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Barbri 100 Questions and Answers MBE practice
(100% Correct Answers)
A statute passed by both houses of Congress and signed by the President authorizes a federal agency to select a site for and to construct a monument honoring members of the capitol police force killed in the line of duty. The statute appropriates the necessary funds but provides that the funds may not be expended until both houses of Congress have adopted a concurrent resolution, not subject to presentment to the President, approving the agency's plans for the monument's location and design. Is the provision requiring further congressional approval before expenditure of the funds constitutional? A No, because decisions regarding the placement and design of government- owned structures are an exclusively executive function with which Congress may not interfere by any means. B No, because the provision amounts to an unconstitutional legislative interference with an executive function. C Yes, because Congress may attach reasonable conditions to its appropriation of funds to executive departments, and its special interest in the members of its own police force makes the provision a reasonable condition. D Yes, because the provision is part of a statute that was passed by both houses of Congress and signed by the President. (B) is correct. The enactment of laws by Congress requires passage of the law in both houses (bicameralism) and approval of the law by the President (that is, the
presentment requirement) or an override of a presidential veto. Here, Congress passed a law and the President signed it, but Congress sought further control by requiring expenditures to be approved specifically by Congress without presentment to the President. Such a requirement usurps the power of the executive branch to execute laws and places it in the hands of Congress in violation of the doctrine of separation of powers. (A) is incorrect. Under the Spending Clause, Congress certainly has the power to adopt a law specifying where a monument should be placed, and if such a law were passed by Congress and the President signed the law, it would be valid. However, that is not what happened here. Here, the law left it to an agency to select a site. (C) is incorrect for the reasons stated above; requiring subsequent Congressional approval of agency site selection is unconstitutional. (D) is incorrect for the same reason. Under the authority of a federal voting rights statute, some states drew congressional districts in a manner calculated to increase the likelihood that members of historically disadvantaged minority racial groups would be elected. The U.S. Supreme Court declared these districts to be unconstitutional, as improper racial gerrymanders. In response to this ruling, Congress passed a new statute that explicitly denies the Supreme Court appellate jurisdiction over all future cases challenging the constitutionality of action taken under the authority of the federal voting rights statute. Which of the following is the most persuasive argument for the constitutionality of the new statute restricting the Supreme Court's appellate jurisdiction? A Article III of the Constitution explicitly states that the Supreme Court's appellate jurisdiction is subject to such exceptions and regulations as Congress shall make.BThe constitutional principle of separation of powers authorizes Congress to pass statutes calculated to reduce the effects of Supreme Court decisions that interfere with the exercise of powers that have been delegated to the legislative branch.CThe establishment and apportionment of congressional districts directly affect interstate commerce, and the Constitution authorizes Congress to use its
invoked Miranda at an earlier time. The man waived his Miranda rights and made several incriminating statements to the detective. When he was later charged with the homicide, the man moved to suppress these statements, claiming that his earlier refusal to waive his Miranda rights should have been honored. Should the court suppress the statements? Press Enter or Space to submit the answerANo, because the detective was unaware that the man had originally invoked his Miranda rights.BNo, because the man's prior invocation of his Miranda rights did not preclude the later interrogation.CYes, because the man had earlier invoked his Miranda rights, and the police were not permitted to resume questioning, even after a time lapse of years.DYes, because the man was incarcerated, and his earlier invocation of his Miranda rights shielded him from further questioning until he was released. (B) is correct. As a general rule, police officers must scrupulously honor a detainee's invocation of Miranda rights. If the invocation is not scrupulously honored, statements made by the detainee are inadmissible. The prohibition against questioning a detainee after invoking Miranda rights lasts the entire time the detainee is in custody for interrogation purposes, plus 14 more days after the detainee returns to his normal life (which can include his "normal life" in jail). Here, the detainee invoked Miranda rights three years before the questioning in the current case. Thus, far more than 14 days had passed since he had returned to his "normal life" in jail. Therefore, (B) is correct and (C) and (D) are incorrect. (A) is incorrect because whether the detective knew the man had originally invoked his Miranda rights is irrelevant: his incarceration and time lapse of three years rendered the prior invocation of his rights moot. The man would need to be given new Miranda warnings regardless. A defendant is on trial in federal court for bank robbery. Before the police had any suspects, a police officer interviewed an eyewitness at the police station and showed her a "mug book" containing dozens of photographs. The eyewitness identified the defendant's photograph as that of the robber.
At trial, the eyewitness surprises the prosecutor by testifying that she is unable to identify the defendant as the robber. The prosecutor calls the officer to testify that the eyewitness identified the defendant from the photograph in the police station. The eyewitness remains present in the courthouse and can be recalled. Is the officer's testimony admissible? Press Enter or Space to submit the answerANo, because the eyewitness was unable to identify the defendant at trial.BNo, because the eyewitness's testimony has disappointed the prosecutor but has not affirmatively harmed the prosecution's case.CYes, because the eyewitness's statement of identification as reported by the officer is not excluded by the hearsay rule.DYes, because the hearsay rule does not exclude out-of-court statements if a declarant testifies and is available for cross-examination. (C) is correct. A declarant's prior statement identifying someone she perceived earlier is not hearsay under the Federal Rules of Evidence if the declarant is now testifying at trial and subject to cross-examination about the prior statement. Here, the eyewitness testified at trial and can be recalled and cross-examined, so her prior statement identifying the defendant as the robber is admissible. (A) is incorrect. Even though the eyewitness was unable to identify the defendant at trial, her prior statement of identification is admissible because she is testifying and subject to cross-examination about the statement. (B) is incorrect. A testifying witness's prior statement of identification is admissible regardless of whether the witness's current testimony has affirmatively harmed the examiner's case. (D) is incorrect. This answer choice is too broad. Only certain out-of-court statements of a testifying witness are categorized as nonhearsay-prior inconsistent statements made under oath, prior statements of identification, and prior consistent statements that rehabilitate the witness. Otherwise, the general rule is that a declarant-witness's out-of-court statements are hearsay if offered for their truth and must fall within an exception to be admissible. Two days before his home was to be sold at a foreclosure sale, a homeowner obtained a temporary restraining order (TRO) in federal court that prevented his
Press Enter or Space to submit the answerANo, because it is irrelevant to the present charge.BNo, because the defendant may not prove his good character by specific instances of good conduct.CYes, because a criminal defendant may prove his good character as a basis for inferring conduct.DYes, because, by accusing the defendant of being a thief, the prosecution has put his character in issue. B) is correct. A criminal defendant may introduce evidence of his own good character for a pertinent trait to show that he did not commit the alleged crime. However, such evidence may be presented in the form of reputation and opinion testimony only; specific acts are not allowed. Thus, the defendant here may not introduce his specific acts of turning down opportunities for black marketeering to prove his good character for truthfulness. (A) is incorrect. Evidence is relevant if it has any tendency to make a fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. Character evidence often meets this low bar for relevance, but is subject to various restrictions because of the danger for undue prejudice, waste of time, etc. Here, the fact that the defendant turned down opportunities for black marketeering shows his honesty and unwillingness to steal, so it is certainly relevant to the current theft charge. However, it is inadmissible because it is in the wrong form. (C) is incorrect. It is true that a defendant may introduce evidence of his own good character to show that he acted in conformity with that character during the events of the current case. However, the defendant may only introduce this type of evidence via reputation and opinion testimony. The character witness may not testify as to specific acts by the defendant. (D) is incorrect. When proof of a person's character, as a matter of substantive law, is an essential element of a claim or defense in a civil action, it is said that character is "directly in issue." When character is in issue in a case, all forms of character evidence (reputation, opinion, and specific acts) are allowed. However, character is only truly in issue in a few types of civil cases (e.g., defamation, negligent hiring and entrustment, child custody). Character is generally never directly in issue in a criminal case.
A pedestrian domiciled in State A was crossing a street in State B when he was hit by a car driven by a citizen of a foreign country. Both the pedestrian and the driver suffered injuries. The pedestrian filed a negligence action against the driver in a federal district court in State B, seeking $100,000 in damages. The driver believes that the pedestrian was crossing the street illegally and is therefore responsible for the accident. The driver seeks an attorney's advice on how best to respond to the action. Assume that State B is a contributory negligence state. How should the attorney advise the driver to respond? Press Enter or Space to submit the answerAFile an answer raising the affirmative defense of contributory negligence and asserting a counterclaim for negligence, seeking damages for the driver's injuries.BFile an answer raising the affirmative defense of contributory negligence and move for judgment on the pleadings.CMove to dismiss for lack of personal jurisdiction, because the driver is not a citizen of State B.DMove to dismiss for lack of subject-matter jurisdiction, because the driver is not a U.S. citizen. (A) is correct. Contributory negligence is an affirmative defense that must be raised in the driver's answer. Furthermore, if the pedestrian was the true cause of the action, he would be liable for the driver's damages, and thus a counterclaim would be necessary (and required, since it would be a compulsory counterclaim given that the counterclaim arose from the same transaction or occurrence as the pedestrian's complaint). (B) is incorrect because a motion for judgment on the pleadings would not be warranted. Presumably, the pedestrian was able to plead a case for negligence. It will be up to the fact-finder to determine who was truly at fault for the accident. (C) is incorrect because the driver will be subject to personal jurisdiction in State B based on a specific jurisdiction theory. Arguably, the driver was negligent by committing a tort within State B, assuming that State B has an applicable long-arm statute authorizing such jurisdiction (which all states do). (D) is incorrect because the case would fall under the court's diversity (alienage) jurisdiction. There is complete diversity between a citizen of a foreign country and a citizen of State A, and the amount in controversy requirement ($75,000) is satisfied.
such evidence is still admissible to rebut a contention that the remedial measure was not feasible. (D) is incorrect because evidence of subsequent remedial measures is inadmissible to prove negligence. However, the evidence is admissible in this case to prove that it was feasible to redesign the machine. A general contractor about to bid on a construction job for an office building invited a carpenter and several others to bid on the carpentry work. The carpenter agreed to bid if the general contractor would agree to give the carpenter the job provided that his bid was lowest and the general contractor was awarded the main contract. The general contractor so agreed. The carpenter, incurring time and expense in preparing his bid, submitted the lowest carpentry bid. The general contractor used the carpenter's bid in calculating its own bid, which was successful. Which of the following best supports the carpenter's position that the general contractor is obligated to award the carpentry subcontract to the carpenter? Press Enter or Space to submit the answerAThe carpenter detrimentally relied on the general contractor's conditional promise in preparing his bid.BThe carpenter gave consideration for the general contractor's conditional promise to award the carpentry subcontract to the carpenter.CThe general contractor has an implied duty to deal fairly and in good faith with all bidders whose bids the general contractor used in calculating its main bid to the building owner.DThe general contractor has an obligation to the owner of the building to subcontract with the carpenter because the carpenter's bid was used in calculating the general contractor's bid, and the carpenter is an intended beneficiary of that obligation. (B) is correct. The carpenter's bid was consideration for the general contractor's promise to award the carpentry subcontract to the carpenter if his bid was the lowest and the general contractor was awarded the main contract. Thus, the general contractor and the carpenter formed a contract. Two elements are necessary to constitute consideration. First, there must be a bargained-for exchange between the parties; and second, that which is bargained for must constitute a benefit to the promisor or a detriment to the promisee. The
carpenter and the general contractor agreed that the carpenter would supply a bid that the general contractor could use in its own bid. The carpenter's bid was bargained for and was a benefit to the general contractor, so it constitutes consideration sufficient to support the general contractor's conditional promise to award the subcontract to the carpenter. Conditional promises are enforceable, but the duty to perform does not become absolute until the condition has been met or is legally excused. The conditions in this contract were met-the carpenter's bid was the lowest and the general contractor was awarded the main contract. Thus, the general contractor is under a duty to perform his promise to award the subcontract to the carpenter. (A) is not the best answer. The carpenter is seeking specific performance of their agreement so that he will be awarded the carpentry subcontract. If the carpenter uses a detrimental reliance or promissory estoppel argument, he would be conceding that he gave no consideration and there is no contractual obligation, but he should be awarded damages to prevent injustice. Courts will often limit damages under this theory to reliance damages, which could be much less than the value of the subcontract. (C) is incorrect. Although a general contractor should deal with all bidders in good faith, this is not a reason why this particular carpenter would be awarded the subcontract. The carpenter should be awarded the subcontract because the general contractor gave him a conditional promise that he would do so in exchange for his bid. (D) is incorrect. A bid is not a third party beneficiary contract. Generally speaking, a contractor has no obligation to award a subcontract to a particular subcontractor unless there was a separate agreement that it would do so, such as the case here where the general contractor gave the carpenter a conditional promise that it would award the carpenter the subcontract if his bid was the lowest and if the general contractor was awarded the general contract. A homeowner and a contractor entered into a contract under which the homeowner agreed to pay the contractor $50,000 for remodeling the homeowner's basement according to a set of plans. After the work was completed, the homeowner honestly believed that there were defects in the contractor's work as well as departures from the plans. In fact, the
modify their agreements, and the parties here did so, as explained above. There is no injustice in enforcing the contract as modified. (D) is incorrect because as stated above, the homeowner's surrender of his claim is sufficient consideration for modification of the contract price. A defendant was convicted of fraud after a jury trial in state court. The conviction was affirmed on direct appeal. The defendant timely moved for postconviction relief under the Sixth Amendment on the ground that his attorney had provided ineffective assistance of counsel. The trial judge, after a hearing, found that the attorney had performed deficiently by failing to raise a proper objection that would have resulted in exclusion of important prosecution evidence. What more, if anything, must the trial court find in order to sustain the defendant's Sixth Amendment claim? Press Enter or Space to submit the answerANothing more, because the unjustifiable failure to object to important prosecution evidence is structural error.BThat the attorney was court-appointed and not privately retained.CThat there is a reasonable probability that the trial's outcome would have been different if the attorney had objected.DThat there is clear and convincing evidence that the trial's outcome would have been different if the attorney had objected. (C) is correct. To obtain postconviction relief for ineffective assistance of counsel, the claimant must show her counsel's performance was deficient and that, but for the deficiency, the outcome of the trial would have been different. (A) is incorrect because it misstates the law. As indicated above, there must also be a showing that but for the deficiency, the result of the trial would have been different. (B) is incorrect because it does not matter if an attorney is court-appointed or privately retained; both types of attorneys are sufficient to meet the defendant's Sixth Amendment right to counsel. (D) is incorrect because it overstates the burden on the claimant for proving an ineffective assistance of counsel claim. The standard is
"reasonable probability," not "clear and convincing evidence," that the outcome of the trial would have been different. A man who believed that his wife was cheating on him with her gym trainer decided to kill the trainer. He loaded his handgun and set off for the trainer's house. Because he was anxious about committing the crime, the man first stopped at a bar, drank eight shots of hard liquor, and became intoxicated. He then left the bar and went to the trainer's house. When the trainer answered the door, the man shot and killed him. The man then passed out on the trainer's porch. The man has been charged with murder in a jurisdiction that follows the common law. Can the man raise an intoxication defense? Press Enter or Space to submit the answerANo, because drinking at the bar was the proximate cause of the killing.BNo, because the man intended to commit the murder and drank to strengthen his nerve.CYes, because drinking at the bar was a foreseeable intervening cause of the killing.DYes, because the man's intoxication negated the specific intent required for murder. (B) is correct. Murder is the unlawful killing of a human being with malice aforethought. Malice aforethought exists if the defendant has any of the following states of mind: (i) the intent to kill, (ii) the intent to inflict great bodily injury, (iii) reckless indifference to an unjustifiably high risk to human life, or (iv) the intent to commit a felony. Voluntary intoxication may be a defense to specific intent crimes if it prevented the defendant from formulating the requisite intent. Here, the man had the specific intent to kill before he drank any alcohol. He decided to kill the trainer, loaded his handgun, and set off for the trainer's house before going to the bar. The man's intoxication did not prevent him from forming the intent to kill; it reduced his anxiety so he could continue with his plan. He therefore cannot raise an intoxication defense. (A) is incorrect. To be guilty of murder, a defendant's conduct must be both the cause-in-fact and the proximate cause of the death. A defendant's acts are the proximate cause of all results that
respect. (B) is incorrect. Although the statement is hearsay because it was made outside of the current proceeding and is being offered for its truth-that the defendant intended to return the car-it is admissible under the present state of mind exception. (C) is incorrect. Generally, a witness's testimony cannot be bolstered until the witness has been impeached. Once the witness's testimony has been impeached, prior consistent statements are admissible in certain circumstances to rehabilitate the witness. If admissible to rehabilitate, prior consistent statements are excluded from the definition of hearsay and are admissible as substantive evidence. Here, however, there is no indication that the defendant's testimony has been impeached, so his statement would not be admissible on the basis that it is a prior consistent statement. A man conveyed the eastern half of a tract of vacant land to a woman by a warranty deed. The woman promptly recorded the deed. The land conveyed to the woman fronted on a public highway. The land retained by the man was landlocked. One year later, the man died intestate, leaving a cousin as his only heir. The cousin visited the man's land for the first time and discovered that it had no access to a public highway. A neighbor who owned adjoining land fronting on the public highway offered to sell the cousin a right to cross the neighbor's land for access to the highway. Although the neighbor's price was reasonable, the cousin rejected the offer. The woman has refused to allow the cousin to cross her land for access to the public highway even though the woman's land is still vacant. The cousin has sued the woman, seeking access across the woman's land to the public highway. Who is likely to prevail? Press Enter or Space to submit the answerAThe cousin, based on necessity.BThe cousin, because the woman's land is still vacant.CThe woman, because the cousin could obtain an alternative access to the highway from the neighbor.DThe woman, because the man failed to reserve an easement in his deed to the woman.
(A) is correct. When the owner of a tract of land sells a part of it and by this division deprives one lot of access to a public road, a right-of-way by absolute necessity is created by implied grant or reservation over the lot with access to the public road. The owner of the servient parcel has the right to locate the easement, provided the location is reasonably convenient. Here the man owned the original tract and sold a part of it to the woman. When he sold the part, his remaining tract was landlocked. Therefore, a right-of-way by absolute necessity was created to give him access to the public road. The woman can decide where to locate the right-of-way, but she cannot deny it altogether. This easement by necessity is an easement appurtenant, meaning that the right of special use benefits the holder of the easement in his physical use or enjoyment of another tract of land. The benefit of an easement appurtenant becomes an incident of the possession of the dominant tenement. All who possess or subsequently succeed to title to the dominant tenement become, by virtue of the fact of possession, entitled to the benefit of the easement. Therefore, the cousin who inherited the land is entitled to use the right-of-way. (B) is incorrect. The cousin, as the successor to the landlocked parcel, is entitled to an easement by necessity. The fact that the woman's land is vacant has no bearing on whether or not the cousin has a right to cross her property. (C) is incorrect. When the owner of a tract of land sells a part of it and by this division deprives one lot of access to a public road, a right-of-way by absolute necessity is created over the lot with access to the public road. This is true regardless of whether the landlocked owner could obtain a right-of-way from another neighbor. (D) is incorrect. The easement here did not have to be reserved in the deed; an easement by necessity is an implied easement. It was created when the man sold the woman a portion of his property resulting in his tract becoming landlocked. In a tavern, an intoxicated woman threatened to slash a man with a broken beer bottle. Another customer, who had not been threatened by the woman, forcefully grabbed the woman and locked her in the tavern's storeroom until the police could arrive. In the process, although the customer used reasonable force, the customer badly sprained the woman's wrist.
Press Enter or Space to submit the answerANo, because an at-will employee has the right to terminate an employment contract.BNo, because the risk to the engineer's health excused his nonperformance of the contract.CYes, because the coal mine acted in good faith in mitigating the effect of the engineer's failure to finish the contract term.DYes, because the mine is reasonably safe for most people. (B) is correct. The engineer's nonperformance will be excused by impracticability. The occurrence of an unanticipated or extraordinary event may make contractual duties impossible or impracticable to perform. Where the nonoccurrence of the event was a basic assumption of the parties in making the contract and neither party has expressly or impliedly assumed the risk of the event occurring, contractual duties may be discharged. The test for a finding of impracticability is that the party to perform has encountered: (i) extreme and unreasonable difficulty and/or expense; and (ii) its nonoccurrence was a basic assumption of the parties. The engineer's rare allergic reaction to a chemical found in the mine air system was unanticipated by the parties. The engineer cannot perform his job anywhere but inside the coal mine but it is unreasonable for the engineer to risk his health, and possibly his life, to fulfill his duties under the contract. Due to this unanticipated and rare circumstance, his employment under the contract will be discharged. (A) is incorrect. All employees are free to terminate their employment because involuntary servitude is prohibited by the Constitution, but in the case of an employee under a contract, doing so is a breach of contract. If the engineer's performance was not excused by impracticability, then the coal mine could have recovered damages for breach. (C) is incorrect. If the engineer's performance had not been excused, then the mitigation by the coal mine would have been relevant to damages. However, due to the unanticipated extraordinary circumstances of the engineer's allergic reaction, the contract was discharged. (D) is incorrect. It does not matter that the mine was reasonably safe for most people; the test for impracticability is a subjective one. The engineer could not perform under the contract without risking illness and possibly death due to his unusual and unanticipated allergy. Thus his performance under the contract will be discharged due to impracticability.
At trial in an action for personal injuries suffered in a traffic accident, the plaintiff first calls the defendant as an adverse party. The plaintiff then calls a witness who was a passenger in the plaintiff's car but who also happens to be the defendant's former employer. On direct examination, the witness testifies to how the accident occurred and also expresses his opinion that the defendant is not a truthful person. Which one of the following areas of questioning is most likely to be held beyond the proper scope of cross-examination? Press Enter or Space to submit the answerAIn letters to prospective employers, the witness has described the defendant as very honest and dependable.BThe defendant recently filed an action against the witness for breach of contract.CThe plaintiff's injuries were not as serious as the plaintiff is claiming.DThe witness has been falsifying his income tax returns. (C) is correct. The scope of cross-examination is generally limited to: (i) matters brought up on direct examination; and (ii) matters concerning the witness's credibility (i.e., impeachment). Here, the witness's testimony on direct examination concerned how the accident happened and the defendant's character for untruthfulness; there is no indication that the witness testified about the plaintiff's injuries. Because the questioning does not concern the subject matter of the direct examination or the witness's credibility, it is most likely to be held beyond the proper scope of cross-examination. The other answer choices describe proper impeachment of the witness. (A) is incorrect. A common method of impeachment is asking the witness about the witness's prior statements that are inconsistent with the witness's current testimony. Here the witness testified as to his opinion that the defendant is an untruthful person. Thus, it would be proper to cross-examine the witness about his inconsistent prior descriptions of the defendant's good character for honesty. (B) is incorrect. A witness may be impeached with evidence that the witness is biased in favor of or against a party in the case. Here, the fact that the defendant recently filed an action against the witness for breach of contract shows that the witness may have a motive to testify against the defendant in this case. (D) is incorrect. A party may impeach a witness by cross-examining the witness about the witness's specific
