Thank you to all who have participated in the question of the day posting, and good luck to all who are sitting for a February exam.  Question of the day will be back in June to prepare for the July exam.  So, we’ll end here with an ever-popular evidence question:

The defendant was charged with the crime of assaulting the victim. While the defendant admitted striking the victim, he claimed to have acted in self-defense when he was attacked by the victim, who was drunk and belligerent after a football game.

As a part of the prosecution’s case in chief, the state’s attorney sought to introduce testimony that, 30 minutes prior to the altercation with the victim, the defendant had ordered a hot dog at a concession stand and had run into the crowd without paying for it.

The trial judge should rule this testimony:

A.  Admissible, because it tends to show the defendant’s propensity to commit unlawful acts.

B.  Admissible, because the prior incident was so close in time and place to the act for which the defendant was charged as to be relevant to the defendant’s motive and intent in striking the victim.

C.  Inadmissible, because it is irrelevant unless there was a showing that the defendant had been charged with a crime arising out of the prior incident.

D.  Inadmissible, because proof of such unlawful acts is not allowed on the issue of the defendant’s guilt of the assault charged.

A state statute provides “It shall be unlawful to sell alcoholic beverages to any person under twenty-one (21) years of age,” and imposes a fine of $1,000 for violation of the statute. The state courts have interpreted the statute as creating strict liability.
The regional manager of a retail package store chose a manager for the store. She delegated all decision making concerning operations to him.

The store manager hired a clerk to sell liquor during the afternoon shift. He told her to check the identification of all prospective purchasers and to refuse to sell to anyone under age 21. One afternoon a customer, who was 18-years old but looked older, purchased a bottle of scotch without showing any identification. An inspector from the state liquor commission was watching the store and, by checking the customer’s age, established a violation of the statute. The regional manager was convicted by the trial court of violating the statute and has appealed on the ground that her conviction would violate the U.S. Constitution.

The appellate court should:

A.  Uphold the conviction, because regulatory offenses are not subject to due process limitations.

B.  Uphold the conviction, because she was in a position to exercise control over the sale of liquor by store.

C.  Reverse the conviction, because it is a violation of due process to punish without a voluntary act.

D.  Reverse the conviction, because criminal liability is personal and the store is the seller, not the regional manager.

A husband and his wife had been married for 30 years and had one adult son. The husband and the wife agreed that each would make a will leaving his or her entire estate to the other, and in the event that one predeceased the other, the entire estate, including any inheritance received from the other spouse, would be left to the son. The husband, the wife, and the son visited a lawyer, who prepared wills for the husband and the wife which carried out their testamentary intentions. The lawyer also prepared an agreement which was signed by the husband and the wife in which each promised not to change the alternative testamentary disposition benefiting the son. The son, who was present during the execution of the documents, was asked by the husband and the wife if he agreed to the estate plan. He replied “yes.”

Shortly thereafter, the wife died. After collecting his distribution of the estate, the husband moved in to live with his high school sweetheart. The husband then made a new will leaving his entire estate to his high school sweetheart.

If a bank, as the executor of the wife’s estate, learns of the husband’s new will and sues the husband, the bank will:

A.  Recover nothing, because the estate has suffered no damage.

B.  Recover damages in the amount of the wife’s estate which was paid over to the husband.

C.  Obtain no relief at that time, but a constructive trust may be imposed on the husband’s estate if he dies and fails to perform his agreement with the wife.

D.  Recover nothing, because the estate is not a proper plaintiff.

Illinois required that all trucks operating on its highways be equipped with a type “N” mudguard. The United States Supreme Court held the Illinois statute unconstitutional. Ohio has a statute which requires all trucks operating on its highways to be equipped with a type “X” mudguard. All other states permit either a type “N” or “X” mudguard. Congress has passed no legislation on the subject.

If Congress should pass legislation requiring that all trucks be equipped exclusively with type “X” mudguards, and that legislation is challenged, the most likely result would be:

A.  The act would be upheld under the power to regulate commerce between the states.

B.  The act would be upheld pursuant to the Commerce Clause only if the court finds that the present scheme of regulation is a substantial burden on commerce.

C.  The act would be held unconstitutional, because most states authorize type “N” mudguards.

D.  The act would be held unconstitutional, because Congress cannot interfere with the states’ police power right to regulate the roads that belong to the states.

Plaintiff, a jockey, was seriously injured in a race when another jockey, Daring, cut too sharply in front of her without adequate clearance. The two horses collided, causing Plaintiff to fall to the ground, sustaining injury. The State Racetrack Commission ruled that, by cutting in too sharply, Daring committed a foul in violation of racetrack rules requiring adequate clearance for crossing lanes. Plaintiff has brought an action against Daring for damages in which one count is based on battery.

Will Plaintiff prevail on the battery claim?

A.  Yes, if Daring was reckless in cutting across in front of Plaintiff’s horse.

B.  Yes, because the State Racetrack Commission determined that Daring committed a foul in violation of rules applicable to racing.

C.  No, unless Daring intended to cause impermissible contact between the two horses or apprehension of such contact by Plaintiff.

D.  No, because Plaintiff assumed the risk of accidental injury inherent in riding as a jockey in a horse race.

A landowner owned a large estate, which contained a small lake, in a Southern state. There was an island in the middle of the lake. Each day, a prominent married politician and her lover would swim to the island in a very surreptitious manner, and they make love in a small shelter which they had constructed on the island. Although they thought that their activity went unnoticed, the landowner observed them one day after they first went to the island, and made it a point to watch them at regular intervals thereafter. Twenty-one years after the politician and her lover had constructed their shelter on the island, the politician was turned out of office by the voters. She thereupon divorced her husband, married her lover, and claimed ownership of the shelter on the island.

In an action to establish title, the politician should:

A.  Prevail, because her possession was open and notorious, even though she did not know that the landowner was aware of her activity.

B.  Not prevail, because her possession was not open and notorious.

C.  Not prevail, because she had unclean hands.

D.  Not prevail, because her use was permissive.

Phillips bought a new rifle and wanted to try it out by doing some target shooting. He went out into the country to an area where he had previously hunted. Much to his surprise, he noticed that the area beyond a clearing contained several newly constructed houses that had not been there before. Between the houses there was a small playground where several children were playing. Nevertheless, Phillips nailed a paper target to a tree and went to a point where the tree was between himself and the playground. He then fired several shots at the target. One of the shots missed the target and the tree and hit and killed one of the children in the playground.

Phillips was convicted of murder. He appealed, contending that the evidence was not sufficient to support a conviction of murder.

The appellate court should:

A.  Affirm the conviction, as the evidence is sufficient to support a conviction of murder.

B.  Reverse the conviction and remand for a new trial, because the evidence is not sufficient for murder but will support a conviction of voluntary manslaughter.

C.  Reverse the conviction and remand for a new trial, because the evidence is not sufficient for murder but will support a conviction of involuntary manslaughter.

D.  Reverse the conviction and order the case dismissed, because the evidence is sufficient only for a finding of negligence and negligence alone cannot support a criminal conviction.

A man and a woman, who are not married to each other, own a parcel of land as joint tenants with rights of survivorship. The man wants to improve the land by borrowing money and giving a mortgage on the man’s and the woman’s interest in the land to secure the obligation.

If the man brings a petition in a court of competent jurisdiction for authority to encumber the land to the extent necessary to finance the improvement:

 A.  The petition will be denied.

B.  The petition will be granted.

C.  The issue cannot be resolved without a preliminary determination of whether the mortgage will unreasonably encumber the woman’s interest in the property.

D.  The issue cannot be resolved without a preliminary determination of whether the land can be used economically in its present state.

Ronan is the leader of a religious cult in Gotham City. He holds a weekly “service” in the public park and, during his sermon, uses insulting expletives directed at persons in his audience who are not members of the cult. The audience has become boisterous and several times fights have almost broken out between members of the audience and members of the cult. After a particularly boisterous rally, the attorney for the city of Gotham obtained an ex parte injunction prohibiting Ronan from conducting any further rallies “which tend to disturb or annoy the average member of the community.” If challenged on appeal, a judge would find the injunction:

A.  Valid, because the threats of imminent violence justify the injunction.

B.  Invalid, because the injunction is overly broad and vague.

C.  Invalid, because the injunction was obtained in a manner which violates procedural due process.

D.  Invalid for the reasons set forth in B & C.

The plaintiff is suing the defendant, a used boat dealer, as a result of the purchase by the plaintiff of a used boat from the defendant. The boat stopped running one week after the plaintiff purchased it. The plaintiff seeks damages because of fraudulent representations made to him and for breach of warranty.

The defendant testified that the plaintiff never asked for a warranty. In rebuttal, the plaintiff called his coworker, who was with the plaintiff just before he went down to the defendant’s yard to purchase the boat. The coworker proposes to testify that the plaintiff said, just as he was leaving, that he would never buy a used boat without a warranty.

If the defendant objects to the proposed testimony, the trial judge should rule that it is:

A.  Admissible to show that the plaintiff was cautious.

B.  Admissible to show that the plaintiff demanded a warranty.

C.  Inadmissible as hearsay, not within an exception.

D.  Inadmissible because of the parol evidence rule.