Mixed MBE Missed Questions 2 Flashcards
When is evidence “relevant” under FRE 401?
If the evidence has any tendency to make a fact of consequence more probable than it would be without the evidence.
Does freedom of the press protected by the First Amendment exempt press activities from laws of general application such as contract law?
No.
Can the forum-defendant rule apply in diversity cases when there is more than one defendant? (For example, in State A Court, Defendants from State A and State B?)
Yes, it can still apply, so look for federal question and not just exclusively diversity jurisdiction.
What does the “duress” defense to contract formation require? What does “undue influence” require?
Duress = Requires force or an improper threat.
Undue Influence = Over-persuasion, includes factors such as the existence of a confidential relationship, unusual time and place for the persuasion, time pressure, multiple persuaders.
Are lifetime employment contracts subject to the statute of frauds?
No, because it COULD be fully performed within a year (for example, what if the employee were to die within the first year).
Who else does a title insurance policy protect?
It insures the individual named in the policy, AND his heirs and devisees so long as the named insured or his heirs or devisees own the insured property.
When does conversion occur? Does it matter if the actor knows that the item belongs to another individual?
When an actor intentionally interacts with an item that is the personal property of another so as to permanently deprive the rightful owner posession.
No, it is irrelevant (tree specialist hypo).
May Congress play a role in the removal of executive officers appointed by the President? Do they have certain other powers?
No, shall not play any role. However, Congress has the power to remove certain types of federal officials, such as those serving as members of the governing bodies of regulatory agencies and inferior officers in the agencies.
Cannot play a role in the removal of a presidential appointee.
What must be present in a TRO?
It must state the reasons why it was issued and must detail the acts to be restrained.
It is not enough to incorporate the reasons by reference to the complaint, without describing in reasonable detail the acts to be restrained.
What does the Take Care Clause require?
The President to take care that the laws be faithfully executed.
What is required to testify as to causation?
The specialized knowledge of an expert witness, a lay witness cannot seek to give testimony on causation.
What does solicitation require?
Asking, counseling, advising, or commanding another to commit a crime with the specific intent that the person commit the crime.
When can an amendment relate back for failure to name a party in the original complaint?
Only when it was the result of a mistake of identity.
When is a contract voidable by mutual mistake?
Only if the adversely affected party did not bear the risk of a mistake (heir’s painting hypo).
When is a statement considered non-testimonial and therefore not subject to Sixth Amendment confrontation limitations?
When a statement is not made for the primary purpose of assisting with a criminal investigation.
When is a statement against penal interest admissable as a hearsay exception?
When the declarant is unable to testify and the statement is so contrary to their penal interest that one would not expect them to make it unless it were true.
What is the measure of recovery for a contractor who relies on a subcontractor’s bid, but then the subcontractor revokes too soon?
Expectation damages.
When can you file a notice of dismissal without prejudice? What happens if too late?
Can file a notice only until the defendant answers or moves for summary judgement, once that occurs you must file a MOTION for voluntary dismissal without prejudice.
Is a warrant required to collect extensive historical site-location data from a cell-phone provider?
Yes, under Carpenter v. United States.
Is there a privilege to use force to prevent from self-inflicted harm?
Yes, can be a defense to intentional torts.
May payments be made on a mortgage without obtaining consent from the other tenant in common?
Yes, and the tenant paying will still be entitled to pro-rata contributions.
Does the assignment of a note automatically transfer the mortgage to the assignee of the note?
YES.
Does questioning by a probation or parole officer (who may compel both attendance and truthful answers) constitute a custodial interrogation?
No, seems backwards but no.
When is a Brady violation (government not disclosing exculpatory material to the defendant, such as witness’s prior conviction for perjury) grounds for a new trial?
Grounds for a new trial if:
(1) The evidence was favorable because it is impeaching or exculpatory; and
(2) Prejudice resulted, meaning earlier disclosure of the evidence would have created a reasonable probability of a different outcome.
Can a monetary penalty (Rule 11 Sanction) be imposed on a party that is represented by an attorney?
No, it can be appropriate for the attorney, but not on the party.
What must be present for a dying declaration?
The victim must be unavailable, or it must be a homicide prosecution or civil case.
What is larceny?
(1) The taking (obtaining control or posession) and carrying away (slightest movement is sufficient);
(2) Without consent; and
(3) With intent to permanently deprive the owner of the property.
