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Independence - Integrity - Fairness - Quality Service

Bar Examination Sample Q&A - February 2004



Questions and Sample Answers

February 2004

MPT Question
Criminal Law
Constitutional Law



The National Conference of Bar Examiners (NCBE) is the copyright owner of the February 2004 MPT question administered in New Jersey. The NCBE has not authorized the verbatim publication of the question.

The problem is set in the fictitious state of Franklin, in the Federal District Court. The test materials include a file and a library. The file contains factual information about the case and may contain information that is not relevant. 

The case concerns Samuel Bennett, who wishes to bring an action against Sands Construction Company to recover money paid to replace for a roof that Sands Construction installed when building Mr. Bennett's house. 

The applicant is asked to write a memorandum analyzing whether the tort and contract causes of action are barred by the statutes of limitation. 




To: Celia Roberts
From: Applicant
Re: Bennett v. Sands Construction Company

I was asked to write a memorandum that analyzes whether the tort and contracts causes of action are barred by the relevant statutes of limitation, in particular as to whether we can convince a court that one or both statutes of limitations should be tolled.

Our client, after paying $45,000 for a new roof and structural and electrical repairs in his 7-year-old house, still experience leaks in the roof - this despite several repairs by contractor who built the house. Only recently, our client discovered that the contractor had substituted materials specified for in the architect's design, and our client feels said substitution is the cause of all the leaks. I now assess his causes of actions under both contract and tort law.

Client's Contract Claim

The foundation of client's contract claim is the failure of Sands Construction ("Sands") to fulfill the contract for a home suitable for its intended purpose and constructed with quality workmanship that client has experienced consequential damages that may be described as "damage to realty" does not change the fact that his claims are based on contractual duty. The relevant statute of limitation for actions as written contracts in § 9-24 of the Franklin Civil Code. Under the Code, claims arising from contracts for construction must be brought within six (6) years upon "substantial completion" (F.C. Code § 9-24). The rule that the statute of limitations begins to run upon substantial completion of work applies not-withstanding the fact that client may have had no knowledge of any alleged defects until after substantial completion of the house (Popper v. Naybors). Furthermore, a house is substantially completed in July 1997, when a building inspector issued the certificate of occupancy. We are now well into the year 2004, and thus the six-year statute of limitations on contractual claims has expired. There are however several possibilities in order to toll the statute of limitations.

(A) Common Law Discovery Rule: This Rule tolls the statute of limitations until the plaintiff discovers or reasonably should have discovered the existence of a cause of action. Unfortunately this rule only applies to cases of bodily injury, and therefore does not apply to the case at hand (Popper).

(B) Tolling of Limitations for Fraud: Under § 9-96 of the Franklin Civil Code, if the defendant is guilty of fraud by which the plaintiff has been debarred or deterred from bringing an action, any period of limitations established by the Franklin law shall run only from the time of the plaintiff's discovery of the fraud. Tolling under this section applies both the tort and contract actions.

To establish fraudulent concealment under § 9-96 sufficient to toll the statues of limitations, client must prove that (1) Sands committed actual fraud, (2) by his fraud he intentionally concealed the cause of action from client, and (3) client exercised reasonable diligence to discover the cause of action despite client's failure to do so within the applicable statute of limitations (Popper).

(1) Acts that constitute fraudulent concealment include outright misrepresentations or failures to disclose information when under a duty to do so (Popper). However, no such disclosure duty arises from the arising transactions of the parties in this case, notwithstanding the fact that one of them may have had "superior knowledge" (Wolman Windows v. JOE Industries). It will be difficult, considering Wollman, to convince the jury that Sands should have explained the substitution of materials more thoroughly. Furthermore, client provides no evidence of actual fraud.

(2) Misleading partial disclosures may constitute fraudulent concealment (Wollman). On this prong of fraudulent concealment we may certainly argue that Sands made misleading partial disclosures - leading to small repairs - to postpone and eventually bar clients cause of action.

(3) It will be difficult to argue client exercised reasonable diligence. It is unlikely defendant would have concealed the facts giving rise to client's claims because the evidence was so readily ascertainable. However, client may successfully argue that a) the roof lining is physically inaccessible and b) that defendant intentionally lulled him into believing the problems would be fixed.


There is a genuine issue of material fact as to fraudulent concealment, so the action would probably reach the jury for their findings on the merits, as the applicable statute of limitation might be tolled. However, the case law is not terribly favorable, so that client's attempt to toll statute of limitations does not have a great chance of success. The jury will probably not find fraudulent concealment.

As to the torts claim, the legal analysis on following the statute of limitations is identical, though the relevant statute of limitations is 4 years long under § 9-30 of Franklin Civil Code.



To: Celia Roberts
From: Applicant
Date: Feb. 26, 2004
Re: Bennett v. Sands Construction Co.

This memorandum will analyze whether the causes of actions in torts and contracts are barred by the statutes of limitation with regards to replacing the roof belonging with regards to replacing the roof belonging to Samuel Bennett, as well as repairing substantial water damages to his house resulting in damages of $45,000.

With regard to both causes of action, it appears that the statute of limitations will most likely bar such claims. The following analysis will explain my reasonings as to why the statute will prevent the initiation of both tort and contracts claims. However, if Mr. Bennett would still like to bring a cause of action against Sand Construction Company, an argument can be made requesting for a tolling of both the contracts and torts statutes of limitations based on possible fraud by Sands Construction Company deterring Mr. Bennett from bringing an action, thereby invoking a tolling of the statute based on the time of the plaintiff's discovery of the fraud, as defined in § 9-96 of the Franklin Civil Code.

This memo will explain the Statute of limitations for torts and damages actions as well as fraudulent concealment and misrepresentation. Based on relevant case law, a Court will most likely not be convinced that the statute of limitations should be barred unless plaintiff (Mr. Bennett) can prove actual fraud.

I. Contract Action

The Franklin Civil Code clearly explains in § 9-24 that "all actions upon written contracts shall be brought within six years after the same become due and payable upon substantial completion. Substantial completion as defined in Franklin Civil Code § 9-20 is the date when construction was sufficiently completed so that the owner could occupy the project for the use for which it was intended. In Popper v. Naybors, Popper contracted with Naybers to purchase a newly constructed home. The closing occurred on Sept. 2, 1994 and Popper filed suit in 1998. Although Popper discovered the damage in 1999 the Franklin Court of Appeal found that the statute began to run in 1994 because that is when the home was substantially completed. Applying these facts to the Bennett situation, the Court will conclude that the home was substantially completed in July 1997 when the building inspector issued a certificate of occupancy and Bennett moved into the house. Similarly in Wolman Windows, inc. the Court determined that warranty claims under the UCC must be brought within four years of their accrual upon tender of delivery. So if Mr. Bennett wants to claim a defect in his roof that too would be barred since the roof was delivered by the time the home was completed.

II. Tort Action

Similarly under the Franklin Code actions for damage to realty shall be brought within four years after the right of action accrues. In Popper, Popper claimed that the action should accrue when the damage was "discovered." However, the Court ruled that Popper's claim was banned because the common-law discovery rule does not apply to tortuous damage to realty. Instead, the statute begins to run upon substantial completion of the work "notwithstanding the fact that Popper may have had no knowledge of any defects until after the substantial completion of the house." As is the case with Bennett, Mr. Bennett had no knowledge of the defect in the roof until told by the architect, Mr. Rainer. Mr. Rainer informed Bennett for the first time that Sands substituted the material for the roof instead of following the specifications. In addition Mr. Bennett claims the repairs were only temporarily successful but those too resulted as early as Oct. 1997 the 4 year statute of limitation has run.

C. Tolling the Statute

Both the tort and contract claims may be brought if the Court allows for the tolling of limitations based on fraud. To establish fraudulent concealment the Plaintiff would have to prove (1) that Sands committed actual fraud (2) by his fraud he intentionally concealed the cause of action and (3) plaintiff exercised reasonable diligence to discover the cause of action despite failure to do so within the applicable statute of limitation. This 3 prong test applied in Popper, proved unsuccessful to Popper because no showing could be made that construction of the house involved fraud or concealment. In this case Sands admits that he substituted the material for the roof but such substitutions is as made with the approval of Bennett. Sands refers to the contract that Bennett signed showing acceptance of the materials to be used. Also the material was on the roof and thus not concealable. Additionally, Bennett arguably did not exercise reasonable diligence in that he did not contact the architect immediately upon discovery of problems instead he waited 7 years.

However Bennett has no alternative since the manufacturer of the roof blames the installation and the architect also blames Sands for improperly using their materials. Sands claims the materials used were used elsewhere and proved to be substantial.

The only possible claim to attempt to toll the statute would be if Bennett probes misrepresentation. In Shine, a plaintiff claims that inherent and known defects were the cause of failure of a product and a seller misled Shine by fooling him into believing the problem was faulty seals. In this case Bennett can claim that Sands contributing to the problem by replacing "faulty" windows or blaming the sewer drainage when in fact the roof was improperly installed.

However, this is a weak argument because as Wollman points out, even intentional misrepresentations do not constitute fraudulent concealment. Therefore Bennett would most likely not be able to toll the statute of limitation and thus would be barred from bringing both a tort and or contract claim.

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QUESTION 1 (Evidence)

Darryl sued for personal injuries sustained when his building collapsed during a board meeting, injuring all participants. He sought a multi-million dollar judgment against Construction, Inc., which had recently renovated the structure. He lost. He has now appealed, challenging various evidentiary rulings issued over the objection of his attorney.

At the trial, photographs were admitted on behalf of Construction, Inc., showing the building refurbished after its collapse.

Construction, Inc., used an expert to testify to the structure integrity of the building. Although an architectural consultant, the expert had attended the Halden School of Construction Engineering, an unaccredited institution closed by academic authorities before the trial.

The defense expert based his opinion on a geometric formula for structural integrity not generally accepted by the architectural community. 

The court reviewed affidavits on causation to the effect one of the participants at the board meeting, Fred Jones, was a notorious fat person and had caused the collapse of the building. 

The defense successfully introduced testimony by a forensic toxicologist that, immediately after collapse of the structure, trace elements of cocaine were found in the conference room where Darryl held the meeting.

Darryl produced a psychiatrist who testified that, since the incident, he suffered delusions and disorientation whenever walking near tall buildings. To refute this testimony, the defense introduced testimony of Darryl's former girlfriend, Paula, who said, "He was always crazy anyway."

You are the law clerk for the judge reviewing the appeal and must evaluate these rulings. Analyze the facts and rules of law and recommend whether the rulings are correct.



To: Judge
From: Law Clerk
Date: February 26, 2004
Re: Darryl v. Construction Inc.

1. The admission of the photographs was incorrect because this evidence is not relevant. In order to be relevant, evidence must tend to make a fact in dispute more or less lively. These photographs depicted the building after it was refurbished after the collapse. This is not relevant to the question of whether Construction, Inc. was negligent in its construction of the building.

If the objection was based on authentication, however, the admission was correct as long as the photographs were authenticated by someone familiar with the scene depicted. The photographer does not need to authenticate.

The best evidence rule does not apply because the building is not a writing. A photograph of the building would be admissible if it were relevant, e.g., if it depicted the building after the collapse but before the refurbishing.

2. The trial court was probably correct in admitting the expert testimony of the architectural consultant. The issue here is whether the expert was qualified. The judge determines whether an expert's testimony will be helpful to the trier of fact. The expert need not have a particular form of accreditation or degree. An expert could, for example, be a "skill witness". The record states that this expert was an "architectural consultant." It is likely that the expert's experience in this field is sufficient to qualify him to testify. The issue of his credentials then would go to the issue of persuasiveness, not admissibility.

3. The court erred in permitting the expert to testify based on a formula that is not generally accepted in the architectural community. An expert may generally base opinion testimony on material that has not been admitted into evidence - even inadmissible hearsay - so long as it is the sort of material that people in the particular field generally rely on. Here that is not the case, so the testimony should have been excluded.

4. The affidavits of causation should not have been admitted. First, there is a hearsay problem. The affidavits are out of court statements used to prove the truth of the matter asserted (i.e., that Fred Jones is fat and caused the collapse). There is no applicable hearsay exception, it appears. If Darryl made one of the affidavits, that could be admissible as a non-hearsay admission of a party-opponent. Furthermore, there is a problem with the affidavits in that a lay witness cannot testify to a legal conclusion such as causation. A witness could testify that Fred Jones was fat and was present at the meeting, but the issue of causation is for the jury. It is also unclear why the affidavits state that Fred Jones was a "notorious fat person." If this is meant to convey his reputation, it is inadmissible. Reputation evidence is admissible to impeach a witness but that is not happening here. If the defense seriously wanted to promote the argument that Mr. Jones's weight caused the building to collapse, it should have had witnesses testify from personal knowledge as to his weight and presence in the building.

5. The toxicologist's testimony should not have been admitted. Generally, an expert such as a toxicologist may testify to such findings so long as the expert explains the method of testing and there is proof of the chain of possession of the cocaine after the collapse. However, in this case it is not clear that the cocaine is relevant. Prior bad acts may not be used to impeach, but extrinsic evidence cannot be used for this purpose. Furthermore, it is not clear how this evidence goes to credibility. Character is not an issue in this case so that cocaine is also not admissible as character evidence. Furthermore, even if the judge considered the cocaine to be somehow relevant to the issue of the cause of the building's collapse or of Darryl's contributory negligence, it should have been excluded because the danger of unfair prejudice substantially outweighed any probative value it may have had.

6. Darryl's ex-girlfriend's testimony is inadmissible because it is an opinion and not factual. If the defense had refuted the psychiatrist's testimony by having Paula describe actual incidents where Darryl behaved in a "crazy" manner, this would have been admissible. It is not enough for Paula simply to state that he was crazy. That is for the jury to decide. Furthermore, because Paula's statement is so unreliable it should have been excluded on the basis that its probative value was substantially outweighed by the danger of unfair prejudice. It should also be noted, however, that none of the marital privileges are applicable here since Darryl and Paula were never married and since Paula is thus not testifying as to any confidential communications she had with Darryl.



Photographs of Building Refurbished (Ruling Incorrect).

This evidence is completely lacking in relevance to the personal injury issues. Logical relevancy requires some tendency to make a fact in issue, more or less likely. Here, where the issue is personal injury to the plaintiff D, including the cause and effect, the building, after being rebuilt is completely irrelevant to issues in the case. Because it has no, or at best, little relevancy to show this to jury was a waste of time, misleading, likely to cause confusion, etc. It therefore, should not have been admitted. Nonetheless, its admission was likely harmless.

Qualifications of Defense Expert (Ruling Correct)
Expert opinion testimony is proper where it will assist the trier of fact with subjects outside scope of normal experience. An expert may be qualified by experience, special skill, training, or education in the field of their testimony. Courts are generally lenient as regards qualifications with the medium tendency to allow the trier of fact to hear evidence and add or reduce weight. Accordingly, here, although expert's architectural school was unaccredited, and was closed before the trial, these facts are not disputive of the issue of whether expert has appropriate knowledge or skill through education, experience or training, sufficient to qualify him as an expert and he should be qualified to testify with the jury free to consider this credential "problem" in determining the weight to affirm his opinion.

Defense Testimony as to Geometric Formula (Ruling Correct)
Expert testimony may not be based on "Junk" Science. Traditionally, as set forth in Frye, to bar admissible, expert testimony had to be based on reasoning that was at least "generally accepted" in the field of the expert.

Testimony of Forensic Toxicologist (Ruling Incorrect).
This evidence is not logically relevant, and has not probative power to impeach. First, character evidence is generally inadmissible in a civil case to show conformity therewith. And, even if it could be demonstrated that Darryl or someone else in the boardroom was using cocaine at the time of the accident, this would not have been on the issues presented in this personal injury case. Moreover, despite its very low probative value, anyone could have used cocaine in that boardroom over an undetermined period of time, the use of drugs is highly prejudicial. This probative value is substantially outweighed by design of unfair prejudice. Finally, even if the evidence were probative of cocaine use, this evidence would not be admissible as impeachment evidence as it does not relate to bias, of failure to observe, or any of the categories to which proper impeachment would apply. It is more a collateral matter, which may not be proved by extrinsic evidence even if it were otherwise admissible. Generally, when it comes to claims or otherwise to impeach a witness, must be felony (convicted) or conviction of crime if crime fails.

This test misses large categories of possible testimony, and prevents the use of "cutting edge" science as reserved in the courtroom. Daubert, the new standard, only considers general acceptance in the field as one factor among many. Daubert could be seen more as a "totality of the circumstances" approach that allows the consideration of any expert testimony so long as considering all factors on balance, it is reliable (in statistics for example, reproducible with a factor of error of .05). Here, although not generally accepted, expert testimony to a reasonable degree of architectural certainty, might properly be considered if reliable. Nonetheless, applying the old Frye standard, however, the testimony as to this geometric formula for structural integrity is not admissible.

Affidavits on Causation (Ruling probably correct)
It is not clear on the facts for what purpose courts review affidavits on causation, but, if in camera, to determine some factual predicate for the admissibility of other evidence, permissible as court may consider hearsay with respect to admissibility issues. If, however, this evidence was presented to jury, it appears to be hearsay not within any exception, and the lack of a named declarant and on other surrounding issues prevents further disposition. Finally, if these affidavits were presented as expert reports, it is unclear how they could possibly survive any test of reasonable architectural certainty.

Psychiatrist Testimony (Proper)
Relevant testimony to support damages. Opinion testimony of acceptable form and subject.

"Paula's Statement" (Improper)
A lay witness may testify as to opinions formed on basis of personal knowledge where such opinion testimony is necessary to convey that event/impression to trier of fact.
Generally, a lay witness may testify to such things as intoxication or insanity. Nevertheless, here, where it is offered in response to medical testimony in Delusional behavior and disorientation, this is beyond the scope of ordinary witness and probably requires specialized expertise beyond that of a lay witness to the extent that "crazy" is viewed as negating "delusional" or "disoriented" before permitting this testimony by opinion.

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February 2004

QUESTION 2 (Criminal Law)


Don is married to Val. Two years earlier Don and Sally had started a love affair. On Monday, Don and Sally were going to inform Val of their affair. 

When Sally arrived at Don and Val's house on Monday morning, she found the door open and walked in. Val started screaming at her. Don walked into the room and hit Val with a candlestick, rendering her unconscious. He dragged Val to the basement and yelled for Sally to bring him a knife. Sally did so, and Don stabbed Val in the chest, killing her. Don gave the knife to Sally, who proceeded to leave. As she left, she noticed Val's necklace on the steps and took it with her. Sally discarded the knife in the garbage dumpster at her apartment complex. She pawned the necklace that afternoon. 

Don's neighbor had seen Sally leave Don's house in a hurry and drive away to her apartment complex down the street. When the police canvassed the neighborhood on Monday night, the neighbor told the police what he saw. The police arrested Sally at her job the next morning. They took her to the station where she waived her Miranda rights. Following a twelve-hour interrogation, she confessed to what she had done on Monday. Sally was read her Miranda rights again, and she gave further details of the crime.

Meanwhile, on Monday night the police had been at Don's house to gather forensic evidence. They were able to obtain Don's fingerprints from the candlestick, which the coroner was able to verify had been used to strike Val on the head. They also talked to Don, whose behavior was so odd he was beginning to look like their prime suspect.

On Tuesday morning, after Sally's arrest and while she was being interrogated, officers searched the garbage dumpster at Sally's apartment complex and found the knife. Hours later, the forensic examination revealed both Sally's fingerprints and Don's fingerprints on the knife. Sally was confronted with that information during her interrogation.

The prosecutor has asked you, an assistant prosecutor, to prepare a memorandum setting forth the charges that could be filed against Don and Sally as well as their anticipated defenses or pre-trial motions.




To: Prosecutor
From: Assistant Prosecutor (Applicant)
Date: February 26, 2004
Re: Charges against Sally and Don; Possible Pre-Trial Motions

We should bring charges of battery and murder against Don. We should bring charges of murder, larceny against Sally. We should forgo a charge of conspiracy to commit murder because it is improbable on the facts, but that is your decision. We will probably face a motion to suppress from both Don and Sharon with regards to the knife, the candlestick and the confession of Sally. The motion will most likely be granted as to the candlestick, but not the knife. The one on the confession is a close call, but I think it will be denied.

I. Charges against Don

Murder - Is the intentional killing of a human being by another human being with malice aforethought. In order to be found guilty of murder we will need to show that Don did an act (or omission to act when there is a legal duty) and that act caused the death of the victim. We also need to show that the act was committed with malice aforethought.

In this case we have the facts necessary to show that Don is guilty of murder. He stabbed Val, using a knife that resulted in the death of Val. The issue is whether it was committed with malice aforethought, or if there were some mitigating factors that could validate a claim for a downgrade to manslaughter. I believe that based on the facts of this case that Don is guilty of murder. He knocked Val out with the candlestick (battery discussed below), then drug her body down the stairs. He had the time to call out to Sally to bring a knife downstairs and had time to reflect on his course of action while she brought the knife. When he had the knife he stabbed Val in the chest. A person's intent can be inferred from their action. (A person normally intends the normal consequences of their actions). In this case Don stabbed Val in the chest causing her death. These facts should be sufficient to get a guilty verdict on the charge of murder.

Battery - A battery is harmful touching of the victim with intent to injure or frighten the person. Here Don using a candlestick struck Val. This caused her to be knocked unconscious. Again, Don will be said to have intended the normal consequences of his actions and should be able to be found guilty of battery. Since this battery is separate from the stabbing, it should not be found as a lesser included offense, but a separate crime.

Assault - Assault is where a person is placed in fear of an imminent battery. We do have facts to show that Val knew Don was going to strike her so he will not be found guilty of assault. 

Conspiracy to commit murder - where two or more parties agree to commit a crime they can be found guilty of conspiracy to commit the crime as well as being found guilty of the target offense. In this case, it does not appear that Sally knew that Don was going to strike Val with the candlestick beforehand, so there is no conspiracy to commit battery.

It could be argued that the facts show a conspiracy to commit murder. Don asked Sally to bring a knife down stairs. Sally agreed. While this might be argued to be enough to charge Don with conspiracy, Sally could argue that she thought Don needed the knife for another reason, cut rope to tie up Sally, or to the jam in a door to keep her locked up while they left. It is unclear based on the facts that there are sufficient grounds to charge conspiracy to commit murder. If you want to include the charge, there is evidence to infer the conspiracy, but I will leave the decision up to you. I however, would choose against it. 

II. Pre-Trial Motions from Don

Don would argue that the search of the house of Monday night and the discovery of the candlestick was a violation of his fourth amendment rights against unreasonable search and seizure. It does not appear that the police had a warrant to conduct the search of Don's house on Monday night. Because they did not have a warrant, and there does not appear to be exigent circumstances that would warrant a warrantless search, the candlestick will probably be suppressed.

III. Charges against Sally

The charges that should be brought against Sally are murder and larceny. Murder was defined supra and Sally should be found guilty for the murder of Val based on accomplice liability. Accomplice liability is proper where a party, aids, abets, assists or encourages one in he commission of a crime. In this case Sally brought the knife to Don that Don used to kill Val. While Sally may argue that she did not know what Don was going to use the knife for, it can be inferred from the circumstances and her relationship with Don, and their desire to start a new life together that Don was going to kill or harm Val.

Sally should also be charged with Larceny. Larceny is the taking of the personal property of another with the intent to permanently deprive. In this case Sally removed Val's necklace from Val's home with the intent to permanently deprive Val of the necklace. Sally may argue that Val was dead and therefore it was impossible to take it from her. However, Val's estate would have the proper right to the necklace and Sally's taking was done with the intent to deprive Val or her estate of it. Her intent to permanently deprive can be shown by her disposing of it at a pawnshop. While the intent to deprive was necessary at the time that she took it, we should not have a problem showing that intent.

Iv. Pretrial motions for Sally

Sally will seek to have the knife suppressed and the candlestick and the confession that she gave the police. She will not be successful and all of these should be admitted against her.

In regards to the candlestick, even though Don will be able to argue that it should be suppressed as against him, Sally will not meet the same degree of success. In order to have the evidence suppressed she would need to show that she had an expectation of privacy in the place where the item was taken. Since it was not her house, she had no reasonable expectation of privacy that was violated by the search. As such the candlestick will be admitted against her.

In regards to the knife (which Don may have argued to have excluded but would fail for the same reason as Sally here), there is no reasonable expectation of privacy at trash that has been place outside the dwelling. In this case Sally placed the knife in a garbage dumpster. The dumpster was outside of her apartment building. The Supreme Court has held that there is no reasonable expectation of privacy in trash. The knife would not be suppressed as against Sally or against Don.

Sally would then seek to have confession suppressed. While it is a close call, I believe that it should be admissible. Sally was given Miranda warnings. She was subject to twelve hours of interrogation. If this was constant and food and water were withheld, than the confession should be suppressed. However, the timeframe indicated points to the fact that the interrogation began on Tuesday morning, therefore it does not appear to be a case of depriving Sally of sleep. If food or drink were not withheld, I believe it should be admissible.

If it were not admissible the further details after the detailed Miranda warnings were given may still be fruit of the poisonous tree that would argue against those details being admitted into evidence. It again is a questionable call, but I believe that based on the facts we should be able to use it.

If I can provide you with any further information or assistance on this case please feel free to contact me. 



To: Prosecutor
From: Assistant Prosecutor
Date: February 26, 2004
Re: Charges against Don and Sally.

I. Charges

A. Against Don.

Don should be charged with murder. He appears to have had the intent to kill Val. He knocked her unconscious with a candlestick and then stabbed her with a knife. This murder may be 1st degree murder of the killing was premeditated and deliberate. It is not clear whether Don premeditated but it is possible on these facts that he had been planning to kill Val. His motive was that he was having an affair. Perhaps he was waiting for Sally to come to the house so he could solicit her assistance, as he did.

Voluntary manslaughter is not an option here because there was no adequate provocation. Val's screaming at Sally was not an adequate provocation for Don to kill her.

B. Against Sally. 

Sally should also be charged with murder. She was an accomplice to Don's killing of Val because she gave him a knife and must have known that Don would use the knife to kill Val, whom he had just knocked unconscious.

It does not appear that either Don or Sally could be charged with conspiracy. They never made a plan to kill Val. Sally thought she was just going to Don's house so they could talk to Val. 

Sally can also be charged with larceny. She took the necklace with the intent to permanently deprive. Although Val was dead at that point, Sally should still be found to have taken the necklace from the possession of another. Her intent to permanently deprive is demonstrated by her sale of the necklace that day.

Sally cannot be charged with burglary although she committed murder and larceny in the house of another. First, it is not clear that there was a breaking since she walked right in through an open door. Also, she may have had permission to enter. Furthermore, it appears that she had no intent to commit a felony at the time that she entered the house. & such an intent must exist at the time of entry in order for there to be a burglary.

II. Defendants' motions 

A. Sally's motions.

Sally may argue that her arrest was unlawful under the 4th Amendment and that evidence derived from it should therefore be excluded as fruits of the poisonous tree. The police had probable cause to arrest Sally by virtue of the neighbor's statements. However, it appears that there was no warrant. This may not be an obstacle, however, because Sally was not at home and the police may make a warrantless arrest in a public place so long as they have probable cause. It is not clear whether Sally's work is such a public place.

Sally will argue that her confession and other statements to the police violated her 5th Amendment rights. However, the police read Sally her Miranda rights and she affirmatively waived them. She never asked for an attorney, so the resumption of interrogation a second time was not a constitutional violation. It does not matter that the interrogation was very lengthy. She could have told them to stop. Even if Sally's arrest was unlawful, the confessions will be admissible because Sally voluntarily made them.

Sally will object to the admission of the knife found in the Dumpster. However, this evidence is admissible because she had no reasonable expectation of privacy in a dumpster that served an entire apartment complex. Even if the state constitution affords such a protection to garbage on the curb, in this case it appears that the Dumpster was in fact too public for Sally to have had a reasonable expectation of privacy. Because this search was lawful, the confrontation of Sally with evidence of the knife was also lawful.

B. Don's Motions 

Don will object to the warrantless search of his house. It appears that there was no warrant, although there was certainly probable cause to search a crime scene. Normally a search of a private home requires a warrant supported by probable cause and signed by a neutral magistrate. However, the police were lawfully on the premises in this case because it was a crime scene. Furthermore, the candlestick may have been in plain view. If so, the search & seizure of the candlestick was lawful, and the fingerprints may be used.

Don may also object to the admission of statements he made to the police. They did not give him Miranda warnings, but it is not clear whether there was custodial interrogation such that Miranda warnings were necessary. He was their "prime suspect" so although he was not under arrest, the interrogation may have been custodial of Don felt that he was not free to leave. 

Don may object to the admission of the knife found in the Dumpster. However, he has no standing because he has no reasonable expectation of privacy in Sally's dumpster, even if that search were unlawful. Therefore the knife will be admissible, as will the fingerprints. 

Similarly, Don's objection to Sally's statements will be unsuccessful since his rights were not violated. If they are tried together, however, Don will have Confrontation clause rights at issue if Sally's statement is admitted but she does not take the stand. He has the right to cross-examine his accusers. 


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February 2004

QUESTION 3 (Property)

Since 1945, the Clark family has owned, and continuously lived on, property along the Swift River. When the chief manufacturing plant on the river closed, many local residents were forced to abandon their homes. In 1970, the parcel adjoining the Clark property was acquired by the Town of Swift River in a tax sale.

Slowly, the economy along the Swift River rebounded. John and Marie Kent purchased the neighboring property from the township in 1985. The boundary between the Clark and the Kent properties was unclear since it was overgrown with vegetation. The Kents replaced the derelict building on their land with a rustic cabin.

The Clarks also began to improve their property. While clearing brush, they discovered portions of a wire-mesh fence. In 1987, the Clarks removed the remnants of this fence and built a railroad-tie-and-cable fence in its place. The two neighbors discussed this work, and Clark indicated he was "pretty certain" the fence represented the boundary between their properties.

Over the following years, the Clarks used the area on their side of the fence to install a septic system, build a boat ramp and add a bulkhead. In 2003, when the Clarks erected a sign "Swift River Marina", the Kents became concerned. They had a survey made and were shocked to learn that the fence and all recent Clark improvements were on Kent property. Indeed, the survey showed a triangular parcel of land ranging from fifty feet at its base to approximately one foot at its apex and 600 feet in length belonged to the Kents but was on the Clarks' side of the fence. The Kents demanded the Clarks remove the encroachments from their property.

The Clarks have consulted your law firm to determine their legal rights. The partner handling the matter has asked you to prepare a legal memorandum analyzing the factual and legal issues involved, including potential causes of action, possible defenses, available remedies, and the likely outcome of any litigation.




To: Senior Partner

From: Associate

Re: Clarks' Land Issue

You have asked me to prepare this memo setting forth the legal and factual issues related to our clients (the Clarks "C") encroachment upon the land putatively owned by the Kents (K's).

1. Adverse Possession
The first issue for us (if we can argue it) the best outcome would be to argue that Clark acquired the disputed land by Adverse Possession (AP). The primary elements of AP are 1) open, 2) usual use, 3) which is hostile and 4) exclusive, without permission of land owned by another for the statutory period. In our state, the statutory period for Adverse Possession is twenty years. For Clark to be able to claim Adverse Possession, Clark must show all the aforementioned elements for twenty years.

2. Facts as applied to Adverse Possession
Unfortunately, because Clark has (maybe) Adverse Possession of the disputed land for less than the statutory period, Clark will lose this argument. Their best argument would be either that they possessed adversely the disputed land from 1945 (up to 1950) until 1970. This would be sufficient time for Adverse Possession. However, there is no showing in the facts that they did indeed adversely possess the disputed land during that time. In fact, the facts suggest otherwise because the disputed land was, in 1985-1987 (at he very least) overgrown by vegetation. This shows no "possession" that was open and continuous by Clarks.

If Clarks can somehow show they adversely possessed between 1945-1970 (and the vegetation overgrew after that), Clark would have to prove it by showing they did something (i.e., the usual use of the land that would show possession). Merely claiming you thought the disputed land was yours for twenty-five years will not do. If Clarks can show this, they win because they adversely possessed the land and no one else (Kents) did. However, I doubt we can claim this.

One cannot adversely possess land from the government, so 1970-1985 will not count in any event. (Query: could it at least toll the Adverse Possession so if Clark started Adverse Possession in, e.g., 1960 until government bought (but Clarks still used land), could we tack the ten years during the 60's onto the new Adverse Possession starting in 1987...will need to more fully research this issue).

Assuming twenty year Adverse Possession requirement, then taking possession of land in, even at best, 1985 will not suffice, especially since Kents have now told Clarks to leave, ending Adverse Possession. We can't hope to make it to 2005.

If Adverse Possession is only fifteen years (as proposed by legislature), then it may be possible for Clarks to qualify for Adverse Possession, but they will have an uphill battle.

While the use by Clarks is open and notorious, and is exclusive and the disputed land is being used as a real owner would use it, there is a decent claim by Kents that the use is not hostile (i.e. permissive). Because Clark told Kent he was "pretty certain" the disputed land was his, Kent may be able to argue fraud and that he would not have given his permission to Clark it he had not been misinformed by Clark. Therefore, Kents would argue that the use by Clarks was "permissive" because such permission was obtained by fraud. This may be a decent argument by Kents (especially since equity would be involved, so the doctrine of "unclean hands" might arise) 

Ultimately, if the Adverse Possession time has been met, I believe Clarks have a decent argument that they now own the land and we could petition a court to quiet title. In the meantime, I will look into the unclean hands issue, but Kents may never raise it anyway.

One last caveat: I notice that the remnants of fence was discovered in 1985 and that it was on this old fence that new fence line was based. In contradiction to my earlier argument about no Adverse Possession between 1945 and 1970, if it can be argued that such old fence was there for that period, then Clarks may be able to argue Adverse Possession based solely on claim of right. If one owns and uses vast majority of land, he may be able to 
adversely possess a disputed part even if he does not actually and openly "use" the land. Such facts might fit here, but I would need to research this issue a bit more.

Irrevocable License
Clarks have a pretty good argument that the disputed land should be deemed their property by having an irrevocable license from Kents. This is a fairly good argument.

When one occupies land through an oral understanding, an easement is not created because easements must be in writing to satisfy the Statute of Frauds. However, if one (like Clark) relies on the acquiescence of a landowner to occupy a parcel of land and such person builds substantial improvements on such land and uses the land exclusively related to such improvements, then such acquiescence will probably be deemed to be a license, which license will be deemed to be irrevocable based on estoppel theories related to Clarks building septic, boat ramp and bulkhead on the land. This is especially so since Kents surely watched as Clarks built this and let them do so.

Admittedly, Kents will say there was no oral license to Clarks; Kents will again raise unclean hands defense that Clarks misled them into thinking land was Clarks. However, absent being able to show Clarks actually knew disputed land was Kents and that Clark lied to Kents, I believe the equities lie with the Clarks. To say "pretty certain" would seem to suggest Clark was a bit uncertain and Kents should have looked into situation. If Kents raise unclean hands, Clarks will raise laches. I believe we would win this argument. Best of all is that such irrevocable license is just that, irrevocable. It would be just as good as an easement (but I admit I am not sure if it would transfer with the land if Clarks sold it).

While there are many issues to investigate regarding the Adverse Possession claim, I believe it is worth further inquiry (on our end). Adverse Possession is the much desired outcome because if Clarks win this argument, Clarks own the land. 

However, I believe Clarks have a very strong argument regarding the irrevocable license theory.



FROM: Applicant
TO: Partner
RE: Mr. Clark's Property Rights

This question revolves around the doctrine of adverse possession. Adverse possession is a way in which one party can obtain legal title to a piece of land by virtue of occupying it for a period greater then the statute of limitations for trespass. There are two ways a person can come into adverse possession, either by claim of title or by color of title. When one comes into possession by color of title then there is usually a written instrument that the person believed gives him some rights to the land. In this case the person need not possess the whole in order to have a claim for adverse possession. In the other case the person must actually possess all the land to have a valid claim for adverse possession. There are four elements necessary to successfully bring a claim for adverse possession.

The first element is that one must possess or occupy the land in question for a designated statutory period. At common law this period is generally 20 years. In New Jersey it could be 20 or 30 years depending on the type of land that is being occupied. This occupation must be continuous. Although if there is privity between parties then tacking is allowed. Tacking is when one party can add the time accrued of the party before its time in possession for purposes of adverse possession. In 1970 the parcel adjoining the Clark property was acquired by the Town of Swift River. It should be noted that one cannot acquire possession of government owned land by virtue of adverse possession. The Clarks began adverse possession in 1987 when they constructed the fence. Therefore they would have to adversely possess the property for a statutory period of 20 years. This means that the true owners could bring a claim for ejectment up until the year 2007.

The second element is that the use of the land must be open and notorious. This means that the use must be apparent. The use must be of the same kind or nature that the true titleholder would normally enjoy. In 1987 the Clarks removed the old fence and constructed a new railroad tie and cable fence in its place. However, as it turns out this fence was not constructed on Clark property. Yet this is the kind of fence that the title owner of the property would have erected. Furthermore, on the Clark side of the fence improvements were made to the land. These improvements were the type that the title owner could have made.

The third element is that the person must actually possess the land. The possession cannot be fictitious. The Clarks clearly possessed the land on their side of the fence. The improvements made to the property evidence this fact.

The fourth element is that the possession must be hostile. This means that the person occupying the land must not have permission from the true owner. If such permission is present then there is no adverse possession. 

When the Clarks erected the fence they "discussed" the work that had been done with the Kents. The content of this discussion is very important in determining Mr. Clark's legal rights to the land. If the Kents were to have consented to the use of their property by the Clarks, then the period of adverse possession would never have started. This is because possession must be hostile. 

However, from the facts presented there is no indication that any such consent was made since they did not even know that it was their property. However this ignorance is no excuse. The cause of action does not begin to accrue upon discovery. It begins to accrue when the trespasser takes possession. The Clarks indicated that they were pretty certain the fence indicated the boundary between their properties. However, the subjective thoughts of the adverse possessor are irrelevant.

Since the period of time for adverse possession has not yet run, Kents can bring an action to remove the Clarks.


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February 2004

QUESTION 4 (Contracts)


All Girls Private School ("All Girls"), a prestigious college preparatory school, experienced a surge in enrollments. Demographic projections indicated the growth was likely to continue. All Girls determined to fund a substantial expansion project, constructing three additional buildings on campus. Prufrock Preparatory Private School ("Prufrock"), located within a mile of All Girls, had experienced a decline in enrollment, commensurate with the growth experienced by all Girls, and its campus facilities were therefore underutilized.

In June 2001, All Girls entered into two written contracts. First, All Girls and Prufrock signed an agreement whereby Prufrock agreed to make its campus facilities available for up to fifty students in year one (2001-2002 school year) for a per student price of $3,500, and up to one hundred students in year two (2002-2003 school year) for a per student price of $4,000. The contract provided "Additional students will be accommodated at similar terms upon request." Second, All Girls and Big Builder Construction Company ("Big Builder") entered into a written contract for construction of three new campus buildings, all construction to be completed and buildings ready for occupancy by August 2003.

With notice to the students' families, All Girls accepted for September 2001 fifty more students than its own facilities could accommodate and used the Prufrock premises as expected. All Girls increased its enrollment by another forty students in 2002, and again used the Prufrock premises.

All Girls accepted enrollment of a full complement of students for September 2003, expecting to have the new buildings available. It accepted deposits and signed enrollment agreements with the students' families.

In August 2003, Big Builder informed All Girls the construction would not be completed before March 2004. In the same month, Prufrock informed All Girls it would not make its facilities available for the 2003 school year for any All Girls students.

The President of the Board of Trustees for All Girls asks you, in-house counsel, to prepare a memorandum for the Board outlining its legal rights, obligations, liabilities and remedies based on these circumstances. 


To: President, Board of Trustees

From: In-House Council

RE: Facilities for 2003-2004: legal situation

Date: August 31, 2003 

The recent news we received from Big Builder and Prufrock has put All Girls in a difficult situation. This memorandum outlines All Girls' legal situation with respect to Prufrock, Big Builder, and the families of students who may be affected.

Prufrock. We have had an agreement with Prufrock for the past two school years for use of their facilities. That agreement also provided that "Additional students will be accommodated at similar terms upon request." This language raises a key issue for All Girls' rights against Prufrock: did that language create a legally enforceable agreement between All Girls and Prufrock for space for the 2003-2004 school years?

As I've told you, a "contract" is a legally enforceable agreement between two parties. It consists of "meeting of the minds," supported by consideration. The language in our contract with Prufrock raises the question as to whether there was a "meeting of the minds" on this subject. On the one hand, the language may be read to say that additional school year's groups of students will be accommodated upon request (the interpretation best for All Girls), or it may meant that additional students in given school years (that is 2001-2002 and 2002 - 2003) will be accommodated upon request. Because specific amounts of students were named for both 2001-2002 and 2002-2003, it is more likely that it would be determined that the two parties had agreed on additional school-years' worth of students, but it is not entirely clear. It may be helpful to review your files for earlier drafts or notes of discussions, which (under the so-called "parol evidence rule") could be used to explain the ambiguous terms.

The use of the words "at similar terms" likewise raises a problem, in that the wording may be considered too vague to create a meeting of the minds on future students. If an apparent agreement is missing, a material term, such as price, courts will often hold that there has been no agreement. However, given the pricing for 2001-2002 and 2002-2003 ($3500 per student and $4000 per student), it may well be possible to show that "at similar terms" is sufficiently precise for a court to apply a price of, say, $4500 per student.

If our position on either of these points fails, I believe it would be very difficult to proceed against Prufrock on any other theory: we have not acted in reliance on their promises in accepting additional students, but rather on our belief that Big Builder would complete the construction on time. Nor has Prufrock been unjustly enriched, which might give rise to a claim in "quasi-contract."

Remedies against Prufrock. If we are able to maintain that we have a contract with Prufrock to take additional students, there are several remedies we could request. The first is specific performance. This is a so-called "equitable" remedy that would require Prufrock to house our students. This remedy may be difficult to achieve, particularly if Prufrock does not have sufficient room; however, if we succeed in the underlying claim, we should press for it.

Failing specific performance, we could demand damages. The first measure of damages would be the difference between the contract price (to be determined, but I assume $4500 per student) and the cost of accommodating the students elsewhere. I assume we will promptly look for alternative housing, in order to mitigate our damages. The other alternative would be lost profits if we are unable to accommodate the students and must turn them away. Parties to a contract are entitled to the benefit of the bargain, and damages are meant to put the non-breaching party back where he would have been under the contract. Here, if we lose students, Prufrock should pay us for lost profits on these students. This may require a showing of foreseeability; I will get back to you on that.

Big Builder. We have a contract with Big Builder for construction on our new buildings to be completed and buildings ready for occupancy on August 2003. They will not be ready until March 2004. This situation raises the question of whether Big Builder is in "material breach" of its contract with us.

Generally, contracting parties are required to "substantially perform" their obligations. Here, Big Builder agreed to complete its work by August 2003. it will complete by march, 2004. Has it substantially performed? If not, it is in material breach.

This turns, in its turn, on whether the August 2003 date was important in the contract - was "time of the essence." While generally, time of performance is not of the essence, in this case, given the surrounding circumstances and Big Builders' understanding of our need for housing to begin the school year, we should be able to maintain that time is of the essence, and that Big builder has materially breached its obligations to us.

This Breach will certainly permit All Girls to withhold further payments to Big Builder, until it is assured of completion. It should also allow All Girls to "consequential damages from Big Builder. Clear, it was foreseen that All Girls needed the new buildings to accommodate additional students. Thus, Big Builder should be liable to All Girls for the additional cost of housing the students elsewhere, or, as discussed above, for the lost profits if we are unable to house the students and therefore must turn them away.

Parents. We have numerous agreements with parents for the education of their children. It may be that despite our best efforts we will not be able to educate all the students this year. Thus, we will not be able to perform our contract with those parents. There is a rule that excuses performance of contracts if something unforeseen occurs and makes performance impossible or commercially impracticable. This may be the case, if we can establish that the lack of capacity due to Big Builders' and Prufrock's breaches was unforeseen. Given the nature of construction, it may be difficult to establish that we did not foresee the possibility of non-completion earlier in 2003, when we enrolled the students. If we cannot establish the unforeseeable, unexpected nature of the circumstances, we will not only have to return the deposits of the students not educated, but we may be liable for damages to each of the parents, for the cost of procuring alternate education.

I hope the foregoing has been helpful.



To: President of the Board of Trustees

From: Applicant

Re: Prufrock and Big Builder Contracts

1. Contract with Prufrock. It appears that the Prufrock contract has been performed by both parties. The language in the contract with respect to "additional students being accommodated" at similar terms would probably not be interpreted by a court as extending beyond the 2002-2003 academic year, particularly as both parties were aware of All Girl's plan to move into their additional buildings. It is possible that the parties meant that such accommodation would be extended for 2003-2004 academic year but the court will likely not allow extrinsic evidence of such understanding because of parol evidence rule. However, if the past practice between the parties or common custom among schools would indicate that such accommodation was intended, the court may accept such evidence to supplement and explain the contract terms. However, if Prufrock is not available as a place to hold the extra students then [. . .]

2. The Contracts with Parents All Girls may be liable to the parents of the students who have enrolled for next academic year for damages. While it is true that such parents had notice of what was happening, it is still likely that a court would interpret the school's promise to enroll students in 2003-2004 as not conditioned on either the completion of the building or All Girls ability to use Prufrock facilities. All Girl's best defense would be to claim impracticability or impossibility of performance due to Big Builder not completing the buildings. However, as in the case with Prufrock, All Girls is certainly capable of finding another school that would accommodate their students for one academic year. Naturally, the parents of such students may treat such turn of events as anticipatory repudiation and choose to terminate their contracts and seek damages from All Girls (since the additions have not chance of being completed until March 2004, the parents would be entitled to treat such anticipatory repudiation as a [material] breach immediately).

3. The Contract with Big Builder. Builder promised construction complete and ready for occupancy by August 2003. Generally, in construction contracts time is not of the essence and delays in construction are not deemed material breaches. However, it would appear here that Big Builder was clearly aware that the building had to be ready by the 2003-04 academic year, so time was of the essence. Further, completion almost a year past date agreed on would solidify this as a material breach. Considering that material breach has occurred, All Girls has certain remedies.

4. All Girls Remedies. All Girls is entitled to cancel the contract with Big Builder and seek another contractor to do the work. While builder may claim substantial performance, after almost 2 years of work, 2 out of 3 years is unlikely to be considered by court to be substantial performance. (Of course, even if All Girls were to cancel it would be responsible to pay Big Builder for the fair value of their services minus any damages because of the breach by Big Builder).

In addition, All Girls would be required to mitigate their damages (or risk not collecting those damages that could have been mitigated). Therefore, rather than cancel contract and find a new builder to try to finish, All Girls should let the Big Builder complete the work and then sue for total breach of the contract. Such damages would include all consequential damages that were reasonably foreseen by the parties at the time of formation of contract. Consequential damages would include losing students (if such damages can be accurately determined), the cost of obtaining substitute contracts for student accommodation (which would start at $4,000 per student, since that was the last reasonable price paid by All Girls) and perhaps even damages to All Girl's reputation (again, as long as they can be measured).

(Note However, punitive damages are rarely if ever awarded for contract breach, and are extremely unlikely here.)
All of the above damages would then be subtracted from the reasonable amount spent by Builder to complete the project.


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February 2004

QUESTION 5 (Constitutional Law)

The State of Euphoria has enacted an anti-sodomy statute (the "State"), which, in pertinent part, states: "It shall be a Class C misdemeanor for adults of the same gender to engage in sexual relations." The legislative history indicates the law was enacted to proscribe "immoral" conduct. Westcott Bowen was convicted and is now incarcerated in the Euphoria State Prison (the "Prison") for violating the Statute. 

Bowen's cellmate, F. T. Smythe, is a chain smoker. Bowen, who is allergic to second-hand tobacco smoke, submits several requests to Gregory Elaine, the Prison's warden and State Commissioner of Corrections, for assignment to another cell because Smythe's smoking negatively affects his respiratory health.

Because of persistent and severe overcrowding, Elaine rejects Bowen's requests. Thus, Bowen is forced to remain in Smythe's cell, which results in frequent trips to the Prison infirmary for treatment of respiratory illnesses.

During his weekend furlough, Bowen comes to your law firm and asks you to prepare an opinion letter that discusses his substantive and procedural claims and remedies, and Euphoria and Elaine's defenses to any civil litigation. Bowen also asks you to discuss the potential substantive claims he can assert to overturn his conviction.



Westcott Bowen
Euphoria State Prison

Re: Your claims and remedies

Dear Westcott:

I write this opinion letter in response to your request for legal advice concerning (i) potential claims against the Euphoria State Prison (the Prison) based on your continued exposure to your cellmate's second hand smoke; and (ii) potential claims to overturn your conviction under Euphoria's anti-sodomy statute.

I have good news and bad news. The bad news is that your claims against the Prison to unlikely to succeed. The good news is that the Supreme Court's recent decision in Lawrence v. Texas you a very strong and powerful arguments (sic) to overturn your conviction.

I. Claims Against the Euphoria State Prison

Prisoners like you typically bring complaints against prison officials and the prison where they are jailed through what is known as a habeas petition. (You have, no doubt, heard about habeas petitions from at least one of your fellow inmates.)

A habeas petition is filed in the jurisdiction where are you jailed, and it is a vehicle for challenging the conditions of your confinement. When a prisoner believes fundamental constitutional rights are being deprived him by prison officials, he files a habeas petition. 

Based on the facts you related to me, the fundamental constitutional right you believe is being denied you is the Eighth Amendment right to be free from cruel and unusual punishment. In the context of prison life, the Eighth Amendment is violated when prison officials act with deliberate indifference to a prisoners' physical, mental or health condition. You would want to argue that by forcing you to remain in a cell with F.T. Smythe, prison officials are deliberately ignoring your physical health.

Courts evaluate deliberate indifference claims through a two-part approach. First, they ask whether the deprivation is unreasonable. Second, if it is, they ask whether prison officials have a good reason, usually related to the goal of running a safe and effective prison, for the continued deprivation.

Here, you can argue that being forced to share the cell with a smoker was unreasonable. You are simply not lodging a unsupported, frivolous claim that you are being harmed in some unspecified way by smoking. To the contrary, your frequent trips to the infirmary for respiratory illness demonstrate that you are certainly and credibly being harmed.

Nor can the prison officials claim that they did not know about your condition. You provided the warden with several requests for reassignment, and the medical personnel in the infirmary would certainly know about your health issues.

The question then is whether the prison has a good and justified reason for continuing to keep you in the cell with F.T. Smythe. In their defense, Warden Elaine, and his subordinates, will no doubt argue that moving you to a different cell would be too disruptive, given the severe and persistent overcrowding. In your favor, courts do not usually allow a prison to justify its deprivation by arguing lack of resources. Moreover, it seems to me that reassigning you will not really have much of an effect on the overcrowding officials are not adding anybody to the prison population; they are simply moving you from one cell to another.

You may be asking yourself at this point why I said earlier that you would have little chance of success, when all of my discussion so far has been positive. It is because it is important for you to know that deliberate indifference claims - and prisoners' habeas petitions in general - are very difficult to win on. Courts are flooded with these claims and take a very skeptical view of them, even the meritorious ones.

I would suggest that you pursue a deliberate indifference claim -- unlike most, yours seems to have merit -- but I would not place much hope in winning. 

In addition, procedurally, I would argue that you have the right to a hearing to explain why you need reassignment. Under the 14th Amendment's protections, you have a right to procedural due process before your interest in life, liberty and property is infringed. Here, you have a liberty interest in being free of physical harm. A prison should not be able to deprive you of this interest by forcing your continued exposure without some type of hearing.

II. Challenge to the Euphoria Anti-Sodomy Statute

Your chances of success in attacking the anti-sodomy statute, however, are much greater. Just recently, the Supreme Court recognized, in Lawrence v. Texas, that the right to private embodied in the U.S. Constitution encompasses a right for consenting adults to engage in same-gender sexual relations. The Court struck down a Texas statute which criminalized such conduct.

The logic of the decision is based on the Due Process Clause of the Constitution. Under the 14th Amendment, states cannot deprive individuals of their life, liberty or property without due process of law. The Court has held that there is a substantive component to due process, which protects fundamental rights, like the right to vote and to free speech. A state cannot infringe a fundamental right unless its actions are necessary to a compelling government interest. Here, after Lawrence v. Texas, it will be hard for Euphoria to argue that it has a compelling interest in criminalizing same-gender sex between consenting adults so as to protect against "immoral" conduct when the Supreme Court has held that such conduct is covered by the fundamental right to privacy.

You could also try to argue that the criminal statute violates the 14th Amendment's Equal Protection Clause, because it treats adults who engage in same-gender sex differently from adults who engage in same-gender sex differently from adults who do not engage in same-gender sex. This challenge, however, will not likely be successful. Equal Protection principles are truly implicated only when the government classifies based on a suspect class, like race, or a quasi-suspect class, like gender. Otherwise, government is generally free to classify and categorize. Here, neither suspect or quasi-suspect classifications are at issue.

Best of luck in your legal actions.

Sincerely yours, 



To: Westcott Bowen
From: Applicant
Re: Bowen's Constitutional Rights

Dear Mr. Bowen:

We have reviewed your claims with respect to your incarceration and we have the following opinion:

I. Standing: First of all, in order to bring suit to challenge your conditions you must have standing to do so, meaning that you are being harmed currently by some action of the government. Since you are still in prison and still in cell with a chain-smoker, there is no question you are being harmed and seek actual relief.

2. The Anti-Sodomy Statute: 

This statute affects a fundamental right of privacy that the Supreme Court has held is protected by the substantive due process clause of the 14th amendment, which is directly applicable to the states (including, of course Euphoria). Under the substantive due process analysis, a state must prove that their infringement on a fundamental right (here, your right to privacy in your consenting adult sexual relations) is necessary for a compelling governmental purpose. As the result, the State of Euphoria would need to show that the statute is narrowly tailored to serve a compelling interest. Here, if the compelling interest is to proscribe "immoral" conduct, immoral conduct must be defined very specifically so that the statute could be interpreted. Here, it appears that the statute is too vague to support such an exceedingly high burden on the state to show that it was narrowly tailored for an extremely important purpose. Therefore, the anti-sodomy statute is likely to be held unconstitutional.

3. Your Rights in Prison:

Keep in mind that if the state is able to carry its burden in sustaining the statute, you will need to pursue your rights as prisoner. Just because you are in prison does not mean you lose all your constitutional rights. 

First of all, you can claim that subjecting you to constant smoking violates your 8th amendment right not to be punished in a cruel and unusual manner. (This right is applicable to the states through the 14th amendment due process clause.)

In addition, the 14th Amendment due process clause requires that you be given a fair and impartial hearing, if the government takes any of your rights to life, liberty or property. Clearly, being suffocated by and causing respiratory illness must implicate those rights and from your discussion it does not appear you were given any kind of fair hearing. Note, however, that your rights in prison are subject to what the courts consider "legitimate penological reasons" and this burden is a much lower one than strict scrutiny.

4. Suing Euphoria and Elaine

As for bringing the suit against Euphoria and Elaine, you must keep in mind that the 11th Amendment would prohibit a federal court from entertaining a suit if you were to sue Euphoria for damages or injunction (against your treatment by warden) or if any remedy you seek would require Euphoria to pay damages for past conduct (such as if you sued the warden and the State of Euphoria was required to indemnify the warden.)

However, you can seek to enjoin the warden himself from furthering (sic) harming you if you claim the warden is acting his official capacity. You can also bring a suit if the result would be to force Euphoria to spend money in the future (such as a consent order that Euphoria will do whatever is necessary notwithstanding the overcrowding or expenses (including building a new prison) to relieve the conduct being subject to suit in the future.


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February 2004

QUESTION 6 (Torts)

On the eve of the season's most important game, Tony and Phil, 20-year-old alumni, attended a pep rally for their local high school football team. While at the pep rally, each man consumed a beer, in violation of the state's 21-year age requirement for the consumption of alcohol.

When the rally ended, Tony and Phil began walking to their cars when they encountered a large group of hostile, rival fans. Fearing an assault, both began to run. Tony collided with Cynthia, a passerby who was walking her dog, Petey. Cynthia fell to the ground, breaking her ankle.

Seeing his owner in extreme distress, Petey bit Tony on the arm and held on despite Tony's frantic efforts to free himself. Hearing the commotion, Phil came to Tony's rescue, striking the dog with a large stick he found nearby. This caused Petey to release Tony's arm, but the dog's injuries ultimately required veterinary care costing $10,000.

Cynthia brought suit against Tony, seeking to recover her broken ankle, and against Phil, for the veterinary bills. In turn, Tony filed a counterclaim for damages related to the dog bite.

During discovery, the following facts were elicited:

(1) Barry, the veterinarian, treated Petey with an old antibiotic whose shelf life had expired. Had a fresh antibiotic been used, Petey's recovery would have been much quicker, cutting in half the veterinary bills;

(2) Petey had bitten once before, about five years earlier, when a little boy entered his yard to retrieve a baseball. The child was not seriously hurt, and the incident was never reported to authorities by Cynthia or the child's parents; 

(3) Tony had attended the pep rally in violation of a Consent Order entered by the Juvenile Court three years earlier whereby Tony agreed to stay off school grounds for three years in exchange for dismissal of vandalism charges involving graffiti in the school's gymnasium.

You are the law clerk for the judge assigned to the case. He has asked you to provide a memorandum summarizing each party's anticipated legal positions and defenses.





Cynthia v. Tony for Broken Ankle

Cynthia is likely to argue that Tony committed a battery against her and is liable for the foreseeable result of her broken ankle. A battery is an offensive touching to a person of another that is not done unconsciously and is done either with intent or recklessly. Here Tony collided with Cynthia who fell, so there is no way she consented to the touching.

In defense Tony is likely to argue duress or necessity in that his reasonable and honest fear of the rivals fans caused him to run which made him recklessly bump into Cynthia. He may succeed on this defense, since the fans were hostile.

Cynthia may also argue that Tony was negligent in bumping her. Negligence exists when there is a duty, breach, causation and damages. Cynthia may say Tony has a duty to watch where he was going. She may also try to establish negligence per se. This arises when one is in violation of a statute or Court Order, such as Tony's violation of the Consent Order to be on campus or his drinking in violation of State law. For negligence per se to apply the harm to the victim must be of a type that the statute seeks to avoid and the victim must be the intended beneficiary. As to the Consent Order, the rationale was to prevent Tony's graffiti of the school and as such the victim and harm are not of the type at play in Cynthia's claim. As to the state drinking statute, this is a tougher call. The statute's history would have to be examined to determine if its point was to protect minors or to protect others from minors under the influence. If the latter, Cynthia may be able to collect damages for her broken ankle.

Tony may also defend that he was acting in self-defense due to the hostile rivals coming after him, but this is unlikely to excuse his actions toward a third-party bystander Cynthia.

2. Cynthia v. Phil for Vet Bill
Cynthia is likely to allege that Phil battered her dog leading to his foreseeable injuries. A battery is an offensive or harmful touching pf the person of another. This would include an offensive touching of one's possessions immediately, such as one's dog. Phil got a stick and intentionally hit the dog; what injury he intended is irrelevant.

Phil will defend primarily on the ground of defense of other. A third party is privileged to use force to protect another in danger (here a friend) to whom he has a relation where the third party himself would be privileged to use force to defend against an occurring or impending attack. Here it was clear that Petey was attacking Tony so Phil was legitimate in attacking Petey. Defense of another privileges one, however, to use only the force reasonably necessary. Phil will lose the protection of the privilege if Cynthia can show that he used substantially more force than was required to release Petey's grip on Tony's arm.

Phil will also defend on the ground that the veterinarian's negligence was a superseding or intervening force which broke the chain of events sufficiently to release Phil's liability. Phil is unlikely to succeed on this defense however because medical malpractice/negligence is considered a foreseeable intervening event and the damages from such also appear to foreseeable (double the medical bills). However, Phil may have an argument to Cynthia's tort claim because ten thousand dollars is not a foreseeable amount of damages to one's dog.

3. Tony v. Cynthia for Dog Bite
Because Petey, a dog, is a domestic animal, Cynthia will not be liable strictly but Tony is likely to bring a claim for negligence. While arrears of domestic animals are not generally liable for the harm caused by the animal, where the danger is foreseeable, they may be liable. Specifically, where a dog has caused injury in the past, the owner is on notice and may be held liable for further harm. Because Petey bit a boy once before, Cynthia will be held liable.

Cynthia will defend that the dog was provoked and that Tony's actions were a contributory cause of any negligence, thereby defeating his claim. In New Jersey, comparative negligence is applied so that if Tony was partially liable, he would only recover if Cynthia was liable for 50% or more of the negligence.

Assumption of the risk would not only apply because Tony could not know that the dog would bite when he entered on the property or knocked into Cynthia.


I. Cynthia v. Tony

Cynthia is asserting a negligence claim against Tony. To prove negligence, Cynthia must show 1) breach of the standard of care, 2) duty, 3) cause in fact and in law, and 4) damages. The element at issue here is whether Tony breached the standard of care when he collided with Cynthia.

The fact that Tony consumed a beer in violation of state law is a factor to be considered, although it does not lead to a conclusion of per se negligence. A statute may furnish the standard of care when the plaintiff is within the class of persons protected by the statute and the allegedly tortious conduct is within the class of risk addressed by the statute. This may be the case here, where the statute is probably intended to prevent people from the risks posed by young people drinking alcohol.

However, it is not clear that drinking one beer was the cause in fact of the collision. Tony may have been completely sober after only one beer. Thus, Cynthia must prove that he behaved in a negligent manner. If, when running into her, Tony was looking in the opposite direction, that would probably constitute negligent conduct. A jury will consider whether Tony breached the standard of care, given all the circumstances. Therefore, Tony will assert as a defense his fear of an angry crowd. A lower standard of care may be appropriate in those circumstances.

Cynthia may assert that Tony's violating the Juvenile Court Order indicates per se negligence. Here, however, the Court Order should not furnish the standard of care when Cynthia clearly does not fall within the class of persons/class of risk test. The Order was intended to prevent vandalism, not to protect people like Cynthia.

Cynthia v. Phil

Cynthia will assert that Phil committed the intentional tort of trespass to chattels. Petey is considered properly for this purpose, so there was no battery. The tort was intentional because Phil intended to hit Petey and caused damage to do so. This is not a negligence claim.

Phil will assert the defense of necessity because he was trying to save Tony from death or serious injury. However, the defense of necessity is in this case a qualified privilege because this was private and not public necessity. Therefore Phil must pay for damage he caused to Cynthia's property. 

Phil will also assert the defense of Barry's negligent veterinary care. Because Phil remains an actual and proximate cause of the damage. However, Barry's negligence does not affect Phil's liability. Barry's negligence was foreseeable and was not a supervening event that would relieve Phil of liability. Phil may, however, be able to seek contribution from Barry as a joint tort feasor.

Tony v. Cynthia

Tony may claim that Cynthia was negligent in her supervision of Petey or that she is strictly liable for damage he caused because he is a dangerous animal.

Cynthia was not negligent in her supervision of Petey on the day of the incident, as far as the facts indicate. Petey only became agitated when Cynthia was injured by Tony. At that point, Cynthia was physically unable to control Petey's behavior because she was injured. Her failure to control him is thus not attributable to negligence.

If Petey was a dangerous animal, however, Cynthia would be strictly liable even if she exercised reasonable care to control him. The only evidence we have is that Petey bit a child five years previously. The child was not seriously injured. This is probably not enough to make Petey a dangerous animal since it was so long ago and it was such a minor incident.

Cynthia may also have the defense of Tony's contributory or comparative negligence in colliding with her and causing the dog's agitation. If the jurisdiction has contributory negligence, this would be a complete defense to Cynthia's negligence. If, as is more likely, the jurisdiction uses comparative negligence, Cynthia would still be liable to the extent of her fault.