MBE Questions I Miss Flashcards
What happens when a party does not rebut a rebuttable presumption in trial?
a rebuttable presumption that has not been rebutted must be given preclusive effect. The trier of fact does not have a choice in such case as to whether to apply the presumption
For a state to restrict fighting words, what must the state be careful not to do?
while the state may be able to restrict fighting words, it cannot restrict fighting words that express only certain viewpoints
M’Naghten test
a defendant is not guilty if he does not know the nature, quality, or wrongfulness of his act because of his mental disease.
A conviction may not be used for impeachment purposes if the witness has been pardoned, provided that either
(i) the action was based on a finding of innocence; or (ii) the witness has not been subsequently convicted of another felony.
For a past criminal conviction, less than 10 years old, have to involve dishonesty or false statement to be admitted against a witness?
No
When removal is based solely on diversity jurisdiction, the action may or may not be removed if the defendant is a citizen of the state in which the action is filed?
may NOT
Wharton Rule
requires that a conspiracy have more parties than are necessary to complete the crime
Must a lawyer be present with client during ID line-up?
If pre-indictment (before 6th A right to counsel attaches), then NO. There’s no 5th A right to counsel at line-ups so right doesn’t attach until critical stage, with SC says isn’t a pre-indictment line-up
If judge grants summary judgment but doesn’t decide issue of damages, is this considered final for appellate purposes?
No - damages left undecided keeps it from being final.
May an attorney rely on discovery as a means to support a claim?
Yes - as long the attorney believes he will discover the necessary information in discovery
Is the “intelligible principle” standard hard to meet re delegating powers?
no - almost all pass
When is notice required for class action lawsuits
only required under 23b(3) class actions, not 23b(1)
When does class action fairness act apply?
when damages are at least 5 mill
larceny by trick
A person who obtains possession of, but not title to property owned by another by lies, with the intent to permanently deprive the victim of that property and resulting in the conversion of the property, is guilty of larceny by trick.
Embezzlement
requires that the embezzler have been in lawful possession of the property at the time the intent to defraud occurs.
false pretenses
false pretenses requires title to the property to pass from the victim to the defendant
Do D’s have reasonable epectation of privacy over bank records?
no
A state (or the federal government) may not require a person on whom a criminal penalty would be imposed (e.g., a defendant) to disprove an element of the offense. Give example:
If ability to make child support payments is an element of criminal contempt, rather than inability to pay being an affirmative defense, state cannot require father to prove his inability to pay. It’s state’s burden to show ability!
What are the tree permissible authorized forms of service in federal court
Federal Rules authorize service only on a defendant personally, on a person of suitable age and discretion at defendant’s usual abode, or on an agent authorized by a defendant or by law to receive service
Can state law service of process be used in fed court?
yes
Can a statement taken in violation of Miranda ever be used?
Yes but only for impeachment
What experts. do you not have to tell the opponent about?
Experts who are not expected to be called as a witness at trial generally need not be identified in discovery, regardless of whether the manufacturer specifically requested the identity of all experts consulted through an interrogatory.
does a defendant need min contacts with state for their property to be levied there based on other state’s judgment?
NO
What does the enabling clause do?
Enabling Clause of the Fourteenth Amendment permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the amendment
What defense must a D have in order to introduce rep or op testimony about V’s character
self defense
When must D respond to P’s amended complaint?
14 days after it’s served so long as the date is later than the the 21-day period after the original complaint is filed
existence of diversity jurisdiction is tested at the time that the complaint is filed or when case is heard?
filed! so if party dies and is replaced by representative of estate, then
When does a party have to demand a jury trial?
Any party may demand a jury trial so long as it is within 14 days of service of last pleading.
What happens when a defendant is tried as an accomplice when that person’s action is itself an essential element of the crime.
A defendant is not guilty as an accomplice when that person’s action is itself an essential element of the crime.
Who bears the burden under rational basis test?
challenger - not state
What level of scrutiny applies to state’s laws on voting
for more extreme restrictions, strict scrutiny because it’s interfering with fundamental right.
for a lesser burden, like 30 day residency requirement, rational basis is ok. Burden is on P to show it’s not.
