Questions 51 to 100 MBE

Question 1

T or F Under the Federal Rules of Evidence, an expert’s opinion may be based on assumed facts, facts not in evidence, or even inadmissible hearsay, provided it is of a type relied on by experts in the field. An expert may also rely on information gained from another expert.

Answer 1

True

Note: if the expert witness is merely testifying as to another expert witness’s opinion, the testifying expert witness is serving merely as a conduit for her colleague’s analysis and not offering an expert opinion of her own. This is not allowed!!

Question 2

The majority of jurisdictions defines assault as an attempted battery. In attempted battery jurisdictions, _________ or __________ of the attempt is not necessary to sustain a conviction for assault.

Answer 2

actual fear (or even awareness)

NOTE: slightly different than Tort law

Question 3

Interpleader is used where a plaintiff has some holding that would expose the plaintiff to multiple liability from adverse claims. The stakeholding party, or “stakeholder,” can commence an action for interpleader to resolve liability where there are two or more adverse claimants. However, interpleader is only applicable where multiple claims ?

Answer 3

multiple claims demand the same thing or obligation–usually a piece of property, prize, or insurance policy.

Question 4

Hypothetical: A tenant was charged with the first degree murder of his neighbor. The Tenant claimed self defense. At Trial the Tenant testified that when he first moved in, he was told to stay away from the neighbor because she was a black widow.” Is this statement admissible? why or why not?

Answer 4

The statement is admissible as non-hearsay to show effect on the listener.

Question 5

An improper comment on the defendant’s silence is not automatic reversible error. Rather, it is subject to a harmless error analysis. Harmless error is an error by a judge in the conduct of a trial which an appellate court finds is not sufficient for it to reverse or modify the lower court’s judgment at trial. Harmless error would include, for example:

Answer 5

(1) a technical error which has no bearing on the outcome of the trial;
(2) an error that was corrected (such as allowing testimony and then ordering it stricken and admonishing the jury to ignore it);
(3) the issue affected by the error was found in the appellant’s favor (such as hearsay evidence on premeditation, but the jury found no premeditation); and
4) where the appeals court views that even though there were errors, the appealing party could not have won the trial in any event.

Question 6

Federal Rule of Civil Procedure 26 requires the parties to make mandatory disclosures at the initial discovery conference or within two weeks afterward. However, there is also a continuing duty to update throughout the litigation as new information becomes available. What is the penalty for failing to update?

Answer 6

The penalty for failing to update is generally that the party that does not update cannot use the new information at trial.

Question 7

When a party to a contract seeks to assign its contractual obligations to a third party, the third party becomes liable if it?

Answer 7

if it accepts the assignment of all of the assignor’s rights and obligations under the contract.

Question 8

A ___________ occurs when an original obligee releases the original obligor from a duty to perform, and a third party then makes a new agreement with the original obligee.

Answer 8

novation

Question 9

In contrast to an assignment, a ___________ must be agreed upon by all the parties to the original agreement.

Answer 9

novation

Question 10

Under Federal Rule of Civil Procedure 32(a)(5)(A), a deposition may not be used against a party who received less than _____ days’ notice of the deposition if that party filed a motion for protective order that was ______ at the time of the deposition.

Answer 10

14 days

pending

Question 11

T or F, a D is justified in using deadly force in defending if serious bodily harm or death was threatened.

Answer 11

True

Question 12

Under Federal Rule of Civil Procedure 41(a)(2), a federal court has the power to grant a motion to dismiss a claim voluntarily without prejudice, with one exception. The exception applies here: the court may not dismiss the case over the objection of the defendant if the defendant has?

Answer 12

has filed a counterclaim that could not remain pending for independent adjudication.

example: defendant filed a counterclaim and objected to dismissal of the plaintiff’s claim. Subject-matter jurisdiction over the counterclaim existed only because of its relationship to the plaintiff’s claim. A compulsory counterclaim must arise from the same events as the original claim, and so the counterclaim would have been part of the same case or controversy as the original claim.

Question 13

Under the Federal Rules of Civil Procedure, a party can bring a summary judgment motion at any time until .

Answer 13

30 days after discovery has closed

Question 14

T or F when attempting to defeat a Summary Judgment motion, the moving party cannot rely on the pleadings to create a dispute of material fact.

Answer 14

True

Question 15

T or F The President of the United States is permitted to enter into executive agreements with foreign nations without having such agreements ratified by the U.S. Congress. These executive agreements will prevail over any inconsistent STATE statutes, but NOT over FEDERAL statutes, regardless of the time of legislative enactment.

Answer 15

True

Question 16

a prior inconsistent statement for substantive use requires that the declarant testify and could be cross-examined. The inconsistent statement must have been made under oath at a deposition, hearing, trial, or other proceeding. However, what can a prior inconsistent statement be used for if the declarant is not available to testify and the statement was not made under oath and subject to cross examination?

Answer 16

It still can be used to impeach the witness

Question 17

T or F Congress cannot pass laws unless they have a source of power.

Answer 17

True

note: if you see that congress is trying to prohibit states from doing something, first see if they have a valid source of power and whether there is an intent to occupy the field.

Question 18

There are several actions that constitute “passing retroactive criminal laws” within the contemplation of the Ex Post Facto Clauses of the U.S. Constitution.
In general, a statute retroactively alters the criminal law if it makes criminal an act that was not a crime when committed;
prescribes greater punishment for a crime after its commission; decreases the amount of evidence required for conviction; or

Answer 18

extends the statute of limitations for a crime as to which the previously applicable statute of limitations has already expired.

Question 19

What is the difference between a Judgment as a Matter of Law (JMOL) and a Summary Judgment Motion (SJM)?

Answer 19

While a JMOL has the same standard as a summary judgment motion, the difference is that a summary judgment motion is based on evidence that parties may introduce at trial. A JMOL is based on evidence that the parties actually have introduced at trial.

remember SJM: Summary judgment motions are appropriate until or at the close of discovery because they are based on evidence that the parties may introduce at trial.

remember JMOL: appropriate after all evidence is presented to jury and before the case is submitted to the jury

Question 20

Some states still consider lack of informed consent a battery. However, modernly and on the multistate portion of the bar exam, this cause of action is best brought in ___________ . A physician or surgeon has a duty to adequately disclose material risks to the patient when proposing medical treatment or surgery. However, for a doctor to be liable for medical malpractice, the plaintiff must show?

Answer 20

negligence

P must show that she would probably have declined treatment if she had been adequately informed of the risk involved.

Question 21

In general, only statements of fact are actionable as __________. However, expression of opinion which imply that the speaker knows certain facts to be true, or which imply that such facts exist, may be sufficient to classify the message as defamatory.

If a reasonable person would interpret a statement as one of fact, considering the context and nature of the utterance, a jury may find that the message was _________.

Answer 21

defamatory

defamatory

Question 22

The “last clear chance” doctrine operates as a plaintiff’s defense to claims of ________ ________, allowing a negligent plaintiff full recovery where the last human wrongdoer failed to avoid the accident.

Answer 22

contributory negligence

NOTE: applies only in comparative negligence jurisdictions NOT comparative fault

Question 23

T or F The federal regulations setting minimum standards for the health insurance industry are within the constitutional powers granted to the federal government under the Commerce Clause. Under Article I, Section 8, Congress has the authority to regulate commerce if it can rationally be construed as a regulation of the channels or facilities of interstate commerce or of activities, including local activities, that have an aggregate national economic effect. The insurance business is subject to the federal government commerce power because health insurance sales in the aggregate have a national economic impact. Because the federal government may regulate the states as long as it is properly exercising one of its enumerated powers

Answer 23

True

Question 24

Because the freedom to choose is absolute, the court cannot inquire into the reasonableness (i.e., truthfulness) of a particular religious belief. The court can, however, ?

Answer 24

inquire into the sincerity of these beliefs, and it may convict a person for committing an illegal act in furtherance of his or her beliefs.

Question 25

Whether a grantee paid value for the property is relevant only in disputes between parties claiming title from the ________ _________, in which one or both parties took without notice for purposes of the recording statutes.

Answer 25

same grantor

Question 26

The Supreme Court has held that the Privileges and Immunities Clause of the FOURTEENTH Amendment has very limited application. The court noted that the fundamental rights set forth in the Bill of Rights were not privileges and immunities of national citizenship. The clause protects the right to:

NOTE not exactly the same rights of the privileges and immunities clause under the 5th Amendment.

Answer 26

The clause protects the right to interstate travel,

to petition Congress for redress of grievances,

to vote for national offices,

to enter public lands, to be protected while in custody of U.S. marshals, and

to assemble peaceably.

In addition, corporations and aliens are not protected under the clause.

Question 27

The Privileges and Immunities Clause of Article IV, Section 2 of the U.S. Constitution, provides: “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” This clause prohibits states from discriminating against nonresidents with respect to “essential activities” or “fundamental rights.” However, _________ and _____are not “citizens” for purposes of the Article IV Privileges and Immunities Clause.

Answer 27

corporations and aliens

Question 28

Remember Article IV Privileges AND immunities of the 5th Amendment has a broader application

Remember Article IV privileges OR immunities of the 14th Amendment has a ________ application. give an example

Answer 28

limited

interstate travel

Question 29

Article IV provides that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the ______ ________”. This clause prohibits states from discriminating against nonresidents with respect to “essential activities” or “fundamental rights.”

While the Fourteenth Amendment provides that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the____ _______ ” it is the Article IV provision which affects interstate relationships.

Answer 29

several States.

United States,

Question 30

The clause in Article IV, Section II (5th A) has been applied more broadly than Article IV section II (14th A) , and is generally used to?

Answer 30

invalidate state laws which discriminate against out-of-state citizens.

Question 31

Where states have adopted the Uniform Vendor and Purchaser Risk Act, the risk of loss remains with the seller during the period after the contract was executed but before the deed has been conveyed. However, even in a state that has adopted the Uniform Vendor and Purchaser Risk Act, the risk of loss transfers to the purchaser once the purchaser? give an example

Answer 31

takes possession or title to the property.

example: Purchaser begins renovation (possession)

Question 32

The UCC requires that demands for adequate assurances before repudiation be in _______.

Can a party retract a repudiation?

Answer 32

in writing

Yes as long as the other party did not rely on the repudiation or file suit.

Question 33

Restitution for a building contract may be measured in one of two ways:

Answer 33

the market value of the benefits conferred by the contractor or

the value added to the building by the contractor.