of care
C. Francis can recover since Monte created the peril
This is proper application of the Rescue Doctrine. Remember that danger invites rescue.
State enacts a statute that says "Anyone who does business with Syndicate Company will be imprisoned." This statute is an example of an impermissible:
A. Ex Post Facto Law
B. Bill of Attainder
C. Restraint on Freedom of Association
D. Due Process
B. Bill of Attainder, "a legislative act which inflicts punishment without a judicial trial"
For Double Jeopardy purposes, two crimes, deriving out of the same event are considered the same offense unless ________?
One of them requires proof of an additional element not contained in the other offense.
Article 2 of the UCC applies to which of the following:
A. Movable, personal property
B. Service contracts
C. Contracts involving the sale of goods, but only if the parties are merchants
D. Contracts involving the sale of real property
A. Movable, personal property
Article 2 applies to the sale of good which can be defined as movable, personal property. C is incorrect because it doesn't matter whether the parties are merchants for this rule.
Donna was running an illegal gambling operation out of the stacks of the Warren E. Burger library. Wes walked past and saw what was going on. Donna offered Wes a bribe to not tell the cops. Donna is arrested and goes to trial. Wes is called to the stand by the prosecutor. Donna's attorney objects to his testimony regarding the bribe. What is the likely result and why?
A. Admissible under a hearsay exception
B. Admissible under a non-hearsay exemption
C. Admissible as it is not being offered for the truth of the matter
D. Inadmissible hearsay
B. Admitted because admission by a party opponent
Laura and Pete had a car crash. Laura was speeding in violation of the posted rate. Pete was drunk and had fallen asleep at the wheel. Laura suffered $20,000 in damages, and Pete suffered $5,000. Laura sues Pete and the jury apportioned 80% of the fault to Pete and 20% to Laura. In a jurisdiction that follows traditional contributory negligence and contribution rules, how much will Laura recover from Pete?
A. $16,000
B. $0
C. $11,000
D. $20,000
A. $16,000
In this type of jurisdiction the plaintiff can recover their damages reduced by the amount they were negligent.
A state imposes an additional income tax on non-residents. If the non-resident's home state would impose a lesser tax, the tax due is reduced to match that amount. It imposes no additional tax on its own residents. This likely violates what?
A. Privileges and Immunities Clause
B. Equal Protection
C. Dormant Commerce Clause
D. Nothing, it is likely valid under the state's police power
A. Privileges and Immunities Clause. Look for treating resides of other states differently with regard to economics
Under the exclusionary rule, evidence obtained from an unconstitutional search is barred from being admitted at trial. However, there are six (6) exceptions to this rule. Name 3 of them!
Sylvester, a professional birdhouse salesman, provides a written offer to sell Tweety a birdhouse for $400. Sylvester orally promises to keep the option open for 3 months. Two months later, Tweety informs Sylvester that he wishes to accept, but Sylvester refuses to sell for anything less than $900. Tweety sues. What is the result?
A. Tweety wins because Sylvester is a merchant and thus his offer was a firm offer that cannot be freely revoked
B. Tweety wins because Sylvester's promise was in writing
C. Sylvester wins because the offer was not supported by consideration
D. Sylvester wins because the offer did not contain a promise not to revoke
D. Sylvester wins because the offer did not contain a promise not to revoke
While a firm offer does not require consideration to be kept open, there must be a writing that contains a promise not to revoke.