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A fee simple owner of a restaurant provided in his will that the property should go on his death "in fee simple to my friend, but if during my friend's lifetime my son has children and those children are alive when my friend dies, then to said living children." When the owner died, the friend took over the restaurant. If the son has children and one or more of them are alive when the friend dies, who will take title to the restaurant at that time? A The friend's heirs, because the attempted gift to the son's children is invalid under the Rule Against Perpetuities. B The son's children, because their interest is not contingent, being a possibility of reverter. C The son's children, because their interest is vested, subject to defeasance. D The son's children, because their interest will vest, if at all, within a life in being plus 21 years. - ✔✔D The son's children, because their interest will vest, if at all, within a life in being plus 21 years. The interest given to the son's children does not violate the Rule Against Perpetuities because the interest will vest, if at all, within 21 years after the life of the friend. Pursuant to the Rule Against Perpetuities, no interest in property is valid unless it must vest, if at all, not later than 21 years after one or more lives in being at the creation of the interest. In the case of a will, the perpetuities period begins to run on the date of the testator's death, and measuring lives used to show the validity of an interest must be in existence at that time. Here, the interest given to any of the son's children who are born during the friend's lifetime and who survive the friend must vest, if at all, on the death of the friend (who is a life in being at the time of the owner's death). Thus, this interest will vest, if it does vest, within 21 years after the friend's life, and is therefore not in violation of the Rule Against Perpetuities. (A) is therefore incorrect; if one or more of the son's children is alive at the time of the friend's death, the friend's heirs will get nothing because their fee simple will be divested. (B) incorrectly characterizes the interest of the son's children as a possibility of reverter. A possibility of reverter is the future interest left in a grantor who conveys a fee simple determinable estate. Although under different circumstances the son's children could acquire a possibility of reverter as heirs of the grantor (the owner), their interest in this case was conveyed directly to them in the owner's will. (C) is incorrect because the interest of the
son's children is not vested. Their interest is a shifting executory interest rather than a remainder because it divests the fee sim A pedestrian walking on the sidewalk was struck by a car backing out of a driveway. The driver did not see the pedestrian because her neighbor's bushes obscured her view of the sidewalk. The pedestrian was seriously injured and brought suit against the driver and the neighbor. The pedestrian also included the city in his lawsuit, alleging that the city failed to enforce its ordinance requiring homeowners to provide a clear view of sidewalks where they intersect with driveways. The trier of fact determined that the driver was 60% at fault, the neighbor was 30% at fault, and the city was 10% at fault. The jurisdiction has adopted comparative contribution in cases applying joint and several liability. Which of the following is a correct statement regarding liability? A The city is liable to the pedestrian for the full amount of the damage award. B Both the driver and the neighbor are liable to the pedestrian for 90% - ✔✔The city is liable to the pedestrian for the full amount of the damage award. A city council passed an ordinance providing: "No person may contribute more than $100 annually to any group organized for the specific purpose of supporting or opposing referenda to be voted on by the city electorate or regularly engaging in such activities." If the ordinance is challenged in federal court, how should the court rule on the constitutionality of this ordinance? A Strike it down, because it violates First Amendment rights of free speech and freedom of association. B Strike it down as a violation of due process, because no hearing mechanism has been provided for. C Uphold it, because the city council has a legitimate interest in controlling such contributions. D Dismiss the case, because it involves a political question and is thus a nonjusticiable matter. - ✔✔Strike it down, because it violates First Amendment rights of free speech and freedom of association.
began appearing on T-shirts, soft drink mugs, and other novelties. The plaintiff filed suit against the studio alleging that the production company unlawfully used his ideas for the movie. The studio admitted that it had received a clay model of a cartoon animal from the plaintiff, but denied that the model had any substantial similarity to the now-famous aardvarks. The studio had returned the model to the plaintiff, but he had destroyed it. For the plaintiff to testify at trial as to the appearance of the model, which of the following is true? A The plaintiff can testify as to the appearance of the model because he has personal knowledge of it. B The plaintiff must show that the destruction of the model was not commi - ✔✔The plaintiff can testify as to the appearance of the model because he has personal knowledge of it. The plaintiff can testify as to the appearance of the model because he has personal knowledge of it. A witness must be competent to testify, which includes the requirement that he have personal knowledge of the matter he is to testify about. Here, the plaintiff has personal knowledge of the model, as he is the person that had submitted it to the studio. Thus, he is competent to testify as to the model's appearance. (B) is wrong because it states the foundation requirement for the admissibility of secondary evidence under the best evidence rule (also called the original document rule), which does not apply under these circumstances. The best evidence rule covers writings and recordings, which are defined as "letters, words, numbers, or their equivalent, set down in any form." A clay model clearly does not fit within that definition. Similarly, (C) states an acceptable form of secondary evidence under the best evidence rule, which does not apply here. Note, however, that under the Federal Rules (unlike most states), there are no degrees of secondary evidence. Therefore, this choice would be wrong even if the best evidence rule were applicable, because the plaintiff would not be limited to photographic evidence. (D) is wrong because it incorrectly assumes that notice must be given. This type of notice is not a prerequisite for the plaintiff's testimony even had the best evidence rule been applicable. While at a party, the defendant ran into an acquaintance. The acquaintance proceeded to ridicule the defendant about his looks. After an hour of verbal abuse by the acquaintance, the defendant suddenly took a champagne bottle that was on a nearby table and struck the acquaintance over the head, killing him instantly. At his arrest, the defendant told the police that voices inside his head told him to shut the acquaintance up, permanently. The defendant was tried in a jurisdiction that follows the Model Penal Code test for insanity. At trial, the defendant's lawyer introduced psychiatric testimony indicating that the defendant suffered from a mental illness.
Which of the following, if proved by the defense, would most likely relieve the defendant of criminal responsibility? A The defendant's actions were a product of his mental illness. B The defendant could not appreciate the criminality of killing the acquainta - ✔✔The defendant could not appreciate the criminality of killing the acquaintance, or he could not conform his conduct to the requirements of the law. The defendant was on trial for murder. The defendant called a witness to testify to an alibi. On cross- examination of the witness, the prosecutor asked, "Weren't you on the jury that acquitted the defendant of another criminal charge?" What is the best reason for sustaining an objection to this question? A The question goes beyond the scope of direct examination. B The probative value of the answer would be substantially outweighed by its tendency to mislead. C The question is a leading question. D Prior jury service in a case involving a party renders the witness incompetent. - ✔✔The probative value of the answer would be substantially outweighed by its tendency to mislead. This question raises several different issues: competency of witnesses, use of leading questions on cross- examination, the proper scope of cross-examination, and the probative value/prejudicial impact balancing test. Through a process of elimination, (B) emerges as the correct answer. (D) is incorrect. Under the Federal Rules, virtually all witnesses with personal knowledge are competent to testify. [Fed. R. Evid. 601] A witness is not rendered incompetent simply by having served on a jury in a prior case involving a party to the current suit. Such prior jury service might render the witness's testimony unpersuasive, but it would not make it inadmissible. (C) is incorrect because ordinarily, leading questions are permitted on cross-examination. [Fed. R. Evid. 611(c)] The prosecutor's question is a leading question, but that is perfectly permissible, especially in a case like this, where the alibi witness is not "friendly" toward the prosecution. (A) is incorrect because cross-examination is generally limited in
of trust, and was prepared to tender $80,000 to do so. The bank insisted that the owner must tender - ✔✔The owner was exercising a statutory power rather than an equitable power. If the owner can compel the bank to accept his offer, it will be because he has a statutory power to redeem the property after the foreclosure sale has occurred. In all states, the equity of redemption provides the borrower with an equitable right, at any time prior to the foreclosure sale, to redeem the land or free it of the mortgage or lien by paying off the amount due or, if an acceleration clause applies, the full balance due. Only about half the states, however, give the borrower a statutory right to redeem for some fixed period after the foreclosure sale has occurred; the amount to be paid is generally the foreclosure sale price, rather than the amount of the original debt. Thus, if the owner can redeem the land for $80,000, it will be based on the jurisdiction's statutory power of redemption. (A) is wrong because the deed of trust is a security interest (similar to a mortgage) to which the revocation rules for trusts do not apply. The deed of trust was created in part to allow the lender to foreclose on the property without going through a judicial foreclosure proceeding. (B) is wrong because, in states that permit a nonjudicial sale with deeds of trust containing a power of sale, the lender may bid at the sale, and in many cases the lender is the sole bidder. (D) is wrong because the prohibition against "clogging the equity of redemption" refers to the rule that a borrower's right to redeem his own mortgage cannot be waived in the instrument itself. Here, there is nothing to indicate that the owner's deed of trust prohibited him from redeeming the property prior to foreclosure. However, it is only through a statutory right of redemption that the owner would be able to redeem the property for $80,000 after the foreclosure sale had occur A state bans the use of disposable diapers to reduce the volume of nonbiodegradable material in its landfills. The ban was a boon for diaper services within the state, but many parents of young children were displeased with the use of conventional diapers. With support from retail establishments that lost business from the disposable diaper ban, a grass roots coalition formed to fight the ban funded a study showing that the trucks and cleaning supplies used by diaper services within the state harmed the environment more than disposable diapers. The coalition and retailers then filed suit seeking to have the ban on disposable diapers declared unconstitutional. If the court strikes down the statute, on which of the following constitutional provisions would its decision most likely be based? A The Equal Protection Clause of the Fourteenth Amendment. B The Due Process Clause. C The Impairment of Contracts Clause.
D - ✔✔B The Due Process Clause. Of the choices presented, the only likely basis to strike down the statute is under the Due Process Clause as a violation of substantive due process. Substantive due process tests the reasonableness of a statute; it prohibits arbitrary governmental action. Under substantive due process, when government action limits a fundamental right, the government must prove that the action is necessary to promote a compelling interest. If a fundamental right is not involved, the challenging party must prove that the act is not rationally related to any legitimate government interest. The retail sale of diapers is not a fundamental right, and so a challenger must prove that there is no rational basis for the statute. Almost any law can be justified under the rational basis standard. The law need not be the best law for accomplishing the government's goal. Thus, even if it is true that the disposable diaper ban causes more pollution than it prevents, because the ban is rationally related to reducing the volume of trash in landfills, the challenge is unlikely to succeed. Nevertheless, none of the other choices states a viable ground for invalidating the statute, and so (B) is the best choice. (A) is wrong because equal protection applies where a statute or governmental action treats similar people in a dissimilar manner (i.e., classifies people), and here there is no classification—under the statute no one can sell disposable diapers for use within the state. Thus, an equal protection argument is not applicable. (C) is wrong because the Impairment of Contracts Clause prohibits only the substantial impairment of existing contracts (and there are exceptions even where there is substantial impairment), and nothing in the facts indicates that forbidding the retail sale of disposable diapers would substantiall An attorney came to work on a Saturday. When he signed in, he was advised by the morning security guard employed by the building management that he must be out of the building by 5 p.m., when it closes. However, he stayed past 5 p.m. to complete a brief that had to be filed on Monday morning. At 5:15 p.m., the afternoon security guard set the locks on all the doors of the building and left. Because she was in a hurry, she did not check the sign-in sheet to make sure that everyone had signed out, contrary to mandatory procedures. When the attorney tried to exit 15 minutes later, he discovered that the doors were all locked and could not be opened from the inside. He used his cell phone to call for help, and a supervisor from the building arrived and let him out shortly thereafter. If the attorney sues the building management for false imprisonment, is he likely to win? A Yes, because the guard acted recklessly by lo - ✔✔C No, because the guard did not know that the attorney was locked in the building. The attorney will lose because the guard did not know that he was still in the building. For false imprisonment, the plaintiff must show (i) an act or omission on the part of the defendant that confines or restrains the plaintiff to a bounded area, (ii) intent on the part of the defendant to confine or restrain the plaintiff, and (iii) causation. Here, because the guard apparently did not know that the attorney was still in the building, she had no intent to confine him when she locked the doors. (A) is incorrect because recklessness is not enough; while the attorney likely has a cause of action for negligence against the guard, and through respondeat superior, the building, his claim is for false imprisonment. For liability for
prohibits the states from treating similarly situated persons differently without sufficient justification. Where a classification does not involve a suspect or quasi-suspect class or a fundamental right, the classification will be upheld as long as it is rationally related to a legitimate gove The defendant is charged with the battery of a bouncer at a local tavern. At the trial, the prosecutor introduces evidence that while the bouncer was attempting to question the defendant about her intoxicated demeanor, the defendant committed a battery on the bouncer. The defendant attempts to defend against the charge on the basis of self-defense, insisting that the bouncer used excessive force in stopping her from entering the tavern. The defendant attempts to introduce into evidence an authenticated copy of the tavern records that show that three patrons had written complaints against the bouncer within the past six months for the use of excessive force. The prosecutor objects on the grounds that the records are inadmissible character evidence. Should the court sustain the objection? A Yes, because the character of a victim can be established only by reputation or opinion evidence. B Yes, because there is no ev - ✔✔A Yes, because the character of a victim can be established only by reputation or opinion evidence. The court should sustain the objection because the records are evidence of specific bad acts. The Federal Rules permit a defendant to introduce evidence of a bad character trait of the alleged victim if it is relevant to the charge or the defense, but limit it to reputation and opinion evidence. Evidence of specific acts of the person in question that demonstrates that person's character is permitted only in a few instances, such as if the acts are relevant to some issue other than disposition to commit the crime charged. Here, no issue is raised by this evidence other than the bouncer's propensity to use excessive force. (A) is therefore correct and (D) is wrong. (B) is wrong because the facts do not have to be identical if evidence of bad acts were otherwise admissible. (C) is wrong; documentary evidence, even if fully authenticated and relevant, may be excluded if it violates a rule of competency, such as the rule for character evidence. Here, the objection should be sustained because the document is improper evidence of a specific bad act. A homeowner and a local builder entered into a written contract that called for the builder to build a second story onto the top of the homeowner's one-story residence. When scheduling conflicts arose, the builder asked the homeowner if they could substitute his buddy, an out-of-town builder who had comparable experience and skills, to perform the local builder's part of the contract. All of the parties agreed to the substitution. Unfortunately, the out-of-town builder made a major blunder that will be quite expensive to correct.
Is the local builder liable to the homeowner for the cost of correcting the defect? A Yes, because the substitution in and of itself does not relieve the local builder of liability on the underlying contract. B Yes, because the local builder did not give any consideration on which to base a release. C No, because the local builder transferred his duties to the out-of-town builder. D No - ✔✔D No, because the local builder was discharged through a novation. The agreement among all of the parties to substitute the out-of-town builder for the local builder operates as a novation which immediately discharged the local builder from any duties he had under the original contract. A novation arises when the parties enter into an agreement to substitute a third party for one of the parties in a contract, releasing the party who was substituted. All parties must agree to the substitution. Here, the facts say that all of the parties agreed that the out-of-town builder would substitute for the local builder. Thus, there was a novation and the local builder was released immediately and is not liable for the out-of-town builder's blunder. (A) states incorrectly that the substitution does not relieve the local builder of liability. If the parties had not all agreed to substitute the out-of-town builder for the local builder, or the facts said that there was merely an assignment of rights and delegation of duties, (A) would reflect the correct result. However, where the parties agree to substitute a new party for an old party, there is a novation that does release the old party. (B) is incorrect because there was consideration to support the release—the local builder implicitly agreed to give up his rights under the original contract, the homeowner implicitly agreed to give up his right to look to the local builder for performance, and the out-of-town builder agreed to perform. (C) is not as good an answer as (D). The mere fact that a contractual duty was transferred does not release the transferor from a duty under the contract. It is only the agreement among the parties to substitute the new party for the old that released the local builder here. A landowner was the owner in fee simple of a tract of land. The landowner conveyed the tract to her neighbor, "for life and then to the first child of my neighbor's only sister who shall reach the age of 21." The sister was unmarried and childless at the time of the conveyance. Five years later, the sister married, and she gave birth to a son the following year. When the son reached the age of 21, he brought an action in ejectment against the neighbor, who is still alive and living on the tract of land. Which of these is the neighbor's best defense against the son's attempt to eject her?
C No, because evidence of the beliefs or opinions of a witness on matters of religion is not admissible to impair credibility. D No, because an attack on the competency of a witness must be made at the time the witness is sworn.
- ✔✔C No, because evidence of the beliefs or opinions of a witness on matters of religion is not admissible to impair credibility. The judge should not require that the witness answer the question because evidence of the religious beliefs of a witness is not admissible to challenge credibility. Lack of religious belief is no longer a basis for excluding a witness. Not only are a person's religious convictions irrelevant in determining the competence of a witness, Federal Rule 610 provides that a witness's religious beliefs or opinions are not admissible to show that the witness's credibility is thereby impaired or enhanced. Thus, (C) is correct and (A) is incorrect. (B) is incorrect. While it is true that the witness could have requested a different type of oath, Rule 610 prohibits this type of question because it would have shown his lack of religious beliefs. (D) is incorrect because, as discussed above, lack of religious belief is no longer a basis for disqualification; thus, this would not constitute an attack on the witness's competency. A local news station broadcast a live interview with a bystander about his views concerning the state of local education. The bystander responded by saying that the principal of his daughter's high school had been embezzling school funds for years. The principal saw the telecast and also recorded it. He sued the owner of the station for defamation. At trial, the principal sought to testify to the defamatory statement made in the interview. Will the principal's testimony likely be held to be admissible? A No, because the testimony would be hearsay not within any exception. B No, because a recording of the interview exists. C Yes, because the statement is being offered to show its effect on the principal. D Yes, because the principal personally saw the interview on television. - ✔✔D Yes, because the principal personally saw the interview on television.
Because the principal had firsthand knowledge that the statement was made, his testimony will be admissible unless there is a specific rule excluding the evidence. Witnesses are generally presumed competent to testify until the contrary is demonstrated. While a witness may not testify to a matter unless evidence is introduced to support a finding that the witness has personal knowledge of the matter, this evidence may consist of the witness's own testimony. (A) is incorrect. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. In a defamation action, evidence of the statement alleged to be defamatory is not hearsay because the evidence is by definition not offered to prove the truth of the matter asserted. It is offered only to show that the actionable statement was made. (B) is incorrect. Because the principal had firsthand knowledge of the event he can testify about the event, even though there might exist a recording that would be better proof of the event. The "best evidence rule" does not apply because the recording is not an essential repository of the facts recorded. (C) is incorrect. Although the statement is not hearsay, it is not being offered to show its effect on the hearer (e.g., knowledge, motive), but rather to show that the statement was made, as explained above. A plaintiff filed a civil action based on negligence against a defendant in federal district court, alleging that the defendant negligently ran a red light at an intersection and collided with the plaintiff's vehicle, causing the plaintiff's injuries. A week after the close of discovery, the plaintiff filed a motion for summary judgment on the issue of whether the defendant was negligent. With the motion, the plaintiff filed (i) his own sworn affidavit, which stated that the traffic signal was green as he entered the intersection, (ii) an affidavit of a witness who was driving the car behind him, which stated that the witness saw the entire incident and that the plaintiff's traffic signal was green as he approached and entered the intersection; and (iii) an affidavit of another witness, which stated that she saw the entire incident and that the defendant's signal had been red for several seconds before the defendant - ✔✔A Grant the motion, because the plaintiff has supported his motion with substantial evidence and the defendant has failed to produce admissible evidence that contradicts the plaintiff's evidence. The court should grant the motion. Summary judgment may be granted if, from the pleadings, affidavits, and discovery materials, it appears that there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. The court may not decide disputed fact issues on a motion for summary judgment; if there is a genuinely disputed material fact (meaning a dispute backed by evidence on both sides of the issue), the case must go to trial. Here, the plaintiff's evidence that the light was green when he entered the intersection has not been contradicted by admissible evidence. The defendant's affidavit essentially does not dispute the color of the light, as the defendant cannot remember what color it was. The pedestrian's testimony constitutes inadmissible hearsay. Thus, there is no material fact in dispute, and the motion should be granted. (Alternatively, the court could delay in ruling on the motion to give the defendant an opportunity to find the unavailable witness who spoke with the pedestrian. However, that is not an answer choice, and it is unclear from the facts whether that witness could even be found.) (B) is not correct, as it would become a matter for the jury to decide if running a yellow light is negligent. (C) is incorrect because the defendant has not produced admissible evidence that contradicts the plaintiff's position. (D) is an incorrect statement of the law. Summary judgment may be granted on an issue as to which the party has the burden of proof.
What is the most serious crime of which the defendant could be convicted? A Murder in the first degree. B Murder in the second degree. C Voluntary manslaughter. D Involuntary manslaughter. - ✔✔B Murder in the second degree. The most serious crime that the defendant would be convicted of is murder in the second degree. The jurisdiction defines murder in the first degree as deliberate premeditated murder, whereas all other types of killings are defined as at common law. Deliberation and premeditation requires some time of cool reflection on the idea of killing. In the instant case, there are no facts indicating that the defendant coolly reflected on the idea of killing. The facts indicate an impulsive killing rather than any type of deliberate, premeditated killing. Furthermore, the facts indicate that the defendant was very intoxicated, which would serve as a basis for reducing the crime to second degree murder. Thus, (A) is incorrect. The state defines murder in the second degree just like common law murder. At common law, murder required malice; i.e., (i) the intent to kill, (ii) the intent to inflict great bodily injury, (iii) reckless indifference to an unjustifiably high risk to human life, or (iv) the intent to commit a felony. Here, the reckless indifference element arguably could be satisfied. By smashing a heavy ashtray over the other patron's head, the defendant unjustifiably disregarded that the blow could be a killing blow. Neither would intoxication be a defense, as there would be no specific intent-to-kill requirement under this type of analysis. (D) is incorrect. Involuntary manslaughter is a killing committed with criminal negligence or during the perpetration of some unlawful act not encompassing a felony for felony murder. Certainly, striking another with a heavy object would constitute criminal negligence sufficient for conviction. However, involuntary manslaughter is a lesser crime than murder in the second degree, and the call of the question asks for the most serious crime of which the The owner of a boat took two friends out on a lake near his home. One of his friends was driving the boat when it struck a partially submerged rock that the owner of the boat had forgotten to tell him about. The owner of the boat and the other passenger were injured; the driver of the boat was not hurt. In a jurisdiction that applies joint and several liability with comparative contribution, the passenger brought suit against both the boat owner and the driver, and the boat owner also sued the driver. The jury determined that the boat owner was 55% at fault and suffered $10,000 in damages, the driver of the boat was 45% at fault, and the injured passenger suffered $100,000 in damages. After entry of
judgment, the boat owner paid the passenger her total damages of $100,000, while the driver of the boat has paid nothing. How much, if anything, can the boat owner recover from the driver? A $45,000, because the drive - ✔✔B $49,500, because the driver was 45% at fault and the boat owner suffered $10,000 in damages. The boat owner can recover $45,000 through comparative contribution for the passenger's claim and $4,500 on his own claim against the driver of the boat. Most comparative negligence states have adopted a comparative contribution system based on the relative fault of the various tortfeasors. Nonpaying tortfeasors who are jointly and severally liable are required to contribute only in proportion to their relative fault. Here, because the jurisdiction retained joint and several liability, the boat owner had to pay the passenger all of her damages. Under comparative contribution rules, the boat owner can obtain contribution from the driver for 45% of that amount, because the driver was 45% at fault. In addition, the boat owner has a direct claim against the driver for his own damages of $10,000, reduced by 55%, the amount of his fault. Thus, the total amount that the boat owner can recover from the driver is $49,500, making (B) correct and (A) incorrect. (C) is incorrect because it reflects traditional contribution rules, in which all tortfeasors were required to pay equal shares regardless of their respective degrees of fault. (D) is incorrect because a tortfeasor who was jointly and severally liable is not precluded from recovering contribution merely because he was more at fault than the other tortfeasors. A seller conveyed her residential city property to a buyer by a general warranty deed. On taking possession of the property, the buyer discovered that the garage of his neighbor encroached six inches onto his property. If the buyer wishes to compel the seller to assist him in a suit against the neighbor, which of the following covenants may he rely on to do so? A Seisin and encumbrances. B Warranty and further assurances.
The effect of the judge's noticing that a car driven from Chicago to Detroit must cross state lines is that the judge will now instruct the jury that it may, but is not required to, accept that fact as conclusively proven. Under the Federal Rules, in a civil case, the court must instruct the jury to accept the judicially noticed fact as conclusive. [Fed. R. Evid. 201(f)] Because this question deals with a prosecution for criminal battery, the applicable rule is that the jury be instructed that the fact that has been judicially noticed may be accepted by it as conclusive, but that the jury is not required to do so. (A) would be correct if this were a civil case. In such an instance, the jury would be instructed to accept as conclusive the judicially noticed fact. This would have the effect of raising an irrebuttable presumption. (B) is incorrect because, in a criminal case, the prosecution has the burden of proving every element of the crime beyond a reasonable doubt. Only the jury can decide, after all of the evidence is in, whether the burden of persuasion is satisfied. (C) is incorrect because the burden of persuasion does not shift from party to party during the course of the trial. The burden of persuasion is never on a criminal defendant. A blacksmith ran a small forge in a tourist attraction depicting village life in the 1800s, and produced small metal trinkets for sale as souvenirs. A tourist came into the forge and started ridiculing the blacksmith, telling him that he was foolish for practicing such an out-of-date trade when modern equipment could produce the same trinkets faster and far more cheaply. Although he maintained a calm demeanor, the blacksmith was enraged by the time the customer finished and headed back out the door. He picked up an anvil and hurled it in the general direction of the customer. The anvil fell harmlessly to the ground after traveling maybe a foot. If the blacksmith is charged with assault, which of the following statements would be most helpful for his defense? A The blacksmith did not succeed in hitting the customer with the anvil, and he knew that it was impossible to do so. B The blacksmith knew that it was impo - ✔✔C The customer did not see the blacksmith throw the anvil, and the blacksmith knew that it was impossible to hit the customer with the anvil. That the customer did not see the blacksmith throw the anvil, and that the blacksmith knew it was impossible to hit the customer with the anvil, would be most helpful to the blacksmith's defense. For purposes of the MBE, an assault is either (i) an attempt to commit a battery, or (ii) the intentional creation, other than by mere words, of a reasonable apprehension in the mind of the victim of imminent bodily harm. The fact that the blacksmith knew that it was impossible to hit the customer with the anvil negates the specific intent to commit a battery that is required for the first type of assault. (If the blacksmith knew that, when he threw the anvil, it was impossible to hit the customer, the blacksmith's conduct was not motivated by the intent to commit a battery against the customer.) The fact that the customer did not see the blacksmith throw the anvil negates the second type of assault because no
apprehension of harm would have been created in the customer if he did not see the blacksmith throw the weight. Because the type of assault is not specified here, (C) is a better choice than (B) or (D) because both types of assaults are negated. Choice (A) is not correct because the fact that the blacksmith failed in his attempt to hit the customer with the anvil establishes only that there was a failure to commit a battery. It does nothing to negate the blacksmith's potential liability for assault/attempted battery. Congress passed legislation banning the hunting of snipe birds within the United States. The range of the snipe is quite limited; they are found primarily in only one state, although they migrate annually to several nearby states. Hunters from throughout the United States have traditionally traveled to the snipe's home state during snipe hunting season, bringing considerable revenue into the state. A state statute allows hunting of snipe during a two-week period in November and charges a $50 license fee for state residents and a $250 fee for hunters from other states. The bag limit is one snipe bird per licensed hunter. Is the state statute allowing snipe hunting valid? A Yes, because states have the right to control their own natural resources and wildlife. B Yes, because the power exercised is reserved to the states by the Tenth Amendment. C No, because of the Supremacy Clause. D No, because of the Commerce Cl - ✔✔C No, because of the Supremacy Clause. The state statute is invalid because of the Supremacy Clause. Under the Clause, if the federal government adopts legislation that it has the power to adopt, the federal legislation is supreme, and a conflicting state law is rendered invalid. The federal law here, banning the hunting of snipe, is within the federal government's power under the Commerce Clause, which gives the government power to regulate anything that might affect interstate commerce. Because the birds themselves are found in a few states, they probably cross state lines. Also, hunters come from out of state and generate revenue in the state, so interstate commerce is involved. The state law directly conflicts with the federal law because it allows hunting of snipe. Therefore, the state law will be held invalid under the Supremacy Clause. (A) is incorrect because, while states do have a limited right to control their natural resources, the right is concurrent with the federal government's power, and cannot be exercised to conflict with federal regulation in the area. Note further that a state's power to control its natural resources is also limited even if Congress does not act: A state may not adopt a law discriminating against interstate commerce or excessively burdening interstate commerce, even absent federal legislation. Regarding (B), the Tenth Amendment reserves all powers not granted to the federal government to the states. (B) is
