Asked & Answered: Bar Exam Instruction

Judge vs Jury on Preliminary Determinations of Admissibility

2012-02-02T17:31:00.000-08:00

The following question was asked on the Facebook page @ http://www.facebook.com/barexaminstruction/;

"Can you shed light on questions in evidence where it is up to the jury to decide certain things and up to the judge to instruct the jury etc."

Response:

On the MBE, these questions revolve around the preliminary determination as to whether evidence is admissible. In other words, sometimes the existence of a preliminary fact is a condition to the admissibility of evidence, and a question is raised as to whether a judge or jury should make a determination as to that fact.

As a general rule, the judge decides on facts that involve the competency of evidence while the jury decides on facts that involve the relevancy of evidence.

More specifically, the jury decides matters such as the authenticity of a document, whether a witness had personal knowledge of an event to which the witness testified, as well as the credibility of any witness that has testified.

The judge, on the other hand, decides on matters such as the requirements of hearsay exceptions, the existence of a privilege, whether an expert is an expert for the purposes of expert testimony, etc. This is not an exhaustive list, but, generally, judges decide on matters of law, while juries decide on matters of fact.

As an additional matter, at least in respect to the MBE (as opposed to state-specific rules) when the judge is making these preliminary determinations of admissibility, the judge can consider any relevant evidence, even if that evidence would not be admissible under the Federal Rules for other purposes.

Real Property: The Rule Against Perpetuities

2012-01-31T16:45:00.000-08:00

Here is a link to a helpful program for learning the dreaded Rule Against Perpetuities. There are always a few questions on this topic on the MBE.

http://www1.law.umkc.edu/faculty/carbone/rap/title.htm

Evidence: Spousal Privilege vs. Privilege for Confidential Marital Communications

2012-01-31T16:06:00.000-08:00

The following question was asked on the Facebook page @ http://www.facebook.com/barexaminstruction:

When is spousal privilege invoked and when is marital privilege invoked? I know what is protected and when it is lost or not. Just confused as to when which is used.

Response:

The first thing you’ll want to note regarding the spousal privilege is that it only applies in criminal cases. If an MBE questions involves a civil action, such as a tort, then spousal privilege does not apply. The privilege states that a married person may not be called to testify against the spouse in a criminal trial. Because the status of spouse ends at divorce, this privilege only applies throughout the time that a valid marriage exists, but, if a valid marriage exists, the witness-spouse can claim the privilege for communications that took place prior to entering into the marriage. Importantly, for MBE purposes, you should note that the privilege belongs to the witness-spouse. This means that if the witness-spouse wants to testify against the other spouse in a criminal proceeding, the witness-spouse can do so, but the witness-spouse cannot be compelled to do so.

In contrast to the spousal privilege, the privilege for confidential marital communications applies in both civil and criminal proceedings. And, unlike in the spousal privilege, communications that occurred prior to the marriage do not apply; this privilege only covers those communications that occurred during the marriage. And, in further contrast to the spousal privilege, this privilege will not terminate upon divorce. In other words, communications after the marriage will not be privileged, but even if there has been a divorce, either former spouse can claim this privilege after the divorce for communications made prior to the divorce. Finally, for this privilege to apply, the communications must have been made in reliance upon the intimacy of the marital relationship. (This is very similar to the attorney/client privilege analysis; look to see whether the communication, when made, was intended to remain private.)

MBE Fast Fact: Evidence

2012-01-31T09:30:00.000-08:00

Do not jump directly to the hearsay exceptions when a fact pattern presents an out-of-court statement offered into evidence. A recent trend on the MBE is to provide facts of out of court statements that are not being offered to prove the truth of the matter asserted, and therefore do not amount to hearsay, and so the exceptions are unncessary. A few examples are legally operative facts (for example when a statement is offered to prove there was an offer in a contracts case); statements offered to show their effects on the hearer (for example a statement offered by the plaintiff to prove that the defendant was put on notice in a negligence case where negligence requires that defendant was put on notice of a given fact); and statements offered as circumstantial evidence of the declarant's state of mind (for example, a statement offered by the defendant as to something that the defendant said to show that defendant was insane, for the purposes of proving the defense of insanity.)

Test Taking Skills: Endurance

2012-01-30T16:26:00.000-08:00

The following question was asked on the facebook page @ http://www.facebook.com/barexaminstruction:

Can you comment on tips/strategies for combating examination fatigue and maintaining focus throughout the entire 200 question gauntlet? Please also share any suggestions you may have about studying/reviewing in the morning and lunch break on MBE day. Thanks!

Response:

With the amount of time spent learning the law tested on the MBE, it is easy to overlook these types of questions, so I'm glad this was asked. I, personally, do not believe that there is any way to completely combat fatigue on this test, but I do think that there are ways to minimize it. The length of the test, and the dense fact patterns, will inevitably lead to fatigue at some point (especially in the afternoon session), but it's important while studying to make sure that you set aside opportunities to practice taking full-length exams. By full-length exams, I mean 3 hours of 100 mixed questions, then one hour off, and then 3 hours of another 100 mixed questions. It would certainly be a mistake to take your first 6 hour exam the day of the test.

The other less obvious answer is that the better you know the law, the less fatigued you will become. This is because the more thought you have to put into each question, the harder you are working your brain, and the quicker you will become fatigued. You want some, and hopefully many, questions to be relatively easy on the exam, and if that is the case, you'll find you have more mental energy to focus on the one's you find to be difficult.

Finally, the obvious answer is to get enough sleep the night before. Don't cram, it's a mistake. You need to be at your best to do well on this test, and your best is when you are rested.

And that transitions into the next question. I don't believe you should be working on questions the morning of the test in order to learn any more substantive law. I do, however, believe that it's a good idea to "warm up" the brain in some way that morning, whether it's by reading an article in a newspaper, doing a crossword puzzle, etc. And one way to do so is by doing a few MBE questions. But the purpose of those questions is not to learn the law (it's too late for that), but, rather, it's to "stretch" a bit before the exam.

In regards to whether you should do questions during the lunch break, my answer is an emphatic "no." Your lunch break is an opportunity to rest your mind between the two sessions; do not squander it. I'd highly recommend eating something healthy, relaxing, and mentally preparing for the difficult task ahead, the afternoon session of the exam.

Torts: Bystander Cases

2012-01-29T16:43:00.000-08:00

The following question was asked in a comment, here on the blog:

Could you recap the elements of Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress?

Also is there such a claim as bystandar Intentional Infliction of Emotional Distress?

Response:

The elements for intentional and negligence infliction of emotional distress are very similar. Intentional infliction of emotional distress requires an act amounting to extreme and outrageous conduct, causation, and damages. With intentional infliction of emotional distress, intent on the part of defendant or recklessness on the part of defendant is required. With negligent infliction of emotional distress, the defendant breaches a duty to avoid causing emotional distress to another by either causing physical impact to another that leads to emotional distress, or by causing severe emotional distress to another that is accompanied by physical symptoms. The fault requirement is merely one of negligence, rather than intent or recklessness.

Bystanders:

There are rules for bystanders (in other words when bystanders can sue for these torts) for both intentional and negligent infliction of emotional distress. In regards to intentional, you'll have a situation in which a bystander views the defendant intentionally or recklessly causing emotional distress to another. For that bystander to recover, he will either have to prove the elements for intentional infliction of emotional distress as listed above, or prove that he was present when the injury occurred, that he is a close relative of the injured person, and that the defendant knew both of these facts.

In regards to negligent infliction of emotional distress, one avenue for a bystander to recover is to prove that he, himself, was threatened with physical injury by the plaintiff's breached duty of care, and that emotional distress has resulted. This is often deemed the zone of danger. Plaintiff, if using this avenue to recover damages, will need to prove that he was threatened with physical impact; it will not be enough that he merely witnessed the impact.

Another possibility is for plaintiff to recover even if he was not in the zone of danger. Here, plaintiff will have to prove that he saw defendant negligently injure another, and that he (the plaintiff) and the person injured are closely related.

In either case under negligent infliction of emotional distress (zone of danger, or seeing the injury of another) plaintiff will recover only if some physical symptoms accompany the caused emotional distress. This is an important distinction to make, because under intentional infliction of emotional distress, there is no requirement of physical symptoms.

MBE Fast Fact: Torts

2012-01-26T21:32:00.001-08:00

Though pure comparative negligence in the default rule on the MBE, it's important to note the differences between pure comparative, partial comparative, and contributory negligence, as the question might require you to apply anything other than pure comparative. Contributory negligence completely bars plaintiff's right to recover for an action in negligence (provided that no exception to the defense applies). In other words, if plaintiff is 1% at fault, and defendant is 99% at fault, plaintiff recovers nothing. Partial comparative negligence (also known as modified comparative negligence) provides the plaintiff with an opportunity to recover, provided the plaintiff is not more than 50% at fault. Pure comparative negligence, on the other hand (and, again, this is the default rule on the MBE), allows plaintiff to recover regardless as to the percentage of fault attributed to the plaintiff. So, the plaintiff recovers even if the plaintiff is 90% at fault. Plaintiff can recover 10% for his injuries, though, of course, the opposing party can counter-claim for 90%.

MBE Fast Fact: Contracts

2012-01-25T13:03:00.000-08:00

On the MBE, you should know the rules for a variety of different contracts, for example employment contracts, construction contracts, contracts for the sale of goods, etc. One rule to remember for employment contracts is that if it is not specified in the contract that the job is not "at will" then the job is "at will," allowing an employee to leave the job at any time without the employer having the option of suing the employee for breach of contract. This is true, even if the contract is characterized as "permanent." Specific wording (such as the amount of notice necessary before leaving the job), is required to take the employment contract out of "at will" status.

MBE Fast Facts: Torts

2012-01-24T14:45:00.000-08:00

An owner of a wild animal can be held strictly liable for injuries caused by that wild animal, even if steps have been taken to limit the dangerous propensities of that animal (for example, by defanging a poisonous snake). So, if someone enters the property at the request of the landowner (who also owns the snake), is frightened by the snake (not realizing that the snake has been defanged), and slips and injurs himself, that visitor has a valid suit in strict liability against the owner, even though the owner had taken measures to make the snake less harmful.

Constitutional Law: Eminent Domain

2012-01-22T12:27:00.000-08:00

The following question was asked on the Asked & Answered Facebook page @ http://www.facebook.com/pages/Asked-Answered-The-Multi-State-Bar-Exam/122156504533565

Can you comment upon condemnation of leasehold and it's effect on tenant's obligation to pay rent?

Response:

Before addressing this question directly, this question provides a good opportunity to discuss the topic of Eminent Domain. It's seen in both Property questions and Constitutional Law questions.

The concept of Eminent Domain originates in the Fifth Amendment, which states that private property may not be taken for public use without just compensation. If the federal government is doing the taking, the question is, therefore, analyzed under the Fifth Amendment; if it's the states doing the taking, it is analyzed under the Fourteenth Amendment.

The amendments only allow the government to take private property for public use, so an initial consideration is to determine whether the use is public. The test is whether the government's action is rationally related to a legitimate government purpose. This is a fairly easy test to satisfy, so the public use requirement will not act as much of an obstacle for the government.

The next issue is to determine if the government's action is, in fact, a taking. In other words, the government can use private property for pubic use, and that use may be deemed a regulation, rather than a taking. If so, the constitutional amendments requiring the government to compensate the private individual do not apply. An actual physical appropriation of property will almost always amount to a taking. In addition, if the government regulation denies a landowner of all economic use of his land, the regulation amounts to a taking. Watch, however, for situations in which principles of nuisance law require an individual to stop using his land in a certain way; if that's the case, then the government can deny a landowner that particular use of the land, and not be required to provide compensation to the landowner.

In addition, temporarily denying an owner of all economic use of property does not necessarily constitute a taking. Considerations include the length of the delay, the effect that the delay had on the value of the property, the reasonable expectations of the landowner, etc. This can be somewhat of a gray area, so the analysis is more important than the conclusion. If a regulation merely decreases the value of property, it will not constitute a taking if an economically viable use for the property remains.

Assuming the 'public use requirement" and the "taking" requirement have been satisfied, the government will be required to provide "just compensation" to the landowner. This can amount to either the fair market value of the property, or, if the government chooses to terminate the taking, the damages that occurred while the regulation was in effect.

All of the above are principles of Constitutional Law. An area of Real Property law that touches upon these issues deals with a situation in which the government is deemed to have taken the property that is currently being leased to another, and now must provide compensation for that taking. An issue is how should that money be distributed among the owner of the property and the tenant of the property, as well as whether the tenant's obligation to pay rent remains after the taking.

The issue is determined by whether the entire leasehold is taken by eminent domain. If so, then the tenant's liability for rent is extinguished because both the leasehold and the reversion have merged in the condemnor, and there is no longer a leasehold estate. In addition, the tenant is going to receive compensation in proportion to his interest in the property. If the taking is partial rather than entire, then the tenant will not be discharged from his obligation to pay rent, but will still be entitled to compensation (ie, a share of the award), for the taking.

Evidence: Admissibility of Specific Instances of Conduct.

2012-01-20T19:28:00.000-08:00

The following question was asked on the Asked & Answered Facebook page:

In evidence, in certain cases character evidence is allowed. In which cases can specific conduct be admissible?

Response:

In all the time I've been tutoring students for the MBE, character evidence is among the topics that have caused students the most amount of difficulty.

When discussing character evidence it's essential to distinguish between situations in which the evidence is being offered in a criminal case, and situations in which the evidence is being offered in a civil case. The analysis is different for each, and I'll begin with civil cases.

In a civil case, character evidence may be offered for substantive purposes (as opposed to simply for impeachment purposes) to prove character when it is the ultimate issue in a case. For the purposes of this particular question, it should be noted that in a civil case, if character evidence is permitted, there is no limit as to how that evidence can be offered. In other words, the evidence can be offered as opinion testimony, reputation testimony, or evidence as to specific acts.

It gets a bit more complicated in a criminal case. In a criminal case, the defense can "open the door" by offering positive character evidence about the defendant. The door can only be opened, however, in the form of opinion or reputation evidence. If the defense chooses to open the door by offering such evidence, then, and only then, can the prosecution rebut that evidence, by cross examining the defendant's character witness and asking that witness whether he is aware of specific instances of defendant's misconduct or by calling its own character witnesses to testify as to the defendant's bad reputation or to provide their negative opinions of the defendant.

The defense also has the option of offering reputation or opinion evidence as to the bad character of the victim when such evidence is relevant to prove the defendant's innocence (often in a self-defense context). If the defense chooses to open the door in this manner, then the prosecution can rebut that evidence by calling its own witnesses to give their positive opinions, or to testify as to the good reputation of the victim (or the defendant's bad reputation for the same trait,) but specific instances of misconduct are not allowed.

Finally, there are situations in which the prosecution can offer evidence of specific instances of defendant's misconduct, even though the defense has not yet opened the door by first calling up its own witnesses. That will only be true, however, if the evidence being offered is relevant to some issue other than the defendant's character. This is often stated as the MIMIC rule, which is a helpful mnemonic device for remembering the various reasons why such evidence might be offered. Specific instances of conduct can be offered by the prosecution to prove that: (1) defendant had a motive for committing the crime that is the subject of the current trial; (2) that defendant had the intent to commit the crime; (3) that the crime was not the result of an accident or mistake; (4) to prove the defendant's identity; or (5) to prove a common plan or scheme.

Torts: Invasion of Privacy

2012-01-18T18:11:00.000-08:00

Invasion of privacy questions don't show up all that often on the MBE, but they do appear. You'll want to note that they can sometimes appear to be testing Defamation, and so it'll be important to distinguish between these torts. More on that below, and this note will specifically distinguish between the four main types of invasion of privacy that you'll need to know along with defenses.

(1): Appropriation of Plaintiff's Picture or Name: First, plaintiff will have to prove that the use of his picture or name was unauthorized. In addition, the use has to have been motivated by defendant's desire for commercial advantage. You'll want to look for situations in which defendant is using plaintiff's picture or name in a commercial or advertisement, even though plaintiff has not provided authorization to use his picture or name.

(2): Intrusion upon Plaintiff's Affairs or Seclusion: This would be a situation in which plaintiff objects to defendant's prying into his personal affairs. There is an objective, rather than subjective, standard (more on this @ http://mbetutorial.blogspot.com/2012/01/torts-objective-vs-subjective-standards.html), in determining whether the intrusion was objectionable. Furthermore, the thing into which there is an intrusion must be private. In other words, if a photograph is taken of plaintiff in a public place, regardless of how offended plaintiff is, he can not rely on this type of invasion of privacy as a basis for a lawsuit.

(3): Publication of Facts Placing Plaintiff in False Light: This exists where one attributes to plaintiff views he does not hold or actions he did not take. Once again, an objective standard is used, so that it's not enough that plaintiff finds the attributions objectionable; rather, plaintiff will have to prove that the attributions would have been objectionable to a reasonable person. In addition, like in Defamation, there must be publicity (the objectionable attributions have to have been made to a third party).

(4): Public Disclosure of Private Facts: This involves public disclosure of private information about plaintiff. Unlike False Light, it is not a requirement that the facts are false, but similar to False Light, the public disclosures must be objectionable to a reasonable person.

Note: In addition to the elements listed above, plaintiff will also have to prove that the invasion of his privacy was proximately caused by defendant's conduct. In regards to damages, emotional distress, and mental anguish will suffice.

Defenses: Consent is a defense to Invasion of Privacy. In addition, the absolute and qualified privileges that are a defense to a cause of action for Defamation will also apply to an action in Invasion of Privacy.

MBE Fast Fact: Real Property (Fixtures)

2012-01-15T23:01:00.001-08:00

Article 9 of the UCC (Secured Transactions) shows up in a specific context on the MBE; namely, when fixtures are implicated. The situation will be as follows: A seller will sell an item of personal property to a buyer, and retain a security interest in that item of personal property. The buyer takes the item of personal property and affixes it to the land, so that it obtains the status of a fixture. The landowner then takes out a loan, and mortgages the land as security for the loan. The landowner then defaults on both loans.

The general rule is that the first to record his interest (between the seller of the personal property and the mortgagee) takes priority over the other. But Article 9 changes the results, slightly. The seller can take priority over the mortgagee regardless as to whether he recorded prior to the mortgagee provided that the seller records within 20 days after the item of personal property is affixed to the land. This, under article 9, is known as a "Fixture Filing." This is meant to protect the seller, so that if the mortgagee forecloses on the land (which would generally include all fixtures therein,) the seller will not lose his security interest in the item of personal property affixed.

Torts: Objective vs. Subjective Standards

2012-01-13T13:50:00.000-08:00

A question from a reader:

What is the difference between objective, subjective and reasonable person standard in torts? I need it for MBE and MEE questions. Thanks!

Response:

In general, you should definitely know the distinction, as it comes up in other MBE subjects as well (such as Criminal Law, Contracts, etc). An objective perspective essentially means that the mindset of the individual is not important, but rather what is important is how a reasonable person would have acted under similar circumstances. In that respect, an objective standard is synonymous with the reasonable person standard. (In criminal law, you see this standard in self-defense when it is asked whether a reasonable person would have feared for his life. In torts, it's seen in Negligence with some exceptions.) A subjective perspective, on the other hand, takes into consideration the mindset of the individual, rather than asking how a reasonable person would have acted under similar circumstances.

Real Property: Future Interests

2012-01-11T17:32:00.000-08:00

The following question was asked by a reader of the blog:

What is the Effect of the following :
Future interests or estates in real property may be passed by will or descent in the same manner as present or possessory interests.

Thanks!

Response:

This statement is essentially saying that there will be no restraints on the alienation of the future interest if the owner of the interest attempts to pass that interest through his will, or if the owner of the future interest dies without a will, and the interest passes by the laws of intestacy (ie, descent and distribution).

So, for example. if A grants to B a life estate remainder to C, C's future interest becomes possessory upon the death of B. But if C dies before B, C can devise his remainder to D in his will. Assuming he does, and D is alive upon the death of B, then D's remainder (originally C's remainder) will become possessory, and D will hold that present possessory interest in fee simple.

MBE Fast Fact: Contracts/UCC

2012-01-09T17:24:00.001-08:00

The Statute of Frauds under the UCC is implicated in a very specific situation. You need to consider it whenever the agreement that is the subject of the contract is for $500 or more. So, for example, x contracts with y to purchase 100 widgets at a price of $6/widget. Because the agreement here is for $600, you must consider the statute. However, the analysis does not end there. Under the UCC, there are 4 exceptions to the general rule that will take the contract out of the statute. The first is if the goods that are the subject of the contract are specially manufactured for the buyer. Next is if the the contracting parties are merchants, and there is a written confirmation of their oral agreement. Next, is if there is an admission in the pleadings that a contract has, in fact, been entered into. Finally, an exception is if there is partial payment or delivery made and accepted. (This last one is similar to the part-performance doctrine under the common law.) The MBE often tests exceptions, so be sure to consider them whenever the Statute of Frauds is implicated under the UCC.

Real Property: Recording Acts

2012-01-04T20:37:00.000-08:00

The following question was asked on the Asked & Answered facebook page @ http://www.facebook.com/pages/Asked-Answered-The-Multi-State-Bar-Exam/122156504533565

Can you please explain how to tackle race, notice & race notice questions? Is there a trick to deducing the answer from the wording of the recording statute?

Response:

The best way to approach this question is to run through the three statutes while discussing how they are tested on the MBE. But first, understanding the policy behind these statutes is essential. The recording acts protect grantees by providing that, if an interest in land is recorded, subsequent grantees are on notice of a prior grant of the land. In addition, the statutes protect the subsequent grantees if the initial grantee fails to record.

Notice statutes:

Under a notice statute, a subsequent "BFP"(a person who pays value and has no notice (actual or constructive) of a prior grant) prevails over a prior grantee who fails to record. So, for example, A grants land to B. B fails to record. A grants the same land to C. Assuming that C is a BFP, C will prevail over B, because B failed to record his interest in the land. You should also note that in this situation if B rushes to the recording office and records his interest before C, but after C has been granted the land, B will still lose because all that is required is that C is granted the land prior to B recording. Once that occurs, C is protected.

On the MBE, a notice statute will look as follows: "No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof, unless it is recorded." It's important to realize that the words "first recorded" are nowhere mentioned in this statute. When the statute includes the term "first recorded" it's either a race statute, or a race-notice statute.

Race-Notice Statute

Under a race-notice statute a subsequent BFP is protected only if he takes without notice and records before the prior grantee. Same facts as above: A grants land to B. B fails to record. A grants the same land to C. Assuming that C is a BFP, C will prevail over B assuming that two requirements are satisfied. Unlike in the above, it's not enough that C takes his interest prior to B recording. In addition, C has to record prior to B. So, if C takes his interest prior to B recording, but B rushes to the recording office, and records prior to C, then C is out of luck. On the other hand, if C takes his interest prior to B recording, and then records prior to B, C wins.

On the MBE, a race-notice statute looks as follows: "No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof whose conveyance is first recorded.

Race Statutes:

Under a race statute, whoever records first wins. Notice is irrelevant. Let's assume, now, that A grants to B. A then grants to C. Even if C is aware of the grant to B, C can prevail over B provided that C records his interest before B records his interest. In such a situation, C is not a BFP (a lack of notice is required to be a BFP), but such a determination is irrelevant, as the determining factor is simply who recorded first.

On the MBE, a race statute will look as follows: "No conveyance or mortgage of an interest in land is valid against any subsequent purchaser whose conveyance is first recorded. You should note that the word "notice" never appears in this statute, and that is an excellent way to distinguish between this type of statute, and the two statutes mentioned above.

Criminal Procedure: Double Jeopardy

2011-12-29T19:23:00.000-08:00

As a start, double jeopardy, as it's stated in the Fifth Amendment of the Constitution, simply prevents a person from being retried for the same offense once jeopardy has attached. In determining whether double jeopardy is an issue, therefore, an initial consideration is whether jeopardy has attached. Jeopardy attaches in a bench trial when the first witness is sworn. In a jury trial, jeopardy attaches at the empaneling and swearing of the jury.

Even if jeopardy has attached, however, there are exceptions as to when double jeopardy will not bar re-trial, and those exceptions are often tested on the MBE. First, a state can re-try a defendant whose first trial ends in a hung jury. In addition, if the first trial ends due to manifest necessity, and termination of that trial occurred on any ground not constituting acquittal on the merits, the defendant can be re-tried without double jeopardy precluding that opportunity.

Further, if defendant is found guilty at trial, appeals the conviction, and wins the appeal, the state can retry the defendant (unless the ground for reversal on appeal was insufficient evidence to support the original guilty verdict).

If you've determined that jeopardy has attached, and that none of the above exceptions apply, another consideration is whether the state is attempting to re-try the defendant on the same offense as defendant had previously been tried. Two crimes are the same offense unless each crime requires proof of an additional element that the other does not require. Stated differently, if each crime requires proof of an additional element that the other does not require, then those crimes do not constitute the same offense for the purposes of excluding re-trial based on double jeopardy.

A few final points: Double Jeopardy prohibits repetitive criminal trials. It does not prevent the state from bringing a civil action against a defendant even if the defendant has already been tried, and acquitted, in a criminal trial, for the conduct out of which the civil action arises. The same would hold true if the civil trial were first. Finally, note that separate sovereigns can try a defendant for the same offense. Accordingly, a person may be tried for the same conduct by both the state and federal government, or by two separate states.

Criminal Law: Solicitation/Attempt/Conspiracy Question

2011-12-27T17:51:00.000-08:00

The following question was asked in the comments of the blog:

Does solicitation merge with attempt? If the person solicited attempts the crime, then both the solicitor and the one solicited can be found guilty of attempt. But would they be charged and/or found guilty of just attempt or both solicitation and attempt? Is the person solicited liable for solicitation if he agrees to do it? Or once the person asked agrees, are they both liable for conspiracy and not solicitation, because solicitation merges with conspiracy? And if there is an agreement, could they be liable for conspiracy and attempt if at least one of them took a aubstantial step to attempt/complete the crime?

Answer:

Let's take this question one point at a time:

Does solicitation merge with attempt? If the person solicited attempts the crime, then both the solicitor and the one solicited can be found guilty of attempt. But would they be charged and/or found guilty of just attempt or both solicitation and attempt?

Let's assume that A solicits B to commit a murder, and though B does not complete the crime, he fulfills the elements of attempted murder. Solicitation merges with attempted murder and both A and B can be found liable for attempted murder. The solicitor, could not, however, be punished for both the solicitation and attempt due to the doctrine of merger.

Is the person solicited liable for solicitation if he agrees to do it? Or once the person asked agrees, are they both liable for conspiracy and not solicitation, because solicitation merges with conspiracy?

The person solicited would never be liable for solicitation, as that crime is specific to the person soliciting (ie, the solicitor). Once the solicited person agrees with the solicitor to commit the crime, both can be liable for conspiracy, as the solicitation merges with the crime of conspiracy.

And if there is an agreement, could they be liable for conspiracy and attempt if at least one of them took a aubstantial step to attempt/complete the crime?

Yes, and this would be analyzed under conspiracy, rather than solicitation. As explained above, both can be liable for conspiracy once there has been an agreement (assuming all elements of conspiracy have been satisfied). Co-conspirators can be held liable for crimes committed by other co-conspirators if the crimes were committed in furtherance of the conspiracy, and were foreseeable. So, assuming that one of the co-conspirators is liable for attempt, provided the crime attempted was in furtherance of the conspiracy, and that the crime was a foreseeable result of the conspiracy, both conspirators can be liable for attempt.

Criminal Law: Larceny Question

2011-12-27T17:23:00.000-08:00

The following question was asked in the comments of a post on the blog:

If someone decides to steal something, (i.e a purse in a store, a friend's wallet fallen out of her purse,) picks it up, conceals it in her own belongings, carries it a short distance, but then changes her mind and puts the item back roughly where she found it, is that larcency?

Answer:

First, the elements of larceny are: A taking/and carrying away/of tangible personal property/of another/by trespass/with intent to permanently deprive the person of his/her interest in the property.

What we have here is a taking, and carrying away (the short distance is absolutely enough, even a few steps would be enough), of tangible personal property (wallet, purse, etc), of another, by trespass (permission was not given to take the item), with intent to permanently deprive (at the time the person took the item, the person intended to keep it). We are told that the person changes her mind, a fact that is irrelevant if at the time that the person took the item, she intended to permanently deprive the other of his property, and then later decided to bring it back. Larceny would still result.

But, if, on the other hand, the person had taken the purse only to look through it, and then immediately return it to the owner, there could be no larceny, as the intent to permanently deprive would be lacking.

Also note, that if A takes an item from B (with the knowledge that A is not rightfully in possession of the property) intends to return it, and then later changes her mind and decides to keep it, though there can be no larceny (there was no intent to permanently deprive at the time the item was taken,) you should analyze it under a "continuing trespass" situation.

MBE Fast Fact: Torts

2011-12-24T13:23:00.001-08:00

The most common area of strict liability tested on the MBE is strict products liability. You should, however, be prepared for other areas, such as strict liability for the damages caused by wild animals. The general rule is that an owner of a wild animal is strictly liable to invitees and licensees (but not trespassers) for the injuries caused by the wild animals. You'll want to ensure that the injured person did nothing to bring about the injury. If he did, you should consider assumption of risk, which is generally a valid defense to an action in strict liability. In contrast, an owner is not strictly liable for injuries caused by domesticated animals, unless that owner had knowledge of that particular animal's dangerous propensities that are not common to that particular species. (This is sometimes stated with the maxim that "every dog is entitled to one bite.")

Torts: Defamation

2011-12-19T19:00:00.000-08:00

Effectively answering a Defamation issue, both on the MBE, and on the essay section of a bar exam, requires a very structured approach. This post will outline my advice for doing so:

A first step in analyzing an issue of Defamation is to determine whether the statement claimed to be defamatory is of a public or private concern. This is an initial consideration, because if the issue is of private concern, then common law defamation applies, and the only elements that plaintiff needs to prove are (1): defamatory language; (2): of or concerning the plaintiff; (3): publication thereof by defendant; and (4): damages to plaintiff's reputation. Importantly, there is no need for plaintiff to prove that the statement was false (rather, defendant will have to prove that the statement was true), and fault on the part of defendant need not be proven.

If, on the other hand, the matter is one of public concern, then, in addition to the four elements outlined above, plaintiff must prove that the statement claimed as defamatory is false, and that the defendant was at fault in making the statement.

If you are dealing with a matter of public concern, then next, you'll want to determine the extent of fault that plaintiff must prove. That question is answered by determining whether the plaintiff is a public or private figure. A public figure (one who has achieved pervasive fame or notoriety or has voluntarily assumed a central role in a particular public controversy) must prove actual malice, (that defendant made a false statement with knowledge that the statement was false, or with reckless disregard for the truth of the statement.) A private figure only needs to prove negligence, or that defendant made a false statement that a reasonable person would not have made.

One final point to keep in mind is that although a private figure in a matter of public concern only needs to prove negligence, by doing so that private figure will only be able to recover damages for actual injury. If, however, the private figure proves actual malice (which is generally only required of public figures), that private figure can recover presumed damages (as opposed to only damages for actual injury) as well as punitive damages. In other words, it's a good idea for a private figure plaintiff to prove actual malice, even though not required, if defendant made the defamatory statement with actual malice.

MBE Fast Fact: Evidence

2011-12-15T15:14:00.001-08:00

An attorney can impeach a witness on "specific instances of misconduct" that the witness has committed even if that act has not led to a conviction. There are requirements for this type of impeachment, the most important of which is that the prior bad act has to bear on the witness's truthfulness. So, for example, an attorney can ask a witness whether it's true that the witness was fired from his last job because he embezzled money (embezzling money bears on the witness's truthfulness), but an attorney would not be permitted to ask the witness whether he was fired from his last job for assaulting a customer (assault does not bear on truthfulness). If the witness has been convicted of assault, then the question might come in instead to impeach on prior conviction, which has a separate set of requirements. One last thing to note about impeaching on specific instances of misconduct: these questions are only allowed on cross examination, and, as such, extrinsic evidence is not allowed.

MBE Fast Fact: Constitutional Law

2011-12-11T19:45:00.001-08:00

The rules regarding alienage, as they relate to the the 14th Amendment Equal Protection Clause can get confusing, especially in regards to the differences between the state and federal government. The relevant rules to remember are as follows: First, alienage is a suspect classification, so that, in general, if a state passes a law that discriminates against legal or resident aliens, strict scrutiny will apply. The law will only be upheld if the law is necessary to achieve a compelling government interest. In addition, the state government will have the burden of proving that the strict scrutiny standard has been satisfied. There are exceptions, however. If a state law discriminates against alien participation in state government, or for certain non-elective offices such as police officers or probation officers, the rational basis test, rather than strict scrutiny, applies. The law is constitutional if it is rationally related to a legitimate government interest. This is, of course, a much easier standard to satisfy. You should also note that strict scrutiny does not apply to undocumented (ie, illegal) aliens. The test for a law that discriminates against undocumented aliens is the rational basis test. The only exception is that a law discriminating against undocumented alien children which prevents them from obtaining public education will be subject to the higher standard of strict scrutiny in determining whether that law is valid. Finally, note that all of the above applies only to laws passed by the state government. Because of Congress's plenary power over aliens, federal alienage classifications are not subject to strict scrutiny, and will be valid provided the laws are not arbitrary and unreasonable.

MBE Fast Fact: Criminal Law

2011-12-08T15:39:00.001-08:00

The distinction between larceny by trick and false pretenses is a subtle one. Both crimes require the taking of personal property from another by an intentional false statement of past or existing fact, with the intent to defraud the other. The distinction is based entirely on exactly what is received due to the fraud. False pretenses requires that title to the property is obtained, while larceny by trick requires that mere possession of the property is obtained. These subtle distinctions are exactly the type so often tested on the MBE, and generally the fact that provides the key information will be hidden somewhere within a rather long fact pattern. As an aside, the crime of larceny can be distinguished from the crime of larceny by trick in that larceny does not require a misrepresentation and usually occurs when one takes the property from another. In larceny by trick, however, the property is given to another as a result of the other's misrepresentation.