BARBRI – Multistate Preview Day 5 Disc 1

Transcription by www.CaptionCrew.com

Good morning, ladies and gentlemen. My name is Chuck Shonholtz, and I am here today to

conduct the 100-question review of Step 2 of the BARBRI Multistate program. We are going to

be going over today the 100-question test that you guys took yesterday.

Now, the way I've organized this is, in the most simplistic fashion possible, we are going to do

these questions subject by subject in alphabetical order, which means we're going to start with

Constitutional Law. And the questions are going to be lectured literally in the order in which the

Constitutional Law is organized.

I just think it's best for you to learn things in a very organized, detailed, meticulous fashion. That

is the way you want to study. That is the way you want to jump headfirst into Bar review

preparation. Organization will be the key to your success.

Now, as of right now, I don't care how you scored on this test. That is not relevant. This is

spring training. This is not game day. This is the time for you to make all of your errors. This is

the time for you to fall down and pick yourself up. This is the place where you are going to

learn, and learn how to take this type of exam.

Now, we are going to start with Constitutional Law. And as I've already mentioned, we're going

to follow literally the way in which a Constitutional Law outline is organized.

Our first question, which is -- and you can see the order in which I'm lecturing these questions in

the back of your book. It has an order in which I'm lecturing the questions.

You see it starts with Constitutional Law. Our first question that we are going to be covering this

morning is Question Number 38. And not surprisingly, Question Number 38 deals with

justiciability, federal judicial review. Are the federal courts going to hear a specific type of case.

And these are your questions that involve ripeness and mootness, standing, case of controversy.

The things -- the threshold issues, if you will, that determine whether or not a federal court will

hear a particular case.

Question Number 38. Federal judicial review. Justiciability, I like to call it. And this question is

dealing with whether or not the Supreme Court will get involved in this issue involving the

United States and a foreign country.

And one of the things that the U.S. Supreme Court will not get involved in has to do with the

foreign policy of the United States.

Now, the other day when you were doing your Con Law review of the 25 questions, the lecturer

spoke about standing. But here we are getting into political questions. And this is one area

where the federal courts will not get involved.

So whenever you see a foreign issue arising on a Multistate question, you want to think, This

might be a political question scenario.

So don't fall into the habit of thinking that every foreign issue triggers the political question

doctrine. Not always will that occur. U.S. Supreme Court, federal courts can determine the

validity of treaties with foreign countries, but for the most part, when you are dealing with a

foreign issue arising on a Multistate question, you ought to think that this has a good shot of

being a political question scenario.

So get rid of answer choice D, David. Hear the suit on the merits? No, they're not. This is a

foreign affairs issue, and they're not going to hear the lawsuit here.

So if the citizen sues, what is the result? You've already gotten rid of answer choice D, David.

As for answer choice A, the challenger lacks standing, that is wrong. Our challenger here is

going to lose assets. Our challenger has suffered injury in fact. Our challenger here can

establish causation and redressability. The elements of standing can be met. That's not the

issue.

The issue here is this is a foreign affairs question. This is the type of issue that federal courts are

not going to get involved in.

Our challenger has standing. Answer choice A is wrong. The problem with this issue, like I

mentioned, is it involves foreign affairs.

As for answer choice B, B is not going to fly, either. B is not going to fly, either. This is not a case

based on diversity. It's a federal question, and that leaves -- it's a political question, and that

leaves answer choice C. Answer choice C.

Now, I want to point out once again when I see the political choice answer like I see in answer C,

I want to be thinking this is foreign affairs. When I want to pick a political question answer, I'm

usually in the area of foreign affairs.

The one exception where federal courts will hear issues regarding foreign affairs is when a

treaty is being litigated. The validity of a treaty. Then you can have a federal court involvement.

But oftentimes when the issue is involving foreign affairs, you want to be looking for an answer

choice like C, Charlie, political question.

Moving on to Question 11 -- and this is our question involving standing. And Number 11 is

dealing with essentially what we call third-party standing. And I'll tell you basically the same

rules will apply. We allow for third-party standing.

And what you are looking for is some type of close relationship, usually economic, but you're

looking for some type of a nexus, some type of connection between a third party and the person

or peoples who are being harmed.

What does that really mean? Well, what it really means, in my world, is I'm looking for a close

economic relationship between the third party bringing the lawsuit and the party whose rights

they're trying to protect. I'm looking for people getting dinged in the wallet. I'm looking for a

close economic relationship between the third party and the rights that that third party is trying

to assert or the people whose rights that that third party is trying to assert on behalf of.

Now, in our question here we have the wife suing on behalf of her husband. The problem here

is that the husband should have brought the lawsuit himself. Furthermore, there's really not

any evidence that anyone is suffering any economic harm.

Now, don't get me wrong. If the husband had sued, he would have standing. He could show

injury in fact. His First Amendment rights have been violated. He's been denied the right to

speak.

And the fact that he lost his job and had to move across the country to take a new job, that will

not negate the fact that his First Amendment rights have been violated, and that will be enough

to trigger standing. He would be able to show injury in fact. He could show causation. He could

show redressability.

But his wife, her First Amendment rights have not been violated. She has no standing. And that

is answer choice C to a T.

Now, as for answer choice A, there's political question. Is this a foreign affairs issue? Certainly

not. So let's get rid of A. We're not going with political question here. We saw that in Question

38. But it's not in existence in Number 11, so A is wrong.

B is wrong. The mootness answer. Mootness doesn't apply. He didn't get his old job back. He

had to move across the country to take a new job. So this issue is not moot. It is live.

The problem is the wrong party is suing. The wife shouldn't have sued. The wife shouldn't have

brought the lawsuit. The husband should have brought the lawsuit.

And as for answer choice D, there is a federal question here. The First Amendment. Anytime

you see a First Amendment issue, you know the Federal Question Doctrine has been triggered.

Answer choice D is wrong. It says there is no federal question. Certainly there is.

So C is our answer in Number 11.

Turning now to Question Number 23, Question Number 23 deals with the original jurisdiction of

the Supreme Court. Let's go over this concept.

The Supreme Court has original jurisdiction over cases involving ambassadors, ministers,

consuls, and cases where states are suing other states. Let me repeat. The Supreme Court has

original jurisdiction over cases involving ambassadors, ministers, consuls, and cases where states

are suing other states.

Now, bear in mind, over the years the Supreme Court has granted concurrent jurisdiction to the

lower federal courts in many of these types of cases. Cases involving ambassadors, ministers,

consuls. There have been many instances where the Supreme Court has granted concurrent

jurisdiction to the lower federal courts in those types of cases, cases involving ambassadors,

ministers and consuls.

But there is one area where the Supreme Court will not grant concurrent jurisdiction to the

lower federal courts, and that is when one state is suing another state.

When one state is suing another state, the Supreme Court's jurisdiction is exclusive. One state is

suing another state, the Supreme Court's jurisdiction is exclusive. It is exclusive. It's original.

Now, here we have one state suing another state because of the pollution that the other state is

causing in the first state, which is very kind of convoluted. But in any case, we have one state

suing another state because of pollution.

Now, we want to know whether or not the Supreme Court should hear the case or not. A says

dismiss the case. Dismiss the suit. Because it's really a citizen who made the complaint against

the other state, and in essence it is that citizen suing the other state, thus triggering the

Eleventh Amendment.

A is wrong. The initial complaint may have been made by a citizen, but this lawsuit is being

brought by the state against another state. The Eleventh Amendment does not apply when one

state is suing another state. So A is out.

C is absolutely wrong law. We've already established that the Supreme Court has original

jurisdiction when one state is suing another state.

And as for answer choice D, remand the case, no, no, no. No remand allowed. Original

jurisdiction, exclusive jurisdiction means that the Supreme Court has to hear the case. D is out

of the picture.

B is our answer, hear the case, because it's the state suing the other state, jurisdiction is ripe

and proper. B is our answer in Number 23.

Moving on to 22, 22 doesn't need a lot of explanation. It doesn't need a lot of rationalization.

We know that the presidential pardoning power is a big power. Congress can't touch it.

Congress can't limit the president's pardoning power.

But keep in mind, ladies and gentlemen, the president could only pardon for federal offenses.

The president can only pardon for federal offenses.

We're told that the three prisoners that the president is trying to pardon in Number 22 were

convicted for violating state laws. The president cannot issue pardons for state violations. Only

the state's governor can issue pardons for state violations.

And answer choice D, David, is our winner in Number 22.

As for answer choice A, A is wrong, because A talks only about treaties. It speaks nothing about

executive agreements. The president is allowed to enter into executive agreements. You don't

need a treaty. Executive agreements are absolutely kosher for the president to enter into with

foreign powers.

As for answer choice B, that's wrong based on the Supremacy Clause.

So D is our winner in Number 22.

Question Number 10 takes us into federal property. The federal property power. And as you

may not have known, but you will find out right now, the federal property power extends to all

areas controlled by the Federal Government. The federal property power extends to all areas

controlled by the Federal Government. The federal property power, once again, extends to all

areas controlled by the Federal Government.

What are the areas controlled by the Federal Government? Well, let's talk about some of that.

Number one, military bases and military equipment. Military bases and military equipment,

part of federal property.

Federal buildings, federal enclaves, part of federal property. Federal buildings, federal enclaves,

part of federal property.

Federal prisons, federal property.

Federal parks, national parks, excuse me, national parks are part of federal property.

And Washington, D.C., let's include Washington, D.C., in the mix.

The Federal Government can legislate however they want with respect to federal property. And

if the Federal Government wants to ban hunting in federal parks, they can do so. It's all part of

the federal property power. If the Federal Government wants to ban hunting in national parks,

they can do so. It's part of their federal property power.

Now, as for the answer choices, answer choice D, David, I want you to take that answer and I

want you to write down next to answer choice D this is always a wrong answer. Privilege, not a

right. I don't want you ever picking that answer unless they ask for the worst answer, which

they won't do.

But if they happen to ask for the worst answer, the worst argument, you could pick an answer

choice like D, David. Otherwise avoid it like the plague.

Answer choice C, the police powers of the Federal Government encompass protection of wild

animals. Far too broad of an answer. Federal property power applies to wild animals on federal

land, not all wild animals everywhere. It's far too broad of an answer.

And if you think that wild animals move into the stream of interstate commerce, tell that to the

animals.

B is wrong. Don't pick answer choice B. That's a nonsense answer.

Now, answer choice A, the law is a necessary and proper means of protecting U.S. property. A

law is a necessary and proper means of protecting United States property.

I want to talk about answer choice A. Necessary and proper answers. I want to point out

something about these answers. A is our winner here. A is our answer.

But I want to point out if you ever see necessary and proper standing alone as the answer

choice, for example, if you see an answer choice that says constitutional under the Necessary

and Proper Clause, period, no other explanation, constitutional under the Necessary and Proper

Clause, that will be a wrong answer on this exam. Necessary and proper answers standing alone

are wrong answers.

However, if you see necessary and proper attached to a legitimate constitutional provision, like

we have here, necessary and proper means of protecting U.S. property, if you see necessary and

proper attached to a legitimate constitutional provision, it might be your right answer.

And here it is your right answer. A is our answer in Number 10.

Question Number 65 deals with what I believe is Congress's strongest power. Now, I know your

law professor probably spent weeks on the Congress laws, and you walked out of your law

school Constitutional Law class thinking that the Commerce Clause is Congress's strongest

power. It's not. Congress's strongest power is the power to tax and spend.

And I've got the perfect example to show you why it's the strongest power.

A number of years ago Congress allocated I think something like 150 million dollars to build a

bridge to nowhere in Alaska. 150 million bucks to build a bridge to nowhere. Did Alaska give

the money back? I don't know. I have no idea.

Congress's ability to tax and spend is enormous. We say that Congress's ability to tax and spend

is subject to a weak rational basis standard of review. If there's any legitimate reason behind

the taxing and spending, it's going to be upheld by the courts. Congress can tax and spend for

any legitimate reason.

We also say that Congress can tax and spend for the general welfare. And I want you to also

further understand that whenever Congress allocates money, they can attach conditions to that

allocation. When Congress allocates money, they can attach conditions to that allocation.

And that's exactly what is going on here. Congress gave the state $5 million -- and I'm using the

exact quote here -- to be used solely, solely -- underline that word, I think it's five lines down,

four or five lines down -- to be used solely for the development of synthetic materials to replace

oil.

The state gave the university 3 million of the $5 million, and we are told that the university is

using the money for a number of purposes, including the development of synthetic materials to

replace oil.

Is that going to be allowed? No. The money was granted for a specific purpose. Now, when

Congress grants a state money for a specific purpose, every dime, without exception, must be

spent for that specific purpose.

Now, I know a lot of you bit at the sucker answer, the sucker answer, the substantial conformity

answer, answer choice C. It looks really good. Don't be sucked into that answer. If the money

allocated by Congress is earmarked for a specific purpose, every dime of it must be spent for

that purpose. All of it must be used for that specific purpose.

C is the wrong answer. Instead jump on the Supremacy Clause answer, answer choice B.

Now, let's turn now to the Commerce Clause, Number 39.

And I don't mean to discount the Commerce Clause like I did in the previous question. It is a

very powerful provision of Congress. It just doesn't -- it's just not as strong, in my opinion, as

taxing and spending. And whenever you're vacillating between the two, just ask yourself, is

Congress regulating commerce or are they allocating or taxing, taxing and spending? That

usually gives you the general idea of where to go with the answer choices.

Question 39, the Commerce Clause, because I already mentioned what you need to know about

the Commerce Clause is that Congress has absolute plenary power -- Congress has absolute

plenary power to regulate interstate commerce and commerce with foreign nations.

Let me repeat. Congress has absolute plenary power to regulate interstate commerce and

commerce with foreign nations.

And in our question, we had a state law that required that all tires traveling within the state use

a specific tire manufactured within that state. The Supreme Court held that the state law was

unconstitutional because it violated the Commerce Clause.

Soon afterwards, however, Congress passed the law that required all trucks that are doing

interstate business use that specific type of tire. Between you and I, these have got to be some

pretty good tires, right?

We want to know if this Congressional statute is constitutional. The answer is absolutely. This is

the Commerce Clause at work.

Answer choice A is our winner. Thank you, Charlie Sheen.

B is wrong. This answer, the constitutional only if Congress can demonstrate that the use of

tires of another design somehow unduly burdens interstate commerce.

The answer doesn't make any sense. Congress doesn't need to find an interstate commerce

violation before introducing a law. Congress can introduce a law and justify it under the

Commerce Clause. They don't need to find a Commerce Clause violation before introducing a

law. They can introduce their own laws and justify them under the Commerce Clause. The

Commerce Clause gives them absolute plenary power to regulate interstate commerce and

commerce with foreign countries.

Answer choice C is only correct if we lived in the bizarro opposite world. If most states permit

tires of another design, basically what C is saying is that the state law will trump the federal law.

Maybe on opposite day, but not today. C is wrong.

And answer choice D, it looks tempting, but the Supreme Court ruled that a state law violated

the Commerce Clause. But this federal law doesn't violate the Commerce Clause. It's regulating

commerce. They're allowed to do that.

And you always want to ask yourself with these common law questions and start getting into

the habit now, always ask yourself who is passing the law. Here it's Congress, it's involving

commerce, it's valid.

Question 72 deals with the scenario where Congress is giving orders to the military. Yeah, that's

going to happen. No.

If you remember the fact pattern here, we are told that toy workers are on strike and they're

committing acts of violence against toy makers by destroying toy shipments. Congress steps in

and they order the military to go to areas that are being affected by the striking toy makers.

And we want to know whether this Congressional enactment, ordering troops places, is going to

be constitutional.

We all know that answer, don't we? Is Congress the commander in chief? Does Congress get to

direct troops? Absolutely not. So the enactment is most likely -- A says constitutional, because

under Congress's power to raise and support the armed forces. A is wrong. Sure, Congress has

the power to raise and support the armed forces, but it's the president as commander in chief

who decides where the military goes.

B, constitutional under Congress's power to regulate commerce. Looks pretty good. We're

dealing with toys. Toys are always -- usually in interstate commerce. It looks good. But the

Commerce Clause doesn't allow Congress to overstep the president's power as the commander

in chief. So B is wrong.

Answer choice C, unconstitutional because it infringes on the president's authority to faithfully

execute the laws of the United States.

Look how it's written. It's so beautiful. It's written so eloquently. It's so Shakespearean. It's so

broad. And these broad answers are invariably wrong.

And not surprisingly, C is wrong here.

Commander in chief, answer choice D, there's our winner. Congress can't order the military

around. It's the president who orders the military where to go. Anytime Congress orders the

military, that violates separation of powers.

D is our answer.

Don't forget, however, it's Congress who has the power to declare war. Congress gets to

declare war. But the president, as commander in chief, gets to direct the troops.

Question 79 is a classic Tenth Amendment police power question. Classic Tenth Amendment

police power question.

If you will remember, the Tenth Amendment is the constitutional amendment that reserves

rights to the states. And you have to know, under the Tenth Amendment, states are allowed to

enact laws for the health, safety, welfare, morals, and aesthetics of their citizens.

Let me repeat. Under the Tenth Amendment, the amendment that reserves powers to the

states, also known as the police power, this amendment allows states to enact laws for the

health, safety, welfare, morals, and aesthetics of their citizens.

As long as the state law doesn't conflict with any superseding federal law, as long as it doesn't

interfere with, say, interstate commerce, or as long as it's not in an area where Congress has

intended to occupy the field, as long as it doesn't violate -- as long as it doesn't conflict with any

superseding federal law, or as long as it's not a law in an area where Congress has intended to

occupy the field, then the state law will be upheld as valid.

And here we have a state antiusery law to prevent loan sharks. There's no evidence here that

it's affecting interstate commerce. Congress doesn't occupy the field when it comes to home

loans. There's no conflicting federal law. The state law here is valid.

As for the answer choices, get rid of C. The statute denies the nonwealthy equal protection of

the law. Guys, understand, when you have classifications based on wealth, based on poverty,

that's going to get a weak rational basis standard of review. A weak rational basis standard of

review.

What's a rational basis plaintiff on this exam? That's right. Un perdedor. A loser. Rational basis

plaintiffs on this exam are losers.

Get rid of C.

Answer choice D, the interstate commerce answer, there's no evidence that this state anti-loan

sharking law violates interstate commerce. It's not burdening interstate commerce. It's not

restraining interstate commerce. It has no substantial effect on interstate commerce.

So D is wrong.

So between A and B, get rid of A, because even though this state law doesn't conflict with a

federal law, if Congress intended to occupy the field of home loans, then the state law would be

unconstitutional.

And that leaves us with B. The state acted properly under their police power. And when they

give you a police power answer, I want you to note that is just another way of writing the Tenth

Amendment.

B is our answer in Number 79.

All right. Let's turn now to individual rights. Let's get into procedural due process. And now we

are looking at Question 86. Ladies and gentlemen, when I hear the phrase "procedural due

process," I think of two words: notice and hearing. When I hear the phrase "procedural due

process," I think of two words: notice and hearing.

If you are deprived a due process life, liberty or property interest, if you are deprived a due

process life, liberty or property interest, you are entitled to notice and a hearing.

And bear in mind, please, driving an automobile is a due process property entitlement. Having a

driver's license, driving a car, that is a due process property entitlement.

Now, our plaintiff here was pulled over for driving recklessly and was subsequently arrested for

driving under the influence. The plaintiff refused to take a Breathalyzer. And by statute, lost

her license, or his license, for 60 days.

We were also told that the plaintiff had the right to request an immediate hearing but instead

decided to file suit claiming that his due process rights had been violated. They weren't. They

were not violated.

So A and B, get rid of those answers. They were not violated. He's not going to win. A and B say

the plaintiff, the driver, is going to win. No, he's not. A and B are wrong.

As for answer choice D, David, D is wrong. The state police power answer. Because even if a

law is passed under the state's Tenth Amendment police power, it might still violate a person's

fundamental rights.

No, our correct answer here is C. It addresses procedural due process. Our plaintiff had the

opportunity to be heard.

What did our plaintiff decide? Our plaintiff decided to heck with it, I'm going to sue. Well,

you've had notice, you had an opportunity to be heard, you decided to waive those rights, that's

on you.

C is our answer in 86.

Now, I understand these questions are not simple. You haven't had Con Law in, what, a year

and a half, two years, three years in some cases. But do some very solid and sound review of

the subject, and you will start filling in the gaps where your lack of knowledge in Con Law is

deficient, where your knowledge of the law is deficient.

I don't expect you to get all the procedural due process questions immediately. Heck, I don't

even expect you to recognize them immediately. But when you see notice, opportunity to be

heard in a fact pattern, I hope that triggers procedural due process for you.

All right. Question 49, and we want to know in Number 49 which provision of the constitution

will be violated by the state law.

Now, if you will recall, this state law punished employers of nonresidents with civil fines if they

didn't fire their nonresident employees by a certain date.

So what constitutional provision is being violated? Well, answer choice A, bill of attainder,

ladies and gentlemen, this is not a bill of attainder.

What is a bill of attainder? A bill of attainder is legislative punishment of a named individual

without notice and a hearing.

Let me repeat. A little of attainder is legislative punishment of a named individual without

notice and a hearing. Legislative punishment of a named individual without punishment and a

hearing.

We're not dealing with legislative punishment of a named individual. Nobody is being named

properly in this law.

Get rid of answer choice D, David, ex post facto. This is not an ex post facto issue. We are not

retroactively increasing the penalty of a crime. We're not punishing somebody for an act that

wasn't a crime when it was created -- when it was committed. We are not punishing somebody

for an act that wasn't a crime when it was committed.

You only pick ex post facto when you're dealing with some type of criminal statute, some

retroactive criminal imposition of a law, or retroactive imposition of a criminal law, excuse me.

But this is definitely a Privileges and Immunities Clause violation under Article 4. This is a

privileges and immunities violation under Article 4.

Whenever I see a state law discriminating against out-of-state citizens with respect to

employment, whenever I see a state law that is discriminating against out-of-state citizens with

respect to employment and the right to earn a living, in my mind I always think Article 4,

privileges and immunities.

When I see a state law discriminating against out-of-state citizens with respect to the right to

earn a living or the right to be employed, for some reason, Article 4, privileges and immunities,

just goes off in my head like a lightbulb. It should do the same thing to you as well. The right to

work is a property interest under the Due Process Clause under the Fourteenth Amendment.

B is our answer in 49.

And as for answer choice C, the equal protection answer, wrong answer. This is not a suspect

class. Out-of-state citizens are not a suspect class. They don't fit under equal protection. If you

were to analyze them under equal protection, they would get a rational basis standard of

review. And we all know what a rational basis plaintiff is, don't we? That's right. A loser.

B is our answer in 49.

Question 17 deals with discrimination against resident aliens.

Now, ladies and gentlemen, you have to understand whenever you have a state law

discriminating against resident aliens, people who are lawfully here, they're not citizens but they

are lawfully in this country, when you have a state law discriminating against resident aliens, the

standard of review, strict scrutiny. Strict scrutiny.

The burden will be on the state to show that the law is necessary in further a compelling

government interest. The law is necessary to further a compelling government interest.

But there is an exception to that rule. And that's when we are dealing with aspects relating to

citizenship.

When we are dealing with aspects relating to citizenship, or I like to call it the important

government functions exception, under the important government functions exception, when

you are dealing with an important government function, like voting, sitting on a jury, being a

police officer or a public school teacher, then the standard of review will be rational basis.

If a state wants to exclude resident aliens from the voting process or from the jury process or

from becoming a police officer or a public school teacher, they can do so, and the standard of

review will be rational basis.

Now, normally, like I said, state laws regarding resident aliens, if that state law regarding

resident aliens is discriminatory, it will get a strict scrutiny standard of review.

But here we're talking about sitting on a jury. Sitting on a jury, we're in the world of rational

basis. And the correct answer in Number 17 is going to be C.

Normally B would be a fine answer, but because the important government functions exception

is triggered here, C trumps answer choice B.

Number 41 is a very straightforward type of question. These are the types of questions you

have to get correct on game day.

Here we are being asked what is the association's strongest constitutional defense against the

lawsuit filed by this white supremacist. By this supremacist, by this racist. Now, don't get me

started on these people.

Now, what is this white supremacist, this racist, this horrible person suing under? Well, she

claims that her First and Fourteenth Amendment rights have been violated.

What is the association's, what is the organization's, what is this group's strongest defense?

What's their best defense? Well, in order for the First Amendment to be triggered, in order for

the Fourteenth Amendment to be triggered, there has to be significant state action.

Do we have significant state action here? No. No, we don't. This group is -- this association is a

group of transportation workers. They're not supported by the state. They're not a state actor.

There's no state involvement here.

The best defense is that the First and Fourteenth Amendments don't apply to the association

because they are not part of the state.

A is the best answer in Number 41.

As for answer choice B, that's wrong. Civil liberties do protect the rights of racists. Darn civil

liberties. We know these laws were written by a bunch of hippies.

B is wrong.

And C and D are not relevant to this question. No state action. No First or Fourteenth

Amendment triggering.

Question Number 96 is asking us what is the bus company's best defense against this political

candidate's First Amendment claim.

We have this political candidate in Number 96 who wants to advertise on the sides of buses.

The bus company, we are told, is a privately owned corporation.

Does the First Amendment apply? Well, once again, for the First Amendment to apply, what do

you need? That's right, we need state action. Private companies are allowed to put restrictions

on speech without it being a First Amendment violation.

So there's no constitutional violation here because the First Amendment doesn't apply to

private companies. It doesn't apply to private citizens.

So as for the answers, get rid of answer choice B. This is not commercial speech. This is political

speech.

Both answer choices C and D assume that the First Amendment applies when, in fact, it doesn't,

because that threshold issue, state action, hasn't been triggered. It's not satisfied.

A is our answer in Number 96.

Question Number 90, another First Amendment question.

Whenever I'm dealing with the First Amendment, one of the first things I always try to do with

the answer choices is look for the answer choice that is attacking the law that is allegedly

infringing on speech.

The first thing I try to do is look for an answer choice that is getting rid of the law that is

allegedly infringing on speech and try to attack that law on its face. Attack it on its face. Make a

facial attack on that law.

And there are four types of facial attacks that you can make on a speech or an assembly

restriction. You can argue that the law is vague. You can argue that the law is overbroad.

Argue that the law is tantamount to a prior restraint. Or argue that the law is an example of

untethered discretion. Unfettered discretion.

Those are my four facial attacks: overbroad, vague, prior restraint -- a gag order, if you will --

and unfettered discretion.

When I'm looking at unfettered discretion, you usually see that tested when you are dealing

with parade permits.

Now, in Number 90, we have an executive order by the president that is essentially a prior

restraint on speech. Not only does it look like a prior restraint, but it's also very broad. It's too

broad. It's too broad of a restriction because it's prohibiting every conversation. It's prohibiting

all conversations.

So when you get a First Amendment issue, always look for that facial attack. It's oftentimes your

best answer as to why a statute violates the First Amendment.

Overbroad, answer choice D. D is our winner.

We've already established that B is a wrong answer, so let's not even look at that.

A, the president has plenary power to control executive department employees. Well, it's true

to a certain extent, answer choice A, but the president still has to act within the parameters of

the law, namely the constitution.

And C is wrong because Congress does not set the terms of federal employment. It is the

president who sets the terms of federal employment.

So D is our answer in Number 90.

And our last Con Law question, Number 54, another speech issue, let's talk about public forums.

There are three traditional areas of public forums: parks, streets, sidewalks. Parks, streets,

sidewalks. These are places historically associated with expressive conduct. Parks, streets and

sidewalks, these are places historically associated with expressive conduct.

And in Number 54, we are told that the group and its leader were offending about 15 people at

the park. We were also told that there are 50 police officers there just in case things got a little

out of hand.

Nevertheless, the leader is arrested, convicted of disorderly conduct, and now he is seeking a

reversal.

And the speaker is going to prevail on his appeal. The park is a public place. And the rule is

simple. Restrictions on speech due to an unruly audience -- restrictions on speech due to an

unruly audience -- will only be upheld -- will only be upheld -- when the police are absolutely

unable to control the crowd.

Restrictions on speech due to an unruly audience will only be upheld when the police are

absolutely unable to control the crowd.

In this question, it's 30 students protesting. Another 15 people are counterprotesting. And

there are 50 officers in full riot gear.

45 citizens against 50 police officers in full riot gear. Unless those 45 citizens are on massive roid

rage, they're not going to go after 50 cops. They're outnumbered.

So there is no immediate threat to public order. Answer choice C is wrong. No immediate

threat to public order. Not when the police outnumber the citizens.

D is wrong. It's a public forum, folks. We have to show more -- we have to show more than just

other avenues of communication were being left open. It's a public forum. Restrictions on

speech in a public forum like a park, street or sidewalk, that's strict scrutiny. Restrictions on

speech in public forums are only upheld if the crowd can't be controlled by the police.

B is wrong. This is not an assembly issue.

A is our answer. It's the First Amendment right to free speech. The speaker's First Amendment

rights have been violated. It's a park. It should have received strict scrutiny. Our challenger,

the leader, should never have been convicted, and that conviction is going to be reversed.

A is our answer.

And ladies and gentlemen, that concludes the Con Law section of our 100-question review. Let's

all take a ten-minute break, and when we come back, we will get into contracts.

[BREAK]

All right. Welcome back, guys. We are now going to turn our attention towards contracts, one

of my favorite subjects on the Multistate.

And if you heard my previous lecture regarding this subject, you will remember I told you a

couple of things about this subject.

Number one, this subject is very difficult for a lot of people. Why? Because you're responsible

for two areas of law. Not only must you know the common law as it applies to contracts, but

when you're dealing with a contract for the sale of goods, you have to also be familiar with the

Uniform Commercial Code, Article 2, UCC Article 2.

And the first thing I told you to do in the previous contracts lecture, if you heard it, you will

recall, I told you the first thing you want to do with every contracts question, identify the subject

matter of the contract.

You've got to know what you are dealing with. Is it a good or is it a service? Oftentimes, based

on what the subject matter of the contract is will determine what answer you should go with.

We're going to start with Question Number 42. And not surprisingly, we're going to leap

headfirst, or dive headfirst right into contract formation. Number 42 deals with consideration.

Now, Number 42 is a really tough question, because when you read the contract you think, wait

a minute, the oil producer has the option to buy all of the refinery's output, but it doesn't seem

like they're putting up any consideration for that option. And you may have thought the

contract was illusory. I did as well. This one was driving me crazy.

I was leaning towards A. I was about to pick answer choice A. I was 100 percent certain it was

answer choice A. I picked answer choice A. I was wrong. And if you picked A as well, you were

wrong as well.

Why? Because there is consideration for the option. They purchased the refining operation.

Look at it this way, guys. In exchange for money, the refiner sold the producer its refinery

operations and an option to purchase their oil output for the next 15 years. If you look at the

contract in its entirety, you would see they had consideration in it.

If you picked A, like I did, no problem. But look at the entire contract next time. Slow it down a

bit, and go with answer choice D, David.

Moving on to Number 28, it takes us into the Merchants Firm Offer Rule, UCC 2-205. And we

covered options in the previous lecture on contracts, but we'll go over it again.

At common law, in order to have a valid option, in other words, in order for an offer to remain

open, it needs to be supported by consideration. To have a valid option at common law, in

order for an offer to remain open, it needs to be supported by consideration.

But the Firm Offer Rule, UCC 2-205, takes a different tact when it comes to options. But,

remember, the Merchants Firm Offer Rule only applies to merchant offerors. And you

remember rule -- or if you don't, get it down now -- an offer by a merchant in a signed writing --

an offer by a merchant in a signed writing which by its terms gives assurance that it will be held

open -- an offer by a merchant in a signed writing which by its terms gives assurance that it will

be held open -- is irrevocable during the time stated, is irrevocable during the time stated.

An offer by a merchant in a signed writing which by its terms gives assurance that it will be held

open is irrevocable during the time stated.

And if no time is stated, if no time is stated, the period of the irrevocability, the period of

irrevocability, may not exceed 90 days. The period of irrevocability may not exceed 90 days.

Now, some of you may have thought, Hey, this offer fails because it's being held open for more

than 90 days. When that happens, the offer remains, but it's still back to that 90-day window.

So when the ashtray company tried to revoke by writing that they only had 50 ashtrays left, it

was ineffective, because the offer to sell the ashtrays had to stay open for 90 days.

I know some of you picked answer choice B, the company's offer was to remain open for more

than three months, so the hotel owner will not prevail. A lot of you picked B. But that's wrong,

because what a court will do is they will scale down that offer that was exceeding 90 days, they

will scale it down to 90 days.

The correct answer instead is going to be C. We have a signed writing, the offer stays open, but

instead of staying open for 120 days or 150 days, it can only stay open for 90 days.

C is our answer in 28.

Question 37 deals with contract modifications, another area where the UCC will deviate from

the common law.

At common law, what do we need for a valid modification? What do we need for a valid

modification? That's right. New consideration. New consideration is necessary in order to have

a valid modification at common law. Good job.

But the UCC takes a different approach to modifications. The UCC doesn't care if there's new

consideration supporting the modification. The UCC allows for good-faith modifications. We

allow for good-faith modifications under the UCC regardless of consideration.

So whenever you get a modifications question, you have to determine if you are in the world of

the UCC or the common law.

And here in Number 37 we are in a common law world. Here is the issue. Is there new

consideration to support the modification? At first glance it appears not. And many of you

probably went with answer choice D, David. But D is wrong because there is new consideration.

The gardener is increasing the price for the landowner. But he's also giving him an extra year

under the contract. That's new consideration, and thus the modification is going to be upheld,

and B is our answer.

As for answer choice C, the duress answer, there's no evidence of duress here. It's not as if this

guy's the last gardener on earth. He's not holding a gun to his head.

So C is wrong.

And A is wrong. The modification doesn't take place at the beginning of the year. It takes place

now. It's effective immediately.

B is our answer in 37.

Now, let's talk about UCC modifications. I already mentioned good-faith modifications under

the UCC.

Question 55 poses -- gives us exactly that issue. The offer is in the fifth line of this question.

How much do you want for the car? I'll take 400. And in line 8, 9, we have the acceptance.

You've got a deal. It's a car, it's an automobile, it's a contract for the sale of goods, the UCC

applies.

Then we have a modification. It's five lines up from the bottom. I put two new tires on the car.

I need an extra 50 bucks. The neighbor responds no problem, and there's your modification, the

phone call.

And all we need for this modification to be valid is good faith. Because this car is a good. And

this is good faith. Two new tires. If A guy put two new tires on it, got to raise the price 50

bucks. That's a good-faith modification.

Correct answer is going to be B, the modification is valid, because the contract as modified does

not exceed the minimum dollar amount required to invoke the Statute of Frauds.

Now, some of you may have thought, Wait, why doesn't the Statute of Frauds apply? The

Statute of Frauds only applies when the contract for sale of goods is $500 or more. This contract

is for $450. No Statute of Frauds problem.

If this were a common law contract, C, Charlie, would have been the correct answer. But

because it's a UCC contract for the sale of goods, we will go with B, boy.

I want to point out something extra about this question. If the modification had put the price of

the goods $500 or more, it would have to be in writing because of the Statute of Frauds. If the

modification takes a contract out of the Statute of Frauds and put it's firmly within the Statute

of Frauds, then the modification must be in writing in order to comply with the Statute of

Frauds.

And here the modification did not put the contract within the Statute of Frauds because it only

raised the price to $450.

Therefore B is our answer.

Number 18 is a very tricky question. And I'm going to give you a variation after we go through it.

We have a modification to a sales of good contract. And we all know, as we've established,

modifications under the UCC are valid as long as they are entered into in good faith. No new

consideration is needed.

So you might as well at this point get rid of answer choice C which alludes to the new

consideration requirement, which is not a requirement under the UCC.

And you might as well get rid of answer choice D, David, as well, because written contracts can

be modified orally. Oral modifications are fine, as long as they don't violate the Statute of

Frauds. Not a problem. But there's no rule that says modifications can't be done orally.

But there is a problem with this oral modification. And it's the fact that it's not in writing and

now violates the Statute of Frauds. The contract is for more than $500. It needs to be in writing

in order to be enforceable.

The modification did not take the contract out of the Statute of Frauds. It's still within the

Statute of Frauds. And thus the modification had to be in writing.

And that makes answer choice B our answer.

As for answer choice A, the parole evidence answer, why is A wrong? Because the parol

evidence rule doesn't apply to subsequent agreements entered into after the written contract is

signed. Parol evidence only applies to agreements that took place prior to the writing, prior to

the written contract, or contemporaneous with the written contract. Parol evidence doesn't

apply to subsequent agreements.

B is our answer.

Now, here's the variation I want to speak of. In Number 18, the original contract was in writing.

What if the retailer sues under the terms of the original deal? What would be the result? Well,

because the original deal was in writing, the retailer would win. But because the modification

was not in writing, the retailer loses. If the retailer was suing to enforce the original deal, the

retailer wins.

Here the retailer is suing to enforce the modification, it wasn't in writing, it violates the Statute

of Frauds, the retailer loses.

Number 98 is the type of question that gives me fits. I have always had a hard time fathoming

that a person can pay less on a debt that is owed and get away with it just by writing on the

check or sending a letter that says that cashing this check fulfills the debt obligation.

But guess what? You can do that if there's a good-faith dispute between you and the other

party. If the other party doesn't object to the lesser amount and cashes that check, and there's

a good-faith dispute between you and that other party, then that cashing of the check is the

satisfaction of an accord.

So let's go over what an accord and satisfaction are.

An accord is a new agreement. The satisfaction is when that new agreement is performed. An

accord is a new agreement between parties already under a contract. And the satisfaction is

when that new agreement is performed.

Here, by cashing the check, the seller has impliedly agreed to the 2 percent discount. And that

cashing of the check is the satisfaction of the accord.

Now, bear in mind, there's always a good-faith element to an accord and satisfaction. And if it's

industry practice to take a 2 percent discount when you pay within 20 days or 10 days, whatever

the rule was here, whatever they went with here, if that's industry practice, you could argue this

is a valid accord and satisfaction.

As long as there's a good-faith dispute between the parties, or -- then you could have a valid

accord and satisfaction.

It kind of befuddles me in Number 98, because we're talking about a $400 reduction in payment.

To me 400 bucks is 400 bucks. But that's the law.

If there's a good-faith dispute between the parties, we can have a valid accord and satisfaction.

And the cashing of that check is the satisfaction of the accord.

The correct answer is A.

Question Number 29 looks like a violation of the perfect tender rule. But we follow a different

rule when we're dealing with installment contracts, which of course begs the question what's an

installment contract?

An installment contract is characterized by multiple payments or multiple deliverance at fixed

times. An installment contract is characterized by multiple payments or multiple deliveries at

fixed times.

If you are financing your car right now and you are making monthly payments on it, that's an

installment contract.

Likewise in this question. When the fixture company agreed to deliver 25 fixtures in March and

25 fixtures in April, that, too, was an installment contract.

And the rule, the rule we follow when there's been a breach of an installment contract, is UCC 2-

612, Section 2. 2-612, Section 2.

Here's the rule: The buyer may reject any nonconforming installment -- the buyer may reject

any nonconforming installment -- only, only if it substantially impairs the value of that

installment and can't be cured. The buyer may reject any nonconforming installment only, only

if it substantially impairs the value of that installment and can't be cured. Only if it substantially

impairs the value of that installment and can't be cured.

Now, ladies and gentlemen, this nonconformity can be cured. And, in fact, the seller has

promised to cure it with the next delivery. It's only one fixture. And the dealer has promised it

will arrive within five days. There's your adequate assurances.

So in this case, the buyer must accept the shipment of 24 fixtures, cannot cancel the rest of the

contract, and D, David, is our answer.

As for answer choice A, it's wrong. But if you remember the perfect tender rule of 2-601 of the

UCC, good for you. Just remember that the perfect tender rule, 2-601 of the UCC, doesn't apply

to installment contracts.

B is wrong as well. It is also a perfect tender rule answer. Not applicable to installment

contracts.

And C is wrong. The developer cannot cancel the contract unless the contract has been

substantially impaired by the nonconforming installment.

That's not the issue here. It is one fixture. The seller has promised to deliver it within five days.

We can cure this problem.

C is wrong.

D is our answer in 29.

Back to the Statute of Frauds, Number 7, as we've established, contracts for the sale of goods,

$500 or more, must be evidenced by a writing, otherwise that contract violates the Statute of

Frauds.

Now, there are some exceptions to this rule. And one of them deals with goods that have been

accepted. But here's the kicker. The contract is only enforceable to the extent that goods have

been accepted. If any other goods are forthcoming, that portion of the contract will not be

enforceable.

So when goods have been accepted, you can't assert the Statute of Frauds with regards to the

goods that you've accepted. If there are goods still forthcoming, you can assert the Statute of

Frauds.

Here the buyer accepted one of the generators. They can't assert the Statute of Frauds with

respect to the generator they accepted. They owe $25,000 for that generator. They accepted it.

But the generator that is still forthcoming, they can assert the Statute of Frauds with respect to

that generator. They will not be required to accept it.

The correct answer, what will the company get? They will get the proceeds from that first

generator that was accepted, $25,000.

B is our answer.

Now, I know some of you probably went with answer choice D, David, thinking these are

generators, they're specially manufactured goods. The buyer has to pay for both of them. If

these were specially manufactured goods, I would agree with you. I would have picked D, David,

if these were specially manufactured goods. They aren't.

Look at the facts with me, guys. These are generators built to standard industrial specifications.

There's nothing specially manufactured about these goods. These are standard industrial

generators.

That's it. They get 25 grand. If these were specially manufactured, the correct answer would be

D, David.

But here we're going with B, boy, $25,000.

Now, Question Number 8, Question Number 8, specially manufactured goods exception to the

Statute of Frauds. Specially manufactured goods exception to the Statute of Frauds.

For this exception to apply, for the specially manufactured goods exception to apply with

respect to the Statute of Frauds, we have to show a couple of things.

Number one, the manufacturer has already started work, the manufacturer has already started

work.

Number two, the goods are specially manufactured for the buyer. Number two, the goods are

specially manufactured for the buyer. Number two, the goods are specially manufactured for

the buyer.

And number three, the most important element of this exception, the goods are not sellable in

the ordinary course of business. The goods are not sellable in the ordinary course of business.

The goods are not sellable in the ordinary course of business.

Now, in this Question Number 8, I believe the manufacturer should win. These goods seem to

be specially manufactured. But we are told the manufacturer is going to lose. Don't fight the

facts. If they're going to lose, they're going to lose. Don't fight it.

If they lose, it's because the goods that they have made for the buyer are resellable in the

ordinary course of business. And that is answer choice D, David.

A is wrong. They won't lose if the goods aren't finished yet. As long as they started working on

it, they'll recover. If they can't resell these goods in the ordinary course of business, they would

recover.

B is wrong for the same reason that A is wrong.

C is wrong because there is a duty in contract law to mitigate damages. Under the UCC,

nonbreaching parties have a duty to mitigate damages. And if the buyer is breaching, the seller

has to mitigate by stopping production.

Only D, David, provides us with a valid reason why the manufacturer would lose.

Question 66. And you will recall when I said in the first contracts lecture I gave you with regards

to assigned innocence and delegations, all contracts are assignable, all contracts are

delegatable.

All contracts are assignable, all contracts are delegatable, except, except, unique personal

service contracts and long-term requirement contracts. All contracts are assignable, all

contracts are delegatable, except unique personal service contracts and long-term requirement

contracts.

And we aren't dealing with either of these exceptions here. The brother assigned the $2,000

debt owed to him to his sister. His stepson can't do a thing about it. He's going to have to pay

the sister.

And this is not a partial assignment. Get rid of A. The brother is owed $2,000 from the stepson.

He's assigning the entire payment to his sister. There is nothing partial about it.

B is wrong, because the assignment of payment has nothing to do with the debt barred by the

statute of limitations.

The brother felt bad that he had never paid back his sister. And as a token of his shame, he

assigned payment to her from a debt that is currently owed to him. He didn't have to do it, but

he did. And now his sister is going to get paid.

As for answer choice D, David, I don't want you picking the novation answer unless you see two

parties to a contract releasing one of the parties, substituting another party in their place, and

agreeing to the exact same terms.

You only pick the novation answer when you see two parties to a contract agreeing to allow one

party to opt out of the contract or get out of the contract and substitute another party in their

place with the exact same terms in place.

That's when you pick novation. It basically creates a brand-new agreement with the same

terms. The only difference, you substitute out one party and put somebody new in their place.

The correct answer here in Number 66, C, Charlie, the son has to pay.

Another assignment question, another assignment and delegation question, Number 89.

Here the buyer paid the hotelier on the second year of the employment contract. He had signed

a three-year deal. The buyer, after the second year, fired the hotelier.

I'd prefer to call a hotelier a concierge, but whatever.

It stands to reason that the hotelier will succeed in his breach of contract suit against the buyer.

The buyer was assigned the employment agreement. He fulfilled the second year of that

agreement by paying the concierge. He can't just arbitrarily dismiss the concierage before the

third year of the employment deal begins. Contracts don't work that way.

And once again, I want you to not pick the novation answer. For novation to have worked here,

for answer choice B to be the correct answer, the concierge, the hotelier, would have had to

have released the socialite from the agreement, and then the buyer would have to agree to

assume the agreement. That never occurred.

B is wrong.

C and D are both wrong. The assignment was certainly proper. There's nothing in the facts that

stated that the contract was not assignable.

A is our answer. The buyer accepted the concierge's services, paid him for a year. That

constituted an implied acceptance of the terms of the contract between the buyer and the

socialite.

A is our answer in 89.

Number 43 takes us into third-party beneficiaries. Third-party beneficiaries. And you've got to

be careful with a question like Number 43, because you might think that this third-party

beneficiary's rights have vested.

They told us that the third parties knew of the contract. They learned of the agreement. Is that

enough for their rights to vest? No.

How does vesting occur? Let's go over this again. For a third-party beneficiary's rights to vest,

they have to, number one, either learn of the contract and assent to it; number two, learn of the

contract and rely on it; or, number three, sue to enforce the contract. Learn of the contract and

sue to enforce their rights.

Just learning of the contract, just knowing of the contract is not enough for vesting to have

occurred. You need learning of the contract and assenting or learning of the contract and

relying or learning of the contract and immediately suing to protect your rights.

Here in Number 43, this one is a gimme. We are told that the third parties knew of the contract,

but they hadn't assented to it, nor had they relied on it, therefore they hadn't sued on it yet, so

the contracting parties, the stock broker, his best friend, the land developer, they could rescind

or modify the contract without the consent of the newlyweds.

C is our answer in 43.

As for answer choice B, it's wrong. It's probably the only other answer that can work. But the

reason why B is wrong is because it's not enough that they have notice of the contract. They

have to tell you in the fact pattern that the parties, the third-party beneficiary, knew of the

contract and assented to it, relied on it or sued on it.

That did not occur. Their rights have not vested. C, Charlie, is our answer.

Question Number 77 -- and I cannot stress this enough to you guys. You must use some

common sense when it comes to these questions.

I want you to look at a question like Number 77 this way. If you hire Fry's or Best Buy or some

electronic superstore to come to your house to install a surround sound system and a 60-inch

big-screen plasma high-definition television, and on the day before they show up to your house,

your house burns down, do you think you're going to have to pay Best Buy or Fry's the money

you agreed to pay them for installing the items? Now, I would hope not.

When I read this question I knew there was no way the electrician was going to recover the

money. The house is ashes. It's cinders. It burnt to the ground. It was destroyed. And it wasn't

the defendant's fault. He was in the hospital having emergency surgery.

So I immediately made a conclusion. My conclusion was the homeowner would not have to pay.

And I got rid of answer choices A and B.

So that left me with C and D, and I picked the answer that made the most sense. And that was

D, David, supervening impossibility. Supervening impossibility.

You've got to use some common sense on this exam. You can't come in and do the electrical

work on my house. Well, why can't I? Because my house burnt to the ground. What's there to

fix? There's nothing there.

But legally, legally D is the right answer. Because the contract called for the homeowner to be

home when the contract was being performed.

Not only do we have an impossibility, the house is no longer there, we have a condition

preceded that was never fulfilled. We were told that before the electrician could do the work,

the homeowner had to be home. He was in the hospital. This condition never occurred due to

the hospital emergency, no contract, the electrician does not get paid.

D, David, is our winner in 77.

Question 56, I want to spend some time on 56 and talk about time is of the essence. Most of

the time a time is of the essence clause is treated as boilerplate. Most courts don't give them a

lot of weight.

However, on the Multistate, if they tell you specifically that the parties wrote into the contract

that time is of the essence, if they tell you in a contracts fact pattern that the parties specifically

wrote in the phrase "time is of the essence," then give that clause some love, give it some

weight.

In our case, Number 56, we have to determine whether the contractor's failure to deliver the

house on time will allow the buyer to just cancel the deal and walk away. And the issue that the

court is going to have to determine is whether the date of performance, March 1st, was

essentially a time is of the essence clause. If so, the builder is going to lose. But if they

determine that the clause was merely boilerplate, that it was just a guideline as to when the

contractor should be done, then the contractor will probably win.

And that is answer choice D, David. We have to determine was this a time is of the essence

clause. And the answer is no.

I would have picked answer choice A. If the actual phrase "time is of the essence" was he

expressly written into the agreement, I would have picked A, apple.

If "time is of the essence" was expressly written into the agreement and the parties negotiated

on a completion date. But A is wrong here.

Answer choice B is wrong because -- and that's our condition precedent answer. The reason

why B is wrong is because we are talking about a minor breach. It's not going to get the buyer

off the hook. We're talking about delivery of a home 20 days late. We'll give the buyer some

damages, but don't let the buyer essentially walk away from the contract.

Answer choice C is wrong. That's the answer that deals with the unforeseeable strike. The

strike does not discharge the contractor's duty to perform. He had to get that house done by

March 1st. That strike may have been unforeseeable, but she has still committed a minor

breach of contract. It's not going to get her off the hook.

No, the contractor wins because the buyer got the substantial benefit of the bargain. So the

buyer is going to win, but -- excuse me, the contractor is going to win, but his win or her win will

be offset by whatever damages the buyer has accrued, or has suffered.

But D is our answer in 56.

Number 78 deals with construction contracts and the allocation of risk of loss. Construction

contracts and the allocation of risk of loss.

Let's go over the facts in 78. We have a land owner who enters into a deal with a contractor to

build a skyscraper. And we are told that before the skyscraper is completed, terrorists destroy

the building. And we want to know who bears the risk of loss.

Here's the rule: If it's new construction, destruction of a newly -- destruction of a newly

constructed building, destruction of a newly constructed building, without fault of either party --

destruction of a newly constructed building without fault of either party -- usually an act of God

or a terrorist attack, in that situation the contractor, the builder, bears the risk of loss.

The builder's duty will not be discharged unless the damage occurs to an existing structure. If

it's new construction, the builder bears the risk of loss. If it's an existing structure, the

landowner bears the risk of loss.

If it's a new construction and the property is damaged or destroyed before the structure is

completed, it is the builder who bears the risk of loss.

But if it's an already existing structure and the building is damaged or destroyed through no

fault of either party, then it's the landowner who bears the risk of loss.

In our case, the building was new construction. The builder bears the risk of loss. They are now

bankrupt. They are the ones who are in breach. What can they recover? Guys, if this had been

a remodeling job of an existing structure, the contractor would recover something. But because

it is new construction, they bear the risk of loss and they recover nothing.

The correct answer is D.

Question 100 is a straight UCC remedies type of question where the buyer has breached.

Now, what is the seller's standard remedy under the UCC? We went over this the other day.

Let's do it again. What is the seller's standard remedy under the UCC?

I'll give it to you as a mathematical equation. Seller's standard remedy under the UCC, contract

price minus the resale price equals seller's standard remedy. Contract price minus the resale

price equals seller's standard remedy. Contract price minus the resale price equals seller's

standard remedy.

But here the farm is seeking specific performance. An equitable remedy. Courts are reluctant

to grant specific performance when a legal remedy is available. And there is a legal remedy

available. The farm can sell the apples to somebody else and then sue for damages if there are

any.

So D is wrong. D is wrong, because specific performance can sometimes be granted for a sale of

goods contract. D says the corporation wins if the seller of goods cannot obtain specific

performance. That's not correct. If we're dealing with a unique item of personal property, a

rare item, like a baseball card, a painting, an antique, you can have specific performance.

A and B are wrong because while there has been a breach, that alone will not trigger specific

performance.

The correct answer is C. The corporation wins. They have a breach, but the corporation is not

going to have to be forced to buy the apples. The farm can resell the apples, and the remedy

the farm will receive is the contract price minus the resale price, whatever the difference is, give

to the farm.

The correct answer is C.

And our last contracts question, Number 13. Here we have a contract between a bakery and a

farmer where the farmer has agreed to sell 10,000 bushels of wheat to the bakery for 15 bucks a

bushel. Delivery is to take place on or before September 1st.

We are then told that the price of wheat goes up dramatically, and now the farmer realizes he

can make a killing by canceling the contract and selling to another buyer at a much higher price.

So on August 10th, the farmer calls up the baker and says, I'm not performing.

The bakery sues. Who wins? And not to be master of the flying obvious, but duh, we know the

bakery is going to win. If you can't use a little bit of common sense on this exam, you have no

business being a lawyer.

Now, if any of you pick answer choice C, don't ever pick it again. Write down next to answer

choice C increased price will never excuse performance. Increased price, increased cost, will

never excuse performance.

So is D, David, pretty bad as well. Because a bad crop season is always foreseeable to farmers.

That's the type of risk that a farmer assumes. If the farmer's crop had been completely

destroyed, if the farmer's crop had been completely destroyed, I might have considered answer

choice D. But here it's just a chance for the farmer to make extra money.

So between A and B, I know some of you like A. Maybe they have to wait around until

September 1st in order to sue. Maybe the bakery can't sue immediately. Maybe they have to

wait. They don't have to. This is a complete repudiation of the agreement, and the bakery can

sue immediately. They don't have to wait.

B is our answer.

You would only pick answer choice A if the farmer had said, I'm not sure if I can perform by

September 1st. If there was an expression of doubt as to the farmer's ability to perform, you

might want to pick A and go with some type of adequate assurances argument.

But here the farmer has said, I ain't performing, I'm selling my wheat to somebody else because

I'm going to make a killing. That's an anticipatory breach. The bakery doesn't have to wait for

anything. They can sue immediately for damages.

The correct answer is B.

And that concludes the contracts portion of the 100-question review.

When we come back, we will get into criminal law and procedure. Thank you.

[BREAK]

All right, guys. Welcome back. We're turning now to one of my favorite subjects on the

Multistate, criminal law and criminal procedure.

There's a reason why I like criminal law so much. It's because most of the defendants in these

questions are a bunch of knuckleheads, and I laugh at them. And you should, too. Unless, of

course, you're taking this class in prison, and I do apologize. Don't come after me.

Criminal law and criminal procedure. We're going to start with criminal law today. We're going

to start with obviously the most commonly tested crime, murder.

We're going to turn to Question Number 57.

Now before we get started, however, I want to emphasize to you with criminal law, the key to

criminal law, the key to your success with this subject, intent. Intent is the key of this subject. It

is the key of this subject. Intent.

Always look at the intent required for conviction. I'm telling you now, intent trumps causation,

intent trumps actus reus, intent trumps everything. It is the defendant's mental state that is

going to be crucial in your examining whether or not a defendant should be found guilty or not

guilty.

Question 57 takes us into murder. It is a classic example of depraved heart murder. We have

this knucklehead who is a hunter. Nothing wrong with hunting. I'll eat a piece of venison. I'll

eat a steak.

But this guy is a knucklehead. He decides he's going to practice his new gun at his favorite

shooting haunt. Now he shows up at his favorite shooting haunt and he realizes, Oh, they built a

playground right next to where I like to practice my target shooting. Heck with that. I'm

shooting anyway.

And just like out of a cartoon, one of his bullets ricochets off a tree, hits a pole, strikes a swing,

hits a ladder, hits a slide, boom, kills a kid. Bing, ding, wing, ling, wing: Dead. It's like a cartoon.

There's no intent here, but it's still murder. Why is this still murder? Because the conduct was

reckless. The conduct was wanton, which is part and parcel of malice, which leads to a charge of

depraved heart murder.

Remember, the minimum required, the minimum required mental state for murder, is

recklessness. Firing a gun near a playground establishes that recklessness.

B is our answer in Number 57. This is not manslaughter. This is not ordinary criminal

negligence.

C is wrong. This is reckless and wanton conduct.

Answer choice D, neither murder nor manslaughter, because the hunter's shooting was

negligent and mere negligence is insufficient to support conviction for a homicide crime.

If you pick D, you have a great bright future ahead of you at the public defender's office. But it's

murder. And it's because of recklessness.

Intent to shoot? A, wrong. All we need for murder is recklessness.

B is our answer. Killing, a murder, is a killing with malice aforethought. When I think of malice

aforethought the minimum required for malice, recklessness.

B is our answer. It addresses the proper intent required for conviction of murder.

Recklessness, depraved heart murder, murder, B.

Question 30 is testing us on the crime of attempt. And I don't care if it's attempted murder, I

don't care if it's attempted robbery, attempted kidnapping, whatever. In order to be guilty of

the crime of attempt, one of our inchoate crimes, in order to be guilty of the crime of attempt,

you must have the specific intent to commit the target offense. In order to be guilty of the

crime of attempt, you must have the specific intent to commit the target offense. In this case,

murder.

Well, we know the doctor and the mechanic didn't have the specific intent to kill anybody. So

answer choices A and B are wrong.

So it's between C and D. And let me tell you, I vacillated between these two answers for about

two minutes. I even reread the fact pattern. And then I went with what I had in the facts, and I

had to go with D, David. And I was right. Why? Because nowhere in the fact pattern was I told

that the Army veteran intended for anybody to die. He just wanted to scare the neighbors off

the land.

So no attempted murder for any of them, and D is our answer.

But let me tell you this. If any of the neighbors had been killed in that blast, depraved heart

murder for sure. Putting an explosive on somebody's front porch and someone dying when they

open the door, just by accident, a bomb goes off simultaneously, that would have been

depraved heart murder. If someone had died, it would have been murder for sure.

Number 81, voluntary manslaughter question. And what are you looking for in order to have

voluntary manslaughter? You are looking for adequate provocation.

Remember, what is voluntary manslaughter? An intentional killing mitigated by adequate

provocation. Voluntary manslaughter is defined as an intentional killing mitigated by adequate

provocation. Heat of passion, if you will. Heat of passion, if you will.

We are looking for the strongest argument for a manslaughter charge, so go down the answer

choices, find the adequate provocation, and that will be answer choice D, David.

As for answer choice B, self-defense, if it was self-defense, the defendant would be found not

guilty of any crime. B is wrong. If it was self-defense, not guilty for any crime.

A is wrong because the shopkeeper did intend to kill, based on his words, based on his actions.

You're the only one I need protection from, I'll make sure you never threaten anyone again.

Bang, bang, bang, bang, bang, bang, bang. Shoots him with his eyes closed. He intended to kill

the guy.

A is wrong, like I said. B is wrong, self-defense.

Duress, answer choice C. Duress doesn't work here. Duress occurs when someone threatens

you to commit a crime against somebody else. Duress occurs when someone threatens you to

commit a crime against someone else. Someone is forcing you to commit a crime against

someone else.

This isn't duress. This is a direct threat. This is a direct provocation.

D is our answer in 81.

Question 46, at first glance I thought -- and when I first saw 46, it looked like a piece of cake.

They want to know -- they wanted to know if the street performer, in what jurisdiction could he

be convicted of manslaughter.

And I already established, when I think of manslaughter, I think of adequate provocation, I think

of heat of passion. I think that there's no time to cool down, no time to cool off. I'm looking for

a scenario usually where one spouse catches the other spouse in bed with somebody else.

So when they asked for manslaughter, my initial thinking was to pick answer choice A. And then

I read the other answers. And then better judgment took over and I realized, oh, they're trying

to trick me, because this isn't adequate provocation. This street performer, this little pansy was

slapped in the face. It's not like he caught his wife in bed with somebody else.

So I left answer choice A alone. I went looking for a better answer. I didn't find one in B or C.

And the reason why B was wrong is there was no evidence of diminished capacity here. And

there was no misdemeanor that led to the victim dying. The street performer just shot her. He

wasn't driving drunk or anything like that which would lead to a misdemeanor manslaughter

charge.

And then I got to the imperfect self-defense doctrine, and I realized this had to be correct.

There we go, imperfect self-defense. We're in Candyland. We're in a jurisdiction that

acknowledges the imperfect self-defense doctrine.

I get frustrated. This defense works. And it's in a minority of jurisdictions where they even have

this. This defense works whenever the defendant honestly but unreasonably believes that his or

her life is in danger. Imperfect self-defense arises when the defendant honestly but

unreasonably believes that his or her life is in danger. When the defendant honestly but

unreasonably believes that his or her life is in danger.

And we are told in the facts that the street performer feared for his life. And while his belief

was unreasonable, it was honest. Therefore, the murder charge will be reduced to

manslaughter in a jurisdiction that follows this rule.

D is the only answer that would work.

And where you find imperfect self-defense is places like Candyland, Santa's Workshop. You

might find it in, I don't know, Santa Cruz, whatever. Some commune. Imperfect self-defense.

Whatever.

Question 83 is our first theft question. And we are smack dab in the middle of larceny.

Let's define larceny, one of our theft crimes.

And keep in mind, guys, all of our theft crimes are specific intent. They're all specific intent, all

of the theft crimes. Larceny, embezzlement, larceny by trick, false pretenses.

All of your theft crimes are specific intent. Robbery is specific intent. Burglary specific intent.

Larceny is defined at common law. Six elements. The trespassory, taking, carrying away.

Carrying away is called asportation, a-s-p-o-r-t-a-t-i-o-n.

Trespassory, taking, carrying away, also known as asportation -- and please note asportation can

be six inches. You move somebody's item six inches with the intent to steal it, you're guilty of

larceny.

Larceny is defined as the trespassory, taking, carrying away personal property of another with

the intent to steal or permanently deprive. The trespassory, taking, carrying away personal

property of another with the intent to steal or permanently deprive.

Here we are told that the neighbor decided to use the mulcher and finish up his lawn before the

man returned home. He walked into the garage, he picked up the mulcher. There's your

asportation.

But what's missing? Where's the intent to steal? Where's the intent to permanently deprive?

There wasn't. And that is why the neighbor will be found not guilty. He intended to return the

mulcher before the man got home.

And C is our answer in Number 83.

Question Number 5 takes us into the world of burglary and arson. Let's talk about burglary.

Burglary at common law is defined as the breaking and entering -- breaking and entering -- of

another person's dwelling home -- of another person's dwelling home -- at night -- at night --

with the intent to commit a felony or larceny therein. The breaking and entering of another

person's dwelling home at night with the intent to commit a felony or larceny therein.

Here the woman broke into the house at night with the intent to steal a diamond ring. The fact

that the ring wasn't there is irrelevant. When she broke in, she had the intent to commit a

burglary, she's guilty of burglary.

When she broke in, she had the intent to commit -- I said burglary, I meant larceny. When she

broke in, she had the intent to commit a larceny, steal the ring. She's guilty of burglary. Any

answer choice that doesn't embrace burglary is wrong.

B is out of the picture.

Now, let's define arson. Arson is defined -- and we're not going to follow the common law here.

We're going to follow a more modern interpretation of arson.

The modernly, on the Multistate, arson is defined as the malicious burning of any structure or

dwelling. The malicious burning of any structure or dwelling.

It's a more expansive definition of the traditional definition of arson, because at common law,

arson was defined as the malicious burning of the dwelling house of another. The common law

definition of arson is the malicious burning of the dwelling house of another.

That definition has been expanded for Multistate purposes. It is now the malicious burning of

any structure or dwelling.

Now, the key to arson, the minimum you need for arson is charring of the premises. If the

premises have been charred, you've got arson. If the premises have been charred, you've got

arson.

Mere blackening of the premises is not enough. Mere blackening of the premises -- the walls

are blackened -- that is not enough for arson. The minimum you need for arson is charring.

We don't have to worry about charring, though, because we were told that a portion of the floor

under the bed was destroyed. We are way past charring. We are smack dab in the world of

arson. Get rid of A and C.

D, David, is our winner in Number 5.

Question 36 takes us into robbery. But there's a twist here. I'm going to cover it in a moment.

Robbery has the same six elements as larceny. And if you go back in your notes, you'll find those

elements.

Larceny is defined as the trespassory, taking, carrying away personal property of another with

the intent to steal or permanently deprive. Robbery has those same six elements plus two

more.

Element number seven, if you will, the taking must be accomplished by threat of force, violence,

or intimidation. The taking must be accomplished by force, violence, or intimidation. The taking

must be accomplished by threat, force or intimidation.

And element number eight, the taking must be from the victim's person or presence. The taking

must be from the victim's person or presence.

But this isn't robbery, because we have a valid defense of mistake of fact. And you need to

know this defense and the way it's applied.

For specific intent crimes -- and if you will recall, I said earlier all theft crimes are specific intent

crimes.

For mistake of fact to be a valid defense to a specific intent crime, the mistake needs to be

honest. If it's an honest mistake, even if it's an unreasonable mistake, it's a valid defense. As

long as the mistake is honest, even if it's unreasonable, it's a valid defense to a specific intent

crime.

However, for general intent crimes, in order for mistake of fact to be a valid defense, the

mistake must be reasonable. In order for mistake of fact to be a valid defense for general intent

crimes, the mistake must be reasonable.

One more thing I want to point out about when the examiners test you on defenses and when

they want you to find the defendant not guilty.

Rule of thumb, I want you to utilize this when you are doing criminal law questions and the

examiners are telling you that the defendant is going to be found not guilty. Oftentimes I go

with this answer, or this type of response.

Any time you can eliminate an element of a crime, any time you can eliminate an element of a

crime -- for example, no mens rea -- any time you can eliminate an element of a crime, it will be

a better answer as to why a defendant should be found not guilty than to that an affirmative

defense exists. Any time you can eliminate an element of a crime, it will be a better answer as

to why the defendant should be found not guilty than to say that an affirmative defense exists.

Now, there isn't an answer choice that addresses mens rea, so you'll want to go with an

affirmative defense answer here.

Here the best defense will be mistake of fact. And that is answer choice D, David.

A is wrong. Should the passenger be found guilty? Yes, because his intoxication was voluntary.

Wrong, voluntary intoxication is a defense to specific intent crimes. He should be found not

guilty. A is the opposite of what the law really is.

B is wrong. Mistake is a defense to robbery so long as it's honest.

And C is wrong, because while he didn't use any threats, he did use violence. The intoxication

defense will work in answer choice C, but part of the answer is wrong, which means the entire

answer is wrong.

So we go with D in 36.

Question 95, what did I just say in the previous question? Any time you can eliminate an

element of a crime, it will be a better answer as to why the defendant should be found not

guilty than to say that an affirmative defense exists. I'll repeat it again.

Any time you can eliminate an element of a crime, it will be a better answer as to why the

defendant should be found not guilty than to say that an affirmative defense exists.

Let's look at the answer choices in 95. Answer choice A, affirmative defense of consent. Answer

choice C, affirmative defense of impossibility. Answer choice D, victim is a thief defense. That's

a new one. Kidding. The victim is a thief defense. I love it.

Answer choice B, too drunk to form the necessary mens rea. Addressing a specific element of

the crime. Too drunk to form the necessary mens rea for the crime.

Granted, it's coupled with voluntary intoxication, but nevertheless, it addresses one of the

elements of attempted rape, mainly specific intent, part of mens rea.

B is our answer in 95.

And if you utilize that trick that I just gave you, you'll get an extra question right on the MBE.

Question 12 takes us into voluntary intoxication. And remember, voluntary intoxication is a

valid defense to specific intent crimes. So whenever you see a defendant who is intoxicated and

the state is charging them with a crime, make sure that the crime is a specific intent crime,

because otherwise voluntary intoxication is not a valid defense.

In our fact pattern, our defendant is being charged with larceny. And we're being asked

whether or not she should be found guilty or not guilty.

Answer choice A says guilty because her mistake was unreasonable. Absolutely wrong. With

specific intent crimes -- I've already told you -- we don't care if your mistake is reasonable or

not, as long as it's what? Honest. Exactly. As long as it's honest.

Answer choice B, guilty because voluntary intoxication is not a defense to a charge of larceny.

Wrong. It certainly is. If it negates your mens rea. If you didn't have the idea to commit the

crime in the first place and you got drunk and then decided, Hey, I'm drunk, it sounds like a good

idea to commit a specific intent crime, hey.

No, voluntary intoxication is a valid defense. B is wrong.

Temporary safety, answer choice C. Answer choice C talks about asportation. All you need to

be guilty of larceny is a movement of an object six inches. You don't need to be at a place of

temporary safety.

So C is wrong.

D is our answer. Not guilty, too drunk to realize the coat wasn't hers. D is our answer.

Let's shift gears now and get into criminal procedure. Let's start with Question 63. Search

incident to a lawful arrest.

And this question is interesting because it incorporates new case law that came down the pike a

little over two years ago.

If Question 63 had come up in 2008, 2009 -- and this question has come up in the past -- the

correct answer would have been C based on the case of New York v. Belton. Deny the motion,

search was incident to a valid arrest.

But recently, in 2009, Belton was overturned by the case of Arizona v. Gant. And that has

completely changed the answer.

In the past, it was okay for the police to search the entire passenger area of a car after a suspect

had been arrested. After a suspect had been arrested in their car, it was okay for the police to

search the entire passenger area of the car.

Even if the arrestee was handcuffed and placed in the back of the squad car, courts had

interpreted Belton to mean that police could search the entire passenger area of the car under

search incident to a lawful arrest.

But Gant has changed that ruling. Police can only search the passenger area of the car incident

to arrest if at the time of the arrest -- police can only search the passenger area of the car

incident to a lawful arrest if at the time of the arrest, number one, the arrestee is unsecured and

still may gain access to the car's interior. The arrestee or arrestees are unsecured and may still

gain access to the car's interior. Or, number two, the police reasonably believe that evidence of

the offense for which the person was arrested -- the police reasonably believed that evidence of

the offense for which the person was arrested -- may be found in the car. The police reasonably

believe that evidence of the offense for which the person was arrested may be found in the car.

Now, don't confuse search incident to a lawful arrest with the automobile exception which

allows the police to search the entire car, including the trunk, including closed containers, as

long as there's probable cause. The automobile exception, if probable cause justifies the search

of a vehicle, it justifies a search of the entire vehicle, including closed containers kept therein.

The automobile exception, if probable cause justifies a search of a vehicle, it justifies the search

of the entire vehicle, including closed containers kept therein.

Don't confuse that automobile exception with search incident to a lawful arrest.

So while answer choice C would have been a good answer two and a half years ago, because of

Gant, the only way this search will be allowed is if it fits under the automobile exception --

probable cause to search the car.

Now, with Question 63, we find out the defendant is speeding. And according to state law, her

arrest is valid. But if the police want to search her car, it can't be under search incident to a

lawful arrest because our two exceptions don't apply. So there has to be probable cause for the

search; otherwise, it won't be allowed.

And that is answer choice A.

In the past, the correct answer would have been C. But now it is A.

As for answer choice D, simple fear is not enough. You need probable cause for the automobile

exception or one of our two exceptions under search incident to a lawful arrest.

And B is wrong because B doesn't take into account the automobile exception.

But A is our answer in 63.

Question 64 is our example of the automobile exception. Here we are told that the driver was

arrested after being found in possession of marijuana after being pulled over after driving

through a red light.

Once that driver was arrested and the marijuana was validly seized, that triggered the

automobile exception. Probable cause kicks in. Probable cause justifies the search of the entire

car, including the trunk, including closed containers.

The paintings are going to be admissible, and the motion to exclude those paintings denied.

They needed probable cause to search the trunk. They have it when they discovered the

marijuana.

B is our answer, automobile search.

Question 34 deals with entrapment. And as you probably already know, entrapment is a

defense to a charge. But in order for entrapment to work as a defense, the defendant has to

establish two things. For entrapment to work as a defense, the defendant has to establish two

things.

Number one, the idea for the crime came from the police. The idea for the crime came from the

police.

And number two, the defendant was not predisposed to commit the crime prior to the

solicitation. The defendant was not predisposed to commit the crime prior to the solicitation.

The defendant was not predisposed to commit the crime prior to the solicitation.

It's not going to work here, is it? We're told the store owner was predisposed to committing the

crime. His defense is going to fail. Get rid of A, B, and C, fall back to D, he had a preexisting

criminal intent to buy stolen property. The action of the informant merely afforded him an

opportunity to carry out his criminal intent.

D is our answer in 34.

Question 35, another one of our exceptions to the Fourth Amendment regarding searches and

seizures. Another exception to the Fourth Amendment requiring that searches be accompanied

by a probable cause and a warrant.

And what exception is being tested in 35? Consent. Consent exception.

And with regards to the search of the bedroom, not a problem. There was no evidence given to

us in the facts that the son had exclusive control over the bedroom. There are no facts telling us

that there was a lock on the door or that the son explicitly told his mother she wasn't allowed in

the room. So the search of the room, completely valid.

But the suitcase poses a problem. The police are not going to be able to make a straight-faced

argument that they reasonably believed that the mother had the authority to consent to the

search of a locked suitcase. The fact that the suitcase was locked, the fact that the police had to

break that lock all point to a lack of consent.

The kid is 18 years old. He wants to keep things hidden from his mom. I can't speak for you

guys, but when I was 18 years old, if I kept things locked and hidden from my parents, it was

probably illegal stuff. I'm not going to get into details.

If the teen should bring a pretrial motion to suppress the marijuana, the motion should be, A,

granted, because the mother was not informed of her right to refuse consent to the search? A

is wrong. The police don't have to inform anybody of the right to refuse a search. The only

thing the police can't engage in is threats or compulsion. But they don't have to tell you you

have the right to refuse a search.

C and D are wrong. C is too broad. Just because you own the home doesn't mean you can

consent to the search of anything inside of it. If someone living in your home keeps things

locked and you don't have a key to it, you can't consent to it being searched.

And the loco parentis answer, D, that's a torch answer, guys. In place of the parents.

B is our answer. Search of the suitcase was invalid, the consent was invalid.

Question 75 deals with jury instructions. Jury instructions in a criminal proceeding.

So keep this in mind. The prosecution bears the burden with regards to all elements of a crime.

The prosecution bears the burden with regards to all elements of a crime. The prosecution

bears the burden with regards to all elements of a crime.

However, with affirmative defenses, the defense will bear that burden. With affirmative

defenses, the defense will bear that burden.

In our question, the judge instructed the jury that the defendant should be found not guilty if

either he established that the victim invited him into the house, thus negating the burglary

charge, or if he was actually defending himself from the victim's attack.

Now, with self-defense, that's a proper instruction. Let the defense show, by a preponderance

standard, that the defendant was defending himself. Let the defense show, by a preponderance

standard, that the defendant was defending himself.

But with the element of burglary instruction regarding the invitation, did the victim invite the

defendant in or not, that should never have been on the defense. That goes towards breaking

and entering. That's an element of a crime. The prosecution should have been bearing that

burden.

So the first instruction regarding the breaking and entering, that's unconstitutional.

The second instruction was fine, and thus A is our answer.

Question 99 deals with the handwriting sample. I'm sure many of you thought this was a

violation of the defendant's Miranda rights. I'll concede the defendant was in custody, but there

was no interrogation.

There was nothing testimonial about the handwriting sample. So neither the Fifth nor the Sixth

Amendment can be claimed by the defense here. There's no Fifth or Sixth Amendment

protection for the handwriting sample.

A is our answer.

Answer choice B is wrong. B assumes that the handwriting was testimonial, that it was a

product of interrogation. It's not. It's not a product of interrogation. Miranda is not required,

nor is it necessary.

C is wrong because it's not the contents of the note that's being admitted. It's the handwriting

style. That is not testimonial. That's physical evidence. Miranda doesn't apply when we are

collecting physical evidence.

And D is wrong because while you do have a right to counsel during interrogation, like I said, this

is a collection of physical evidence. It's a handwriting sample. Having an attorney present is not

required, nor does it have to be allowed.

Now, if the prosecution wanted to introduce the message into court, the message, what was

said in the letter, that would be denied.

But the handwriting style, the penmanship of the defendant, the sample of the defendant's

penmanship, that is admissible as physical evidence, no Fifth or Sixth Amendment protection

will be afforded to the defendant in this regard.

Question 60 deals with the scenario where the judge, over the prosecuting attorney's objection,

convicted the defendant of manslaughter. Now the state is appealing, and we are asking

whether the state can retry the defendant. Can the state retry the defendant for murder?

A says yes because double jeopardy does not attach until the jury retires for deliberations. A is

wrong. Double jeopardy attaches in a jury trial when the first juror is sworn in or impanelled,

not when they retire.

The separation of powers clause answer, answer choice B, no such clause in the constitution.

Answer choice C would be a correct answer if this had been a bench trial. But double jeopardy

doesn't attach when the first witness is sworn in. Not in a jury trial. That's a correct answer in a

bench trial.

D is our answer. No, the defendant was actually convicted of a lesser-included offense. And

really it makes sense. He's been convicted of manslaughter. It's a lesser-included offense of

murder. No new facts, so double jeopardy has to attach.

And finally, our last question, another double jeopardy question, and here, in this question, the

drug dealer's motion should be denied.

The double jeopardy argument will fail, because the second prosecution is for a separate

offense that is composed of different elements; conspiracy and possession require different

elements to be proven in order to have a conviction.

And just because the defendant was already tried for one crime that arose from an event will

not preclude the state or the feds from trying the defendant for separate offenses arising from

the same event.

You can be tried for different crimes even if they arose from the same event at different times.

As long as the different crimes have different elements required for conviction, you can be tried

at different times for different crimes. Even if those crimes arose from the same event.

And that is answer choice D, David.

And that concludes our Criminal Law analysis. When we come back from our next break, our

lunch break, we will tackle evidence.

I'll see you around the bend. Thanks.

(End.)