Barbri - MBE Practice Questions Set 10 (30 MBE Qs)

A defendant is on trial for murder. The only evidence linking the defendant to the crime is some blood found at the scene. The lead detective testifies that an officer took a vial containing a blood sample that had been retrieved by a crime scene technician and drove off with it. The officer is now dead. Next, the prosecution presents as a witness a crime lab chemist. The chemist will testify that he took a vial of blood that contained a label identifying it as having been retrieved from the subject crime scene, and that he performed tests that established a match between that blood and a blood sample taken from the defendant.

Is the testimony of the chemist admissible?

A) Yes, because there has been proper authentication.

B) Yes, because the chemist qualifies as an expert witness.

C) No, because there is insufficient evidence of chain of custody.

D) No, because he did not take the original blood sample at the scene of the crime.

C) No, because there is insufficient evidence of chain of custody.

The testimony is inadmissible because it has not been shown what happened to the blood between the time the officer took it and the time the chemist examined it. Real evidence presents an object in issue directly to the trier of fact. One of the general requirements for admissibility of real evidence is that it be authenticated; i.e., that it be identified as being what its proponent claims it is. If the evidence is of a type that is likely to be confused or can be easily tampered with, the proponent of the object must present evidence of chain of custody. The proponent must show that the object has been held in a substantially unbroken chain of possession. It is not necessary to negate all possibilities of substitution or tampering; rather, what is required is to show adherence to some system of identification and custody. Here, the proponent of the blood sample (the prosecution) has not shown what the officer did with it after leaving the crime scene. There is no showing that the vial was placed directly in a properly secured area so as to diminish the possibility of tampering. In short, it has not been demonstrated that there was adherence to some defined system of identification and custody.

A federal statute just signed into law by the President provided that school districts no longer needed to recognize the tenure of elementary school teachers—all tenured teachers would lose their status and would be treated the same as nontenured teachers. The effect of the law would be to allow all tenured teachers to be fired more easily if their performance was not adequate. The law also allowed the salaries of tenured teachers to be lowered, at least until a new contract with the teachers could be negotiated. The law had a two-year grace period before it was to take effect, to give schools and teachers time to adjust to the law; however, it specifically provided that once it is in effect, school board actions under the law supersede any existing contract terms.

A public elementary school district is in the first year of a three-year union contract with its teachers. The school board has stated that it plans to abolish tenured positions as soon as the law takes effect. The union, believing that numerous terms of the contract will be invalidated when the law takes effect, filed an action in federal court on behalf of the teachers, asking for an injunction to prevent the school board from abolishing tenured positions and for a declaratory judgment stating that the law is invalid.

Should the federal court hear the case?

A) No, because a ruling on the law at this point is premature.

B) No, because the union does not have standing to sue on behalf of the teachers.

C) Yes, because the federal law encourages improper interference with a contract in violation of the Contract Clause of the Constitution.

D) Yes, because the teachers' rights and benefits are threatened by the law and the school board's stated plans.

No, because a ruling on the law at this point is premature.

The federal court should not hear the case because it is not yet ripe for review. A federal court will not hear a case unless there exists a "case and controversy." This has been interpreted to mean, among other things, that a plaintiff generally is not entitled to review of his claim unless he has been harmed or there is an immediate threat of harm. This is to prevent the federal courts from hearing unnecessary actions. There is no immediate threat of harm to the union here because the law does not take effect for another two years. Before that happens, Congress might change the law or repeal it altogether, or the school board may decide to keep the old contract system after all

An insurer offered a plan to cover an insured's catastrophic illnesses for the remainder of the insured's life in exchange for a large one-time payment at the inception of coverage. Because the program was experimental, the insurer would accept only a fixed number of applications during the enrollment period. A recent retiree in good health was one of the applicants accepted, and he enrolled in the program. He paid the one-time premium of $30,000 a few days before coverage began. The day after his coverage started, he was struck by a bus and killed. The executor of the retiree's estate reviewed the policy and immediately notified the bank to stop payment on it. The insurer then filed suit against the retiree's estate.

Will the court compel the estate to pay the premium to the insurer?

A) Yes, because the insurer necessarily declined to take another applicant during the enrollment period because of the retiree's promise to buy the policy.

B) Yes, because the risk of the timing of the retiree's death was assumed by both parties and built into the cost of the contract.

C) No, because the purpose of the contract between the retiree and the insurer had been frustrated.

D) No, because it is unconscionable for the insurer to have charged the retiree so much for so little value received.

Yes, because the risk of the timing of the retiree's death was assumed by both parties and built into the cost of the contract.

In entering into the contract, the possibility that the retiree would die shortly after paying the premium and therefore receive virtually nothing in return should have been apparent to both parties. Actually, both parties took risks in this regard, as the retiree could have incurred medical expenses for a catastrophic illness during his lifetime that would have required the insurer to make payments far exceeding the one-time $30,000 premium. The retiree and the insurer were equally aware of these various possibilities, yet they freely entered into an agreement with this knowledge and on terms that were apparently acceptable to each of them. =

A cyclist was riding on a sidewalk when someone in a parked car suddenly opened the door of the car into her path. She swerved to avoid the car door and rode onto a landowner's property, damaging some plastic lawn ornaments of waterfowl placed in his front yard.

In a suit by the landowner against the cyclist for the damage to his lawn ornaments, what is the likely result?

A) The cyclist is liable because she had no privilege to enter onto the landowner's property.

B) Whether the cyclist is liable depends on whether she was exercising due care.

C) The cyclist is liable for the damage to the lawn ornaments even though her entry was privileged.

D) The cyclist is not liable for the damage to the lawn ornaments because her entry was privileged.

The cyclist is liable for the damage to the lawn ornaments even though her entry was privileged.

The cyclist is liable for damage to the lawn ornaments even though she had a privilege to enter the landowner's yard. Pursuant to the privilege of necessity, a person may interfere with property of another where it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and where the threatened injury is substantially more serious than the invasion that seeks to avert it. In cases of private necessity (where the act is solely to benefit a limited number of people rather than the public as a whole) the defense is qualified, so that the actor must pay for any injury she causes. Apparently the only way to avoid this injury was to swerve onto the landowner's yard. Thus, the cyclist was privileged to enter the yard. However, because this is a private necessity situation, she will be required to pay for the damage she caused to the lawn ornaments

The owner of a factory that uses widgets in making its product and a widget maker entered into negotiations over the telephone and, after a time, reached a general understanding that the factory owner would buy widgets from the widget maker. Following their conversation, the widget maker sent the factory owner a contract, which he had already signed, agreeing to sell 1,000 widgets to the factory owner for a total contract price of $10,000. Upon receipt of the contract in the mail, the factory owner signed the contract and deposited an envelope containing the contract in the mailbox located in front of his workplace.

Before the widget maker received the contract, the factory owner had a change of heart. He telephoned the widget maker and told him that he could not afford to buy the widgets he had ordered, and he was "not interested in that contract we talked about." The widget maker replied, "That's all right, I understand. Maybe we can do business some other time." The next day, the signed contract was delivered to the widget maker's office. The widget maker, also having had a change of mind, decided that he wanted to enforce the contract.

Is the contract enforceable against the factory owner?

A) Yes, because the acceptance occurred prior to rejection.

B) Yes, because of the parol evidence rule.

C) No, because the offer to rescind was accepted and that discharged the original contract.

D) No, because the rejection by telephone voided the acceptance by mail.

Yes, because the acceptance occurred prior to rejection.

The contract is enforceable because the mailbox rule applies here. Acceptance by mail creates a contract at the moment of posting, properly addressed and stamped, unless the offer stipulates that acceptance is not effective until received, or an option contract is involved. If the offeree sends an acceptance and then rejects the offer, the mailbox rule applies; i.e., a contract is created upon dispatch of the acceptance. Because no option contract is involved here, and the widget maker's offer did not state that the factory owner's acceptance would be effective only when received, his acceptance was effective the moment he placed the envelope containing the contract in the mailbox. His attempt to reject occurred after acceptance took place. Thus, a valid contract was formed and the widget maker may enforce it

A driver in the local racing circuit brought his customized yellow stock car to a body shop to have it repainted before the new racing season began. When the driver returned to pick up the car, he was horrified to discover that it was repainted pink instead of yellow. The owner of the body shop apologized and offered to repaint the car, but the driver refused because the first race was in two days. The driver lost a couple of endorsements because the endorsers' ads did not work with the new color. He was also subjected to ridicule at the track, but he felt better after he drove the car to victory in the first race.

If the driver sues the body shop for their treatment of his car, will he prevail?

A) No, because he won the race with the car.

B) No, unless he can prove that the body shop breached a duty of care owed to him.

C) Yes, because the value of his car was reduced.

D) Yes, because he suffered severe distress as a result of the conduct of the body shop.

Yes, because the value of his car was reduced.

The driver can recover for trespass to chattels because he can show that the value of his car has been reduced as a result of the conduct of the body shop. Trespass to chattels requires (i) an act of defendant that interferes with plaintiff's right of possession in the chattel, (ii) intent to perform the act bringing about the interference with plaintiff's right of possession, (iii) causation, and (iv) damages. The act of interference may be either dispossession of or damage to the chattel. Here, the body shop employees interfered with the driver's possession of his car by painting it contrary to his instructions, and they intended to do the act (painting) that caused the interference. The driver suffered damage because that conduct reduced the value of his car for advertising purposes. Hence, the driver will be able to satisfy the prima facie case for trespass to chattels.

A plaintiff filed a civil action based on negligence against a defendant in federal district court, alleging that the defendant negligently ran a red light at an intersection and collided with the plaintiff's vehicle, causing the plaintiff's injuries.

A week after the close of discovery, the plaintiff filed a motion for summary judgment on the issue of whether the defendant was negligent. With the motion, the plaintiff filed (i) his own sworn affidavit, which stated that the traffic signal was green as he entered the intersection, (ii) an affidavit of a witness who was driving the car behind him, which stated that the witness saw the entire incident and that the plaintiff's traffic signal was green as he approached and entered the intersection; and (iii) an affidavit of another witness, which stated that she saw the entire incident and that the defendant's signal had been red for several seconds before the defendant entered the intersection and was still red when the defendant entered the intersection.

In response to the motion, the defendant filed her own affidavit, which stated that her traffic signal was green when she entered the intersection. She also filed the sworn deposition transcript of a pedestrian on the scene, in which the pedestrian said that, although he was intoxicated, he saw the entire accident and that the defendant's traffic signal was green as the defendant approached and entered the intersection.

How should the court rule on the plaintiff's motion for summary judgment?

A) Deny the motion, because the plaintiff cannot obtain summary judgment on issues on which he has the burden of proof.

B) Deny the motion, because both parties have come forward with evidence from which a jury could find for either party if the jury believes that party's evidence.

C) Grant the motion, because valid reasons exist to question the credibility of the evidence that the defendant presented.

D) Grant the motion, because the evidence presented by the plaintiff is substantially more persuasive than the evidence presented by the defendant.

B) Deny the motion, because both parties have come forward with evidence from which a jury could find for either party if the jury believes that party's evidence.

The court should deny the plaintiff's motion. Summary judgment may be granted if, from the pleadings, affidavits, and discovery materials, it appears that there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. The court may not decide disputed fact issues on a motion for summary judgment; if there is a genuinely disputed material fact (meaning a dispute backed by evidence on both sides of the issue), the case must go to trial. Here, although the plaintiff's case may seem stronger, the defendant has presented some evidence showing that she was not negligent. Thus, the case must proceed to trial.

A union filed suit against a corporation, known for its antiunion management, asserting that its members were being discharged in retaliation for membership in the union rather than for any failure to perform their jobs properly. Under the pretrial discovery orders, a union employee was allowed to examine all of the records held in the corporation's files concerning discharge of employees for a seven-year period prior to the instigation of suit by the union. The employee sorted through this large volume of material and discovered that persons who were union activists usually had "lack of corporate spirit" listed as their reason for discharge, while other fired workers tended to have more specific grounds for discharge listed, e.g., persistent lateness. The employee developed a chart showing grounds for dismissal of union members versus nonmembers based on the data in the files. At the trial, the union placed the employee on the stand. She testified in some detail regarding how she had conducted her research. The employee brought out the chart and the union's lawyer asked that the chart be admitted into evidence. The corporation's attorney objected.

How should the court rule on the admissibility of the chart?

A) Admissible, because copies of the original documents upon which the chart was based were available to the corporation prior to trial.

B) Admissible, because the chart is helpful to the trier of fact.

C) Inadmissible, because it is hearsay not within any exception.

D) Inadmissible, in the absence of the underlying records having been first introduced into evidence.

Admissible, because copies of the original documents upon which the chart was based were available to the corporation prior to trial.

The chart is admissible because the original documents are in the corporation's files. The original document or best evidence rule generally requires the original writing to be produced when the terms of the writing are sought to be proved and are material to the case. [Fed. R. Evid. 1002] However, under Federal Rule 1006, the contents of voluminous writings that are otherwise admissible may be presented in the form of a chart as long as the original documents are available to the other party for examination and copying. Here, the underlying documents belonged to the adverse party, and thus the corporation had unlimited access to them

A cattle-producing state adopted a statute requiring any food service business operating in the state to serve beef raised in the United States. A licensed hot dog vendor who worked at a football field within the state and who had been buying hot dogs made with foreign beef for the past several years estimated that switching to an all-beef hot dog made from United States beef would reduce his profits by 10%. An attorney hired by the vendor to challenge the statute discovered during research into the case that most of the footballs used at the football field at which the vendor worked were made of foreign leather.

Which of the following grounds is the vendor's best argument against the constitutionality of the state statute?

A) The statute burdens foreign commerce.

B) The statute violates equal protection guarantees because it is not rational to prohibit the sale of foreign beef but not foreign leather.

C) The statute substantially interferes with the vendor's right to earn a living under the Privileges or Immunities Clause of the Fourteenth Amendment.

D) The statute constitutes a taking without due process of law.

The statute burdens foreign commerce.

The best argument against the constitutionality of the state statute is that it burdens foreign commerce. For all practical purposes, the power to regulate foreign commerce lies exclusively with Congress. Therefore, a state that adopts legislation requiring private vendors to favor United States products over foreign products, as the state did here, may be acting outside the scope of its powers.

A man shopping for a leather jacket at a clothing store could not decide between two jackets, so the proprietor, who knew the man and his family well, let him take one of the jackets on approval. No mention was made by the proprietor of the method of payment he expected. The man wore the jacket on a visit to his grandfather, who liked it so much that when the man told him what the jacket cost and that he had taken it on approval, the grandfather said he would buy it for him if he promised to give some of his old clothes to a favorite charity for the poor at Christmastime. The man wholeheartedly agreed to donate the clothes to the charity at Christmas. Very pleased, the grandfather called the shop and told the proprietor to send the bill for the jacket to him, which he did. Before the bill was paid and before the Christmas season arrived, the grandfather fell ill and died. The grandfather's executor has refused to pay the bill, and the man has not yet given any old clothing to the charity.

Will the proprietor be able to recover the price of the jacket from the estate?

A) Yes, because the proprietor was the intended beneficiary of the promise between the man and his grandfather.

B) Yes, because the man has no duty to give the clothing to the charity.

C) No, because the grandfather's implied promise to pay the proprietor arising from the phone call is unenforceable.

D) No, because a condition has not yet occurred.

A) Yes, because the proprietor was the intended beneficiary of the promise between the man and his grandfather.

The proprietor can recover the cost of the jacket from the grandfather's estate because the proprietor is an intended third-party beneficiary and his right to enforce the contract has vested. The rights of an intended third-party beneficiary vest when the beneficiary (i) manifests assent to the promise in a manner invited or requested by the parties; (ii) brings suit to enforce the promise; or (iii) materially changes his position in justifiable reliance on the promise. Here, the proprietor qualifies as an intended beneficiary of the agreement between the man and his grandfather because the proprietor was expressly designated in the contract, he was to receive performance directly from the grandfather, and he stood in an existing contractual relationship with the man that required the man to either pay for the jacket or return it, making it likely that the young man's purpose in making the arrangement with his grandfather was to satisfy the obligation to the proprietor. The proprietor can enforce the contract because his rights vested when he sent the bill to the grandfather at the grandfather's request. Thus, the proprietor will prevail against the grandfather's estate.

A man and a woman lived together for many years but never got married. Although the state in which they reside does not recognize common law marriage, it has statutes that prohibit discrimination on the basis of marital status. The man and the woman purchased a large property, taking title as joint tenants. Subsequently, the woman accumulated a $20,000 debt. She was too embarrassed to tell the man. She went to a bank and took out a loan to pay the debt and secured the loan with a mortgage on the property. The bank was willing to accept the woman's signature alone, and the man never learned about the mortgage. Two years later, the woman died without having paid off the mortgage. She left no will, and her only heir at law is her sister. The state in which the property is located is a "lien theory" mortgage state.

Who has title to the property?

A) The man.

B) The man, subject to the bank's mortgage

C) The man and the sister.

D) The man and the sister, subject to the bank's mortgage.

onA) The man.

The man takes sole title to the property under his right of survivorship. A joint tenancy carries the right of survivorship. Thus, when one joint tenant dies, the property is freed of her interest and the surviving joint tenant holds the entire property. Therefore, the man owns the property.

The bank's rights were lost when the woman died prior to foreclosure. When the woman died, her interest in the property evaporated, and with it the bank's security interest. On the other hand, in a title theory state, a mortgage is considered to be an actual transfer of title to the property, rather than just a lien on the property. Thus, a mortgage by a joint tenant transfers the legal title of the joint tenant to the mortgagee (the money lender). This action destroys the unity of title and thus severs the joint tenancy.

only for title theory states, not lien theory states

Which of the following suits would not fall within the United States Supreme Court's original jurisdiction under Article III, Section 2?

A) A suit seeking to assert the interest of state citizens in retaining diplomatic relations with a foreign nation.

B) A suit seeking to protect a state's timber from allegedly illegal cutting by residents of another state.

C) A suit seeking to enjoin enforcement of an allegedly unconstitutional executive order that will greatly limit the state's authority to make policy decisions regarding admission to state universities.

D) A suit by the United States Government seeking to enjoin state construction of a bridge over a navigable waterway.

A) A suit seeking to assert the interest of state citizens in retaining diplomatic relations with a foreign nation.

The suit to assert state citizens' rights is not within the Supreme Court's original jurisdiction. Under Article III, Section 2, the United States Supreme Court has original jurisdiction in all cases affecting ambassadors, other public ministers, and consuls, and in which a state is a party.

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A landlord leased office space to a business owner for five years, ending on November 1, reserving a yearly rent of $24,000, payable monthly. On October 1 of the fifth year, the business owner notified the landlord that he was preparing to move, but would greatly appreciate if the landlord could extend the lease for a month or two. On October 10, the landlord wrote to the business owner that she thought they could reach a satisfactory arrangement, but did not hear back from the business owner. The business owner did not vacate the office until November 20. On November 30, the landlord received a check from the business owner in the amount of $1,333 for "November's rent" and a note that he had vacated the premises.

If the landlord brings an action against the business owner for additional rent, how will the court rule?

A) The business owner is bound to a year-to-year tenancy, because he did not vacate the premises until November 20.

B) The business owner is bound to a tenancy through December because one month's advance notice was required to terminate.

C) The business owner is not bound, because the $1,333 check discharged him from his obligations.

D) The business owner is not bound if the court admits parol evidence of the October 10 letter from the landlord.

A) The business owner is bound to a year-to-year tenancy, because he did not vacate the premises until November 20.

The court will rule that the business owner is bound to a year-to-year tenancy because he is a hold-over tenant. When a tenant fails to vacate the premises after the termination of his right to possession, the landlord may: (i) treat the hold-over tenant as a trespasser and evict him; or (ii) bind the tenant to a new periodic tenancy. The terms and conditions of the expired tenancy apply to the new tenancy. At least in commercial leases, the new tenancy will be year-to-year if the original lease term was for one year or more. Here, the businessman was a tenant for years because his lease was for a five-year fixed period of time. A tenancy for years ends automatically on its termination date. Therefore, as of November 1, the business owner became a hold-over tenant and the landlord had a right to bind him to a new periodic tenancy. Because the original lease was for more than one year, the business owner may be held to a year-to-year tenancy, at the stipulated rent of $24,000 per year.

While cross-examining a defendant on trial for robbery and assault with a deadly weapon, the prosecutor asks him whether he was convicted of fraud within the previous year.

Is this question proper?

A) No, because fraud is not probative of a tendency to commit violence.

B) No, unless the proper foundation was laid.

C) Yes, because fraud is a form of stealing, and so it will tend to show that the defendant could commit robbery.

D) Yes, because it tends to show that the defendant would lie.

D) Yes, because it tends to show that the defendant would lie.

The question is proper. The defendant has taken the stand in his own defense, and therefore the prosecutor can attack his credibility as a witness. Under Federal Rule 609, evidence of conviction of a crime requiring proof of an act of dishonesty or false statement can always be used to attack a witness's character for truthfulness.

A seller owned a large parcel of land. The western half was undeveloped, and the eastern half contained a grove of apple trees. The seller gave a buyer a deed conveying "the western half of the parcel from the western boundary to the grove of apple trees, comprising 220 acres." It was subsequently determined by survey that the land conveyed to the buyer was in fact 229 acres.

In a dispute between the seller and the buyer as to the mistake, which of the following is most accurate?

A) The deed is invalid because of the mutual mistake of the parties.

B) The deed is invalid unless the court admits parol evidence as to the amount of acreage conveyed.

C) The deed is valid, and the buyer is the owner of 220 acres.

D) The deed is valid, and the buyer is the owner of 229 acres.

D) The deed is valid, and the buyer is the owner of 229 acres.

The deed is valid and the buyer owns 229 acres. When there is a mistake or inconsistency in the description of property in the deed, one of the rules of construction is that the physical description takes precedence over the quantity description unless there are grounds for reformation of the deed. Reformation is an equitable action in which the court rewrites the deed to make it conform to the intention of the parties. It is granted when the deed does not express the agreement of the parties due to mutual mistake or a scrivener's error, and may also be granted when there is a unilateral mistake if misrepresentation is involved. Here, the facts indicate that the seller and the buyer were bargaining for a specific physical location ("the western half of the parcel from the western boundary to the grove of apple trees") and not for a specific number of acres. Thus, there appear to be no grounds for reformation. A conflict in description does not invalidate a deed

A city's water board election laws provide that, although members of the board are elected at large, one member of the board is required to live within each of the five designated water districts within the city. The city's population was more or less evenly distributed among the districts when this election law was enacted. A resident and registered voter of the city investigated the district residency requirement and discovered that most of the city's newer residents had moved into the same two water districts, so that the city's population was no longer evenly distributed among the five water districts. Instead, 80% of the city's residents lived within its central and eastern water districts, while the other 20% of the city's residents were scattered among its three other, more rural, districts.

If the resident files suit in federal court challenging the constitutionality of the residency requirement, how will the court most likely rule?

A) The residency requirement is unconstitutional because it impairs the voters' equal protection rights, in that it gives the voters in the less populous districts more effective representation on the water board.

B) The residency requirement is unconstitutional because it violates the candidates' equal protection rights.

C) The residency requirement is constitutionally permissible because the water board members do not exercise legislative power.

D) The residency requirement is constitutionally permissible because the water board members are elected at large.

D) The residency requirement is constitutionally permissible because the water board members are elected at large.

The residency requirement is permissible because the water board is elected at large. The Equal Protection Clause prohibits state dilution of the right to vote, so that when a governmental body establishes voting districts for the election of representatives, the number of persons in each district may not vary significantly. This is known as the principle of "one person, one vote." This principle applies to almost every election where a person is being elected to perform normal governmental functions (e.g., an election for trustees for a junior college district). However, the principle of one person, one vote generally is inapplicable where there is an at-large system of election (except where the system is adopted for discriminatory purposes). Here, the water board members are elected by all of the qualified voters in the city in an at-large system (rather than having the voters of each individual district select one board member apiece), and no discriminatory intent is evident. Thus, the statutory provision requiring board members to reside in each of the five districts does not result in an imbalance or a dilution of the voting rights of the citizens of the city