MBE practice problem issues General

Question 1

T or F the United States Supreme Court held that a newspaper or broadcaster cannot be held for liable for publishing truthful information contained in a public record. can include rape victims

Answer 1

True

Question 2

An individual is criminally liable as an accomplice if he

Answer 2

gives assistance or encouragement or fails to act where he has a legal duty to oppose the crime of another

and purposefully intends to effectuate commission of the crime

Question 3

________deals with an unreasonable delay by a plaintiff in asserting rights that prejudices the defendant.

Answer 3

laches

Question 4

Explain the Under the “change of neighborhood” doctrine,

Answer 4

when the neighborhood in which the burdened land is located has so changed that it would be inequitable to continue to enforce the restriction it will not be enforced.

Question 5

A protective sweep is permissible if the police have a “_______________” that accomplices are present and pose a danger to officers at the arrest scene.

Answer 5

“reasonable and articulable suspicion”

Question 6

T or F evidence of guilty pleas that are later withdrawn are admissible to prove negligence in a civil case.

Answer 6

False they are not admissible in a civil case for negligence

Question 7

Admiralty jurisdiction requires that a case have a “maritime nexus.” A maritime nexus requires that the

Answer 7

incident giving rise to the case had a “potentially disruptive effect on maritime commerce,” and the general character of the activity giving rise to the incident shows a “substantial relationship to traditional maritime activity”

Question 8

A nonparent who has been legally given or has voluntarily assumed the control, training, or education of a child is privileged to apply such reasonable force or to impose such reasonable confinement as she reasonably believes to be necessary. A parent may

Answer 8

A parent may, however, restrict the privilege of one to whom she has entrusted the child.

Question 9

Medical care is a “vital government benefit” that cannot be denied absent a showing

hint rooted in strictness

Answer 9

that the state’s actions are necessary to achieve a compelling state interest and the means of achieving the goal are the least restrictive available.

Question 10

T or F Conversely, the 30-day residency requirement imposed on the right to vote has been found to be reasonable and constitutional.

Answer 10

True

Question 11

modernly, the crime of burglary can be perpetrated at any time of day, at places of business or other locations as well as residences, so long as the defendant’s entry is

Answer 11

trespassory in nature and so long as the defendant intends to commit a felony therein.

Question 12

Where a contingency occurs that dramatically reduces the value of performance to the receiving party, the doctrine of frustration of purpose may excuse the receiving party from its contractual obligations. However, if the contingency was foreseeable and the receiving party did not include language in the contract discharging its duties if the contingency occurred, the receiving party will be deemed

Answer 12

to have accepted the risk and will be liable under the contract.

Question 13

A private nuisance is a substantial and unreasonable invasion (intentional or negligent) of another’s interest in his use and enjoyment of land. The interference must be substantial, meaning offensive, inconvenient, or annoying to an?

Answer 13

average person in the community

Question 14

Whenever the seller makes a nonconforming tender, the buyer has three options: he may: (1) accept the whole shipment; (2) reject the whole shipment; or (3) accept any commercial unit or units and reject the rest. When the buyer accepts a commercial unit (as in this he is liable only for the unit(s) _______.

Answer 14

accepted.

According to UCC Section 2-607, the buyer must pay at the contract rate for the goods accepted.

Question 15

Lost volume occurs when the seller resells to a buyer who would have bought from the seller even if there had been no breach of the original contract. The result is that the seller’s total volume of sales by year’s end is reduced by one, and his damages are the?

Answer 15

profits the seller would have made on that additional sale

Question 16

There is a modern trend to permit one not using a defective product to invoke strict liability against an appropriate defendant if it was

Answer 16

reasonably foreseeable that such a plaintiff might be injured by the defective product.

Note: even if not using it themselves

Question 17

T or F even voluntary statements are inadmissible if Miranda was applicable but not rendered. Miranda warnings are necessary if there is a custodial interrogation during which testimonial evidence is gathered. Testimonial evidence can be defined as the content of a person’s thoughts.

Answer 17

True

Question 18

Explain the writ of Habeas Corpus

Define Habeas Corpus

Explain when a prisoner may bring a writ

What are grounds for the writ

Answer 18

The writ is a cause of action alleging that the prisoner’s confinement is in violation of his rights under the Fifth, Eighth, or Fourteenth Amendments to the Constitution.
Under 28 U.S.C. Sec. 2244, a prisoner may bring a writ of habeas corpus within one year of the conclusion of direct review by the state courts.

Under 28 U.S.C. Sec. 2254, the prisoner must exhaust all available state remedies before applying for a writ.

Lack of a fair and impartial trial due to misconduct by the prosecutor or ineffective assistance of counsel is a violation of prisoners’ rights under the Due Process Clause and is therefore proper grounds for a writ of habeas corpus.

Question 19

Interrogatories are written questions that must be answered by another party under oath. Each party may request no more than ____ interrogatories during an action, and interrogatories may only be served on _____ to an action.

Answer 19

25 interrogatories

parties

Question 20

T or F the United States Supreme Court upheld a New York intestacy statute that required the paternity of the father be proved during his lifetime as serving an important state interest in promoting a just or orderly disposition of property at death.

Answer 20

True

Question 21

what is an exception to the mailbox rule with respect to option contracts

Answer 21

One exception to exercise an option to buy, the notice of that exercise is not effective until it is received by the seller.

Question 22

T or F Unlike all other forms of the tort of invasion of right of privacy, the tort of intrusion into seclusion does not require publication.

Answer 22

True

Question 23

FRE provides that any witness with personal knowledge is competent to testify. Do Questions as to the witness’s mental competence (such as those based on age, illness, drug use, etc.) go to the weight of testimony or in determining its admissibility?

Answer 23

weight of admissibility

Question 24

testimony is inadmissible unless a proper foundation is laid. The cases are in agreement that a mere assertion of identity by a person talking on the telephone is not sufficient evidence of the authenticity of the conversation. What would be required for sufficient foundation?

Answer 24

Some additional evidence is required to lay a foundation, such as the fact that the speaker discloses knowledge of facts known peculiarly to him.

Question 25

Gratuitous assignments are revocable unless there is evidence of

Answer 25

reliance on the assignment,

Question 26

T or F There are no specific formalities that must be followed in order for an assignment to be valid. Therefore the lack of writing will generally not invalidate an assignment. An assignment need be in writing only if the original contract needed to be in writing.

Answer 26

True

Question 27

Where an event occurs that is not foreseen, and it is not possible for parties to perform their duties under a contract, their contractual responsibilities are discharged under the doctrine of ?

Answer 27

impossibility

Question 28

One is subject to liability to another for trespass to land, even without harm to another’s legally protected interest, if he: (1) intentionally enters land in the possession of the other or causes a thing or a third person to do so; (2) remains on the land; or ?

Answer 28

(3) fails to remove from the land a thing that he is under a duty to remove.

Question 29

T or F One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and, if bodily harm to the other person results from it, for such bodily harm. However, it is not necessary that the plaintiff suffer physical injury in order to prevail in such an action.

Answer 29

True

Question 30

For defective products, a plaintiff suing in negligence must show that there is a defect and that the defect?

Answer 30

would have been discoverable upon reasonable inspection.

Question 31

T or F Recording acts are designed to settle rival claims to property between multiple grantees each asserting that she received title from the same grantor. Recording acts are not applied to disputes between a grantor and a grantee.

Answer 31

True

Question 32

As a general rule, the statutory period for adverse possession begins to run at the time of the claimant’s hostile entry. For purposes of the hostility requirement of adverse possession is possession considered immediately hostile when a minor, does not have the legal capacity to execute a valid deed execute the deed?
If so, does the statutory period of adverse possession continue to run during the period where the person who conveyed the deed is a minor?

Answer 32

yes

No the statutory period for adverse possession is “tolled” until the true owner has not reached the age of majority (legal age)

Question 33

Under the common law, withdrawal was not a valid defense to the crime of conspiracy, because the crime was considered complete once the agreement was reached. Under the Model Penal Code, withdrawal by a co-conspirator may be a valid defense where the renouncing party.

Answer 33

gives timely notice of his plans to all members of the conspiracy and

performs an affirmative act to thwart the success of the conspiracy.

Question 34

Generally, although a third-party beneficiary has rights against the promisor in connection with the promised performance, he has no rights against the promisee in the event that the performance is not forthcoming. In the event that the promisor fails to deliver the promised performance to a creditor beneficiary what are the remedies for the creditor benificiary?

Answer 34

the beneficiary can elect to sue either the promisee on the prior obligation or the promisor on the third-party beneficiary contract. Satisfaction of the claim by one operates as a release of the other’s obligation.

Question 35

Always remember that in order to exclude statements or admissions made during settlement negotiations, there must be an

Answer 35

actual dispute between the parties.

Question 36

Under Rule 409, statements made in connection with an offer to pay medical expenses are?

Answer 36

severed and admitted. The statements of fact or related to the offer would be admitted while the offer to pay medical expenses are not admissible.

Question 37

What is the difference between offers to pay medical expenses (statements) and offers to compromise (statements) in terms of admissibility?

Answer 37

In terms of admissibility, offers to pay medical expenses don’t protect the entire statement; it only protects the offer to pay the medical expenses while offers to compromise (settle the claim) protects the entire statement and would be inadmissible.

Note: Consider why the statement is being offered.

Question 38

Explain the Pinkerton doctrine for conspiracies

Answer 38

Under the Pinkerton doctrine, each conspirator is liable for the crimes of all other co-conspirators where the crimes were both: (1) a foreseeable outgrowth of the conspiracy; and (2) committed in furtherance of the conspiratorial goal.

Question 39

Civ. P. 65(b), the court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: (1) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and?

Answer 39

(2) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

Question 40

A judge determines whether an activity is abnormally dangerous by considering if:

Answer 40

(1) the activity creates a risk of serious injury as to the plaintiff, his land, or his chattels;
(2) the risk cannot be eliminated by the exercise of due care; and
(3) the activity is not usually conducted in that area.

Such things as dynamiting, crop-dusting, and exterminating have been found to be abnormally dangerous

Question 41

Prior consistent statements may not be introduced merely to bolster the credibility of a witness. Pursuant to Federal Rule of Evidence 801(d)(1)(B), a defendant may not support his own credibility by introduction of a prior consistent statement unless

Answer 41

this statement is offered to rebut a charge of recent fabrication or improper influence or motive.

Question 42

Intentional infliction of emotional distress is extreme and outrageous conduct that causes a plaintiff severe mental distress. A plaintiff can recover for infliction of emotional distress where a defendant acts “recklessly,” meaning that defendant acts in deliberate disregard of a high degree of probability that the emotional distress will follow.
Conduct is extreme and outrageous if it is beyond the bounds of decency–conduct that a civilized society will not tolerate.
Offensive or insulting language is generally not considered outrageous except in cases involving defendants who are or ______ ______ or _______ OR as to plaintiffs with ______ ________.

Answer 42

common carriers or innkeepers,

known sensitivities