Exam Question for Torts Section

Mar Vista is a residential development. In January, 2006 the Mar Vista Homeowners Association (“MVHA”)” assessed each home owner an assessment charge of $750. Charlotte, a recent widow who was experiencing financial problems, claimed she couldn’t afford to pay the $750. As a result, Thomas Newman, president of MHA, sent to Charlotte a letter that included this language:

“By failing to make this payment, the MHA shall have the right to collect the amount due by action of law. Your prompt attention to this matter is greatly appreciated.”
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Exam Question for Property Section

Seek Corporation invests $2 million in exploring for oil on its property. Oil is discovered and Seek begins extracting and selling the oil. However, the oil is part of a common pool and, noticing the success of Seek=s well, Mooch Corporation begins extracting oil from the same common pool by means of a well located on adjacent land which it owns. Because Mooch=s search costs were essentially zero, Mooch is able to sell its oil at a price much lower than that offered by Seek. Seek sues to restrain Mooch=s activities. You represent Seek, and to your dismay your research reveals that because of an obscure 1812 treaty with a Native American tribe, neither Federal nor State oil extraction statutes/regulations apply to this dispute. The only relevant precedent are judicial decisions that cite and adopt the holdings from prominent historical capture cases B i.e., PIERSON V. POST (fox hunt) and its lineage.
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Exam Question for Contracts Section

A busy executive of a major international company needs to hire an assistant to deal with public relations and press issues. She has an ad posted in various newspapers, announcing the position, describing it, and inviting applications. After examining the applications, busy executive chooses three finalists and interviews. She is particularly impressed by one of them and convinces him to take her job offer and forego others. “We’ll better their salary and prestige ultimately,” she tells the twenty-one-year-old. “There’s a six-month training period, but you’ll get through that just fine,” she indicates after they have shaken hands. The trainee asks about salary, benefits, and duties, but the busy executive shrugs off the questions with a terse reply: “We have a set policy on all these matters. …Ask the personnel and human resource department when you start.” The trainee is fired after two weeks because the busy executive wants someone else. He files suit, but the company responds that it is its policy to arbitrate all employment disputes.
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Exam Question for Constitutional Law Section

In 1990 Congress enacts the Wetlands Protection Act (WPA). The only findings Congress included in the statute were that (1) “wetlands and wetland-adjacent areas are important breeding and stop-off points for various types of migratory birds,” and (2) that “wetlands and wetland-adjacent areas are being lost to residential and business park development at alarming rates.” The WPA prohibits large-scale development (e.g., the building of a residential subdivision or office park) of any parcel of land if the United States Army Corps of Engineers determines that the parcel “is, or has the potential to be, a wetland or wetland-adjacent area.” There is no requirement that the Corps of Engineers determine that a given parcel of land actually house migratory birds; if it is a wetland or wetland-adjacent area, then the statute’s development prohibition automatically applies.
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Exam Question for Civil Procedure

Dan Yankee, a life-long resident of New York, comes to New Orleans for a Shriner’s convention. One night while imbibing in the Devil’s Brew, he tasted a local whiskey, Raging Cajun. Liking what he tasted, he bought a case of Raging Cajun to take back to New York. Upon his return to New York, Dan gave a bottle of Raging Cajun to his boss, Ben Bunkley, a citizen of New York. After work that evening, Bunkley decided to try the Raging Cajun and prepared himself a cocktail consisting of Raging Cajun and water. After three or four sips of his cocktail, Bunkley’s throat and stomach began having a severe burning sensation. He called his doctor who advised him to come to the hospital and bring the bottle of Raging Cajun with him. At the hospital it was determined that the bottle of Raging Cajun contained a high percent of acid. Bunkley was treated accordingly. He survived, but had to have part of his stomach removed and will talk in a law raspy voice the rest of his life. Bunkley’s doctor and hospital bills were in excess of $25,000. Raging Cajun is a product distilled by the Acadia Whiskey Company, a Louisiana corporation with its principal place of business in Louisiana. It has been licensed to do business in Alabama and has a warehouse for its products in that state. It distributes its products in Louisiana, Alabama and Mississippi. You learn that about 25 per cent of Raging Cajun’s $1 million in annual sales is made to New Yorkers who either buy it in New Orleans and take the product back to their home state or who buy it from Acadia’s web site. In addition, Acadia Whiskey Company has $500,000 on deposit in a New York bank. Can a state court in New York exercise personal jurisdiction over Acadia Whiskey Company (AWC)?
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Torts Questions & Answers

1) What kind of contact must the plaintiff prove as an element of the tort of battery?

(a) Violent contact
(b) Contact causing some injury, however slight
(c) Any contact without the plaintiff’s consent
(d) Harmful or offensive contact

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Question #1

Forest Park was a public park owned by the City of Springfield. In the middle of the park, there was a golf course operated by Denholm Golf Corp., which leased the land from the City of Springfield. A wide paved path ran around the perimeter of the park, beneath overhanging trees, outside the golf course area. The border between the public part of the park and the golf course was some yards inside the perimeter path, along the line formed by the trees next to the path, but there was no fence or other type of border indicating the boundary line. Two small signs were posted by the beginning of the golf course’s cart path, next to the first tee. They said “Golfers only beyond this point”.

One afternoon, Pauline went for a walk in Forest Park. She entered the park next to the fourth hole of the golf course. She walked along the perimeter path for a while, then crossed over the line of trees into the open spaces of the golf course. After checking that no golfers were playing on the fourth hole, she crossed the fairway to feed the ducks on a small lake in the middle of the golf course. When she saw some golfers walking up onto the tee ahead of her, she crossed back over to the golf course’s cart path, which ran alongside the fairway. She then walked along the cart path, keeping a careful eye on the golfers so that she would not be struck by a flying golf ball.

Part of the fairway of the fourth hole had recently been re-laid with new turf. Denholm had cordoned off the area as “out of bounds” to golfers, using a yellow rope slung between stakes about one foot off the ground. However, the rope had been moved by someone, so that it now stretched across the cart path. As Pauline was walking along the cart path, watching the golfers on the tee, she tripped over the rope and fell heavily to the ground, suffering considerable injuries to her wrists and face.

Later inquiries revealed that none of Denholm’s employees had moved the rope. Assume that it was moved by some other person as a prank.

Pauline now wants to sue Denholm. Advise Pauline. Assume that the incident occurred in a jurisdiction that has not modified the traditional rules of occupier’s liability in any way.

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Question #1

Inspired by the success of similar events in other cities, the City of Springfield decides to stage a 10-kilometer running road race, to be known as the Springfield Classic. It places advertisements in newspapers throughout the region, distributes pamphlets containing application forms, and sets up an Internet website with information about the race and downloadable application forms. All application forms contain the following words printed in fine print across the bottom of the form, above the place where the participant is required to sign:

RELEASE FORM: I know that participating in a road race is a potentially hazardous activity. I should not enter and participate unless I am medically able and properly trained. I assume all risks associated with participation in this event including, but not limited to: falls, contact with other participants, the effects of the weather, including high heat and/or humidity, traffic and the conditions of the road, all such risks being known and appreciated by me, including the requirement of wearing protective equipment. I hereby assume full responsibility for and risk of bodily injury, death or property damage due to negligence of the City of Springfield or any of its employees while competing in, officiating in, working for, or for any purpose participating in, the event.

Paula is a keen 10K runner. She enters the race hoping to improve her already-impressive personal best time. She is disappointed when the day of the race turns out to be very hot and highly humid: these are not the conditions for a personal best time. Nevertheless, she runs the race fast and hard, determined to record as fast a time as she can.

There are no drink stations along the course. The City of Springfield Recreation Department (which is responsible for organizing the Classic) originally planned to set up drink stations at every mile marker along the course, dispensing water and electrolyte drinks. It abandoned the plan in order to cut costs and also because it was unable to recruit a sufficient number of volunteers to staff the drink stations.

Paula has run many 10K races but has never run in one in which there were no drink stations along the course. She continues to run at full race pace, expecting to see a drink station at some point. By the time she reaches the finish line, she is dangerously dehydrated. She collapses and is rushed to hospital. She suffers kidney failure as a result of a previously-undiagnosed weakness in her kidneys.

Jared is a much slower runner than Paula. He has never run a 10-K race before, but he enters the Springfield Classic as part of his remarkably successful weight loss program. His only goal is to finish the course. He trots along at a gentle pace, stopping to walk every now and again. He drops far behind the other runners and moves along slowly in last place.

The course of the Springfield Classic crosses two main roads as it winds through a large public park. The City of Springfield Recreation Department hires Springfield City Police officers to stop the traffic as the runners cross over the road. By the time Jared reaches the first road, the police officers have left, thinking that all runners have passed by. As Jared approaches the road, he sees bright orange cones positioned at either side of the road and in the middle of it, marking the point where the course of the race crosses the road. Without breaking stride, he trots between the orange cones and out onto the road, where he is immediately run down by a speeding car, suffering severe injuries.

Paula and Jared have sued the City of Springfield, claiming that it is responsible for the injuries they suffered. Advise the City of Springfield.

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Question #1

Peter operated a one-person mail-order business from the first floor of a building in downtown Springfield. Peter was the only tenant; the upper two floors of the building were vacant.

Springfield was selected to be the site of an international conference between government ministers about international trade and development. In the weeks leading up to the conference, many groups of anti-globalization protestors vowed to disrupt the proceedings. Two days before the conference was due to start, the Chief of the Springfield City Police held a press conference to describe the extensive enhanced security measures that would be put in place during the conference. He said, “Come hell or high water, these no-good out-of-town professional troublemakers are not going to close down the conference and they’re not going to close down the City of Springfield. It will be business as usual here.”

On the day the conference began, a large number of protestors occupied the vacant upper floors above Peter’s business, sealed the building off completely and declared it to be their “command headquarters”. The protestors remained in the building for the whole of the next week. Peter was unable to get into the building for the whole of that time. He repeatedly asked the police department to evict the protestors from the building, but no action was taken. Almost all of the police officers on duty in Springfield that week were deployed to protect the hotel where the conference was taking place, and to keep order in the widespread street protests.

Peter’s business failed because of his inability to meet orders during the week when he was kept out of the building. He suffered considerable financial loss. He wants to sue the City of Springfield for its failure to take action against the protestors. Advise Peter.

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Question #1

Paul, aged three years, was badly injured when he fell from a third-floor balcony at the apartment block where he lived with his mother, Deirdre. At the time, Deirdre was semi-conscious as a result of drinking heavily and taking heroin. Before shooting up with heroin, Deirdre opened the sliding door to the balcony of her apartment, so that Paul could play outside in the sunshine. She then left him outside alone. The railing around the balcony did not reach all the way to the floor of the balcony; there was enough space for a child as small as Paul to pass beneath the railing. It is not clear how Paul came to fall. He does not remember exactly what happened, and no-one saw the incident.

The State family services agency had previously taken custody of Paul after neighbors had informed it that he was being neglected and abused by Deirdre. The agency placed Paul with foster parents for six months while Deirdre underwent a substance abuse and detoxification program. After reviewing her case, the agency returned Paul to Deirdre. At that time, it was satisfied that Deirdre’s addictions were under control and that she was capable of looking after her son, something she was passionately keen to do. Paul fell from the balcony one month later. In the period between Paul’s return and the accident, one of Deirdre’s neighbors had contacted the agency, saying, “She’s shooting up again – nothing good is going to come of it”. The agency took no steps to respond, as it only has the resources to respond to reports of actual neglect or abuse.

Deirdre rented the apartment from Downside Apartments, Inc., which owned the whole apartment block. Downside’s agent knew that Deirdre had a three-year old son when she rented the apartment. No warning about the safety of the balcony was given, either by the agent in person, or by signs in the apartment.

After the fall, Paul was taken to the local hospital by a neighbor. Unfortunately, he was not treated immediately, despite the neighbor’s heated requests for action, because the neighbor was not one of Paul’s parents and had no idea about Paul’s medical insurance arrangements. (Deirdre and Paul have no private medical insurance.) The evidence suggests that the delay in treatment at the hospital worsened Paul’s condition.

An action has been brought on Paul’s behalf against the state family services agency, alleging that his injuries were caused by its negligence. No other actions have yet been brought. Advise the agency. (Assume the incident occurred in a state that has not modified the rules of joint and several liability, and which has abandoned the traditional rules of occupier’s liability in favor of a unitary Rowland v. Christian test.)

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Question #1

Every Saturday morning, Peter takes his six-year-old daughter to swimming lessons at Briarwood Fitness Center. He and his daughter are not members of the Center: he has merely bought a series of swimming lessons given in the Center’s teaching pool by Center staff. Normally, Peter sits beside the swimming pool while his daughter’s lesson proceeds. One Saturday morning, he leaves the side of the pool while his daughter is swimming. He wanders around the Center, inspecting the facilities. He watches some racketball games, looks into the beauty shop and cafeteria, then goes into the weight room. He decides to try out one of the weight machines.

Remembering his healthy youth, Peter selects a very heavy weight. He releases the brake on the machine, which sustains the weight until the user is ready to exercise. He rapidly discovers that he cannot sustain the weight that he has selected. His body crumples under the weight. Peter finds that he can only get out from underneath the weight by twisting and falling out of the machine. In doing so, he severely injures his back.

The weight machine in question is manufactured by DominaFlex, Inc. It bears a warning sticker next to the place where the user selects the weight to be lifted. The warning says:

“WARNING. Always use spotters when you lift. Do not use this equipment without first receiving instruction or reading the information booklet.”

A “spotter” is someone who stands by the machine while the user is using it, to watch, encourage and give assistance if needed. Peter says he did not know what the term means.

Members of the Center are given instruction in how to use the weight machines before they are allowed to use the weight room. Although use of the weight room is supposed to be confined to Center members, there is no sign on the door of the weight room to that effect, nor has the Center put up any warning sign of its own by the machine. The instruction booklet was not left by the machine.

Peter wishes to sue both Briarwood Fitness Center and DominaFlex, Inc. Advise Peter about the issues that would be raised in these actions.

(Assume that the incident occurred in a jurisdiction that has not modified the traditional rules of occupier’s liability in any way, and where the law of products liability is based on the Restatement (Second) of Torts, Section:402A.)

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Question #1

After working ten long years at the Twolane Law School, Professor Carmellow Youchello finally earned a sabbatical. Never one to appreciate the southern climes, Youchello decided to spend the fall in the splendid isolation of southern Maine. He rented a mansion on a private island owned by a former Twolane Dean Jack Bob Remark. One day, while snooping around the attic, Youchello uncovered a musty old volume of Sir Henry Maine’s Ancient Law. On the reverse side of the dust jacket, he discovered scattered notes entitled “Plot for a Movie”. Youchello read the scribbles, jotted down notes, and called his old college roommate Stephen Spielberg. Spielberg loved it; something about a cute little extra-terrestrial that finds happiness in America, and a star is born. Youchellow collects $1,000,000 in royalties, and buys a vineyard in Tuscany.

Two years later, ex-Dean Remark uncovered the Maine volume while browsing through his collection in Maine. As luck would have it, he noticed the scribbles. A movie aficionado, Remark immediately recognized the plot as that of ET. He confronted Spielberg, who confronted Youchellow who, as usual, shrugged his shoulders.

Remark brings an action in District Court against Youchello and Spielberg for $50,000,000, the profits made on the movie. News of the lawsuit is plastered all over the “media”, and Richard Wall learns of the action. Wall intervenes in the suit claiming that he owned the book, and sold it to Remark; he seeks $50,000,000 in damages.

The case with the full cast of characters comes before Judge Honor Off for whom you clerk. He asks you to evaluate the legal basis for the claims of each party, and as always, he is relying upon you to guide him as to which claim is the strongest.

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Question #1

In 2099, the Twolane Law School published a directory of it illustrious alumni. It was able to do so because the Assistant Vice Director of Alumni Affairs’ assistant spent the entire summer scouring through the Law School records to ascertain the names of graduates, and then compiled an accurate list of their present whereabouts by “googling” each name. The purpose of the exercise was to enable the Assistant Vice Director of Development to contact said alums in order to put the bite on them for a donation to the Weinmann Hall building enlargement project. In addition, the information was printed and bound in green leather (well maybe it was plastic), and offered for sale at $100, enabling the Law School to make an immediate profit of $75 from each book. Wiley old Professor Bonfield, now retired, springs for the $100, scans it, reprints it, and offers for sale a leather-bound version on his web site ripoffs.com for $75, content to make a more modest profit.

The Board of Trustees of Twolane University sue to enjoin the sale of Bonfield’s version of the Alumni volume and for damages in the amount of $75 for each book Prof B. has sold. The case comes before Judge Hovenkurtz for whom you clerk. Should they prevail? In writing your answer, address the following:
What principles of intellectual property law can be applied to this case?

Can concepts derived from the law of finders and capture be applied to the case?

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Question #1

Archangelo Duebomber (hereinafter Due), a survivalist, has camped on Boot Cut Stream in a remote section of Shermanfork Ranch in Texas since last April (1999). As winter set in, Due decided to make his temporary accommodation weatherproof by building a cabin. As luck would have it, he spied a dozen white pine logs tied together with a rope floating down Boot Cut Stream. He hauled them out of the stream, and worked them with his primitive tools into a comfortable cabin.

After spending the harsh winter in isolation, Due decided to return to civilization and attend law school. In June (2000), short of cash, he approached Ned Shermanfork the owner of Shermanfork Ranch, and asked him if he would like to purchase the cabin from him. Ned declined, and ordered Due “off my spread”. Enraged at his ungentlemanly conduct, Due blasted Shermanfork with the survivalist weapon of choice, the AZ 47000. Fortunately, he only inflicted what is commonly called (in Texas) a flesh wound. The story made the morning edition of the Boot Cut Times. Scott Coward, the leasee of Shermanfork’s prime timberland, read the story, and emailed Shermanfork indicating to him that the logs must have been cut by his men who were at the time (during the fall) culling the forest and floating the proceeds down the Boot Cut River. According to Coward, the logs must have broken loose and floated into Boot Cut Stream. He demanded the return of the white pine logs or their value. Shermanfork refused.

Due brings an action in Boot Cut District Court demanding from Shermanfork the value of the cabin, or alternatively, return of the dozen white pine logs or their value. Coward intervenes demanding the cabin, the return of the white pine logs or their value.

You clerk for Judge Wig. She asks you to write a brief memorandum assessing the basis for each of the three individual claims to the cabin and/or the white pine logs.

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Question #1

The Federal Highway Beautification Act reads as follows:
No billboard can be placed within 660 feet of interstate highways or other highways in which the United State government pays more than 50% of the cost of building such highways.

Public Interest Sign Company (hereafter PISC), a non-profit organization, purchases land adjacent to Exit 1000 of the I-80. PISC executes leases to the following organizations permitting them to erect billboards:

1. Borris Mart, PLC, a law firm specializing in personal injury cases. On his sign, he depicts an 18 wheeler crushing a mini-van with the words ‘Check with me before you take their check’. His 800 number also appears.

2. Citizens for the Fourth Amendment, a lobbying group that seeks to control police searches of cars on interstate highways. On the sign are the following words: ‘Just say NO to searches. Stopped by the cops? Dial 800- 321-7654 before you let’em search’.

3. Gentlemen’s Emporium, a one-stop adult book and video outlet. On the sign are the following words: ‘Another burger? Why not have a more satisfying break at Gentlemen’s Emporium. Next Right.’

Each group applies to Highway Commission for an exemption from the act on the grounds that the act as applied to their organization violates constitutionally protected rights. You are counsel for the Highway Commission. Does the act as applied violate the constitutional rights of any or all of the parties above?

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Question #1

Barry “Home Run King” Bonfield hit his 71st home run last night at Boot Cut Park in New Orleans, a major league record. The fat pitch was served up by Ralph “Number 13” Collins, star left-hander of the opposing team, the Slidell Yankees. Bonfield hit the homer into the bleachers where three Twolane Law faculty members were sitting swilling beer and hoping to catch a ball. The ball descended directly into the glove of Harry “Butterfingers” Ponoroff, but he (of course) bobbled the damn thing (caught it and then allowed it to fall out of said glove). It made its way into the lap of that eminent Sports Lawyer Cary Roberts, who had just dozed off. Sitting next to him was Ari Vice Griffin who picked the ball out of the Cary’s lap, and left the park smiling.

Bonfield brought an action against Griffin in replevin (a common law form of action demanding the return of personal property wrongfully taken) in the District Court seeking the return of the ball, which, needless to say, is worth a pile. Ponoroff and Roberts intervened in the suit, each also demanding custody of the ball. And hang on, I believe I see Collins on his way to the courthouse, writ in hand. Not far behind him is Scott Coward, the owner of the Boot Cut Dwarfs, Bonfield’s team, and also William Jefferson Clinton, the recently appointed Commissioner of Major League Baseball.

The case comes before Judge Hovenkurzt for whom you clerk. Baffled (as he always is), he asks you to write a memo considering the claims of each of the six parties. Recall that recently he read the comic book version of Locke’s Two Treatises on Government, so don’t forget to consider the so called ‘labor theory of property’ in your analysis.

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Criminal Procedure Questions & Answers

1) Zak was tried for drugs and firearms violations, based on evidence that he sold about $25,000 worth of cocaine per week in New York City and employed 50 or so street hustlers to execute these sales. Zak sought to represent himself at trial and the trial judge made a proper Faretta inquiry and obtained a proper waiver from Zak of his right to counsel. The trial judge informed Zak that she was going to appoint Belle as standby counsel for Zak. The trial judge explained, however, that Belle could only act as an advisor and could not participate in the trial directly by addressing the jury, conducting examinations or cross-examinations, or making objections. The trial judge was concerned that Zak posed a security threat because he had resisted arrest and because of the crimes with which Zak was charged. So the trial judge decided that Zak would be required to remain at his counsel table throughout the trial, and that he could not approach the bench for sidebar conferences (when the cou rt and counsel would speak on the record without the jury being able to overhear them). Belle was delegated with the task of representing Zak at the sidebar conferences and with carrying messages back and forth from Zak to the trial judge during these events. During the nine-day trial there were 21 sidebar conferences. The topics ranged from the admission of evidence to the scheduling of lunch for the jurors. Zak never objected to the judge’s decision to confine him to the defense counsel table. Zak did give an opening statement and a closing statement. He also testified in the form of a narrative statement. He did not cross-examine the state’s witnesses because he did not know how to do it, and because Belle did not volunteer to give him advice about how to do it. Nor did Zak make any objections because he did not understand the rules of evidence and because Belle did not inform him about all the types of objections that he could have made successfully, which were many. Zak was convi cted. On appeal, Zak argues that the trial judge’s decision to confine him to the counsel table violated his constitutional rights. Therefore he should have a new trial where he will represent himself and will be allowed to participate personally in all sidebar conferences. Which of the following arguments will the defense counsel NOT make to support Zak’s claim?

A. That the trial judge’s decision violated Zak’s Sixth Amendment right to self-representation because of insufficient evidence that he posed a security threat that required his confinement to the counsel table.
B. That the trial judge’s decision damaged Zak’s ability maintain control over his own defense.
C. That the trial judge’s decision violated Zak’s right to “hybrid representation” through the combined representation of Zak and Belle as standby counsel.
D. That the trial judge’s decision damaged Zak’s ability to maintain the appearance that he was representing himself.

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Question #1

Barnaby Jones was charged with Murder in the First Degree for the killing of Sal Kincaid. The prosecution’s theory of the case was that Sal Kincaid had slept with Barnaby Jones’s wife Kate Jones, that Barnaby found out about it and crept over to Sal’s house in the middle of the night, broke into the house, and shot Sal in the head while he was sleeping. This occurred in a very small town, so the police who investigated the killing had heard the rumors that Barnaby had gone berserk when he had found out about the affair. The police decided to bring Barnaby in for questioning.

The police officers who picked up Barnaby for questioning knew that he was “slow.” Anyone who interacted with Barnaby could recognize his mental deficiencies. While he was never tested, a test would have revealed an IQ of 65, a level of mild to moderate mental retardation. Three officers, led by Officer Friendly, arrived at Barnaby’s house at two a.m. and banged on the door. Barnaby awoke from a sound sleep and thought his house was being broken into. When he opened the door, he saw Officer Friendly, who he knew from town, and two other officers, and Friendly said, “Best to come with us, Barn, to clear this whole Sal mess up.” “Okay,” Barnaby responded as he grabbed his robe and came out the door.

Down at the station, Officer Friendly took Barnaby to a small room with no windows. He told Barnaby he was not under arrest but he had a few questions for him. Friendly warned him that he was in a lot of trouble and that if he wanted to get back home to bed, he should talk to them now. Then, Friendly read him his Miranda rights. Friendly asked Barnaby whether he understood the rights. Barnaby asked, “Can I have a lawyer right now?” Friendly said, “Well, no, not now, but later. But you do not have to talk to me now without a lawyer if you do not want to. Although it seems that you want to talk to me.” “Okay,” said Barnaby. Officer Friendly then asked Barnaby what happened between he and Sal. Barnaby said, “I wanted to kill that S.O.B.” “And did you?” asked Friendly. Barnaby then said, “I am sad. Go away.” Officer Friendly said, “Just a few more questions first.” “No, I am sad. Go away. I want to go home,” said Barnaby. “Well,” said Officer Friendly, “I will leave you alone for a bit to think and be sad.” “Okay,” said Barnaby, “and please call Melvin. I want to talk to him.” Melvin Taylor was Barnaby’s wife Kate’s brother, and also one of the nine lawyers in town. “Your brother-in-law?” Friendly asked. “Yes,” said Barnaby. “Well, I’ll see what I can do,” said Friendly.

After an hour passed, Barnaby was still sitting in the small room all by himself, so he wandered out, saw Officer Friendly and said, “What is going on? Why am I still here?” Officer Friendly came back into the room and said, “Can you talk to me a little more before Melvin gets here?” Barnaby asked, “Melvin is coming?” Officer Friendly said, “yes,” which was a lie since he never called Melvin. Barnaby then said, “Well, I was very mad at Sal, but I didn’t kill him.” Officer Friendly then said, “Barnaby, you are not going to go anywhere until you tell us the truth.” “Okay,” said Barnaby, “I killed Sal.”

The prosecution’s evidence in the case against Barnaby consisted of the following: a carpet fiber found in Barnaby’s car which looked like the fibers of the carpet in Sal’s bedroom; the testimony of Barnaby’s wife Kate that when Barnaby found out about the affair she had with Sal, he flipped his lid and promised to kill that “S.O.B.,” and Barnaby’s two statements to the police, “I wanted to kill that S.O.B.” and “I killed Sal.”

Because the town only had nine lawyers, one of whom was the judge and one of whom was the prosecutor, Barnaby’s choice of lawyers was limited. Barnaby asked Melvin Taylor, his wife’s brother, to represent him. Melvin had never represented Barnaby on any matters in the past, but a year ago Melvin had represented his sister Kate when she filed for a temporary restraining order against Barnaby after he got drunk and punched her in the face. The restraining order had been heard and granted by Judge Morris, the only judge in town.

Barnaby’s murder case was tried before a jury in front of Judge Morris. When the case came up for trial, Judge Morris asked Melvin whether he had a motion to suppress statements in the case. Melvin said no. Melvin believed there was little point to a motion to suppress since the judge was never known to suppress a statement taken by Officer Friendly, and since Melvin thought the motion was meritless in any case.

The prosecution called two witnesses B Officer Friendly, who testified about the fibers and the statements, and Barnaby’s wife Kate, who testified about how Barnaby reacted when he heard the news of the affair. Melvin cross-examined Officer Friendly and was able to establish that carpet fiber matching is not an exact science, and that the statements were taken very late at night when Barnaby may have been confused and disoriented, and after Barnaby had asked to see Melvin. Melvin did not cross-examine Kate. He later said he did not do so because he thought she made a very sympathetic witness and he did not want to alienate the jury by making her sound like a brazen hussy with a motive to lie about her husband’s reaction. Melvin called one witness in defense B Barnaby. Barnaby testified that he did not kill Sal, and, by testifying, the jury was able to see that Barnaby was mentally slow. After two hours of deliberation, the jury announced a guilty verdict.

NOW Barnaby gets a new lawyer on appeal. What arguments can Barnaby make on appeal of his conviction? What arguments will the prosecution make in response? Argue both sides.

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Question #1

Two police officers, Curly and Moe, respond to a radio run about a report of gunshots. The radio run is: “Witness reports sound of gunfire coming from 2225 Laurel Street.” It turns out the radio dispatcher has gotten the address confused B the address actually given by the witness was 2255 Laurel Street. Curly and Moe report to 2225 Laurel Street. They sneak around to the side of the house and peer in the window. In the window, they see a marijuana plant. Lights are on but they do not see anyone or hear anything. The two officers go back around to the front of the house and ring the doorbell. The officers have their guns drawn and displayed. A minute or two pass, but finally a man, Quentin, opens the door. The officers smell the odor of burnt marijuana and, in their opinion, from having smoked some weed in their day, Quentin looks high as a kite. “We need to come inside, sir, okay?” Quentin backs away from the door and mutters, “Whatever.” Quentin is not the resident of the house but is simply visiting Alice, a woman friend who lives there. Every once in a while he stays overnight.

The officers enter the home and see Alice sitting on the couch. The officers ask her if she is okay. She says nothing in return. Looking at Quentin again, Moe sees that Quentin has his hand over his front pants pocket. Worried that Quentin is concealing a weapon, Moe tells Quentin to face the wall. Moe pats down the clothing of Quentin. When he gets to the front pants pocket, he feels a hard, square object. Given the way that Quentin was holding his hand over the pocket, Moe assumes it must be a package of marijuana. Moe puts his hand in the pocket, and, indeed, pulls out a package of marijuana. “Well, well, lookee what we have here,” Moe says. Quentin says, “Hey, that’s not mine. I don’t know where that came from.”

“Now,” Moe says, “Where’s the gun?” “What gun?” Quentin responds. Moe then tells Curly to stay and watch Alice and Quentin. Moe then proceeds to take a cursory look through the rest of the house, peeking in rooms and behind doors. Upon looking into a bedroom, Moe sees rolling papers and another baggie of marijuana on top of a dresser. When he goes over to seize the items, Moe opens the top drawer of the dresser and seizes a large plastic package of heroin. The top dresser drawer has women’s underwear and Alice’s identification is on top of the dresser.

Moe comes back downstairs and goes into the kitchen to seize the marijuana plant they had seen through the window. Moe and Curly arrest Alice and Quentin for possession of all of the drugs.

Moe and Curly ride with Quentin in the back of their cruiser, while another officer drives Alice separately. As Moe and Curly are riding along, Moe says to Curly, “Alice sure seems like a nice girl. Too bad she is going to jail for a long time.” Quentin says, “You leave Alice out of it. She’s going to college. She’s got nothing to do with this.”

At the station, Moe and Curly read Quentin his Miranda rights. “Yeah, yeah, I know, I know,” Quentin says, “Listen, I think a lawyer would be good right about now, don’t you?” Moe responds, “I don’t know about that. You would do yourself a lot of good if you told us whose drugs those were.” “How? I already told you the drugs were mine,” Quentin says. “All of them?” Moe asks. “Look, man, I want a lawyer,” Quentin says. Moe and Curly then leave the room.

In the meantime, Alice was not saying a word to anyone. An officer told Moe and Curly that she had been read her Miranda rights forty minutes ago and that she had said, “Leave me the fuck alone. That’s my only statement to you.” Moe and Curly then go to see her and plunk the bag of heroin on the table in front of her.

“Looks like heroin,” she says, “What about it?” “Look, you don’t have to talk to us,” Moe says, “but Boyfriend says this is yours.” “Well, he is full of shit, the weed upstairs was mine, but I don’t know anything about heroin. That’s his deal, not mine,” Alice says.

In the meantime, a lawyer for Quentin shows up. He claims he was hired by Quentin’s sister and that he wants to see Quentin. “Sorry, pal,” Moe says, “You can see him tomorrow in court.” The lawyer insists on waiting to see if anything changes. The officers then pass by Quentin’s holding cell and Quentin yells out, “Hey, how long til I can see a lawyer?” Moe says, “You’ll see one tomorrow morning in court.” “Well, can I tell you something?” Quentin asks. “What?” Moe asks. “I am just the tip of the iceberg on that heroin. If you help me with these charges, maybe I can help you with bigger fish.” “We’ll see.” Moe says.

NOW Quentin and Alice each move, in separate trials, to suppress all of the drugs, and all of their own statements. What are their arguments? How will the prosecutor respond? Argue both sides.

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Question #1

The police suspect that Mae is a drug dealer because a police informant has heard rumors that she is, but the police have no concrete evidence sufficient to obtain a search or arrest warrant. Therefore, they decide to keep her under visual surveillance without her knowledge. They learn that every morning Mae goes into Starbuck’s to read the paper and have a cappucino. They decide to attach a tracking device to her car when she is in the coffee shop. The tracking device is a “global positioning system” (GPS) device which uses more advanced technology than a simple tracking beeper. It is attached to the electrical system of the car and allows the car’s positions to be precisely tracked when data from the device is downloaded onto a computer. The data shows the precise locations where the car travels and stops, and the number of minutes used in travel and in stops. The police use the GPS to track Mae’s movements for 10 days, 24 hours a day.

The data shows that during this period Mae traveled to a dentist’s office, a bank, a tanning salon, a church, several grocery stores, the local headquarters of the Republican Party, a high-end restaurant, Burger King, a high school baseball game, a family planning clinic, a concert hall, and a seedy local bar named Slim’s. Finally, Mae drives her car to a remote location 30 miles outside of town and down a dirt road that is almost impassable, until she comes to a small run-down cottage with a run-down greenhouse behind it. Her car stays there for 37 minutes and then returns to her home. The police decide to use a helicopter to fly over the cottage and greenhouse during the daylight. In order to get a good look, the police fly over the greenhouse at 50 feet and see, through a hole in the roof, a lot of marijuana plants. The helicopter kicks up so much dust and wind that the cottage and greenhouse are covered in dirt and some shutters fall off of the cottage.

The police then get a search warrant for the greenhouse. As they drive down the dirt road, they see that Mae has just driven ahead of them to the cottage and is getting out of her car. As they pull up, Mae sees them and enters the cottage and shuts the door. The officers knock and the door and yell, “Police, open up.” They wait for 10 seconds, hear nothing, and then proceed to knock down the door with a battering ram. Five police officers run into the house. They fan out in all directions. The cottage has spare furnishings, but appears to be in use as the refrigerator contains fresh food and the closets and dressers contain women’s clothing. A female police officer opens a closet door and finds Mae standing inside. The officer pats Mae down and feels some lumpiness around her waist. She takes Mae into the bathroom and makes her take off all of her clothes. Taped to her body are several large plastic bags of marijuana. The officer takes the drugs, allows her to dress, and then places

her under arrest. In the meantime, another officer finds several more packages of marijuana in a dresser in a back bedroom of the one-story cottage. A third officer then goes outside and searches Mae’s car, pries open the locked glove compartment and finds marijuana in there.
Mae is tried for possession of the marijuana plants in the greenhouse and the bags of marijuana found on her person, in the back bedroom and in her car. What will the defense argue on her behalf during a motion to suppress the evidence? How will the prosecutor respond?

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Question #1

The Narcotics Hot Line in Dallas, Texas allows persons to call in with tips for the Dallas Police as to where and when to find illegal drug activity. One day, the police got a tip on the Hot Line that Apartment #101 at 333 Turrell Drive was being used for narcotics trafficking. The caller did not identify himself other than as a “concerned neighbor.” The caller told the police that he sees people going in and out of the apartment all day and night, that about four or five black men in their 30s seem to live or stay there most of the time, and that “drugs are definitely changing hands.” A team of four undercover officers set up surveillance of the apartment and quickly determined that the apartment with all of the activity was actually Apartment #102, right next to #101. The police note that Apartment #101 is abandoned and #101 and #102 share the same entryway.

Over a four-day period, the officers observed over thirty people come and go out of the apartment at all hours of the day and night. By using a high-powered telescope, one of the officers was able to see into the window of the apartment from the street. His view was partially obstructed by a doorframe, so he was unable to see the activity clearly. However, he did observe several black men in their 20s and 30s inside the apartment at most times. He also sometimes observed small objects being handed between people, but he could not make out their shape or color, and he occasionally observed money being handed between people.

On the fifth day, two of the officers knocked on the door. A voice from within said, “Who is it?” and one of the officers responded, “Police, open up.” The voice said, “Just a minute!” After 30 seconds, the officers thought they heard some scuffling inside and became concerned about what was happening in the apartment. So, they broke in the door and entered the apartment. Once inside the apartment, the officers yelled, “Freeze!” and both pointed their weapons at the two occupants of the house who were in the front room. One officer, Officer Hinkel, held those two at gunpoint while the second officer, Officer Fritz, continued through the house. Officer Hinkel saw a gun on the table and seized it. He asked the two men, both black and in their 20s, “Who’s gun is this?” One of the men, Freddie, said, “That’s my gun; he did not have anything to do with it,” gesturing at the second man, Irvin.

Meanwhile, Officer Fritz entered the bedroom upstairs. He looked under the mattress and found large quantities of packaged heroin. He then heard noise coming from the bathroom. He went into the bathroom and grabbed a man trying to leave out of the window. This man was named Reggie, who was also black and in his 20s. He patted Reggie down and felt a round small cylinder-shaped item. Officer Fritz had made a few arrests in the past where drugs were stashed in film canisters, so he thought that may be what this was. He reached into Reggie’s pocket and pulled out a film cannister. Officer Fritz opened it and found pills inside, which later turned out to be dilaudid, an illegal drug. Reggie, Freddie and Irvin were placed in handcuffs and taken to the police station.

Once at the station, while Officer Hinkel and Officer Fritz were transporting Irvin to a holding cell, Irvin appeared very quiet and nervous. Officer Hinkel said, “Kids today, why are they so stubborn? Why do they have to get all wrapped up in drugs? I just don’t understand it.” Irvin then said, “For the money.”

The two officers next went into Freddie’s cell. Officer Hinkel told him that Irvin has given him up, that they have several witnesses who can testify that they witnessed drug transactions by Freddie, and that the officers themselves saw him selling dope. Of course, none of this was true. Hinkel told him, “It is all over, pal, you might as well come clean and tell us about it. If you do, we can probably cut you a deal with the district attorney’s office.” Hinkel then read him the Miranda rights. Freddie signed a waiver card saying he understood his rights and was willing to speak with the police without a lawyer present. Freddie then said, “I got involved with all of this because of Reggie. He is the mastermind.” Then Freddie said, “I should probably talk to a lawyer, don’t you think?” Hinkel responded, “No, I don’t think, but it is not what I think that matters. So what do you say?” Freddie shrugged and said, “Well, I guess no one can help me now. After all, I am caught red-handed since you saw me with those drugs I dealt.”

Finally, the two officers went to Reggie, read him the Miranda rights, and asked him if he wanted to talk. Reggie said, “Piss off!” The officers came back 15 minutes later and asked him if he was ready to talk, and he said, “Piss off!” After that, Reggie sat in the holding cell for about 20 minutes when another man appeared in the cell with him. The man told Reggie his name was Paulo. Paulo told Reggie that he was just arrested for drug dealing and that it was a bum rap. Paulo then asked Reggie, “What is your story?” Reggie responded, “Man, I am screwed. I got caught with all of these drugs. I should have been smarter than that.” Of course, the man in the cell was an undercover police officer. Officers Fritz and Hinkel had asked him to sit in the cell to “see if the jerk says anything.”

NOW, Irvin, Freddie and Reggie are on trial for possession of heroin with intent to distribute, and Reggie is additionally charged with possession of dilaudid. The prosecution will show that the apartment was leased to Reggie’s mother, that Reggie lived there, and that Freddie stayed overnight on occasion, and that, while Irvin never stayed overnight, he helped to deal drugs at the apartment during the day. The government plans to introduce the heroin against all three men, the gun against Freddie, the dilaudid against Reggie, and each of the defendant’s statements against the defendant who made the statement. What are the defense attorneys’ (assume each man has his own attorney) arguments for
suppression? What is the prosecution’s response?

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Question #1

On the morning of May 8, 1999, the Wyoming Highway Patrol received a call regarding a possible drunk driver on Interstate 90. The caller stated that a red Mercury with a dealer license plate driving eastbound on I-90, at around milepost 99, was driving recklessly, swerving in and out of both lanes of traffic, speeding up to pass motorists and then slowing down in front of them. The caller left no additional information. A dispatcher relayed the information to Officer Starr, an experienced patrol officer in the area.

Officer Starr positioned his cruiser east of milepost 99 and waited. After five to eight cars had passed, a red Mercury with three occupants then drove by heading eastbound on I-90. None of the other cars that the officer saw was a red Mercury. The red Mercury was within his estimated time of arrival. When the vehicle passed Officer Starr, he observed that all three occupants, Bill (the driver), Monica (the front seat passenger), and Hillary (the back seat passenger) turned their heads toward his direction. The vehicle exited I-90 at the nearby exchange and headed north on Skyline Drive. Officer Starr followed the vehicle without activating his emergency lights. The officer, still without his lights on, observed the vehicle and its occupants. The car did not swerve, was not driven erratically, and made no traffic infractions. However, the two passengers, Monica and Hillary, continuously moved their heads about and looked in the officer’s direction. Also, Bill, the driver, frequently looked at his side mirror and rearview mirror in the direction of the officer.

The vehicle stopped for a red light, then turned left into a convenience store parking lot. As the red Mercury pulled into a parking space at the doors of the convenience store, Officer Starr activated his emergency lights and pulled in directly behind the vehicle and stopped. He then turned off his emergency lights, leaving just his flashing amber lights on. Bill, the driver of the red Mercury, got out of the car and headed toward the front doors of the convenience store. Officer Starr quickly stepped in front of the convenience store doors. The officer immediately noticed a green leafy material on Bill’s shirt and noticed a strong odor of marijuana.

After asking Bill for his driver’s license, registration and proof of insurance, which Bill retrieved from his wallet, Officer Starr asked Bill if he had been smoking marijuana. Bill admitted that he had been smoking marijuana. The officer then asked both passengers to step out of the car and searched the car. Under the front passenger seat, which had been occupied by Monica, the officer found a backpack. The officer opened the backpack and found papers in it with the rear passenger’s name (Hillary). The officer also found that the backpack contained a clear plastic bag of green leafy material that smelled like marijuana. Later tests confirmed that it was marijuana. A search of the trunk also revealed a backpack. The officer opened the backpack and found papers with both the driver’s (Bill’s) and front passenger’s name (Monica’s) and a clear plastic bag of green leafy material that smelled like marijuana. Later tests confirmed that it too was marijuana. All three were then handcuffed,placed in the back of the patrol car, and transported to the police station.

As it turned out, the back seat passenger, Hillary, had a warrant out for her arrest for an armed robbery of “Slick Willy’s,” a local tavern. The next morning all three, Bill, Monica and Hillary, were taken to court and charged with possessing the drugs found in the car. Each was appointed a lawyer.
After court, the police officers who were transporting Hillary to the jail stopped first at the police station, where she was placed in a lineup. Two witnesses to the tavern robbery, Linda and Betty, identified Hillary as the perpetrator. Both said they were “absolutely positive” about their identification. Linda and Betty had told the police that the bar was very dimly lit and that they had ingested a significant amount of alcohol when the robber entered the bar. They reported that the robber wore a baseball cap that was pulled down, but that the robbery lasted about ten minutes and the robber was in view the entire time. On the basis of these identifications, Hillary was indicted for the tavern robbery. Without any notice to Hillary or to her attorney, two more witnesses, James and George, were brought down to the police station and were separately shown what was clearly a mug shot of Hillary from a prior arrest. Both witnesses identified Hillary as the robber.

As to all three defendants on the drug charges, and as to Hillary for the armed robbery charge, discuss all possible motions to suppress all potential evidence on all possible grounds. Assume Federal constitutional law applies.

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Criminal Law Questions & Answers

1) Joe is prosecuted under an old statute that prohibits the crime of battery. Which of the following elements are likely to be included in this common law crime? I. The elements of an intent to touch offensively, and of an offensive touching of a victim. II. The elements of an intent to injure or criminal negligence, and of a bodily injury of a victim. III. The elements of criminal negligence, and of an offensive touching of a victim. IV. The elements of an intent to put a victim in fear, and of the putting of a victim in fear.

A. I, II
C. I, II, IV

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