[Criminal Procedure]
Bank was robbed at 1 p.m. by a man who brandished a shotgun and spoke with a distinctive accent. The teller gave the robber packets of marked currency, which the robber put into a briefcase. At 3:30 p.m., the police received a telephone call from an anonymous caller who described a man standing at a particular corner in the downtown business district and said the man was carrying a sawed-off shotgun in a briefcase. Within minutes, a police officer who had been informed about the robbery and the telephone call observed Dave holding a briefcase at that location. Dave fit the description given by the anonymous caller.
The officer approached Dave with his service revolver drawn but pointed at the ground. He explained the reason for his approach, handcuffed Dave, and opened the briefcase. The briefcase contained only the marked currency taken in the bank robbery. The officer said to Dave: “I know you’re the one who robbed the bank. Where’s the shotgun?” Dave then pointed to a nearby trash container in which he had concealed the shotgun, saying: “I knew all along that I’d be caught.”
Dave was charged with robbery. He has chosen not to testify at trial. He has, however, moved to be allowed to read aloud a newspaper article, to be selected by the judge, without being sworn as a witness or subjected to cross-examination, in order to demonstrate that he has no accent. He has also moved to exclude from evidence the money found in the briefcase, his statement to the officer, and the shotgun.
How should the court rule on Dave’s motions regarding the following items, and on what theory or theories should it rest:
1. Dave’s reading aloud of a newspaper article? Discuss.
2. The currency? Discuss.
3. Dave’s statement to the officer? Discuss.
4. The shotgun? Discuss.
Answer
[Community Property]
In 1989, Herb and Wendy married while domiciled in Montana, a non-community property state. Prior to the marriage, Wendy had borrowed $25,000 from a Montana bank and had executed a promissory note in that amount in favor of the bank. Herb and Wendy, using savings from their salaries during their marriage, bought a residence, and took title to the residence as tenants in common.
In 1998, Herb and Wendy moved to California and became domiciled here. They did not sell their Montana house.
In 1999, Herb began having an affair with Ann. Herb told Ann that he intended to divorce Wendy and marry her (Ann), and suggested that they live together until dissolution proceedings were concluded. Ann agreed, and Herb moved in with her. Herb told Wendy that he was going to move into his own apartment because he “needed some space.” Ann assumed Herb’s last name, and Herb introduced her to his friends as his wife. Herb and Ann bought an automobile with a loan. They listed themselves as husband and wife on the loan application, and took title as husband and wife. Herb paid off the automobile loan out of his earnings.
In the meantime, Herb continued to spend occasional weekends with Wendy, who was unaware of Herb’s relationship with Ann. Wendy urged Herb to consult a marriage counselor with her, which he did, but Herb did not disclose his relationship with Ann.
In 2003, Wendy and Ann learned the facts set forth in the preceding paragraphs. Wendy promptly filed a petition for dissolution of marriage, asserting a 50% interest in the Montana house and in the automobile. At the time of filing, the Montana bank was demanding payment of $8,000 as the past-due balance on Wendy’s promissory note which has been reduced to a judgment. Also at the time of filing, Ann had a $15,000 bank account in her name alone, comprised solely of her earnings while she was living with Herb.
1. What rights do Herb, Wendy, and Ann each have in:
• The residence in Montana? Discuss.
• The automobile? Discuss.
• The $15,000 bank account? Discuss.
2. What property may the Montana bank reach to satisfy the past-due balance on Wendy’s promissory note? Discuss.
Answer according to California law.
Answer
[Professional Responsibility]
Two years ago, Lawyer represented Sis in her divorce. Last week, Sis made an appointment with Lawyer to assist her father, Dad, with an estate plan.
Sis brought Dad to Lawyer’s office. Dad was 80 years old, a widower, and competent. In Sis’s presence, Dad told Lawyer he wanted to create a will leaving everything he owned to his three adult children, Sis, Bob, and Chuck, in equal shares. Dad’s assets consisted of several bank accounts, which he held in joint tenancy with Sis, and his home, which he held in his name alone. Sis then asked Dad whether he wanted to do something special about his house. Dad thanked Sis for asking, and told Lawyer that he wanted Lawyer to draft a deed that would place his house in joint tenancy with Sis.
At the conclusion of the meeting, Lawyer told Sis and Dad that his customary fee was $750 for drafting such a will and deed. Sis gave Lawyer a check for $750 in payment drawn on her personal account. Lawyer then drafted the will and deed as directed.
What ethical violations has Lawyer committed, and what should Lawyer have done to avoid those violations? Discuss.
Answer
[Real Property]
Lori owns a small shopping center. In April 1999, Lori leased a store to Tony. Under the lease Tony agreed to pay Lori a monthly fixed rent of $500, plus a percentage of the gross revenue from the store. The lease term was five years. In part the lease provides:
Landlord and Tenant agree for themselves and their successors and assigns: * * *
4. Tenant has the right to renew this lease for an additional term of five years, on the same terms, by giving Landlord written notice during the last year of the lease.
5. Tenant will operate a gift and greeting-card store only. Landlord will not allow any other gift or greeting-card store in the center.
* * * In July 2000, Tony transferred his interest in the lease in writing to Ann. Ann continued to operate the store and pay rent.
In February 2003, a drugstore in the shopping center put in a small rack of greeting cards. Ann promptly complained, but Lori did nothing.
Beginning in March 2003, Ann stopped paying the percentage rent, but continued to pay the fixed rent alone. Lori took no action except to send a letter in April 2003 requesting payment of the percentage rent that was due.
In January 2004, Ann sent a letter to Lori requesting that Lori renew the lease according to its terms. Lori denied that she had any obligation to renew.
1. Is Ann entitled to a renewal of the lease? Discuss.
2. Is Lori entitled to the past-due percentage rent from:
a. Ann? Discuss.
b. Tony? Discuss.
Answer
[Constitutional Law]
The National Highway Transportation and Safety Administration (NHTSA), a federal agency, after appropriate hearings and investigation, made the following finding of fact: “The NHTSA finds that, while motor vehicle radar detectors have some beneficial purpose in keeping drivers alert to the speed of their vehicles, most are used to avoid highway speed-control traps and lawful apprehension by law enforcement officials for violations of speed-control laws.” On the basis of this finding, the NHTSA promulgated regulations banning the use of radar detectors in trucks with a gross weight of five tons or more on all roads and highways within the United States.
State X subsequently enacted a statute prohibiting the use of radar detectors in any motor vehicle on any road or highway within State X. The State X Highway Department (Department) enforces the statute.
The American Car Association (ACA) is an association comprised of automobile motorists residing throughout the United States. One of ACA’s purposes is to promote free and unimpeded automobile travel. ACA has received numerous complaints about the State X statute from its members who drive vehicles there.
In response to such complaints, ACA has filed suit against the Department in federal district court in State X, seeking a declaration that the State X statute is invalid under the Commerce Clause and the Supremacy Clause of the United States Constitution. The Department has moved to dismiss ACA’s complaint on the ground that ACA lacks standing.
1. How should the court rule on the Department’s motion to dismiss on the ground of ACA’s lack of standing? Discuss.
2. On the assumption that ACA has standing, how should the court decide ACA’s claim that the State X statute is invalid under the Commerce Clause and the Supremacy Clause of the United States Constitution? Discuss.
[Civil Procedure]
Paul and Tom, both State X residents, were involved in an auto accident in State X. At the time of the accident, Tom, who was working as a delivery truck driver for Danco, was driving through State X to make a delivery to a customer located in State Y. Danco is incorporated in State Y and has its principal place of business in State Z. State Z is located adjacent to State X. Danco does no business in State X.
Paul filed a complaint against Danco in federal district court in State X on the basis of diversity jurisdiction, alleging $70,000 in property and personal injury damages. Danco was properly served with the complaint at its principal place of business.
Appearing specially in the State X federal district court, Danco filed a motion to dismiss the complaint on the grounds that the district court lacked both subject matter and personal jurisdiction and that Paul’s action could not proceed without joining Tom. The district court denied Danco’s motion.
Danco then filed a counterclaim against Paul to recover $20,000 in property damage to the truck Tom was driving at the time of the accident. Paul moved to dismiss Danco’s counterclaim on the ground that the district court lacked supplemental jurisdiction to hear the counterclaim. The district court granted Paul’s motion.
State X law provides that its courts may exercise jurisdiction over nonresidents “on any basis not inconsistent with the Constitution of the United States.”
1.Did the district court rule correctly on Danco’s motion to dismiss Paul’s complaint? Discuss.
2.Did the district court rule correctly on Paul’s motion to dismiss Danco’s counterclaim? Discuss.
Answer
[Criminal Law] [Criminal Procedure]
On August 1, 2002, Dan, Art, and Bert entered Vince’s Convenience Store. Dan and Art pointed guns at Vince as Bert removed $750 from the cash register. As Dan, Art, and Bert were running toward Bert’s car, Vince came out of the store with a gun, called to them to stop, and when they did not do so, fired one shot at them. The shot hit and killed Art. Dan and Bert got into Bert’s car and fled.
Dan and Bert drove to Chuck’s house where they decided to divide the $750. When Chuck said he would tell the police about the robbery if they did not give him part of the money, Bert gave him $150. Dan asked Bert for $300 of the remaining $600, but Bert claimed he, Bert, should get $500 because his car had been used in the robbery. Dan became enraged and shot and killed Bert. He then decided to take all of the remaining $600 for himself and removed the money from Bert’s pocket.
On August 2, 2002, Dan was arrested, formally charged with murder and robbery, arraigned, and denied bail. Subsequently, the court denied Dan’s request that trial be set for October 15, 2002, and scheduled the trial to begin on January 5, 2003. On January 3, 2003, the court granted, over Dan’s objection, the prosecutor’s request to continue the trial to September 1, 2003, because the prosecutor had scheduled a vacation cruise, a statewide meeting of prosecuting attorneys, and several legal education courses. On September 2, 2003, Dan moved to dismiss the charges for violation of his right to a speedy trial under the United States Constitution.
1. May Dan properly be convicted of either first degree or second degree murder, and, if so, on what theory or theories, for:
. The death of Art? Discuss.
. The death of Bert? Discuss.
1. May Chuck properly be convicted of any crimes, and, if so, of what crime or crimes? Discuss.
2.How should the court rule on Dan’s motion to dismiss? Discuss.
Answer
[Constitutional law]
State X amended its anti-loitering statute by adding a new section 4, which reads as follows:
A person is guilty of loitering when the person loiters, remains, or wanders about in a public place, or on that part of private property that is open to the public, for the purpose of begging.
Alice, Bob, and Mac were separately convicted in a State X court of violating section 4.
Alice was convicted of loitering for the purpose of begging on a sidewalk located outside the City’s Public Center for the Performing Arts in violation of section 4.
Bob was convicted of loitering for the purpose of begging on a waiting platform at a stop on City’s subway system in violation of section 4.
Mac was convicted of loitering for the purpose of begging in the lobby of the privately owned Downtown Lawyers Building located in the business district of City in violation of section 4.
Alice, Bob, and Mac have each appealed their convictions, and their appeals have been consolidated in the State X appellate court. It has been stipulated that Alice, Bob, and Mac are indigent, that section 4 is not void for vagueness, and that the only issue on appeal concerns the validity of section 4 under the First Amendment to the United States Constitution.
How should the appellate court decide the three appeals, and why? Discuss.
Answer
[Wills] [Trusts]
Hank, an avid skier, lived in State X with his daughter, Ann. Hank’s first wife, Ann’s mother, had died several years earlier.
In 1996, Hank married Wanda, his second wife. Thereafter, while still domiciled in State X, Hank executed a will that established a trust and left “five percent of my estate to Trustee, to be paid in approximately equal installments over the ten years following my death to the person who went skiing with me most often during the 12 months preceding my death.” The will did not name a trustee. The will left all of the rest of Hank’s estate to Wanda if she survived him. The will did not mention Ann. Wanda was one of two witnesses to the will. Under the law of State X, a will witnessed by a beneficiary is invalid.
In 1998, Hank and his family moved permanently to California. Hank then legally adopted Carl, Wanda’s minor son by a prior marriage.
In 2001, Hank completely gave up skiing because of a serious injury to his leg and took up fishing instead. He went on numerous fishing trips over the next two years with a fellow avid fisherman, Fred.
In 2003, Hank died.
In probate proceedings, Wanda claims Hank’s entire estate under the will; Ann and Carl each claim he or she is entitled to an intestate share of the estate; and Fred claims that the court should apply the doctrine of cy pres to make him the beneficiary of the trust.
1. Under California law, how should the court rule on:
. Wanda’s claim? Discuss.
. Ann’s claim? Discuss.
. Carl’s claim? Discuss.
[Evidence]
Victor had been dating Daniel’s estranged wife, Wilma. Several days after seeing Victor and Wilma together, Daniel asked Victor to help him work on his pickup truck at a nearby garage. While working under the truck, Victor saw Daniel nearby. Then Victor felt gasoline splash onto his upper body. He saw a flash and the gasoline ignited. He suffered second-and third-degree burns. At the hospital, he talked to a police detective, who immediately thereafter searched the garage and found a cigarette lighter. Daniel was charged with attempted murder. At a jury trial, the following occurred:
a. Tom, an acquaintance of Daniel, testified for the prosecution that Daniel had complained to Tom that Victor had “burned” him several times and stated that he (Daniel) would “burn him one of these days.”
b. Victor testified for the prosecution that, while Victor was trying to douse the flames, Daniel laughed at him and ran out of the garage.
c. At the request of the prosecutor, the judge took judicial notice of the properties of gasoline and its potential to cause serious bodily injury or death when placed on the body and ignited.
In his defense, Daniel testified that he was carrying a gasoline container, tripped, and spilled its contents. He denied possessing the lighter, and said that the fire must have started by accident. He said that he ran out of the garage because the flames frightened him.
d. On cross-examination, the prosecutor asked Daniel, “Isn’t it true that the lighter found at the garage had your initials on it?” The prosecutor urged the jury to consider the improbability of Daniel’s claim that he had accidentally spilled the gasoline.
e. During a break in deliberations, one juror commented to the other jurors on the low clearance under a pickup truck parked down the street from the courthouse. The juror measured the clearance with a piece of paper. Back in the jury room, the jurors tried to see whether Daniel could have spilled the gasoline in the way he claimed. One juror crouched under a table and another held a cup of water while simulating a fall. After the experiment, five jurors changed their votes and the jury returned a verdict of guilty.
Assume that, in each instance, all appropriate objections were made.
1. Should the court have admitted the evidence in item a? Discuss.
2. Should the court have admitted the evidence in item b? Discuss.
3. Should the court have taken judicial notice as requested in item c? Discuss.
4. Should the court have allowed the question asked in item d? Discuss.
5. Was the jury’s conduct described in item e proper? Discuss.
Answer
[Professional Responsibility]
After working for ten years as a deputy district attorney, Lawyer decided to open her own law practice and represent plaintiffs in personal injury actions. In order to attract clients, Lawyer asked her friends and family to “pass the word around that I have opened a solo practice specializing in personal injury law.”
Lawyer’s brother, Bert, works as an emergency room admitting clerk at a local hospital. Whenever he admits patients who appear to be victims of another’s wrongdoing, Bert gives them Lawyer’s business card and suggests that they talk to her about filing a lawsuit. Each time Lawyer is retained by someone referred by Bert, Lawyer takes Bert out to lunch and gives him $500.
One such referral is Paul, who suffered head injuries when struck by a piece of heavy equipment on a construction site at Dinoworld, a local amusement park. Recently Lawyer filed a personal injury action on Paul’s behalf against Dinoworld. Dinoworld’s attorney immediately filed an answer to the complaint. Lawyer and Dinoworld’s attorney agreed to set the deposition of the Chief Financial Officer (CFO) of Dinoworld within the next ninety days.
Lawyer’s brother-in-law holds an annual pass to Dinoworld. Two weeks ago, he invited Lawyer to a special “passholders-only” event at Dinoworld, at which Dinoworld’s CFO led a tour and made a presentation. At the event, Lawyer declined to wear a name tag and avoided introducing herself. She asked CFO several questions about Dinoworld’s finances, and made some notes about his responses.
What ethical duties, if any, has Lawyer breached? Discuss.
Answer
[Torts]
Jack owned the world’s largest uncut diamond, the “Star,” worth $1 million uncut, but $3 million if cut into finished gems. Of the 20 master diamond cutters in the world, 19 declined to undertake the task because of the degree of difficulty. One mistake would shatter the Star into worthless fragments.
One master diamond cutter, Chip, studied the Star and agreed with Jack in writing to cut the Star for $100,000, payable upon successful completion. As Chip was crossing the street to enter Jack’s premises to cut the Star, Chip was knocked down by a slow moving car driven by Wilbur. Wilbur had driven through a red light and did not see Chip, who was crossing with the light. Chip suffered a gash on his leg, which bled profusely. Though an ordinary person would have recovered easily, Chip was a hemophiliac (uncontrollable bleeder) and died as a result of the injury. Chip left a widow, Melinda.
Jack, who still has the uncut Star, engaged Lawyer to sue Wilbur in negligence for the $2 million difference between the value of the diamond as cut and as uncut. Lawyer allowed the applicable statute of limitations to expire without filing suit.
1.What claims, if any, may Melinda assert against Wilbur, and what damages, if any, may she recover? Discuss.
2.What claims, if any, may Jack assert against Lawyer, and what damages, if any, may he recover? Discuss.
Answer