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«QUESTION 1 A. The Sixth Amendment to the United States Constitution guarantees every criminally accused person of the right to assistance of counsel. ...»

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FEBRUARY 2010 MARYLAND BAR EXAMINATION

BOARD’S ANALYSIS

QUESTION 1

A. The Sixth Amendment to the United States Constitution guarantees every

criminally accused person of the right to assistance of counsel. However, the right to

assistance of counsel can be waived if the Defendant makes a knowing and intelligent

waiver of this right. The State, no matter how motivated, may not compel a Defendant to

accept a lawyer he does not want.

The Court must conduct an Inquiry to ensure that a decision to waive the right to counsel is made knowingly and intelligently. In this hearing, the Court shall inform the Defendant of his right to counsel and the importance of the assistance of counsel. The Court must also advise the Defendant of the nature of the charges in the charging document and the allowable penalties from the charges. Maryland Rule 4-2l5. The Court must also determine whether the Defendant is competent to make the decision.

That, however, does not require that the Defendant have the skill of an attorney but rather only that he is competent to make decisions and to stand trial. The Defendant’s legal skills are irrelevant to this consideration.

Whether to transfer the case to another jurisdiction does not rest in the discretion of the Trial Judge. Art. 4, § 8 of the Maryland Constitution states that in indictments for offenses punishable by death, removal for trial to some other court having jurisdiction is mandatory. Md. Rule 4-254 prescribes that the Defendant may file a suggestion under personal oath that he cannot have a fair and impartial trial in the court on which the action is pending. The Court Administrative Judge designates the county to which the case is removed, so that Brown may not require removal to Garrett County.

B. The Court should deny the witness testimony as it was not disclosed as required pursuant to Maryland Rule 4-263. This Rule imposes the duty on the Defendant to present alibi witnesses in discovery.

Short of refusing to allow the witness testimony, the Court can grant a short continuance to allow the State to interview the witness and conduct further investigation based upon the disclosure.

Board’s Analysis Page 1 of 15 FEBRUARY 2010 MARYLAND BAR EXAMINATION BOARD’S ANALYSIS FEBRUARY 2010 MARYLAND BAR EXAMINATION BOARD’S ANALYSIS QUESTION 2 The Answer should recognize that the case is based on the First Amendment, which protects speech related to charitable fundraising, but does not prohibit the State from requiring public financial disclosure about the fundraising activities.

U.S. Supreme Court decisions “have repeatedly recognized the legitimacy of government efforts to enable donors to make informed choices about their charitable contributions. Illinois Ex Rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600 (2003). The State may require professional fundraisers to file “detailed financial disclosure forms” and may communicate that information to the public. Schaumberg v.

Citizens for a Better Environment, 444 U.S. 620 (1980); Secretary of State of Maryland v.

Joseph H. Munson Co., 467 U.S. 947 (1984). Based on the decisions, subparagraph (b) of the Maryland Statute does not infringe on MUMM’s First Amendment Rights and, therefore, are valid and enforceable.

However, subparagraphs (a) and (c) violate First Amendment rights under Madigan, supra. The State may not require up front telephone disclosure of the fundraiser’s fee, as this might end as well as begin the conversation. Riley v. National Federation of the Blind of N.C., Inc., 487 U.S. 781 (1988). Such up front disclosure is “unduly burdensome.” Id. Moreover, the First Amendment protects the right to educate and promote activities which are illegal so long as the speech does not promote “imminent lawless action.” Brandenburg v. Ohio, 395 U.S. 444 (1969).

Subsection (d) of the statute, imposing a mandatory 5-year prison term on any person who unlawfully solicits funds, may be subject to attack as a cruel and unusual punishment under Amendment VIII of the U.S. Constitution and Article 16 of the Maryland Declaration of Rights. In determining whether a sentence is a cruel and unusual punishment, courts apply the “grossly disproportionate” standard, i.e., whether a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality. Ewing v. California, 538 U.S. 11 (2003), Lockyer v. Androde, 538 U.S. 63 (2003).

Subsection (e) is a severability clause that would save subparagraphs (a) and (c), but would leave the statute without a penalty provision if it is violated.

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A. Trucker’s statements to the Policeman were statements by a party opponent. They are not excluded by the hearsay rule. There is no requirement that the declarant be unavailable as a witness. Maryland Rule 5-803 (a) (1). The Trucker’s statements could also be admissions. The Court will overrule the objection and allow the Policeman to testify to Trucker’s statements made to him.

B. The doctrine of res ipsa loquitur will not be a successful argument for Driver. The elements of res ipsa loquitur are that the following circumstances are more probable than not: the event would not have happened without negligence; the cause of the event was within the defendant’s control; and no action by any one or any thing else, including the plaintiff, was a cause of the event. Dover Elevator Co. v. Swann, 334 Md.





231, 236-237, 638 A.2d 762 (1994) (internal citations omitted). See also MPJI-Cv 19:8.

Trucker admitted hitting Driver while Driver was stopped for a red light. Trucker would ordinarily then have the burden to defend his actions or have the inference of negligence before the fact finder. In this case, Trucker testified in Driver’s case as an adverse witness that there was an independent cause of the collision and damages - the sudden brake failure. Therefore, Driver would not meet the elements for the res ipsa loquitur doctrine as sudden brake failure could occur without negligence on Trucker’s part and not be within Trucker’s control.

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(1) As plaintiff, it is Driver’s burden to prove that Trucker was negligent and that Trucker’s negligence was the proximate cause of the collision and damages.

(2) Driver had the right to call Trucker as an adverse witness in the case.

Court and Judicial Proceedings Article, Annotated Code of Maryland (as amended), section 9-113. However, Driver then became bound by that testimony, unless he contradicted or discredited the testimony. Coffey v. Derby Steel Co., Inc., 291 Md. 241, 434 A.2d 564 (1981). Trucker testified without objection that the cause of the collision was sudden brake failure.

(3) There was an inference of negligence as Trucker admitted that he could not stop and he hit the automobile, but the testimony of Trucker in Driver’s case also set forth another cause for which there may have been no negligence, that is, sudden brake failure. Based on the given facts, Trucker’s rendition of the facts as he testified as an adverse witness in Driver’s case were not contradicted or discredited. Driver testified that he was knocked unconscious and never saw the driver of the truck. Therefore, Driver can not recover in negligence because he did not meet his burden of proving that Trucker’s negligence was the proximate cause of the collision and damages. Strasburger v. Vogel, 103 Md. 85, 91, 63 A. 202 (1906).

Board’s Analysis Page 3 of 15 FEBRUARY 2010 MARYLAND BAR EXAMINATION BOARD’S ANALYSIS D. Based on the facts, the discarding of the hose is not relevant. A presumption arising from the spoliation of evidence by not retaining the defective truck hose, but that presumption does not cure Driver’s failure to meet his burden of proving negligence in his case in chief. See Maryland Rule 5-401 (relevant evidence). Driver produced evidence in his own case through the testimony of Trucker that tends to disprove the presumption of negligence. See Maryland Rule 5-301 (a) (presumption in civil cases).

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1. Bigamy- not a ground for divorce (Family Law Article §§ 7-102 and 7ground for annulment. Marriage is void ab initio meaning against one’s will. See Ledvinka v. Ledvinka, 154 Md.App. 420, 840 A.2d 173 (2003). She should file for an annulment.

2. With respect to child custody, depending on ability of parties to communicate, the award may be joint legal custody with Beth having primary residential custody. Al has a demanding work schedule, and a child with special needs suggests physical custody probably would not be shared.

3. Beth has a claim for child support-will continue beyond age 18 due to the child’s permanent disability (Duty of parent to support destitute adult child) Family Law Article § 13-102 (b).

4. Income level of parties suggests this is an above guidelines child support case. Al earns $300,000.00. Beth may have potential of $40,000.00. Court could look at actual expenses of the child, or project a guidelines application above $10,000.00 per month ($28,000.00 per month). Court has discretion in above guidelines case in setting child support. Family Law Article § 12-204 (d).

5. Beth may be entitled to use and possession of the family home. See Family Law Article §§ 8-203, 8-206, 8-207and 8-208. The Maryland Marital Property Act applies to annulments. If so entitled, having primary residential custody of the child, Beth could get use and possession of the family home for a maximum period of three years from the date of the annulment and Al could be required to contribute to the mortgage on the family home and the utilities during the period of use and possession in addition to child support.

6. Beth has a claim for alimony; 14 year union; significant disparity in income of parties; permanent versus rehabilitative alimony. See Family Law Article § 11-106 (c).

7. Beth will be entitled to claim an interest in all marital property. The Court should start with the proposition that she is entitled to one-half of all marital assets (Family Law Article §§ 8-204 and 205) and the Court can give a monetary award to adjust the inequity created by title.

8. The Court has authority to order Al to transfer ownership of the residence to Beth under Section 8-205 (a)(2) of the Family Law Article.

9. Under Family Law Article § 11-110 (c) the Court has the discretion to award Beth suit money, counsel fees and costs.

–  –  –

Contract Contracts may be subject to rescission on a finding of fraud in their making. Hale v. Hale, 66 Md. App. 228, 503 A.2d 271 (1986). Fraudulent inducement into a contract means that one has been led by any form of deceit to enter into an agreement to his or her detriment, and arises where a person is induced by some fraudulent representation or pretense to execute the very instrument intended to be executed but under a misrepresentation as to the contents thereof. Meyers v. Murphy, 181 Md. 98, 28 A.2d 861 (1942); Security Const. Co v. Maietta, 25 Md. App. 303, 334 A.2d 133 (1975).

Under these facts, Buyer will have an action for rescission due to his reliance on the advertisement and the expectation of his ability to subdivide the parcel into ten separate lots.

Misrepresentation constituting grounds for the avoidance of a contract must relate to material facts, and in order to enable a party to avoid a contract on the grounds of fraud and misrepresentation(s), the representation(s) alleged to be false must have been relied on in entering into the contract. Carozza v. Peacock Land Corp., 231 Md. 112, 188 A.2d 917 (1963); Ryan v. Brady, 34 Md. App. 41, 366 A.2d 745 (1976); Snyder v. Herbert Greenbaum and Associates, Inc., 38 Md. App. 144, 380 A.2d 618 (1977). Whether a misrepresented fact is material is a matter of whether a reasonable person would attach importance to it in determining his or her choice of action in the transaction, or the maker of the misrepresentation knows that its recipient is likely to regard the fact as important although a reasonable person might not do so. Carozza v. Peacock Land Corp., 231 Md.

112, 188 A.2d 917 (1963). Obviously, the number of lots to be obtained through subdivision is a material fact under virtually any set of circumstances, particularly when Seller was aware of Buyer’s intentions.

Because there is no real or free consent to a contract when such consent is obtained through fraud, fraud vitiates all contracts. Hall v. Hall, 147 Md. 184, 127 A.2d 858 (1925). Generally, a contract induced by fraud is voidable and not void as against the party practicing the fraud. Faller v. Faller, 247 Md. 631, 233 A.2d 807 (1967). The rescission of a contract is the abrogation or unmaking of the agreement ab initio and the placing of the involved parties in status quo ante. Glen Alden Corp. v. Duvall, 240 Md.

405, 215 A.2d 155 (1965); Ryan v. Brady, 34 Md. App. 41, 366 A.2d 745 (1976); Dialist Co. v. Pulford, 42 Md. App. 173, 399 A.2d 1374 (1979).

A plaintiff is generally required to disaffirm the contract and restore to the defendant whatever the plaintiff received under the bargain, or at least offer in good faith to restore it, before the defendant is required to restore what the defendant received from the plaintiff. Consumer Protection Division Office of Atty. Gen. v. Consumer Pub. Co., Inc., 304 Md. 731, 501 A.2d 48 (1985). When a party to a contract discovers fraud, he or she is put to a prompt election to rescind the contract or to ratify it and claim damages.

Creamer v. Helferstay, 294 Md. 107, 448 A.2d 332 (1982), appeal after remand, 58 Md.



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