MBE

Question 1

Attempt (MBE)

Answer 1

The common law of attempt required that the defendant commit some act (beyond mere “preparation”) toward bringing about the intended crime.

Question 2

Foreseeability of Malpractice on Client’s Family for Purposes of NIED

Answer 2

A medical professional’s duty of care extends only to his or her patient. Considerations of privacy and confidentiality usually lead courts to deny a duty on the part of therapists to non-patients when only the patient himself is at risk.

For NIED, in a case brought by a bystander who suffers emotional distress upon witnessing a negligently caused injury to a family member, or in a case where a psychiatrist might prevent harm to a family member who is threatened by the patient by warning the patient’s family. In this case, however, the psychiatrist’s duty of care extended only to the patient.

Question 3

Common Law Modification (consideration)

Answer 3

The prevailing common law view is that a modification to a contract requires consideration to be valid.

Question 4

Jury Requirements (U.S. Constitution)

Answer 4

The Constitution requires unanimity where only a 6-person jury is used. The Constitution does not require 12-person juries but does require unanimity when a 6-person jury is used.

Question 5

Unmarketable Title & Effect of Restrictive Covenants

Answer 5

A title is unmarketable when a reasonable person would not purchase it.

A restrictive covenant involves a promise regarding the use of the land and is not the title itself. Because the title in this case will be forfeited to the grantor if the land is not used for church purposes, no reasonable third party is likely to buy the land, and the church’s title is not marketable.

Question 6

Material Misrepresentation

Answer 6

When a seller induces a buyer into consenting to a contract by means of a material misrepresentation, the resulting contract is voidable at the election of the buyer.

In this case, the buyer asked a direct question about whether the car had ever been in an accident, and the seller gave an answer that a reasonable buyer would take as an assurance that the seller at least had no knowledge of the car’s involvement in an accident. The accident history of the car would be material to the buyer’s decision. The seller’s statement, taken in context, and in light of the seller’s active steps to conceal evidence of the damage and repair, would be the legal equivalent of a statement that the car had not been in an accident. The seller actively concealed the damage and would not escape responsibility for misleading the buyer merely because the seller did not answer the question more directly—by saying, for example, “No, the car has never been in an accident.”

Question 7

Requisite Entry for Burglary

Answer 7

To constitute burglary, it is sufficient if any part of the actor’s person intruded, even momentarily, into the structure. Thus it has been held that the intrusion of a part of a hand in opening a window, or the momentary intrusion of part of a foot clearing the window sill, constituted the requisite entry.

Question 8

Assignment Succession of Contract Rights and Duties

Answer 8

An assignee succeeds to a contract as the contract stands at the time of the assignment. In this case, the parties had modified the contract as to the time payment was due. (Note that there was consideration for the promise to accept payments later; the consideration was the debtor’s promise to make future payments by cashier’s check.) Accordingly, the debtor can insist that the payments be due on the fifth of each month.

The assignee succeeds to the contract as it stood at the time of the assignment.

Question 9

Exclusionary Rule & Voluntary Statements of Defendants

Answer 9

The exclusionary rule only extends to a defendant’s statements made in the course of a custodial interrogation, and does not extend to voluntary statements made by the defendant that are not the result of police interrogation or misconduct.

The Constitution does not require that officers stop every single procedure and immediately allow a defendant to speak with an attorney when requested. The officers must only stop the interrogation of the defendant.

Question 10

Attempt and Factual vs. Legal Impossibility

Answer 10

Factual impossibility is not a defense to an attempt charge. However, legal impossibility is a defense. Factual impossibility arises when the defendant unsuccessfully takes a criminal action, whereas legal impossibility arises when the intended action is not actually a crime.

Question 11

Public Schools and the Establishment Clause

Answer 11

Prayer and Bible readings in public schools violate the Establishment Clause. It does not matter whether participation is voluntary or involuntary. The Supreme Court has held that officially sponsored prayers as part of public high school commencement ceremonies, like the prayer at issue in this case, violate the establishment clause of the First Amendment.

Question 12

When Jeopardy Attaches for Purpose of Double Jeopardy

Answer 12

Jeopardy does not attach at a preliminary hearing (Collins v. Loisell, 262 U.S. 426, 429 (1923)) or at a grand jury proceeding (United States v. Williams, 504 U.S. 36, 49 (1992)). Jeopardy attaches in a jury trial when the jury is sworn and in a bench trial when the court begins to hear evidence.

Question 13

Excited Utterance

Answer 13

Federal Rule of Evidence 803(2) admits a hearsay statement that would otherwise be barred under Rule 802 where the statement “relat[es] to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”

Question 14

Search Incident to Arrest

Answer 14

Evidence generally will not be suppressed where police officers reasonably held a good faith belief that their actions leading to the discovery of the evidence were authorized by a valid warrant.

In this case, the computer check on the license number of the driver’s car revealed that there was an outstanding warrant for the driver’s arrest based on unpaid parking tickets. The police had no reason to believe that the warrant was invalid, so the search of the driver was proper incident to the arrest.

Question 15

Liability of a Grantee Who Takes Subject To a Mortgage vs. Assuming a Mortgage

Answer 15

A grantee who does not assume the mortgage, but rather takes subject to the mortgage, is not personally liable for the debt. In this case, there was no express assumption. In fact, the parties agreed that the neighbor was not assuming the mortgage debt. The debt is to be satisfied out of the land first, with the original mortgagor liable for any deficiency.

Question 16

Takings Clause and Investment Backed Expectations of Property Owner

Answer 16

A government regulation that eliminates the investment-backed expectation and economic value of an individual’s property is a taking within the meaning of the Fifth Amendment, as applied to the county by the Fourteenth Amendment. The government must compensate the the purchaser / owner of the land.

Question 17

Instruction to Jury on Judicially Noticed Facts

Answer 17

Federal Rule of Evidence 201(f), states that in a criminal case, “the court must instruct the jury that it may or may not accept the noticed fact as conclusive.” Thus, a judicially noticed fact in a criminal case allows the court to instruct on a permissible inference, but nothing more.

Question 18

Parental Notification and Minor’s Right to Abortion

Answer 18

The U.S. Supreme Court has held that parental notification requirements violate a minor’s right to an abortion unless there is a satisfactory judicial bypass procedure. Such a procedure must allow a court to approve an abortion for a minor without parental notification if the court finds that either (1) the minor is sufficiently mature and informed to make an independent decision to obtain an abortion or (2) the abortion would be in the minor’s best interest.

Question 19

Hearsay: Public Record Exception

Answer 19

Federal Rule of Evidence 803(10), the hearsay exception for a certification offered to prove the absence of a public record. To be admissible, the certification must be prepared by a public official and must, on its face, indicate that a diligent search of the records was conducted.

Question 20

Merger Doctrine

Answer 20

Although a marketable title will be implied in a contract for the sale of land, the doctrine of merger provides that one can no longer sue on title matters contained in the contract of sale after the deed is delivered and accepted. The investor’s remedy, if there is one, would be based on the deed he received and not on the contract of sale.

Question 21

Gifts of Real Estate

Answer 21

A gift may be made of real estate. A deed is required as are the elements for a gift. Acceptance is presumed if the gift is beneficial.

Question 22

Abnormally Dangerous Animals & Intervening Forces of Nature

Answer 22

An owner of a wild animal or an abnormally dangerous animal is strictly liable for harm caused by that animal’s dangerous nature, even when the harm would not have occurred but for the operation of a force of nature.

Question 23

Introduction of Evidence of Plaintiff’s Character in Defamation Cases

Answer 23

In slander cases, where the defendant makes a statement that the plaintiff has an unsavory character, the plaintiff’s character is considered “in issue” (i.e., an essential element of the claim or defense under the substantive law) in two respects. First, the plaintiff’s actual character will determine whether the defendant was incorrect in his assessment, and thus liable for slander, because truth is a defense. Second, the plaintiff will allege that he is damaged by the statement, which is another way of saying that his true character has been besmirched. If, however, the plaintiff actually has a bad reputation anyway, then damages are limited. Thus, in slander cases like the one in this question, character evidence is relevant both to whether the plaintiff has a certain character trait and to the extent of damages. Under Federal Rule of Evidence 405, when character is “in issue” it can be proved by evidence of reputation, opinion, or specific acts.

Question 24

Expert Reliance on Hearsay in Reaching an Opinion & Admissibility of Said Hearsay

Answer 24

Rule 703 does allow an expert to rely on hearsay in reaching a conclusion, so long as other experts in the field would reasonably rely on such information. But the rule distinguishes between expert reliance on the hearsay and admitting the hearsay at trial for the jury to consider. Generally speaking, hearsay will not be admissible when offered only because the expert relied upon it. The probative value of the hearsay in illustrating the basis of the expert’s opinion must substantially outweigh the risks of prejudice and confusion that will occur when the jury is told about the hearsay.

Question 25

Attorney Client Privilege and Agents of the Attorney

Answer 25

The presence of agents of the attorney performing tasks that were meant to be confidential at the request of the attorney, such as an investigator taking notes, does not waive the privilege.

Question 26

Requisite Intent to Commit Larceny

Answer 26

Larceny is a specific intent crime. If the defendant did not have the intent to permanently deprive the owner of the property, the defendant cannot be found guilty of larceny.

If the defendant honestly believes that he is entitled to the money or property of another for the payment of a debt, then the defendant will not have the intent to take the property of another.

The defendant’s mistake of fact about the ownership of the car would preclude a conviction for larceny as the defendant did not have the intent to take the property of another.

Mistake of law is not a defense to larceny.