SD Bar Multistate Bar 3 — Questions and Answers
Question 1: In a civil action, which hearsay exception covers a statement made for the purpose of medical diagnosis or treatment?
- FRE 803(4) — statements for medical diagnosis or treatment (Correct answer)
- FRE 803(1) — present sense impression
- FRE 803(3) — then-existing mental or emotional condition
- FRE 804(b)(2) — dying declaration
Correct answer: FRE 803(4) — statements for medical diagnosis or treatment
FRE 803(4) exempts from the hearsay rule statements made for purposes of medical diagnosis or treatment, including descriptions of symptoms and their cause.
Question 2: A buyer and seller contract for the sale of goods. The seller delivers non-conforming goods. Under the UCC perfect tender rule, the buyer may:
- Accept all, reject all, or accept conforming commercial units and reject the rest (Correct answer)
- Only reject all goods and seek damages
- Accept all and seek a price reduction only
- Reject only if the non-conformity is material
Correct answer: Accept all, reject all, or accept conforming commercial units and reject the rest
Under UCC § 2-601, if goods fail to conform in any respect the buyer may accept, reject, or accept any commercial unit and reject the rest.
Question 3: The Takings Clause requires just compensation when the government physically invades property permanently. This principle was established in:
- Loretto v. Teleprompter Manhattan CATV Corp. (Correct answer)
- Penn Central Transportation Co. v. NYC
- Kelo v. City of New London
- Lucas v. South Carolina Coastal Council
Correct answer: Loretto v. Teleprompter Manhattan CATV Corp.
Loretto held that a permanent physical occupation of property by the government constitutes a per se taking requiring just compensation.
Question 4: Under contract law, an anticipatory repudiation occurs when a party:
- Unequivocally indicates before performance is due that it will not perform (Correct answer)
- Partially performs and then stops
- Requests a modification to the contract terms
- Fails to perform on the due date
Correct answer: Unequivocally indicates before performance is due that it will not perform
Anticipatory repudiation requires an unequivocal statement or action prior to the performance date indicating that the party will not perform.
Question 5: In a criminal case, the Confrontation Clause under Crawford v. Washington bars admission of out-of-court statements that are 'testimonial' unless the declarant is:
- Unavailable and the defendant had a prior opportunity to cross-examine (Correct answer)
- Deceased
- Beyond the court's subpoena power
- Unavailable for any reason
Correct answer: Unavailable and the defendant had a prior opportunity to cross-examine
Crawford held that testimonial hearsay is inadmissible under the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination.
Question 6: A fee simple subject to executory limitation differs from a fee simple determinable because:
- The future interest is held by a third party, not the grantor, and does not automatically revert (Correct answer)
- The grantor retains all future interests
- It can only be created by will, not deed
- The triggering condition must involve illegal activity
Correct answer: The future interest is held by a third party, not the grantor, and does not automatically revert
In a fee simple subject to an executory limitation, the future interest (executory interest) is in a third party and cuts off the prior estate rather than reverting to the grantor.
Question 7: Under tort law, which standard applies to a possessor of land with respect to an adult trespasser whose presence is known?
- A duty to warn of known artificial conditions that pose a risk of death or serious bodily harm (Correct answer)
- The full reasonable person standard of care
- No duty whatsoever
- A duty to inspect for hidden dangers
Correct answer: A duty to warn of known artificial conditions that pose a risk of death or serious bodily harm
A possessor owes a known trespasser only the duty to warn of or make safe known artificial conditions involving risk of death or serious bodily harm.
SD Bar Multistate Bar 3
In a civil action, which hearsay exception covers a statement made for the purpose of medical diagnosis or treatment?