Questions 151-200 practice MBE question issues

Question 1

a dying declaration is only allowed in all ______ cases and ________ cases.

Answer 1

civil

criminal homicide

Question 2

what is a significant difference between the spousal testimony privilege and the marital communications privilege?

Answer 2

The spousal testimony privilege prevents a spouse from being compelled to testify against their defendant spouse in a criminal trial is lost once the couple is divorced. Whereas The marital communication privilege survives divorce

Question 3

An attempt is an endeavor to accomplish a crime, carried beyond mere preparation, but falling short of the

Answer 3

complete execution.

Question 4

A defendant’s negligence may be legally inferred under certain circumstances. ____ ___ ________commonly translated as “the thing speaks for itself,” is a doctrine allowing the inference that the defendant’s negligence caused the plaintiff’s damages

Answer 4

Res ipsa loquitur,

Question 5

What are the elements of CRIMINAL false imprisonment?

Answer 5

Criminal False imprisonment requires that the perpetrators intentionally confined the victims and

that such confinement was unlawful (e.g., not in the course of a valid arrest).

The victims must be fully confined, and they are not required actively to search for an escape route

Question 6

T or F The mother’s negligence in supervising her child will make her responsible for the child’s actions

Answer 6

True

Question 7

T or F An acceptance may be made by a means of communication that is equivalent in expeditiousness and reliability to the means used by the offeror. The circumstances indicate that a head nod or even silence in this case was a reliable way to communicate her acceptance

Answer 7

True

Question 8

T or F A defendant may be required to prove an affirmative defense by the preponderance of the evidence even in a criminal case such as self defense.

T or F mistake of fact is an affirmative defense in a criminal case. explain

Answer 8

True

False, mistake of fact is not an affirmative defense it goes to negate mens rea. Therefore, it must be proven by the prosecution by a reasonable doubt.

Question 9

While a mutual mistake as to the value of an item sold does not negate the validity of a contract, a mutual mistake going to the “_____________” does

Answer 9

heart of the agreement

Question 10

secondary evidence of the contents of a writing is admissible if the originals are shown to be lost or destroyed, “unless the proponent lost or destroyed them in bad faith.” Generally, the proponent will also have to show

Answer 10

that he or she engaged in a reasonably diligent search.

Question 11

T or F The size of the Supreme Court is determined by Congress

Answer 11

True

Question 12

Under Federal Rule of Evidence 804, prior recorded testimony of a witness (testimony the witness gave at a prior deposition, hearing, or trial) is admissible under an exception to the rule excluding hearsay evidence if:

Answer 12

(1) the declarant is currently unavailable as a witness; and
(2) the party against whom the former testimony is offered (or, in a civil case, his predecessor in interest) had an opportunity and similar motive to develop the former testimony by direct, redirect, or cross-examination.

Question 13

What type of damages, are designed to put the non-breacher of a contract in a position he would have been had the breacher fulfilled her part of the contract. Note: must subtract $ already paid

Answer 13

expectation damages

Question 14

____________ damages are limited to situations where the aggrieved party has only partially completed his obligation under the contract. (does not apply to complete performance)

Answer 14

Restitution damages

Question 15

what kind of damages are a fall back type of damages when damages are tough to quantify? (eg. cant calculate specific dollar amounts)

Answer 15

reliance damages

Question 16

A federal appeals court will rarely hear an interlocutory order before the conclusion of the case in which it has been granted. The Supreme Court has stated that, to do so, the party seeking review must show :

Answer 16

three-part collateral order doctrine:

that the order to be reviewed conclusively determines the disputed question,

resolves an important issue completely separate from the merits of the action, and

is effectively unreviewable on appeal from a final judgment.

Question 17

Hypothetical: answer yes or no: would any of the following circumstances render marketability to a title unmarketable?

1. termite infestation?
2. a fence that slightly encroaches the neighbors property? a fence that majorly encroaches?
3. Zoning laws?
4. a neighbor’s driveway easement?

Answer 17

1. No
2. Not likely for slight encroachment of 6 inches. Maybe for significant encroachment of the fence like a few feet or more
3. No, but perhaps current zoning violation, marketability of title might have been impacted,
4. Yes, An easement that burdens a property, such as a right of way, is an encumbrance that renders title unmarketable.

Question 18

What is a power of attorney

Answer 18

A power of attorney is a written document in which one person (the principal) appoints another person to act as an agent on his or her behalf, thus conferring authority on the agent to perform certain acts or functions on behalf of the principal.

Question 19

A power of attorney is generally terminated when the principal dies or becomes incompetent, but the principal can?

Answer 19

revoke the power of attorney at any time.

Question 20

A special type of power of attorney that is used frequently is the “durable” power of attorney. A durable power of attorney differs from a traditional power of attorney in that it?

Answer 20

continues the agency relationship beyond the incapacity of the principal.

Question 21

The two types of durable power of attorney are immediate and “springing.” What is the difference?

Answer 21

immediate POA takes effect as soon as the durable power of attorney is executed.

Springing POA: to “spring” into effect when a specific event occurs, such as the disability of the principal.

Question 22

T or F A power of attorney can extend to after incapacitation of the principal and allow the agent broad abilities, but must be created in writing.

Answer 22

True

Question 23

Under the _________ doctrine when a party introduces a writing or part thereof, the adverse party may require introduction of any other part or any other writing that, in fairness, ought to be considered along with it.

Answer 23

completeness doctrine (codified as Rule 106),

Question 24

A plaintiff’s continued use of a product that the plaintiff knows to be defective is not considered voluntary (and thus not an assumption of the risk) if there are

Answer 24

no practical alternatives to such use.

eg. is driving cross country know of the defect on his car but has no other alternative than to keep driving if there are no places to stop.

Question 25

T or F there is no right to a jury trial in an equitable action. (eg. specific performance, injunction, restitution, etc)

Answer 25

True

Question 26

The Statute of Frauds requires that suretyship contracts (contract–a contract to answer for or guarantee the debt or obligation of another)
must be in writing. However, the following two situations allow enforcement of a surety contract without a writing:

Answer 26

(1) the “main purpose” rule, which states that an oral surety contract is enforceable if the main purpose of the guarantor’s promise is her own benefit; and
(2) a detrimental reliance type of theory, in which an unwritten surety contract is enforceable if the creditor discharges the original debtor from obligation in reliance on the guarantor’s promise.

Question 27

T or F If a party to a fully executory contract unequivocally indicates that it will not perform by either words or conduct prior to the time set for performance, then that party has breached the contract with the other party by anticipatory repudiation.

is the words “probably” would not be able to perform a repudiation of the contract? If not, what can the aggrieved party do?

Answer 27

True

probably not enough to be a repudiation.
but The aggrieved party may then either suspend its performance and immediately sue for damages, or urge the other party to perform, wait until the time for performance has passed, and sue for damages if the other party has not performed.

Question 28

a person asking a court to hold a statute unconstitutional must be able to show not only that the statute in question is invalid, but also

Answer 28

that he has been, or is about to be, injured because of its enforcement.

Question 29

when a state is sued by a sister state, the Supreme Court has both _________ and _______ jurisdiction

Answer 29

original and exclusive

Question 30

Either the __________ or a ________ _______ may sue a state without its consent.

Answer 30

federal government or a sister state

Question 31

What jurisdiction does the Supreme Court have when the Federal government (or one of its agencies or instrumentalities) sues a state?

Answer 31

When the federal government (or one of its agencies or instrumentalities) sues a state, the U.S. Supreme Court has original, but not exclusive, jurisdiction.