MBE Simulator Exam 2 â Questions and Answers
Question 1: Immediately after a shooting incident, the police chased one of the shooters into an apartment where he was apprehended and arrested. While in the apartment, a detective noticed some antique furniture that seemed of collectorsâ quality and was out of place in the squalidly furnished quarters. He moved and turned over the pieces to look for markings and insignia. He called headquarters, and was told that items with those markings and descriptions were stolen from a museum six months earlier. He seized the items and arrested another occupant, who claimed he owned the items, on charges of burglary. That suspect filed a motion to suppress based on there being a warrantless search without probable cause. The police relied on the plain view doctrine. Will the court likely suppress the evidence?
- Yes, the evidence will be suppressed because the police can never search a personal residence or seize any unrelated items after entering for exigent circumstances dealing with something else.
- No, the evidence was properly seized because the officer had a right to investigate it further once he had properly entered the apartment under exigent circumstances.
- No, the evidence was subject to further search and seizure because it was in plain view and the officer had a reasonable suspicion that it was contraband.
- Yes, the evidence must be suppressed because the plain view doctrine does not apply where the officer had no probable cause to believe that the observed item was contraband. (Correct answer)
Correct answer: Yes, the evidence must be suppressed because the plain view doctrine does not apply where the officer had no probable cause to believe that the observed item was contraband.
The plain view doctrine requires that an item's incriminating character be immediately apparent to an officer lawfully in a position to observe it. In this case, the detective lacked probable cause to believe the furniture was contraband *before* moving and turning it over, which constituted a search beyond the scope of plain view. Therefore, the evidence must be suppressed because the officer's actions exceeded the permissible bounds of the doctrine without the requisite probable cause.
Question 2: A man purchased a new car with 8 miles on the odometer. In the first week after the purchase, the gas pedal got stuck when depressed, and the car accelerated uncontrollably, eventually crashing into the front of a strip mall jewelry store and killing the cashier. The cashierâs family filed an estate, and sued not only the driver for negligence, but also the automobile manufacturer in strict liability. The manufacturer tried to defend on the basis of having no privity with the cashier. The jury returned a verdict of $3.5 million against the auto manufacturer. The manufacturer appealed, stating that strict liability for a defective product could not be extended to bystanders. Based on the more generally accepted principles of modern tort law, what will the appellate court decide regarding the right of the decedentâs estate to collect from the manufacturer?
- Lack of privity of contract prevents the estate from going against a defendant with whom it had no contractual or business relationship.
- Only a consumer or user of the product is able to bring an action for injuries or death against a manufacturer or seller of a defective product that is unreasonably dangerous.
- Strict liability in tort sounds exclusively in tort; the victim was in the realm of foreseeability for a runaway vehicle whose pedal was stuck to the floor, and the claim is allowed. (Correct answer)
- The victimâs estate must prove that the manufacturer breached an implied warranty of merchantability to the buyer of the vehicle before it can try to take advantage of that liability.
Correct answer: Strict liability in tort sounds exclusively in tort; the victim was in the realm of foreseeability for a runaway vehicle whose pedal was stuck to the floor, and the claim is allowed.
Modern tort law, particularly regarding strict product liability, extends protection beyond direct purchasers to foreseeable users and even bystanders. The cashier, as a bystander in a jewelry store, was a foreseeable victim of a car accelerating uncontrollably due to a manufacturing defect. Therefore, the manufacturer can be held strictly liable for the harm caused by its unreasonably dangerous product, regardless of privity of contract.
Question 3: An elderly married couple were shopping in a large retail super center. The husband fell on a yellow sticky substance resembling floor wax. Wife saw that there was some kind of hazardous condition ahead, but was quickly disoriented by seeing her husband on the floor in pain several yards ahead. She stepped forward onto the substance and immediately fell on her side, breaking her hip. After extensive rehabilitation and complex hip replacement surgery, the wife sued the retailer. The complaint alleged negligence in maintaining the premises. After these and other facts were pinned down in discovery, the store filed a motion for summary judgment, alleging that the wife voluntarily assumed the risk of the dangerous condition by knowing that it was there and voluntarily proceeding into it anyway. Will the store likely win the motion for summary judgment under these facts?
- Yes, there is no material fact that is under dispute because the wife proceeded to encounter a known danger voluntarily, thereby assuming the risk of injury.
- Yes, even taking the facts in the light most favorable to the non-moving party, i.e., the wife, it is clear that there is no dispute that she voluntarily assumed the risk.
- No, because the wife found herself in a sudden emergency and she did not have a reasonable time and opportunity to elect intelligently whether to take another step. (Correct answer)
- No, the store generally has an absolute duty to keep the floors cleaned and a breach of that duty will result in the imposition of strict liability
Correct answer: No, because the wife found herself in a sudden emergency and she did not have a reasonable time and opportunity to elect intelligently whether to take another step.
The defense of assumption of risk requires that the plaintiff voluntarily and knowingly encountered a known danger. Here, the wife was confronted with a sudden emergencyâher husband's fallâwhich disoriented her and prevented a reasonable opportunity to assess the risk and make an intelligent choice. The sudden emergency doctrine often negates the voluntariness element of assumption of risk, making it unlikely the store would win summary judgment.
Question 4: A state program granted tuition assistance to qualified low-income high school students to advance their educations in private schools of their choice. Most of the private schools participating in the program were affiliated with religious institutions. The parents applied the tuition vouchers independently without interference by the state. Choosing a religious school provided for a smaller amount than if a public-related charter or community school was chosen. Some parents sued the superintendent of the state schools to enjoin the program because it was an establishment of religion. What is the most likely decision of the court based on U.S. Supreme Court precedent?
- The program was constitutional because it was a neutral program that did not involve the stateâs favoring one religion or the favoring of religion over non-religion. (Correct answer)
- The program was constitutional because it guaranteed freedom of religion to those Catholic students and others who wanted to study in a school supportive of their religious beliefs.
- The program was unconstitutional because religious schools were the majority of schools benefitted, which in turn was a de facto creation of a state preference for a religious education.
- The program was unconstitutional because it created a discriminatory effect against public schools and made them doubly unable to make progress as educational institutions.
Correct answer: The program was constitutional because it was a neutral program that did not involve the stateâs favoring one religion or the favoring of religion over non-religion.
Under the Establishment Clause, a government program providing aid to religious schools is constitutional if it is neutral with respect to religion and provides benefits directly to a wide range of individuals who then choose where to direct the aid. This program was neutral, offering tuition assistance to low-income students who independently chose their schools, including religious ones, without the state endorsing or favoring religion, consistent with U.S. Supreme Court precedent like *Zelman v. Simmons-Harris*.
Question 5: In a murder prosecution, the prosecution offered into evidence numerous photos of the decedent lying in a puddle of her own blood, of the bruises and marks on her body, and other aspects of the death scene. The defense objected to the photos on the basis that its probative value was outweighed by the danger of unfair prejudice in allowing the jury to see them. Will the trial court exclude the photos?
- Yes, the blood and gory sights will only serve to inflame the passions of the jury and to confuse the jurors.
- No, because the photos portray the details of how she was killed and the possible methods used to kill her, which is important information for the jury to consider. (Correct answer)
- No, because the photos were only background evidence and the judge will simply advise the jury of that fact and to not place much weight on such matters. (Correct answer)
- Yes, because it is crucial to keep out all evidence that may have the potential of causing prejudice to the defendant.
Correct answer: No, because the photos portray the details of how she was killed and the possible methods used to kill her, which is important information for the jury to consider.
While gruesome, photographs of a crime scene are generally admissible if their probative value outweighs the danger of unfair prejudice. In a murder prosecution, photos depicting the nature and extent of injuries, the cause of death, or the manner in which the crime was committed are highly probative. They help the jury understand the evidence and are not automatically excluded simply because they are disturbing.
Question 6: A woman asked a male friend to hold her valuable antique jewelry in safe storage for her while she traveled in a foreign country. He owned a jewelry store and graciously offered to store the collection for free. He also volunteered to get the jewelry insured at his own expense. She relied on the promises, and turned over the collection to him without the payment of monetary consideration. He forgot to get the jewelry insured, and the collection was stolen in an armed robbery of the jewelry store. When she returned, he refused to compensate her for the stolen collection. Which one of the following legal principles would be her strongest and most accurate claim for remuneration under these facts?
- The principle of unilateral contract.
- The principle of equitable trust.
- The principle of natural consideration.
- The principle of promissory estoppel. (Correct answer)
Correct answer: The principle of promissory estoppel.
The principle of promissory estoppel applies when a clear and unambiguous promise is made, the promisee reasonably and foreseeably relies on that promise, and the promisee suffers detriment as a result of that reliance. Here, the friend promised to insure the jewelry, the woman relied on this promise by not seeking other insurance, and she suffered a loss when the uninsured collection was stolen, making promissory estoppel her strongest claim.
Question 7: A man entered into a lease for an apartment with a landlord. The lease stated that the term was month-to-month. After one month, the man went to the city health and licensing department and complained about various sanitary code violations that the landlord failed to correct. The agency made an inspection and found 40 sanitary code violations. It cited the landlord, and ordered him to clear up all of the violations. After the inspection, the landlord brought an eviction action against the man and obtained a judgment against him for eviction. Will the eviction order hold up under the stated facts?
- Yes, because the law of landlord-tenant generally favors the landlord and doesnât require that the landlord make repairs or keep a property up to code.
- No, because eviction is not recognized with respect to a month-to-month lease; instead, the tenant must vacate immediately on receiving written notice.
- Yes, because the tenantâs act of disloyalty is a breach of the lease that may be enforced by an eviction action.
- No, because the landlordâs action is a retaliatory eviction, which cannot be used against a tenant who reports code violations and is a defense that the tenant may raise. (Correct answer)
Correct answer: No, because the landlordâs action is a retaliatory eviction, which cannot be used against a tenant who reports code violations and is a defense that the tenant may raise.
The landlord's action constitutes a retaliatory eviction, which is prohibited by law. The doctrine of retaliatory eviction prevents landlords from evicting tenants in response to their legitimate complaints about housing code violations or other protected activities. This protection encourages tenants to report unsafe or unhealthy living conditions without fear of losing their homes, and serves as a valid defense against such eviction actions.
Question 8: The police interrogated a suspect regarding a series of burglaries. The suspect had attention deficit disorder, dyslexia and an IQ of 72. Prior to beginning they read a list of Miranda rights to him on a form that the suspect had in front of him. After the reading, he initialed each paragraph indicating he understood. At the bottom of the form was an express written waiver of the Miranda rights, which he signed. He had been interrogated in the past and was familiar with the procedure. During the four hours of interrogation he was given bathroom breaks, coffee, and a sandwich. At the end of the process, he made a logical and seemingly cogent confession to all of the burglaries in a taped statement. The defendant later moved to suppress the confession, arguing that he was coming down from drugs at the time and was intellectually unable to understand and comprehend the nature of the warnings or the waiver. What is the most likely decision of the court under the totality of the circumstances?
- The outward signs all indicate that the suspect understood the procedure and gave a voluntary confession despite his disabilities. (Correct answer)
- There are too many questionable deficiencies in the suspectâs ability to understand what was going on and the confession must be suppressed.
- He was too confused to understand what was going on and the confession was coerced by the persistence of the police.
- The signing of a written waiver of Miranda rights is always proof that the suspect gave a voluntary confession.
Correct answer: The outward signs all indicate that the suspect understood the procedure and gave a voluntary confession despite his disabilities.
The court evaluates Miranda waivers and confessions based on the totality of the circumstances, considering both the suspect's individual characteristics and the conduct of the police. Despite the suspect's intellectual disabilities and claim of drug withdrawal, the facts indicate he understood his rights and voluntarily confessed. Factors like his familiarity with the process, initialing and signing the waiver, receiving breaks, and providing a "logical and seemingly cogent" confession outweigh his asserted deficiencies, suggesting the waiver was knowing and intelligent.
Question 9: A patient calls his doctor and tells him personally on the phone that he is a âbutcherâ and one of the most incompetent money-grubbing doctors he has ever encountered. He accuses him of having botched up the callerâs recent appendectomy operation because the caller still has the same excruciating pain as before the surgery. He says that everyone knows that the doctor canât âhold a scalpel steadyâ anymore, and that everyone knows that his new home is the bar at the Colonial Country Club. The caller hangs up. The doctor brings a slander per se action against the former patient based on the phone call. The defendant eventually moves for a summary judgment dismissal. What is the likely decision based on the foregoing given facts?
- The case must be dismissed because there is no defamatory statement when there is no publication to a third person. (Correct answer)
- There is no defamation because the patient has an absolute privilege to complain about matters within the doctor-patient relationship.
- The case will go to the jury to decide the existence and the extent of any defamation.
- This is a case of libel per se, and it will go to trial for a final determination.
Correct answer: The case must be dismissed because there is no defamatory statement when there is no publication to a third person.
A fundamental element of defamation, whether slander or libel, is publication, meaning the defamatory statement must be communicated to a third person who understands it. In this scenario, the patient made the statements directly to the doctor over the phone, with no evidence that any third party overheard or received the communication. Without publication to a third party, the essential element of defamation is missing, requiring dismissal of the case.
Question 10: Plaintiff filed a personal injury action against a trucking company whose truck rear-ended the A prisoner filed a pro se civil rights complaint against the prison, alleging that the authorities had treated him with deliberate indifference. He asserted that he had been beaten and tortured by other prisoners with the knowledge of prison officials, who did nothing to prevent or stop the attacks. The prisoner, however, did not identify any specific prison officials who were involved, nor did he give any details on when and where the beatings took place. The prisoner did not describe his injuries in detail in the complaint, due to the fact that he was waiting for his medical records, which were being held up by the prison. The defendants made a Rule 12 motion to dismiss, which the court granted. The court did not give leave to amend because it felt that plaintiff probably could not obtain all of the facts that he needed to make a well-pleaded complaint. The plaintiff filed an appeal, alleging that he should have been granted leave to amend the complaint. What is the courtâs likely decision and why?
- The appeal will be denied because the plaintiff had the opportunity to obtain the facts before he filed an indadequate complaint.
- The appeal will be denied because the court has the discretion to say whether it believes that the plaintiff could obtain more facts to allege.
- The appeal will be granted because the prison was obstructing justice by holding the medical records.
- The appeal will be granted because the court must allow parties the liberal right to amend their pleadings where there is a possibility that this will be fruitful. (Correct answer)
Correct answer: The appeal will be granted because the court must allow parties the liberal right to amend their pleadings where there is a possibility that this will be fruitful.
Federal Rule of Civil Procedure 15(a) dictates that courts should "freely give leave" to amend pleadings when justice requires, especially for pro se litigants. The trial court's denial of leave based on a mere belief that the plaintiff "probably could not obtain all of the facts" is an abuse of discretion. Given that the prison was obstructing justice by holding the medical records, which could provide the necessary details, there was a clear possibility that amendment would be fruitful, and the plaintiff should have been given the opportunity.
Question 11: A city park accepted a limited number of privately funded and donated monuments. One of them was a monument displaying the Ten Commandments, which the Kiwanis International donated in a campaign against juvenile delinquency 50 years ago. A non-denominational church organization recently demanded that the city provide space in the park for the church to erect a monument giving the seven precepts of the church. The city rejected the request, and the church sued the city requesting injunctive action to compel the city to provide space for its religious display. The church argued that the city was in violation of the religious establishment clause of the First Amendment by allowing the Ten Commandments. The church said that the monument was an establishment of religion and that all religions should be allowed to display equally or none should be allowed. Based on modern precedent, what will the court decide?
- The First Amendment requires that every expression and form of speech be allowed by a government agency and thus the new monument must be allowed.
- The city must allow a fair selection of monuments from all religions or be guilty of establishing a religion by appearing to favor one religious heritage only.
- The city can accept a monument that also has historical, non-sectarian interest without violating the establishment clause and without having to accept other monuments. (Correct answer)
- The placing of a monument that has any religious significance at all is always a violation of the establishment clause, and the Ten Commandments must be removed.
Correct answer: The city can accept a monument that also has historical, non-sectarian interest without violating the establishment clause and without having to accept other monuments.
Under the Establishment Clause, a government display with religious content is permissible if it has a secular purpose, its primary effect neither advances nor inhibits religion, and it avoids excessive government entanglement. A monument like the Ten Commandments, especially one present for 50 years and donated for a secular purpose (anti-juvenile delinquency), can acquire historical and non-sectarian significance over time. Therefore, the city can allow such a monument without violating the Establishment Clause or being compelled to accept all other religious displays, as it does not constitute an endorsement of religion but rather acknowledges a historical artifact with dual meaning.
Question 12: A woman fell on a sidewalk that was covered with ice and snow. The sidewalk was part of the apartment complex where she resided. Another resident of the complex witnessed the woman falling and violently landing on her neck. The witness immediately said in a loud and agitated voice, âI told them an hour ago to clean this spot up but they did nothing.â At trial, the womanâs boyfriend offered testimony that he saw and heard the witness make the statement about informing the defendants to clean it up, thus proving notice and knowledge by defendants of the condition. The apartment management objected to the statement on the basis of hearsay. Which exception to the hearsay rule applies to allow this statement into evidence?
- Present sense impression
- Excited utterance (Correct answer)
- Prior statement by witness.
- Statement of present state of mind or emotion.
Correct answer: Excited utterance
The excited utterance exception to the hearsay rule applies to statements made while the declarant is under the stress of excitement caused by a startling event. Here, the witness observed a violent fall and immediately, in a loud and agitated voice, made the statement. The immediacy and agitated tone indicate that the statement was a spontaneous reaction to the startling event, made before the witness had time to reflect or fabricate, thus satisfying the requirements for an excited utterance.
Question 13: A retail store runs an advertisement in the local newspaper stating: âOnly 3 cashmere sweaters remaining; highest quality; real Polo; one grey, one maroon and one beige; on closeout, starting 9 a.m. Saturday, $5.00 each, first-come, first-served.â A store customer was the first to arrive on Saturday morning. He located the three advertised sweaters, picked them up, handed $15.00 to the clerk, and demanded all three sweaters at $5 each. The clerk stated that the storeâs price on each sweater was actually $50 each. The customer demanded the advertised price. Who has the superior legal position?
- The customer, because the terms of the advertisement were definite enough to constitute an offer and the offer was duly accepted. (Correct answer)
- The retail store, because the terms of the advertisement were merely an invitation to make an offer, and the offer made was duly rejected by the store.
- The customer, because this was a contract of adhesion favoring one party only, and as such, the store could not enforce it.
- The store, in that a contract was made at $50 each, which was the storeâs actual intended price for the sweaters.
Correct answer: The customer, because the terms of the advertisement were definite enough to constitute an offer and the offer was duly accepted.
While advertisements are typically invitations to negotiate, this specific advertisement was sufficiently definite and explicit to constitute a binding offer. It clearly specified the exact items, quantity ("Only 3"), price, and terms of acceptance ("first-come, first-served"). By being the first to arrive and tendering the advertised price for the specified items, the customer accepted this unilateral offer, forming a valid contract.
Question 14: Several landowners had residential premises in a development called âThe Lakes.â One ownerâs property contained a small improved beach area that could be used for swimming. That owner gave oral permission to several neighbors to use the beachfront for swimming, as a friendly neighborly gesture. That owner sold her property to a new owner. The new owner erected fences and signs saying, âkeep out.â The neighbors sued, claiming that they had an easement by implication through prior usage to use the beachfront. Will the court restore the use of the beachfront to the neighbors?
- No, because the use granted was merely a license to go on a neighborâs land to go swimming, and the users of the free license did not expect that they were obtaining an interest in the land. (Correct answer)
- Yes, because the easement was created by the implied assent of the owner and her neighbors, and it became a public easement through prescription.
- No, because land that abuts a lake or other body of water is not subject to the creation of an easement.
- Yes, because the granting of a license to use oneâs property to perform a certain activity usually ripens into an easement if the use is regular and continual.
Correct answer: No, because the use granted was merely a license to go on a neighborâs land to go swimming, and the users of the free license did not expect that they were obtaining an interest in the land.
The oral permission granted to the neighbors for swimming was merely a license, which is a revocable privilege to use another's land, not an interest in the land itself. Licenses are typically informal and personal, and they are generally revoked upon the transfer of the servient estate or by the licensor's express act. Since the use was granted as a "friendly neighborly gesture" and was not intended to create a permanent property right, it did not ripen into an easement by implication or prescription, which requires more stringent conditions.
Question 15: A regular patron of a busy coffee shop one day spotted a small billfold on the floor. She picked it up and found that it contained $2,000 in cash and a valuable diamond ring that was taped to inside flap. Instead of turning it over to the restaurant or the police, she took it home and laid it in her nightstand, where it set for two months. During that period, the owner of the billfold placed several ads in the newspaper and had posted a notice for a reward prominently in the coffee shop. A customer who saw the notice remembered seeing the patron pick up a billfold on the floor a few months back, and he reported it to the police. The police got a warrant and found the billfold and its original contents still sitting in the patronâs nightstand. She was arrested for criminal theft. She defended by arguing that she intended to return the money, and thatâs why she never spent or moved it. Is this a theft under most modern theft statutes?
- Yes, it is a theft because under most criminal statutes he has a duty to take reasonable steps to restore property to its owner under circumstances where he knows it was lost or mislaid. (Correct answer)
- No, it is not a theft to keep property that is found lying about in a public place with no identification on it; there is no reasonable way to ascertain the identity of the real owner.
- No, it is not theft because of the old adage, âfinders keepers, losers weepers.â
- Yes, it is a criminal theft because a person can never retain possession of unidentified property and must always turn it into the police.
Correct answer: Yes, it is a theft because under most criminal statutes he has a duty to take reasonable steps to restore property to its owner under circumstances where he knows it was lost or mislaid.
Under most modern theft statutes, a person who finds lost property has a duty to take reasonable steps to restore it to the owner if the owner is known or reasonably ascertainable. The patron here found a billfold with significant cash and a valuable ring, and the owner actively sought its return through ads and a posted reward, making the owner ascertainable. By taking the billfold home and keeping it for two months without attempting to return it, despite knowing the owner was looking, the patron demonstrated the requisite intent to permanently deprive the owner, thus committing theft.
Question 16: Two union representatives got in an argument at work. The male rep told the female rep that he was running for president of the local union in the next election. The female rep told him that she had been planning to run. He told her, while pointing a finger in her face, âI could whip you in an election any time, or I could beat you silly right here and now.â The female rep walked away, feeling very apprehensive about the male repâs threat. The next day, they discussed union politics again, and the male rep once again stated that he could beat her âby votes or by a horse whipping, whichever you prefer.â She became very upset, and a few days later brought a civil action against him for assault. Has the man likely committed an actionable assault?
- No, these were mere political arguments and the kind of heated things that might be said in a political context.
- No, any apprehension would be of something too far in the future to constitute a true assault.
- Yes, the male rep made a movement by pointing his finger, and threatening her with offensive imminent contact which she perceived with apprehension. (Correct answer)
- Yes, the statements of the male rep violated the Fair Labor Standards Act, which allows for civil actions for damages between union members.
Correct answer: Yes, the male rep made a movement by pointing his finger, and threatening her with offensive imminent contact which she perceived with apprehension.
An actionable civil assault requires an intentional act by the defendant that places the plaintiff in reasonable apprehension of imminent harmful or offensive contact. The male representative's act of pointing a finger in the female representative's face, combined with his explicit threat to "beat you silly right here and now," created a reasonable apprehension of immediate offensive contact. The subsequent repetition of the threat, even if slightly less immediate, reinforced this apprehension, satisfying the elements of assault.
Question 17: A businessman files a complaint for defamation against a former customer in a federal district court. The businessman sends an adult friend to serve the complaint and summons to the home of the former customer. The friend leaves the papers with a cleaning person who is the only person home, and who has control of the premises for just the several hours while she is there doing her job. The defendant files a motion to dismiss for insufficiency of service of process under Rule 12(b)(5). Assume that state law regarding service of a complaint is the same as Rule 4 of the Federal Rules of Civil Procedure. What is the court's likely decision and reason?
- The court will deny the motion and allow service due to the fact that the person had control of the house for that temporary time.
- The court will grant the motion and reject service because the papers must be served only on the defendant herself.
- The court will grant the motion and reject service because the person served did not reside there. (Correct answer)
- The court will deny the motion and allow service because the circumstances point to reliable service of process.
Correct answer: The court will grant the motion and reject service because the person served did not reside there.
Under Federal Rule of Civil Procedure 4(e)(2)(B), service of process on an individual by leaving papers at their home is valid only if left with someone of suitable age and discretion who *resides* there. A cleaning person, even if temporarily in control of the premises, does not reside at the defendant's home. Therefore, service upon a non-resident cleaning person is insufficient and fails to meet the requirements for proper service of process.
Question 18: A state started conducting random vehicle stops at highway roadblocks to look for drugs. A young man was In a civil case in federal court between two pharmaceutical companies involving a dispute over the rights to an anti-HIV drug, one of the litigants exercised some of its peremptory strikes to keep gay persons off of the jury. The other company challenged and appealed the procedure on the basis of a denial of equal protection to the prospective jurors. What was the most likely ruling of a three-judge panel of the United States Court of Appeals?
- Substantive due process prohibits discrimination by sexual orientation in the selection of a jury.
- Equal protection prohibits peremptory strikes on the basis of sexual orientation alone. (Correct answer)
- The court may exercise its wide discretion in deciding the propriety of peremptory jury strikes.
- The evidence indicates that gay jurors are likely to be biased regarding anti-HIV drug treatment.
Correct answer: Equal protection prohibits peremptory strikes on the basis of sexual orientation alone.
The Equal Protection Clause prohibits the use of peremptory strikes to exclude potential jurors based on certain classifications, such as race or sex, as established by *Batson v. Kentucky* and *J.E.B. v. Alabama*. While the Supreme Court has not directly ruled on sexual orientation in this context, the principle of equal protection extends to prevent discrimination based on sexual orientation in jury selection. Therefore, using peremptory strikes solely on the basis of a juror's sexual orientation violates equal protection.
Question 19: The main witness against the defendant in a federal drug prosecution was an individual who was addicted to cocaine, had been hospitalized several times for psychotic experiences, and suffered from several mental illnesses. He arrived in court apparently lucid and ready to testify. The defendant objected to the testimony on the basis that the witness was incompetent to testify due to past mental illnesses. The judge questioned the witness, who stated that he understood the nature of the oath as a witness, that his memory of the events was clear, and he was not under the influence of any chemicals or alcohol. The defense was allowed to cross-examine the witness on his competency. The judge allowed the testimony, which was sufficient to convict the defendant. On appeal, the defendant raised the long mental history of the witness and argued that the judge should have held a detailed fact-finding hearing to determine the competency of the witness. What is the likely decision of the federal appellate court?
- The case should be remanded with instructions for the judge to caution the new jury regarding the several hospitalizations and tendency to psychotic episodes of the witness.
- The case is remanded because the court should have appointed independent medical experts to examine the witness and report to the court in a formal hearing to determine competency.
- The appeal is denied because the judge made appropriate inquiries and she did not abuse her discretion in deciding that the man was capable of testifying. (Correct answer)
- The appeal is denied because in federal court all witnesses are competent to testify under any circumstances.
Correct answer: The appeal is denied because the judge made appropriate inquiries and she did not abuse her discretion in deciding that the man was capable of testifying.
Under Federal Rule of Evidence 601, all witnesses are presumed competent unless specific rules dictate otherwise, and mental illness alone does not automatically render a witness incompetent. The trial judge has broad discretion to determine competency, typically by assessing whether the witness understands the oath and can perceive, recall, and communicate. Here, the judge made appropriate inquiries, found the witness lucid, understanding of the oath, and clear in memory, and allowed cross-examination on competency, thus not abusing her discretion in allowing the testimony.
Question 20: A manufacturer of widgets sent a letter to an international widget retailer offering to sell ten truckloads of construction-quality widgets for $1,000 per truck. The retailer emailed a note back saying âPlease send 10 truckloads as promised.â No shipment was sent, but four months later when the market demand for widgets skyrocketed, the retailer sued the manufacturer for breach claiming that the retailer suffered damages by not having received the shipment of ten trucks as agreed. Does the retailer have a legal right to collect damages under these facts?
- Yes, there is a specific and detailed enough offer, followed by an unequivocal acceptance, indicating an intent to form a contract. (Correct answer)
- No, the parties do not set a date for delivery, which always invalidates a contract between merchants for the delivery of goods.
- No, the retailer never called back and asked for the widgets, which means that the contract was not finally confirmed and legalized.
- Yes, the retailer is entitled to collect damages because the manufacturer violated the doctrine of avoidable consequences.
Correct answer: Yes, there is a specific and detailed enough offer, followed by an unequivocal acceptance, indicating an intent to form a contract.
A valid contract requires a definite offer and an unequivocal acceptance. The manufacturer's letter clearly stated the quantity (ten truckloads), the specific goods (construction-quality widgets), and the price ($1,000 per truck), making it a sufficiently definite offer. The retailer's email, "Please send 10 truckloads as promised," constituted a clear and unequivocal acceptance of these terms, thereby forming a binding contract for the sale of goods.
Question 21: An owner conveyed residential real estate to a friend for life. The friend conveyed his interest in the same real estate to his brother. When the owner discovered the conveyance to the brother, he brought an eviction action against the brother. The brother refused to vacate the premises and appealed. What is the likely decision of the court regarding the requested eviction of the brother?
- The court will rule that the brother has a right to live on the premises until the death of the owner.
- The court will rule that the friendâs original interest was extinguished when he conveyed his interest to his brother, and the brother can be evicted.
- The court will rule that the brother has a right to live on the premises until the death of his brother who conveyed the property to him. (Correct answer)
- The court order immediate reversion of fee simple ownership back to owner and will immediately evict the brother.
Correct answer: The court will rule that the brother has a right to live on the premises until the death of his brother who conveyed the property to him.
A life tenant can convey their interest in the property, but the grantee receives an estate *pur autre vie*, meaning the interest is measured by the life of the original life tenant. Here, the owner conveyed a life estate to the friend, making the friend the measuring life. When the friend conveyed his interest to his brother, the brother received an estate that would last only for the duration of the *friend's* life, not the owner's or the brother's own life. Therefore, the brother has a right to possess the premises until the friend's death.
Question 22: A property owner was returning home one evening. When he got into his driveway he beeped open the garage door. As he approached the garage he saw some movement inside but couldnât tell what it was. He stopped the car, pulled his handgun from the glove compartment, and walked toward the garage. As he began to enter the garage a person jumped out from behind a pile of boxes and tried to run out of the garage, in a direction away from the owner. While heading for the outside area, the owner raised his gun and shot the individual dead. It turned out that the dead person was a 16-year-old unarmed teen from the neighborhood who apparently had been searching the garage for things to steal. Under the prevailing common law rule, will the owner be convicted of a criminal homicide charge?
- He will be convicted because under these circumstances the man used unreasonable and excessive force in response to the situation. (Correct answer)
- He will not be convicted because he used appropriate force to repel a trespasser and thief on his property.
- He will be convicted it is never proper to use deadly force upon a person who is illegally on oneâs premises.
- He will not be convicted because it is always legal to use deadly force on a trespasser who is found on oneâs property and who is damaging or taking property.
Correct answer: He will be convicted because under these circumstances the man used unreasonable and excessive force in response to the situation.
Under prevailing common law, deadly force is generally not justified solely to protect property, especially when the intruder is unarmed and attempting to flee. The owner's use of deadly force against an unarmed 16-year-old who was running away from the garage, and thus no longer posing an imminent threat of serious bodily harm or death, was an unreasonable and excessive response. The law typically permits deadly force only when there is a reasonable belief of imminent serious bodily injury or death, which was not present here.
Question 23: A man died in a hospital of a fatal, highly contagious disease. A hospital clerk neglected the set protocol of marking the body with warnings that there was a communicable disease involved. The funeral director embalmed the body without taking extra precautions, which caused him to have a great deal of contact with the corpseâs blood and fluids. When he found out about the disease, he sued the hospital for damages, including severe emotional distress. Which of the following is the most likely tort theory that the plaintiff can successfully assert against the hospital?
- The hospital committed a battery of his person by remaining silent and intentionally causing him to suffer an offensive contact from a corpse with a highly contagious disease.
- The hospital committed an assault against him by intentionally causing him to suffer an offensive touching from a corpse with a highly contagious disease.
- The hospital committed the tort of intentional infliction of emotional distress by recklessly releasing the corpse to an unsuspecting funeral home.
- The hospital was negligent and breached its duty to notify those who could suffer harm that the body was infected with a highly contagious disease. (Correct answer)
Correct answer: The hospital was negligent and breached its duty to notify those who could suffer harm that the body was infected with a highly contagious disease.
The hospital had a clear duty to exercise reasonable care by following established protocols to mark the body with warnings about the highly contagious disease. Its clerk's failure to do so constituted a breach of this duty. This breach directly caused the foreseeable harm to the funeral director, who, unaware of the risk, proceeded with embalming without precautions, leading to contact with infected fluids and subsequent emotional distress. This scenario perfectly aligns with the elements of a negligence claim.
Question 24: A retail salesperson was driving her car at lunch when a man driving an SUV drove through a red light and struck her. The salesperson resided in State A and the accident occurred in State A. The driver of the SUV was employed by a company that was located in State B. The company allowed the employee to take its SUV, which was used most of the time for business purposes, to go home to State A every night and return to work in State B in the morning. The injured retail salesperson sued both the company and the driver in a State A court. The company filed a motion to dismiss claiming that the State A court did not have personal jurisdiction over the company, despite having over its employee. The trial court dismissed the case against the company for lack of personal jurisdiction. Will that decision likely survive on appeal and why or why not?
- Yes, because the company did not benefit from giving the employee a car to commute with, thus it had no minimum contacts with the forum state.
- Yes, because the company was not doing busines in State A and therefore it had no contact with the state.
- No, the company benefited from having its employee commute from State A to State B and it is responsible for the acts of its agent. (Correct answer)
- No, the mere act of the company's car being in State A was enough to establish personal jurisdiction over the company.
Correct answer: No, the company benefited from having its employee commute from State A to State B and it is responsible for the acts of its agent.
Personal jurisdiction over an out-of-state company requires minimum contacts with the forum state. Here, the company benefited from its employee commuting daily from State A to State B in a company vehicle, which constitutes a continuous and systematic presence of its property and operations within State A. The accident occurring in State A, involving the company's vehicle and employee, establishes specific jurisdiction because the company purposefully availed itself of the benefits and protections of State A's laws through this arrangement, making it fair to sue them there.
Question 25: A developer purchased two lots of ocean front property. He intended to build two single-family high-end homes like adjacent homes built in the surrounding areas. Two years later, the state passed a beachfront protection statute that prohibited the developer from building on his lots. The developer filed a claim in state court demanding compensation for a taking of his property under the Fifth and Fourteenth Amendments because the state denied all economic uses of the property. The trial court agreed that the property was now economically useless, and awarded compensation to the developer. However, on appeal the supreme court of the state reversed. The United States Supreme Court granted certiorari. Did the U.S. Supreme Court grant the developerâs plea for compensation based on an unconstitutional taking of his property by the state?
- No, the valid exercise of the police powers by the state cannot result in a claim for compensation by a property owner.
- No, the statute did not forbid all uses of the property; there were still social and recreational uses that remained.
- Yes, any interference with a landownerâs interest in building commercial property is prohibited by the due process clause and requires compensation.
- Yes, compensation is payable for a taking of property where a statute or regulation takes away all economic use of the land. (Correct answer)
Correct answer: Yes, compensation is payable for a taking of property where a statute or regulation takes away all economic use of the land.
The U.S. Supreme Court has established that a regulatory taking requiring compensation occurs when a government regulation deprives a landowner of *all economically beneficial or productive use* of their property, as articulated in *Lucas v. South Carolina Coastal Council*. Since the beachfront protection statute prohibited all building and rendered the developer's lots economically useless, it constitutes a categorical taking under the Fifth and Fourteenth Amendments, entitling the developer to just compensation.
MBE Simulator Exam 2
Immediately after a shooting incident, the police chased one of the shooters into an apartment where he was apprehended and arrested.
While in the apartment, a detective noticed some antique furniture that seemed of collectorsâ quality and was out of place in the squalidly furnished quarters.
He moved and turned over the pieces to look for markings and insignia.
He called headquarters, and was told that items with those markings and descriptions were stolen from a museum six months earlier.
He seized the items and arrested another occupant, who claimed he owned the items, on charges of burglary.
That suspect filed a motion to suppress based on there being a warrantless search without probable cause.
The police relied on the plain view doctrine.
Will the court likely suppress the evidence?