EFTA00811410.pdf

AMERIBAR BAR REVIEW Multistate Bar Examination Released Questions Section 1 PRACTICE EXAM 1 EFTA00811410 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I Question N I — Evidence as the fruit of the poisonous tree. (C) Yes, because the defendant was compelled to In a suit based on a will, inheritance of SI million speak at the lineup, and this compelled speech depended upon whether the wife had survived her led to the witness's identification testimony. husband when both died in the crash of a small (D) Yes, because the defendant was never informed airplane. An applicable statute provided that, for that he could refuse to make a statement and that purposes of distributing an estate after a common any statement could be used as evidence against disaster, there was a rebuttable presumption that him. neither spouse had survived the other. A witness was called to testi& that as she approached the plane she Question N 3 - Constitutional Law heard what she thought was a woman's voice saying, dying," although by the time the two occupants A city owned and operated a municipal bus system. were removed from the wreckage they were both The city sold space on its buses for the posting of dead. placards. Under the relevant city ordinance, the administrator of the bus system had sole discretion to Is the witness's testimony admissible? decide which placards could be posted on the buses, and the administrator's decision was final. Although (A) No, because the matter is governed by the most of the placards that appeared on city buses were presumption that neither spouse survived the commercial advertisements, the administrator had other. often sold space on the buses for placards promoting (B) No, because the witness's testimony is too various political, charitable, and religious causes. speculative to support a finding. (C) Yes, because the hearsay rule does not apply to After a circus bought space on the buses for placards statements by decedents in actions to determine advertising its upcoming performances, an animal rights under a will. rights organization asked to buy space for a placard (D) Yes, because it is relevant and not otherwise with photographs showing the mistreatment of prohibited. animals in circus shows. Question N 2 - Criminal Law and Procedure The administrator denied the organization's request, stating that the proposed placard would be offensive The defendant subsequently moved to suppress the to the circus, which had paid a substantial sum to testimony of the teller, claiming the lineup violated place its placards on the buses, and that a circus his privilege against self-incrimination. At a employee had told her that none of the photographs suppression hearing, the teller testified that she had on the organization's placard depicted animals not gotten a good look at the robber's face, because belonging to this particular circus. the robber had been wearing a hat pulled down over most of his face, but that she was certain the The organization sued the administrator in an defendant was the robber because she had recognized appropriate court for a declaration that her denial of his voice at the lineup. the organization's request for placard space for the reasons she gave violated the First Amendment as A defendant was lawfully arrested without a warrant made applicable to the states by the Fourteenth for bank robbery. He was not given Miranda Amendment. warnings, but was immediately taken to a police station where he and five other men were placed in a Is the organization likely to prevail? lineup to be viewed by the bank teller. Each man was required to say the words spoken by the bank robber: (A) No, because the administrator's denial of space "Give me all your money. I've got a gun." After to the organization was a reasonable time, place, all the men in the lineup spoke those words, the teller and manner restriction of speech. identified the defendant as the robber. (B) No, because a public official may not allow the Should the defendant's motion use of public facilities for the propagation of a be granted? message that he or she believes may create a (A) No, because being false or misleading impression. required to speak at the (C) Yes, because a public official may not refuse to lineup, while compelled, was not testimonial or permit the dissemination of a message in a public communicative. (B) No. because forum solely on the basis of its content unless testimony of a witness based on that denial is necessary to serve a compelling firsthand observation is not subject to exclusion government interest. MBE RELEASED QUESTIONS MBE MIXED PRACTICE I EFTA00811411 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I (D) Yes, because a public official may not refuse to The nonsmoker brought a battery action against the allow the use of any public facility to publish a smoker. message dealing with an issue of public concern. Which of the following questions will NOT be an Question # 4 — Torts issue in the battery action? A landowner who owned a large tract of land in the (A) Did the smoker intend to cause the nonsmoker's mountains sought to protect a herd of wild deer that contact with the cigarette smoke? lived on part of the land. Although the landowner had (B) Does smoke have the physical properties posted signs that said, "No Hunting—No necessary for making the kind of contact Trespassing," hunters frequently intruded to kill the required for battery? deer. Recently, the landowner built an eight-foot-high (C) Is contact with cigarette smoke from a lawful chain-link fence, topped by three strands of barbed smoking section in a restaurant the kind of wire, across a gully on her land that provided the only contact one must endure as a voluntary restaurant access to the area where the deer lived. patron? (D) Was the smoker's conduct unreasonable under A wildlife photographer asked the landowner for the circumstances? permission to enter the land to photograph the deer. Because the landowner feared that any publicity Question # 6 - Criminal Law and Procedure would encourage further intrusions by hunters, she denied the photographer's request. Frustrated, the A federal officer had probable cause to believe a photographer attempted to climb the fence. He woman had participated in a bank robbery. Two days became entangled in the barbed wire and suffered after the robbery, the woman checked into a local extensive lacerations. The wounds became infected hotel room. When the woman left for the evening, the and ultimately caused his death. The photographer's hotel manager opened the hotel room door so the personal representative has sued the landowner. officer could enter the room and look inside. The officer did not find any of the stolen money but did Is the personal representative likely to prevail? see, lying open on the bed, the woman's diary. The diary contained an entry describing the woman's (A) Yes, because the landowner may not use deadly involvement in robbing the bank. force to protect her land from intrusion. (B) Yes, because the landowner had no property The woman was charged in federal court with bank interest in the deer that entitled her to use force robbery. She moved to suppress the diary. to protect them. (C) No, because the photographer entered the Should the court suppress the diary? landowner's land after the landowner had refused him permission to do so and therefore (A) Yes, because the officer had no warrant. was a trespasser. (B) Yes, because admitting the diary would violate (D) No, because the potential for harm created by the the woman's privilege against self-incrimination. presence of the barbed wire was apparent. (C) No, because the hotel manager had actual authority to allow the officer into the hotel room. Question # 5 — Torts (D) No, because the officer reasonably relied on the hotel manager's apparent authority to allow the An ordinance in a small town required all restaurants officer into the hotel room. to designate smoking and nonsmoking sections for their customers. A cigarette smoker and a nonsmoker Question # 7 - Real Property were seated at adjoining tables in a small restaurant. The smoker's table was in the smoking section, and Thirty years ago, a landowner conveyed land by the nonsmoker's table was in the nonsmoking warranty deed to a church (a charity) "so long as the section. When the smoker lit a cigarette, the land herein conveyed is used as the site for the nonsmoker politely requested that he not smoke, principal religious edifice maintained by said explaining that she had a severe allergy to cigarette church." smoke. The smoker ignored the nonsmoker's request and continued to smoke. As a result, the nonsmoker Twenty years ago, the landowner died intestate, was hospitalized with a severe allergic reaction to the survived by a single heir. smoke. There is no applicable statute. The common law Rule • MBE RELEASED QUESTIONS 2 MBE MIXED PRACTICE I EFTA00811412 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I • Against Perpetuities is unmodified in the jurisdiction. Question # 9 — Contracts One year ago, the church dissolved and its church A fugitive was wanted for murder. The authorities building situated on the land was demolished. offered the following reward: "$20,000 to anyone who provides information leading to the arrest and In an appropriate action, the landowner's heir and the conviction of this fugitive." A private detective knew attorney general, who is the appropriate official to of the reward, located the fugitive, and brought him assert public interests in charitable trusts, contest the to the authorities, who arrested him. The authorities right to the land. then determined that while the fugitive had, in fact, committed the crime, he had been directed to commit In such action, who will prevail? the crime by his boss. The authorities and the fugitive then agreed that in exchange for the fugitive's (A) The landowner's heir, as successor to the testimony against his boss, all charges against the landowner's possibility of reverter. fugitive would be dropped. The fugitive testified and (B) The landowner's heir, because a charity cannot was released. The authorities refused to pay the convey assets donated to it. reward to the private detective on the ground that the (C) The attorney general, because cy pres should be fugitive was never convicted. applied to devote the land to religious purposes to carry out the charitable intent of the Would the private detective be likely to prevail in a landowner. breach of contract action against the authorities? (3) The attorney general, because the landowner's attempt to restrict the church's fee simple (A) No, because the private detective failed to notify violated the Rule Against Perpetuities. the authorities that he had accepted the reward offer. Question ft 8 - Constitutional Law (B) No, because the express conditions set out in the reward were not met. With the advice and consent of the Senate, the (C) Yes, because the authorities' agreement with the President entered into a self-executing treaty with a fugitive was against public policy. foreign country. The treaty provided that citizens of (D) Yes, because the authorities themselves both nations were required to pay whatever tons prevented the conviction of the fugitive. damages were awarded against them by a court of either nation. Question # 10 — Evidence A man and a woman who were U.S. citizens and A defendant was on trial for burglary. The prosecutor residents of the same state were traveling separately called the arresting officer to testify that shortly after in the foreign country when their cars collided. The her arrest and interrogation, the defendant had orally foreign court awarded the woman a judgment for admitted her guilt to the officer. Before the officer S500,000 in damages for her injuries from the testified, the defendant objected that no Miranda accident. warning had been given to her, and she requested a hearing outside the presence of the jury to hear In federal district court in their home state, the evidence on that issue. woman filed suit against the man to enforce the judgment. The man filed a motion to dismiss for lack How should the court proceed? ofjurisdiction. (A) The court should grant the request, because the Should the court grant the motion to dismiss? hearing on the admissibility of the confession must be conducted outside the presence of the (A) Yes, because the citizenship of the parties is not jury. diverse. (B) The court may grant or deny the request, because (B) Yes, because the traffic accident was a the court has discretion whether to conduct noncommercial transaction outside interstate preliminary hearings in the presence of the jury. commerce. (C) No, because (C) The court should deny the request and rule the the case falls within the federal confession inadmissible, because only signed question jurisdiction of the (3) No, because court. confessions are permitted in criminal cases. the treaty power is plenary and not (O) The court should deny the request and rule the subject to judicial review. confession admissible, because it is the statement of a party-opponent. 3 MBE MIXED PRACTICE EFTA00811413  I MBE MIXED PRACTIC•E AMERIBAR BAR REVIEW defendant. Question # 11- Torts m consented, (B) The burden of proving that the victi rests on the with certain by clear and convincing evidence, Under the Federal Tort Claims Act, defendant. here , the fede ral government m consented, exceptions not relevant (C) The burden of proving that the victi igen ce. A fede rally owned and rests on the is liable only for negl tantial quantities by proof beyond a reasonable doubt, operated nuclear reactor emitted subs nearby dairy defendant. of radioactive matter that settled on a did not (D) The burden of proving that the victim doubt, aminating the fans, killing the dairy herd and cont consent, by proof beyond a reas onab le brou ght against the soil. At the trial of an action rests on the prosecution. 's own er, the trier of federal government by the farm plan t had a soun d design, fact found that the nuclear neering Question # 13— Contracts by the Acm e Engi but that a valve made the malf unct ione d and allow ed contract for the Company had Acm e Eng inee ring A buyer and a seller entered into a radioactive matter to esca pe, that seller had the a quality sale of 10,000 novelty bracelets. The Company is universally regarded as ts, and bracelets in stock. The cont ract spec ified that the ear plan manufacturer of components for nucl nt could seller would ship the brac elets by a third-party gove rnme ify either that there was no way the federal the carrier. However, the cont ract did not spec the emis sion of place of have anticipated or prevented who was to pay the costs of carri age or the radioactive matter. tender for the bracelets. for whom If there is no other applicable statute, On the above facts, when would the risk of loss of the should the trial judge enter judgment? bracelets pass to the buyer? doctrine of (A) The plaintiff, on the ground that the (A) When the contract was made. res ipsa loquitur applies. tified to the who allows (B) When the bracelets were iden (B) The plaintiff, on the ground that one contract by the selle r, assu ming the goods dangerous material to esca pe to the property of done . conformed to the contract. another is liable for the dam age to a carrier a case under (C) When the bracelets were delivered age was (C) The defendant, on the ground that and a proper contract for their carri proved. the Federal Tort Claims Act has not been made. the Acme (D) The defendant, on the ground that e of (O) When the bracelets were unloaded on the buyer's imat e caus Engineering Company is the prox premises by the carrier. the owner's damage. edure Question # 14 - Constitutional Law Question # I2- Criminal Law and Proc ts from accident all criminal A state legislature received complain A state statute provides as follows: "In victims who, in the days immediately following their the burden cases, whenever the Constitution permits, defendant accidents, had received unwelcome and occasionally of proof as to a defense claimed by the beha lf of med ical care nitude of the misleading telephone calls on shall rest on the defendant, and the mag providers. The callers warn ed of the risks of not stitu tion permits." detect burden shall be as great as the Con obtaining prompt med ical eval uatio n to accid ents and offer ed free forcible rape as injuries resulting from The same state defines the crime of examinations to dete rmin e whet her the victi ms had follows: "Forcible rape cons ists of sexu al penetration means of suffered any injuries. inflicted on an unconsenting person by complete force or violence. Consent of the victim is a In response to these complaints, the legislature defense to a charge of rape." ical care providers enacted a law prohibiting med hone victim by telep , he testified from soliciting any accident At a defendant's trial for forcible rape within 30 days of his or her accid ent. that the alleged victim had cons ente d to having sexual intercourse with him. argument Which of the following is the most useful constitutionality regarding for the state to use in defending the How should the trial judge instruct the jury of the law? the issue of consent? ch that is the m consented, (A) Because the commercial spee (A) The burden of proving that the victi subject of this law includes som e speech that is by a preponderance of the evid ence , rests on the • 4 MBE MIXED PRACTICE I MBE RELEASED QUESTIONS EFTA00811414 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I misleading, the First Amendment does not limit (A) No, because even if the buyer assumed the the power of the state to regulate that speech. mortgage, the man is solely responsible for any (B) Because the law regulates only commercial deficiency. speech, the state need only demonstrate that the (B) No, because the buyer did not sign a promissory restriction is rationally related to achieving the note to the bank and therefore has no personal state's legitimate interests in protecting the liability. privacy of accident victims and in regulating the (C) Yes, because the buyer assumed the mortgage medical profession. and therefore became personally liable for the (C) The state has substantial interests in protecting mortgage loan and any deficiency. the privacy of accident victims and in regulating (D) Yes, because the transfer of the mortgage debt to the practice of medical care providers, and the the buyer resulted in a novation of the original law is narrowly tailored to achieve the state's mortgage and loan and rendered the buyer solely objectives. responsible for any deficiency. (D) The law is a reasonable time, place, and manner regulation. Question # 17 — Contracts Question # 15 — Evidence In a written contract, an architect agreed to draw up the plans for and to supervise construction of a A defendant was charged with murder. While client's new house. In return, the client agreed to pay walking down the hallway during a recess in the the architect a fee of $10,000 to be paid upon the defendant's trial, the judge overheard the defendant house's completion. After completion, the client say to his attorney, "So what if I did it? There's not claimed erroneously but in good faith that the enough proof to convict." Upon the judge's reporting architect's plans were defective. The client orally the incident to counsel, the prosecutor called the offered to pay the architect $7,500 in full settlement judge as a witness in the trial. of the claim for the fee. The architect orally accepted that offer despite the fact that the reasonable value of Is the judge's testimony regarding the defendant's his services was in fact $10,000. The client paid the statement admissible? architect $7,500 pursuant to their agreement. (A) Yes, as the statement of a party-opponent. The architect subsequently sued the client for the (B) Yes, because the defendant's statement, although remaining $2,500. In a preliminary finding, the trier otherwise privileged, was made without of fact found that there were no defects in the reasonable efforts to preserve confidentiality. architect's plans. (C) No, because the statement was a privileged attorney-client communication. Will the architect be likely to prevail in his action (D) No, because a judge may never testify in a trial against the client for $2,500? over which he or she is presiding. (A) Yes, because payment of $7,500 cannot furnish Question # 16 - Real Property consideration for the architect's promise to surrender his claim. A man borrowed money from a bank and executed a (B) Yes, because the oral agreement to modify the promissory note for the amount secured by a written contract is not enforceable. mortgage on an office building that he owned. (C) No, because the architect's promise to accept Several years later, the man sold the building. As $7,500 became binding when the client made the specified in the contract of sale, the deed to the buyer payment. provided that the buyer agreed "to assume the (D) No, because the architect's acceptance of partial existing mortgage debt" on the building. payment constituted a novation. Subsequently, the buyer defaulted on the mortgage Question # 18 — Evidence loan to the bank, and appropriate foreclosure proceedings were initiated. The resulted in a deficiency. foreclosure sale A defendant's house was destroyed by fire and she was charged with arson. To prove that the defendant There is no applicable had a motive to burn down her house, the statute. government offered evidence that the defendant had Is the buyer liable fully insured the house and its contents. for the deficiency? Should the court admit this evidence? MBE RELEASED Qt csnons 5 MBE MIXED PRACTICE EFTA00811415  MBE MIXED PRACTICE I AMERIBAR BAR REVIEW • (A) No, because the probative value of the evidence Question k 21 - Constitutional Law of insurance upon the issue of whether the defendant intentionally burned her house down is A report released by a Senate investigating to committee named three U.S. citizens as helping substantially outweighed by the dangers of unfair t activiti es. All three prejudice and confusion of the jury. organize support for terroris were employed by the U.S. government as park (B) No, because evidence of insurance is not admissible upon the issue of whether the insured rangers. acted wrongfully. Congress enacted a statute naming the three (C) Yes, because evidence of insurance on the house individuals identified in the report and providing that has a tendency to show that the defendant had a motive to burn down the house. they could not hold any position of employment with the federal government. (D) Yes, because any conduct of a party to the case is admissible when offered against the party. Which of the following constitutional provisions provides the best means for challenging the Question Et 19 — Torts constitutionality of the statute? The owner of a shopping mall hired a construction (A) The bill of attainder clause. company to design and construct the entryway to the (B) The due process clause. mall. The construction company negligently selected an unusually slippery material for the floor covering. (C) The ex post facto clause. (D) The takings clause. A customer at the mall slipped on the floor of the entryway, sustaining injuries. The customer sued the Question q 22 - Real Property mall owner for the construction company's negligent design of the mall's entryway. A seller owned a single family house. A buyer gave the seller a signed handwritten offer to purchase the Will the injured customer recover damages? house. The offer was unconditional and sufficient to No, if the construction company was an satisfy the statute of frauds, and when the seller (A) ndent contractor. signed an acceptance an enforceable contract indepe No, if no customers had previously slipped resulted. (B) on the floor. (C) Yes, if the customer intended to make a The house on the land had been the seller's home, but he had moved to an apartment, so the house was purchase at the mall. Yes, if the mall's duty to maintain safe vacant at all times relevant to the proposed (D) conditions was nondelegable. transaction. Two weeks after the parties had entered into their contract, one week after the buyer had obtained a written mortgage lending commitment Question N 20 — Contracts from a lender, and one week before the agreed-upon closing date, the house was struck by lightning and On June I, a seller agreed, in a writing signed by both burned to the ground. The loss was not insured, the seller and the buyer, to sell an antique car to a because three years earlier, the seller had let his buyer for $20,000. The car was at the time on display homeowner's insurance policy lapse after he had paid in a museum in a different city and was to be delivered to the buyer on August I. On July 15, his mortgage debt in full. before the risk of loss had passed to the buyer, the car The handwritten contract was wholly silent as to was destroyed by fire without fault of either party. matters of financing, risk of loss, and insurance. The Subsequent to the contract but before the fire, the car buyer declared the contract voided by the fire, but the had increased in value to $30,000. The seller sued the seller asserted a right to enforce the contract despite buyer for the contract price of $20,000, and the buyer the loss. counterclaimed for $30,000. There is no applicable statute. Which of the following will the court conclude? If a court finds for the seller, what is the likely (A) Both claims fail. reason? (B) Only the seller's claim prevails. (A) The contract was construed against the buyer, (C) Only the buyer's claim prevails. who drafted it. (D) Both claims prevail. (B) The lender's written commitment to make a • • 6 MBE MIXED PRACTICE I MBE RELEASED QUESTIONS EFTA00811416  AMERIBAR BAR REVIEW MBE MIXED PRACTICE I • mortgage loan to the buyer made the contract of (B) No, because the property owner breached no sale fully binding on the buyer. duty to the hiker, who was a trespasser. (C) The risk of loss falls on the party in possession, (C) Yes, because the property owner had a duty to and constructive possession passed to the buyer prevent the trees on his property from becoming on the contract date. dangerous. (D) The risk of loss passed to the buyer on the (D) Yes, because the property owner is liable for contract date under the doctrine of equitable hidden dangers on his property. conversion. Question # 25 - Criminal Law and Procedure Question # 23 - Criminal Law and Procedure United States customs officials received an A federal grand jury was investigating drug anonymous tip that heroin would be found inside a trafficking in the jurisdiction. It subpoenaed a witness distinctively marked red package mailed from a to testify, and the prosecutor advised the witness that foreign country to the United States. Pursuant to this he had a Fifth Amendment privilege not to testi& if tip, United States customs officers opened the red he so chose. The witness asked that his counsel be package and found heroin inside. They then resealed allowed to advise him inside the grand jury room, but the package and left the heroin inside it. The FBI was the prosecutor refused to allow the attorney inside. notified and, as agents watched, the package was The witness, after speaking with his attorney outside delivered to the address. the grand jury room, decided to testify and ended up making self-incriminating statements. The FBI then secured a warrant to search the house for the package. About two hours after the package The witness subsequently was indicted for drug was delivered, the warrant was executed at the crimes. The indictment was based on the witness's house. The man who opened the door was arrested, grand jury testimony and on evidence seized in an and the agents found the package, unopened, in an unconstitutional search of the witness's home. upstairs bedroom closet. After seizing the package, the agents looked through the rest of the house. In a The witness moved to dismiss the indictment. footlocker in the basement, they found a machine gun. Should the court dismiss the indictment? The man was charged with, among other crimes, (A) Yes, because the witness was denied his unlawful possession of the machine gun. He moved constitutional right to advice of counsel. to suppress its use as evidence. (B) Yes, because the indictment was based upon illegally seized evidence. Should the court grant the motion to suppress the (C) No, because the witness waived his machine gun? constitutional rights by testifying. (D) No, because the witness had no right to counsel (A) Yes, because the search exceeded the authority inside the grand jury room and the illegally granted by the warrant. seized evidence did not affect the validity of the (B) Yes, because the initial search by the customs indictment. officers was without probable cause. (C) No, because, having found the package, the Question # 24 -Torts agents had probable cause to believe more narcotics could be located in the house and the A hiker sustained a head injury when he was struck gun was found in a proper search for narcotics. by a limb that fell from a tree. At the time of his (D) No, because narcotics dealers are often armed injury, the hiker was walking through a private property without the forest on and the search was justified to protect the agents. property owner's knowledge or permission. It was determined limb fell because the tree was that the Question ii 26 — Contracts infested with termites. In an action by the A homeowner and a contractor entered into a contract to recover for his hiker against the property owner for the construction of a home for the price of head injury, will the hiker be likely to prevail? $300,000. The contractor was to earn a profit of $10,000 for the job. After the contractor had spent (A) No, because the property owner $45,000 on labor and materials, including $5,000 on foresee that anyone could not oak flooring not yet installed, the homeowner would be injured. informed the contractor that the homeowner had lost MBE RELEASED QUESTIONS 7 MBE MIXED PRACTICE I ESL EFTA00811417  MBE MIXED PRACTICE I AXIERIBAR BAR REVIEW • his job and could not pay for any services. The Several sites on a mountain within federal public homeowner told the contractor to stop working lands are regarded as sacred to a group that for years immediately. The reasonable market value of the has gathered there to perform religious ceremonies. labor and materials provided by the contractor at that The United States Forest Service recently issued a point, including the oak flooring, was $40,000. The permit to a private developer to construct a ski contractor used the $5,000 worth of oak flooring on facility in an area that includes the sites that are another job. sacred to the group. In an action by the contractor against the homeowner The group filed suit in federal district court against for damages, which of the following would be the the Forest Service to force cancellation of the permit. largest amount of damages recoverable by the The group claimed solely that the permit violated its c