MBE Quick Rules

In most states, murder is of the second degree unless __________, in which case the murder is of the first degree.

deliberation and premeditation can be shown, or the killing occurred during an enumerated felony

What is generally needed to convict a defendant of felony murder?

To convict a defendant of felony murder, the prosecution must prove, beyond a reasonable doubt, that the defendant committed a felony (i.e., he is factually guilty of the felony). However, the defendant need not actually be convicted of the underlying felony if the statute of limitations for the felony has expired.

Voluntary manslaughter is a killing committed:

under adequate provocation.

A motorist drove home from work late one night, and fell asleep behind the wheel of his car. His car drifted across the middle of the road and struck another car. The other driver was killed instantly in the collision. Angered by the noise of the collision, a homeowner fired a gun out the window of his house at the car. The bullet struck and killed a bystander. Both the motorist and the homeowner were arrested and charged with common law murder.

Which of the defendants likely would be found guilty?

The homeowner likely would be found guilty. At common law, murder was the unlawful killing of a human being with malice aforethought. Malice aforethought could be established with any one of the following states of mind: intent to kill; intent to cause serious bodily harm; the depraved heart killing (a reckless indifference to an unjustifiably high risk to human life); or the commission of a felony. The homeowner would be guilty of murder. Firing a gun out of his window at a car would demonstrate a reckless indifference to a high risk to human life.

Define and give an example of evanescent evidence.

If by its nature, the evidence is likely to disappear before a warrant may be obtained, the evanescent evidence exception applies. Examples of evanescent evidence include: scrapings of tissues from under a suspect's fingernails, which could be washed away, drugs or drug paraphernalia that may be discarded or destroyed (flushing drugs down a toilet is a common method of evasion)

Food that may spoil or rot, for use as evidence in food poisoning cases, blood samples or blood marks that may evaporate. Whether such a warrantless search is reasonable is judged by the totality of the circumstances.

What is required for the plain view exception to the warrant requirement to be applied?

To make a warrantless seizure, the police (1) must be legitimately on the premises where the item is found; (2) the item must be evidence, contraband, or a fruit or instrumentality of a crime; (3) the item must be in plain view; and (4) it must be immediately apparent (i.e., probable cause) that the item is evidence, contraband, or a fruit or instrumentality of a crime.

When may an officer search the interior of a car incident to arrest?

After arresting the occupant of a vehicle, the police may search the interior of the vehicle incident to the arrest if (i) the arrestee is unsecured and still may gain access to the interior of the vehicle, or (ii) the police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle.

In the case of a will, when does the Rule Against Perpetuities begin to run?

In the case of a will, the perpetuities period begins to run on the date of the testator's death, and measuring lives used to show the validity of an interest must be in existence at that time. The Rule Against Perpetuities states that no interest in property is valid unless it must vest, if at all, not later than 21 years after one or more lives in being at the creation of the interest.

When may a bystander who is outside the zone of danger but suffers from emotional distress recover under NIED?

Most states allow recovery only if: (i) the plaintiff and the person injured by the defendant are closely related; (ii) the plaintiff was present at the scene of the injury; and (iii) the plaintiff personally observed or perceived the event.

What is substantive due process as it relates to a statute?

Substantive due process tests the reasonableness of a statute; it prohibits arbitrary governmental action. Under substantive due process, when government action limits a fundamental right, the government must prove that the action is necessary to promote a compelling interest. If a fundamental right is not involved, the challenging party must prove that the act is not rationally related to any legitimate government interest

What constitutes the "statement against interest" exception to hearsay?

Under the Federal Rules, statements of a person, now unavailable as a witness, against that person's pecuniary, proprietary, or penal interest when made are admissible as an exception to the hearsay rule.

When is substandard medical care considered an "intervening act" that relieves a defendant from homicide liability?

If medical care is grossly negligent or intentional mistreatment, it is not generally within the sphere of risk created by the defendant and would provide a potential basis for relieving a defendant from homicide liability. As a general rule, an intervening act will shield the defendant from liability if the act is a mere coincidence or outside the foreseeable sphere of risk created by the defendant's acts.

When does liability for felony murder end?

Liability for felony murder is generally terminated when the defendant reaches a place of temporary safety. Although the death of the victim is obviously required for a charge of felony murder, the felony is deemed to continue as to a fleeing felon until the felon reaches a place of temporary safety.

If the trial judge observes the defendant acting in such a way that may indicate he is incompetent to stand trial (e.g., meowing, chasing imaginary squirrels), and the issue of competency is no waived, what are her obligations as a judge?

If it appears to the judge that the defendant might be incompetent, the judge has a constitutional obligation to conduct further inquiry and determine whether in fact the defendant is incompetent. If the defendant is tried and convicted but it later appears that he was incompetent to stand trial, the judge's failure to raise the issue or to request a determination of competency does not constitute a waiver of the competency issue.

When does a covenant run with the land?

A covenant runs with the land to the subsequent purchaser with notice of the covenant if it touches and concerns the land and is intended to run. Notice may be actual or constructive.

What is the difference between private and public necessity?

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.

An officer catches a thief red-handed. The thief pulls a $100 bill out of his pocket and says he will give him the bill if the officer "forgets he ever saw him." If the officer accepts the bill, what can the officer be charged with?

The officer is an accessory after the fact to burglary. An accessory after the fact is one who receives, relieves, comforts, or assists another, knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction. The crime committed by the principal must have been completed at the time aid is rendered.

A plaintiff spent $3k in an investigation to track down a witness of the event for which he is suing the defendant. He has added the name of the witness to a list of other witnesses to the crime. Is this information discoverable or is it privileged?

Because the Federal Rules of Civil Procedure state that the identities of people with knowledge of discoverable matters are discoverable, the plaintiff's attorney's list is not considered work product. In general, discovery may be had of any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, including the identity of individuals with knowledge of any discoverable matter.

In contract law, when do the rights of a third-party beneficiary vest?

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.

At the defendant's trial for murder, facts were introduced that the defendant acted in the heat of passion. After a lengthy trial, the defendant was convicted of manslaughter. On appeal, the conviction was reversed on procedural grounds. The state immediately moved to retry the defendant, again bringing murder charges against her. The defendant moved to strike the murder charge, and the court refused to grant the motion. After the second trial, the defendant was again convicted of the lesser charge of manslaughter. The defendant appeals the second conviction, claiming that it violated her constitutional rights. May the new conviction stand?

No, under double jeopardy. The Double Jeopardy Clause prohibits retrying a defendant whose conviction has been reversed on appeal for any offense more serious than that for which she was convicted at the first trial. This right is violated by retrial for a more serious offense, even if at the second trial the defendant is only convicted of an offense no more serious than that for which she was convicted at the first trial.

Two merchants enter into a contract to sell 100 vibrators. The manufacturer sends the sex-shop owner a contract in the mail, which the sex-shop owner signs and puts in the mail on Monday morning. On Monday afternoon, the sex-shop owner changes his minds because he is not selling as many vibrators as he used to, so he calls the manufacturer and tells him never mind. When the manufacturer sends the vibrators upon receipt of the contract, is the sex-shop owner obligated to pay?

Yes, because the acceptance occurred prior to rejection. 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.

When a tenant fails to vacate the premises after the termination of his right to possession, what may the landlord do? (I.e., when Taylor refuses to leave South Park until she get's back from Spain, what can her landlord do?)

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. he 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.

In a trial for bank robbery, a teller has identified the defendant as the robber. Defense counsel offers into evidence a still frame from a video taken by the bank security camera the day after the robbery to show that a column obstructed that teller's view of the defendant.

Is such evidence admissible?

Yes, upon testimony by a bank employee that the photo accurately portrays the scene of the crime.

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?

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.

If the buyer of land determines that the seller's title is unmarketable, what is the buyer able to do?

The buyer must notify the seller and give a reasonable time to cure the defects. Every land sale contract contains an implied covenant that the seller will provide marketable title at closing. Marketable title is title reasonably free from doubt, which a reasonably prudent buyer would accept.

Does an easement always render title unmarketable?

A majority of courts have held that a beneficial easement that was visible or known to the buyer does not constitute an encumbrance.

What is a way to satisfy the hostility element of adverse possession?

The hostility element of adverse possession requires that the possessor lack the true owner's permission to be on the land. It does not mean anger or animosity. Moreover, the state of mind of the adverse possessor is irrelevant—it does not matter whether the possessor believes he is on his own land, knows he is trespassing on someone else's land, or has no idea who owns the land.

When is tacking available for purposes of adverse possession?

Periods of adverse possession between two successive claimants may be tacked together to make up the full statutory period if there is privity of possession between the claimants. Privity is satisfied if the first adverse claimant purports to transfer the land to the next; i.e., the subsequent possessor takes by descent, by devise, or by deed purporting to convey title. (tacking is not available when one adverse claimant ousts the other or the first claimant abandons and the next claimant goes into possession. )

If an adverse possessor uses land in violation of a recorded real covenant for the limitations period, she:

-takes title free of the real covenant. The nature of the title obtained through adverse possession depends on the occupier's activities on the land. If an adverse possessor uses the land in violation of a real covenant (i.e., a written promise to do or refrain from doing something on the land), she takes title free of the covenant EVEN IF she had knowledge of it.

When will disability (minority, imprisonment, insanity) stop the clock of continuousness for purposes of adverse possession?

For a disability, such as status as a minor, to stop the clock, the disability must have been in existence on the day the adverse possession began.

The defendant was fired from his sales job while calling on customers in another city. He failed to return the company car that he was using for his sales visits; instead, he sold the car to a "chop shop" for cash.

As to the car, what crime has the defendant committed?

The defendant has committed embezzlement because a court will probably find that he had "possession" of the car at the time he appropriated it. Embezzlement is the fraudulent conversion of the property of another by a person in lawful possession of it. In the instant case, the car belonged to the company for which the defendant worked, but the company probably gave the defendant lawful possession of it so that he could make sales calls. When he sold the car rather than return it, he wrongfully converted the car. This is embezzlement.

What is the standard that must be met for a court to order secret proceedings, thus locking out the press?

The Supreme Court has held, at least in the context of criminal cases, that trials and pretrial proceedings can be closed only if closure is necessary to preserve an overriding interest and the closure order is narrowly tailored to serve the overriding interest. While the Court has not yet established the standard for civil matters such as the case here, several Justices and commentators have suggested that the same standard will be applied in civil cases since they too have historically been open to the public.

A father executed a deed to his art gallery "to my daughter for her life, and on my daughter's death to her children; provided, however, that if my daughter stops painting, to my brother." The daughter has two children and is still painting.

At the time of the grant, what is the best description of the interest of the daughter's two children?

The daughter's two children have a vested remainder subject to open and subject to complete divestment. A remainder is a future interest created in a transferee that is capable of taking in possession on the natural termination of the preceding estate. A remainder is vested if the beneficiaries are ascertainable and their taking in possession is not subject to a condition precedent. A vested remainder created in a class of persons that is certain to take but is subject to diminution by reason of others becoming entitled to take is a vested remainder subject to open. Vested remainders may be subject to total divestment if possession is subject to being defeated by the happening of a condition subsequent.

What is a novation?

A novation arises when the parties enter into an agreement to substitute a third party for one of the parties in a contract, releasing the party who was substituted. All parties must agree to the substitution. The original performer is released from all liability if the third party creates damages.

A landowner included in his will a provision giving "all of my property, both real and personal, wherever situated, to my widow for life, and after her death to any of our children who may survive her."

What is the gift to the children?

The children have a contingent remainder. A remainder is a future interest created in a transferee that is capable of taking in present possession on the natural termination of the preceding estate created in the same disposition. Note that, as a rule of thumb, remainders always follow life estates. A remainder will be classified as contingent if its taking is subject to a condition precedent, or it is created in favor of unborn or unascertained persons.

A jeweler sent a fax to a gold dealer offering to sell the dealer 100 ounces of gold at $900 per ounce. The dealer immediately responded via fax, "What are your terms of shipment?" The jeweler faxed back, "F.O.B. my store." The dealer faxed back, "I accept."

Who must pay the freight charge from the shop to the dealer?

The gold dealer must pay the freight because that is what the offer stated, and he accepted the offer. The term "F.O.B." is a delivery term under the UCC, which governs the contract here because it is a contract for the sale of goods. That term means "free on board," and it obligates the seller to get the goods to the location indicated after the term.

When a crowded city bus braked suddenly, the standing passengers were thrown together, and a woman wearing very high-heeled shoes began to stumble. A man who was unacquainted with her kept her from falling by reaching his arm around her waist.

If the woman sues the man for battery, will she recover?

The woman will not recover in a suit for battery because the man's contact was socially acceptable and thus, did not constitute a harmful or offensive contact.

How should voluntary intoxication be considered if asserted as a defense to manslaughter?

Voluntary intoxication has historically been treated as the equivalent of recklessness and should not be considered a defense to recklessness crimes. Conscious risk-taking refers to the actor's entire course of conduct, including drinking with the knowledge that he might become intoxicated and perform an act that might severely injure or kill someone.

Defendant is on trial for fraudulently signing a check for $10k. Prosecutor calls landlord of the apartment building where the defendant has resided for three months before her arrest. The landlord intends to testify that it is the defendant's signature on the check, and he bases his opinion on the authenticity of her signature on the grounds that he saw her sign the lease to his apartment. Should the trial court find the testimony admissible?

Yes, because the landlord has previously seen the signature. Any person can testify as to the authenticity of another's signature as long as that witness has seen the person's signature and can

The father of a girl whose horse crashed through a neighbor's fence told the neighbor that he would have the fence repaired immediately at his cost. The father hired a local contractor to do the work. The contractor did a poor job and did not fix the fence properly.

Assuming that there was an enforceable agreement between the father and the neighbor, would the neighbor have an action against the contractor?

Yes, because the neighbor was a creditor beneficiary of the contract between the contractor and the father. A third party is a creditor beneficiary of a contract if the promisee's intent in contracting is to discharge an obligation to a third party. Here, the father bargained with the contractor to do the repair work on the neighbor's fence in discharge of an obligation that the father had to the neighbor.

On April 6, the shop owner sent a letter to the antique lover, telling her that she could have the bedroom ensemble for $22,000. Also on April 6, the antique lover sent a letter to the shop owner telling him that she was willing to pay him $22,000 for the bedroom ensemble. Both parties received their letters on April 7.

Has a contract formed?

Although the crossing offers as to price were identical, there is no requisite mutual assent absent an acceptance. If offers stating precisely the same terms cross in the mail, they do not give rise to a contract despite the apparent meeting of the minds. An offer cannot be accepted if there is no knowledge of it.

What is the prima facie case for invasion of privacy (torts)?

To establish a prima facie case for invasion of privacy involving public disclosure of private facts about the plaintiff, the plaintiff must show that the publication was of private information about the plaintiff and that its public disclosure would be highly offensive to a reasonable person. There is no liability for publication of matters occurring in a public place. Here, the pedestrian was in public when he was photographed smoking. Even though he might not have wished that to be publicized, he was in a public place at the time, so he cannot claim invasion of privacy. Example: google maps.

When is a waiver of condition established under contract law?

One having the benefit of a condition may indicate by words or conduct that he will not insist upon it. When a condition is broken, the beneficiary of the condition has an election: (i) he may terminate his liability; or (ii) he may continue under the contract. If a choice is made to continue under the contract, the person is deemed to have waived the condition.

A man from a foreign country obtained a doctorate in political science from a state university and applied to teach there. The man was denied employment at the university under a state law requiring all teachers within the state to be United States citizens.

Is the state's citizenship requirement constitutional as it applies to the man?

No, because the citizenship requirement is not necessary to achieve a compelling state interest. A state generally may not discriminate against aliens absent a compelling state interest, and no compelling interest is served by prohibiting aliens from teaching at a state university.

Congress enacted a statute that purported to ban all discrimination against African-Americans in any commercial transaction taking place within the United States.

Would the statute most likely be held constitutional?

Yes, under Thirteenth Amendment provisions barring badges or incidents of slavery. The statute is constitutional as a legitimate exercise of congressional enforcement powers under the Enabling Clause of the Thirteenth Amendment. The Thirteenth Amendment prohibits slavery. The Enabling Clause of the amendment has been held to confer on Congress the authority to proscribe almost any private racially discriminatory action that can be characterized as a badge or incident of slavery.

The Sixth Amendment right to counsel applies __________.

only after adversary judicial proceedings have begun (e.g., formal charges have been filed).

May a trial judge consider the fact that a defendant refused to reveal the names of his co-conspirators as an aggravating circumstance to impose a maximum sentence?

Yes, the right to remain silent granted by the Fifth Amendment does not include the right to protect others from incrimination.

The United States Supreme Court held, in Roberts v. United States (1980), that a defendant's refusal to cooperate with an investigation of the criminal conspiracy of which he was a member may properly be considered in imposing sentence. This is because the Fifth Amendment right to remain silent does not afford a privilege to refuse to incriminate others.

A construction company has an agreement with a landowner that the company can go onto the landowner's land and take asphalt from it's natural asphalt lake for $1 per barrel. Last year, the state commenced an action in eminent domain to take the investor's land for a public park.

Is the construction company entitled to compensation?

The construction company is entitled to compensation because it has a property right to enter and remove minerals. Like an easement, a profit is a nonpossessory interest in land. The holder of the profit is entitled to enter on the servient tenement and take the soil or the substance of the soil (e.g., minerals, timber, oil, or game). When an owner grants the sole right to take a resource from her land, the grantee takes an exclusive profit and is solely entitled to the resources, even to the exclusion of the owner of the servient estate. By contrast, when a profit is nonexclusive, the owner of the servient estate may grant similar rights to others or take the resources herself. Although here the profit is nonexclusive, it is nevertheless an interest in property for which the company is entitled to compensation in any condemnation proceeding.