MBE Simulator Exam 3

Question 1

Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted". In a criminal trial, the prosecution wanted to prove that the defendant lived with his wife at a specified address. During a police search of the premises, the wife stated to officers that the defendant would “never come home while the police are still here.” The prosecution offered that statement into evidence at trial to prove that the defendant lived at that address. The defendant objected to admission of the statement because it was hearsay. Will the court exclude the statement under the hearsay rule?

Accepted Answer

No , the statement is not hearsay in that it was not offered in order to prove the truth of the assertion.

Answer

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. In this case, the wife's statement is not offered to prove that the defendant would *never come home* while police were present. Instead, it is offered as circumstantial evidence to infer that the defendant *lived* at the address, as only someone residing there would likely make such a statement about their home. Since the statement is not offered for its truth, it falls outside the definition of hearsay and is admissible.

Question 2

A husband applied for a life insurance policy for $50,000 on his life, listing his wife as the beneficiary. He paid the insurance company an initial amount of $100 at the time of submitting the application. The agent accepted the down payment, which represented two months of the premium payment. In exchange for this payment, the agent gave the husband a "conditional receipt." A few days later the husband died in an auto accident. The wife as beneficiary demanded payment despite the fact that the insurance company had not officially issued a policy and the husband had not taken a required medical examination required in the wording of the application. The company denied liability, asserting that certain conditions contained in the application and in the conditional receipt (namely the taking of the medical examination) had not been fulfilled by the applicant. The insurer claimed that the condition precedent (the medical examination) was never performed and the contract was not formed. What is the most likely decision of the court?

Accepted Answer

The conditional receipt stood as the temporary formation of a contract of insurance until the company made a final decision on whether to issue a policy.

Answer

A conditional receipt in life insurance often provides temporary coverage from the date of application, provided the initial premium is paid. This protects the applicant during the underwriting process, even if certain conditions like a medical examination are pending. Courts interpret these receipts to create a temporary contract of insurance, ensuring the insurer does not collect premiums without providing some form of immediate coverage, unless the applicant was clearly uninsurable at the time of application.

Question 3

A seller of residential property told the buyer that he could use his gravel road to the main highway if he purchased the property, which adjoined the seller’s property. Although the property was not otherwise landlocked, the buyer relied on the seller’s promise in making an offer. The buyer had specific uses in mind for improvements that needed the gravel road. The purchase took place but the seller did not include the easement in the deed or the other papers. The buyer built a garage that accessed the gravel road leading to the highway. The seller later decided to fence off the driveway and divert it from buyer’s use. Will a court compel the seller to open up the road and provide an easement to the buyer?

Accepted Answer

Yes, because this was an easement by estoppel, created by the seller’s promises and relied upon by the buyer.

Answer

An easement by estoppel arises when a landowner makes a promise or representation regarding the use of their land, and another party reasonably and detrimentally relies on that promise. Here, the seller promised the buyer access to the gravel road, and the buyer relied on this promise by purchasing the property and building a garage that accessed the road. To prevent injustice, the court will enforce this promise as an easement, compelling the seller to honor the access.

Question 4

A state recidivist statute made it a felony punishable by life imprisonment without parole to be convicted for the sixth time of any form of criminal theft involving goods or money in excess of $500. A man’s record showed five prior convictions for different forms of theft, each one for property or cash in excess of $500 but usually not in excess of $1,000. On the sixth conviction for a similar violation, he was sentenced to life without parole. He challenged the sentence based on the Eighth Amendment prohibition against cruel and unusual punishment. He appeals all the way to the U.S. Supreme Court. Is the Supreme Court likely to invalidate the sentence on these facts?

Accepted Answer

Yes, because the gravity of the sentence is disproportionate to the seriousness of the crimes, none of which involved bodily injury.

Answer

The Eighth Amendment prohibits cruel and unusual punishment, which includes sentences that are grossly disproportionate to the crime committed. While recidivist statutes are generally constitutional, a life sentence without parole for non-violent property crimes, even repeated ones, can be deemed unconstitutional if it is disproportionate to the severity of the offenses. The Supreme Court has held that such a severe penalty for crimes that do not involve violence or threat to life may violate the proportionality principle.

Question 5

An industrial truck sales and service center had a wide variety of rigs, trucks and tractors in its multi-acre gated main parking lot. There was a set of keys in each vehicle. The entrance gate was intentionally left open during the day for convenient ingress and egress. A gang member from a nearby gang headquarters walked into the parking lot during work hours, and drove off with a very large state-of-the-art industrial tow truck. He had difficulty managing the gear shifts and other knobs while accelerating, and was so distracted that within a few minutes he ran over and killed an elderly woman in a cross walk. The woman’s estate sued the truck center for negligence. The defendant service center filed a motion to dismiss, in which it asserted that it had no duty to third persons to protect them from truck thieves. It argued that even if it had a duty, the interceding act of the thief was a superseding cause of the accident. Will the court allow the plaintiff’s wrongful death negligence action against the truck center to go forward?

Accepted Answer

Yes, because the special circumstances are that the truck was powerful and not commonly drivable by untrained persons; and, it was left unattended, unguarded and accessible to thieves who generally would likely have trouble operating a big rig or a specialized industrial truck.

Answer

While a property owner generally isn't liable for the criminal acts of third parties, 'special circumstances' can create a duty of care. Leaving keys in a powerful, specialized industrial tow truck in an accessible, unguarded lot makes it foreseeable that an untrained thief could steal it and cause serious harm due to difficulty operating such a vehicle. This foreseeability establishes a duty on the part of the truck center, and the thief's actions are not considered a superseding cause, allowing the negligence claim to proceed.

Multistate Bar Exam Practice Test

Multistate Bar Exam Practice Test

MBE Simulator Exam 3