Evidence: Spousal Privilege vs. Privilege for Confidential Marital Communications

The following question was asked on the Facebook page @ http://www.facebook.com/barexaminstruction:

When is spousal privilege invoked and when is marital privilege invoked? I know what is protected and when it is lost or not. Just confused as to when which is used.

Response:

The first thing you’ll want to note regarding the spousal privilege is that it only applies in criminal cases. If an MBE questions involves a civil action, such as a tort, then spousal privilege does not apply. The privilege states that a married person may not be called to testify against the spouse in a criminal trial. Because the status of spouse ends at divorce, this privilege only applies throughout the time that a valid marriage exists, but, if a valid marriage exists, the witness-spouse can claim the privilege for communications that took place prior to entering into the marriage. Importantly, for MBE purposes, you should note that the privilege belongs to the witness-spouse. This means that if the witness-spouse wants to testify against the other spouse in a criminal proceeding, the witness-spouse can do so, but the witness-spouse cannot be compelled to do so.

In contrast to the spousal privilege, the privilege for confidential marital communications applies in both civil and criminal proceedings. And, unlike in the spousal privilege, communications that occurred prior to the marriage do not apply; this privilege only covers those communications that occurred during the marriage. And, in further contrast to the spousal privilege, this privilege will not terminate upon divorce. In other words, communications after the marriage will not be privileged, but even if there has been a divorce, either former spouse can claim this privilege after the divorce for communications made prior to the divorce. Finally, for this privilege to apply, the communications must have been made in reliance upon the intimacy of the marital relationship. (This is very similar to the attorney/client privilege analysis; look to see whether the communication, when made, was intended to remain private.)

MBE Fast Fact: Hearsay Exceptions

Do not jump directly to the hearsay exceptions when a fact pattern presents an out-of-court statement offered into evidence. A recent trend on the MBE is to provide facts of out of court statements that are not being offered to prove the truth of the matter asserted, and therefore do not amount to hearsay, and so the exceptions are unncessary. A few examples are legally operative facts (for example when a statement is offered to prove there was an offer in a contracts case); statements offered to show their effects on the hearer (for example a statement offered by the plaintiff to prove that the defendant was put on notice in a negligence case where negligence requires that defendant was put on notice of a given fact); and statements offered as circumstantial evidence of the declarant's state of mind (for example, a statement offered by the defendant as to something that the defendant said to show that defendant was insane, for the purposes of proving the defense of insanity.)

Test Taking Skills: Endurance

The following question was asked on the facebook page @ http://www.facebook.com/barexaminstruction:

Can you comment on tips/strategies for combating examination fatigue and maintaining focus throughout the entire 200 question gauntlet? Please also share any suggestions you may have about studying/reviewing in the morning and lunch break on MBE day. Thanks!

Response:

With the amount of time spent learning the law tested on the MBE, it is easy to overlook these types of questions, so I'm glad this was asked. I, personally, do not believe that there is any way to completely combat fatigue on this test, but I do think that there are ways to minimize it. The length of the test, and the dense fact patterns, will inevitably lead to fatigue at some point (especially in the afternoon session), but it's important while studying to make sure that you set aside opportunities to practice taking full-length exams. By full-length exams, I mean 3 hours of 100 mixed questions, then one hour off, and then 3 hours of another 100 mixed questions. It would certainly be a mistake to take your first 6 hour exam the day of the test.

The other less obvious answer is that the better you know the law, the less fatigued you will become. This is because the more thought you have to put into each question, the harder you are working your brain, and the quicker you will become fatigued. You want some, and hopefully many, questions to be relatively easy on the exam, and if that is the case, you'll find you have more mental energy to focus on the one's you find to be difficult.

Finally, the obvious answer is to get enough sleep the night before. Don't cram, it's a mistake. You need to be at your best to do well on this test, and your best is when you are rested.

And that transitions into the next question. I don't believe you should be working on questions the morning of the test in order to learn any more substantive law. I do, however, believe that it's a good idea to "warm up" the brain in some way that morning, whether it's by reading an article in a newspaper, doing a crossword puzzle, etc. And one way to do so is by doing a few MBE questions. But the purpose of those questions is not to learn the law (it's too late for that), but, rather, it's to "stretch" a bit before the exam.

In regards to whether you should do questions during the lunch break, my answer is an emphatic "no." Your lunch break is an opportunity to rest your mind between the two sessions; do not squander it. I'd highly recommend eating something healthy, relaxing, and mentally preparing for the difficult task ahead, the afternoon session of the exam.

MBE Fast Fact: Defenses to Negligence

Though pure comparative negligence in the default rule on the MBE, it's important to note the differences between pure comparative, partial comparative, and contributory negligence, as the question might require you to apply anything other than pure comparative. Contributory negligence completely bars plaintiff's right to recover for an action in negligence (provided that no exception to the defense applies). In other words, if plaintiff is 1% at fault, and defendant is 99% at fault, plaintiff recovers nothing. Partial comparative negligence (also known as modified comparative negligence) provides the plaintiff with an opportunity to recover, provided the plaintiff is not more than 50% at fault. Pure comparative negligence, on the other hand (and, again, this is the default rule on the MBE), allows plaintiff to recover regardless as to the percentage of fault attributed to the plaintiff. So, the plaintiff recovers even if the plaintiff is 90% at fault. Plaintiff can recover 10% for his injuries, though, of course, the opposing party can counter-claim for 90%.

MBE Fast Fact: "At Will" Contracts

On the MBE, you should know the rules for a variety of different contracts, for example employment contracts, construction contracts, contracts for the sale of goods, etc. One rule to remember for employment contracts is that if it is not specified in the contract that the job is not "at will" then the job is "at will," allowing an employee to leave the job at any time without the employer having the option of suing the employee for breach of contract. This is true, even if the contract is characterized as "permanent." Specific wording (such as the amount of notice necessary before leaving the job), is required to take the employment contract out of "at will" status.

Constitutional Law: Eminent Domain

The following question was asked on the Asked & Answered Facebook page @ http://www.facebook.com/pages/Asked-Answered-The-Multi-State-Bar-Exam/122156504533565

Can you comment upon condemnation of leasehold and it's effect on tenant's obligation to pay rent?

Response:

Before addressing this question directly, this question provides a good opportunity to discuss the topic of Eminent Domain. It's seen in both Property questions and Constitutional Law questions.

The concept of Eminent Domain originates in the Fifth Amendment, which states that private property may not be taken for public use without just compensation. If the federal government is doing the taking, the question is, therefore, analyzed under the Fifth Amendment; if it's the states doing the taking, it is analyzed under the Fourteenth Amendment.

The amendments only allow the government to take private property for public use, so an initial consideration is to determine whether the use is public. The test is whether the government's action is rationally related to a legitimate government purpose. This is a fairly easy test to satisfy, so the public use requirement will not act as much of an obstacle for the government.

The next issue is to determine if the government's action is, in fact, a taking. In other words, the government can use private property for pubic use, and that use may be deemed a regulation, rather than a taking. If so, the constitutional amendments requiring the government to compensate the private individual do not apply. An actual physical appropriation of property will almost always amount to a taking. In addition, if the government regulation denies a landowner of all economic use of his land, the regulation amounts to a taking. Watch, however, for situations in which principles of nuisance law require an individual to stop using his land in a certain way; if that's the case, then the government can deny a landowner that particular use of the land, and not be required to provide compensation to the landowner.

In addition, temporarily denying an owner of all economic use of property does not necessarily constitute a taking. Considerations include the length of the delay, the effect that the delay had on the value of the property, the reasonable expectations of the landowner, etc. This can be somewhat of a gray area, so the analysis is more important than the conclusion. If a regulation merely decreases the value of property, it will not constitute a taking if an economically viable use for the property remains.

Assuming the 'public use requirement" and the "taking" requirement have been satisfied, the government will be required to provide "just compensation" to the landowner. This can amount to either the fair market value of the property, or, if the government chooses to terminate the taking, the damages that occurred while the regulation was in effect.

All of the above are principles of Constitutional Law. An area of Real Property law that touches upon these issues deals with a situation in which the government is deemed to have taken the property that is currently being leased to another, and now must provide compensation for that taking. An issue is how should that money be distributed among the owner of the property and the tenant of the property, as well as whether the tenant's obligation to pay rent remains after the taking.

The issue is determined by whether the entire leasehold is taken by eminent domain. If so, then the tenant's liability for rent is extinguished because both the leasehold and the reversion have merged in the condemnor, and there is no longer a leasehold estate. In addition, the tenant is going to receive compensation in proportion to his interest in the property. If the taking is partial rather than entire, then the tenant will not be discharged from his obligation to pay rent, but will still be entitled to compensation (ie, a share of the award), for the taking.

Torts: Invasion of Privacy

Invasion of privacy questions don't show up all that often on the MBE, but they do appear. You'll want to note that they can sometimes appear to be testing Defamation, and so it'll be important to distinguish between these torts. More on that below, and this note will specifically distinguish between the four main types of invasion of privacy that you'll need to know along with defenses.

(1): Appropriation of Plaintiff's Picture or Name: First, plaintiff will have to prove that the use of his picture or name was unauthorized. In addition, the use has to have been motivated by defendant's desire for commercial advantage. You'll want to look for situations in which defendant is using plaintiff's picture or name in a commercial or advertisement, even though plaintiff has not provided authorization to use his picture or name.

(2): Intrusion upon Plaintiff's Affairs or Seclusion: This would be a situation in which plaintiff objects to defendant's prying into his personal affairs. There is an objective, rather than subjective, standard (more on this @ http://mbetutorial.blogspot.com/2012/01/torts-objective-vs-subjective-standards.html), in determining whether the intrusion was objectionable. Furthermore, the thing into which there is an intrusion must be private. In other words, if a photograph is taken of plaintiff in a public place, regardless of how offended plaintiff is, he can not rely on this type of invasion of privacy as a basis for a lawsuit.

(3): Publication of Facts Placing Plaintiff in False Light: This exists where one attributes to plaintiff views he does not hold or actions he did not take. Once again, an objective standard is used, so that it's not enough that plaintiff finds the attributions objectionable; rather, plaintiff will have to prove that the attributions would have been objectionable to a reasonable person. In addition, like in Defamation, there must be publicity (the objectionable attributions have to have been made to a third party).

(4): Public Disclosure of Private Facts: This involves public disclosure of private information about plaintiff. Unlike False Light, it is not a requirement that the facts are false, but similar to False Light, the public disclosures must be objectionable to a reasonable person.

Note: In addition to the elements listed above, plaintiff will also have to prove that the invasion of his privacy was proximately caused by defendant's conduct. In regards to damages, emotional distress, and mental anguish will suffice.

Defenses: Consent is a defense to Invasion of Privacy. In addition, the absolute and qualified privileges that are a defense to a cause of action for Defamation will also apply to an action in Invasion of Privacy.

MBE Fast Fact: Real Property (Fixtures)

Article 9 of the UCC (Secured Transactions) shows up in a specific context on the MBE; namely, when fixtures are implicated. The situation will be as follows: A seller will sell an item of personal property to a buyer, and retain a security interest in that item of personal property. The buyer takes the item of personal property and affixes it to the land, so that it obtains the status of a fixture. The landowner then takes out a loan, and mortgages the land as security for the loan. The landowner then defaults on both loans.

The general rule is that the first to record his interest (between the seller of the personal property and the mortgagee) takes priority over the other. But Article 9 changes the results, slightly. The seller can take priority over the mortgagee regardless as to whether he recorded prior to the mortgagee provided that the seller records within 20 days after the item of personal property is affixed to the land. This, under article 9, is known as a "Fixture Filing." This is meant to protect the seller, so that if the mortgagee forecloses on the land (which would generally include all fixtures therein,) the seller will not lose his security interest in the item of personal property affixed.

Torts: Objective vs. Subjective Standards

A question from a reader:

What is the difference between objective, subjective and reasonable person standard in torts? I need it for MBE and MEE questions. Thanks!

Response:

In general, you should definitely know the distinction, as it comes up in other MBE subjects as well (such as Criminal Law, Contracts, etc). An objective perspective essentially means that the mindset of the individual is not important, but rather what is important is how a reasonable person would have acted under similar circumstances. In that respect, an objective standard is synonymous with the reasonable person standard. (In criminal law, you see this standard in self-defense when it is asked whether a reasonable person would have feared for his life. In torts, it's seen in Negligence with some exceptions.) A subjective perspective, on the other hand, takes into consideration the mindset of the individual, rather than asking how a reasonable person would have acted under similar circumstances.

Real Property: Future Interests

The following question was asked by a reader of the blog:

What is the Effect of the following :
Future interests or estates in real property may be passed by will or descent in the same manner as present or possessory interests.

Thanks!

Response:

This statement is essentially saying that there will be no restraints on the alienation of the future interest if the owner of the interest attempts to pass that interest through his will, or if the owner of the future interest dies without a will, and the interest passes by the laws of intestacy (ie, descent and distribution).

So, for example. if A grants to B a life estate remainder to C, C's future interest becomes possessory upon the death of B. But if C dies before B, C can devise his remainder to D in his will. Assuming he does, and D is alive upon the death of B, then D's remainder (originally C's remainder) will become possessory, and D will hold that present possessory interest in fee simple.

Real Property: Recording Acts

The following question was asked on the Asked & Answered facebook page @ http://www.facebook.com/pages/Asked-Answered-The-Multi-State-Bar-Exam/122156504533565

Can you please explain how to tackle race, notice & race notice questions? Is there a trick to deducing the answer from the wording of the recording statute?

Response:

The best way to approach this question is to run through the three statutes while discussing how they are tested on the MBE. But first, understanding the policy behind these statutes is essential. The recording acts protect grantees by providing that, if an interest in land is recorded, subsequent grantees are on notice of a prior grant of the land. In addition, the statutes protect the subsequent grantees if the initial grantee fails to record.

Notice statutes:

Under a notice statute, a subsequent "BFP"(a person who pays value and has no notice (actual or constructive) of a prior grant) prevails over a prior grantee who fails to record. So, for example, A grants land to B. B fails to record. A grants the same land to C. Assuming that C is a BFP, C will prevail over B, because B failed to record his interest in the land. You should also note that in this situation if B rushes to the recording office and records his interest before C, but after C has been granted the land, B will still lose because all that is required is that C is granted the land prior to B recording. Once that occurs, C is protected.

On the MBE, a notice statute will look as follows: "No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof, unless it is recorded." It's important to realize that the words "first recorded" are nowhere mentioned in this statute. When the statute includes the term "first recorded" it's either a race statute, or a race-notice statute.

Race-Notice Statute

Under a race-notice statute a subsequent BFP is protected only if he takes without notice and records before the prior grantee. Same facts as above: A grants land to B. B fails to record. A grants the same land to C. Assuming that C is a BFP, C will prevail over B assuming that two requirements are satisfied. Unlike in the above, it's not enough that C takes his interest prior to B recording. In addition, C has to record prior to B. So, if C takes his interest prior to B recording, but B rushes to the recording office, and records prior to C, then C is out of luck. On the other hand, if C takes his interest prior to B recording, and then records prior to B, C wins.

On the MBE, a race-notice statute looks as follows: "No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof whose conveyance is first recorded.

Race Statutes:

Under a race statute, whoever records first wins. Notice is irrelevant. Let's assume, now, that A grants to B. A then grants to C. Even if C is aware of the grant to B, C can prevail over B provided that C records his interest before B records his interest. In such a situation, C is not a BFP (a lack of notice is required to be a BFP), but such a determination is irrelevant, as the determining factor is simply who recorded first.

On the MBE, a race statute will look as follows: "No conveyance or mortgage of an interest in land is valid against any subsequent purchaser whose conveyance is first recorded. You should note that the word "notice" never appears in this statute, and that is an excellent way to distinguish between this type of statute, and the two statutes mentioned above.