MBE Simulator Exam 7

This is a timed quiz. You will be given 60 seconds per question. Are you ready?

A man and a woman got in the man’s car to go visit friends. The man had a few martinis during the preceding hour. It was lightly raining but he insisted on driving. When approaching a slippery curve on a winding roadway he lost control and crashed the car into a tree. He was traveling 10 miles above the speed limit. His passenger died and he was charged with involuntary manslaughter while driving DUI. The police took his blood sample at the hospital and his blood alcohol level was .07, right below the threshold level of .08 used for determining sobriety. He had passed a field sobriety test at the scene. He was also cited for speeding and driving too fast for conditions. Which of the following will the prosecution most likely be able to prove beyond a reasonable doubt?

Involuntary manslaughter

Involuntary manslaughter while driving DUI.

Voluntary manslaughter.

Homicide by vehicle while driving under the influence.

Correct! Wrong!

A defendant was charged and convicted of felony murder as a participant in a robbery in which the store clerk was murdered by his accomplice. The authorities then indicted and convicted him of robbery with a firearm. The two prosecutions were not the same offense because felony murder could be proved by proof of any felony, not just robbery, and robbery with a firearm did not require proof of a death. However, the prosecution acknowledged that it was necessary for all the ingredients of the underlying felony of robbery with a firearm to be proved in the felony-murder trial. Will the defendant prevail on appeal in getting the robbery with a firearm conviction dismissed with prejudice on the basis of a double jeopardy violation?

No, because the two offenses were different and required different elements of proof, the second prosecution was valid.

No, because the second prosecution was for a status crime of using a firearm in a robbery and as such it was totally different from the first prosecution.

Yes, because the second prosecution of using a firearm in a robbery was based on the same firearm already proved in the earlier case, and when the same firearm is raised twice, double jeopardy applies.

Yes, because it was necessary for all the ingredients of robbery with a firearm to be proved in the felony-murder trial, the second prosecution was barred by the double jeopardy constitutional prohibition.

Correct! Wrong!

Local police received an anonymous letter that contained statements that a married couple was engaged in drug trafficking and were storing large amounts of contraband in their basement. The letter did not say how the writer personally knew that there were drugs or where they were stored. The investigating detective drew up an affidavit of probable cause based on the statements in the letter and presented the request for a search warrant and the affidavit to a magistrate judge. The magistrate judge signed a search warrant based on the affidavit. The police raided the home and found several pounds of cocaine in the basement. The defendants filed a motion to suppress the evidence based on insufficient cause to issue a warrant. The state courts rejected the suppression motion. What would the U.S. Supreme Court most likely decide?

The Court would validate the search warrant because there were sufficient detailed allegations in the letter to justify a probable cause finding.

The Court would invalidate the warrant because there was insufficient information about that would support the credibility and personal knowledge of the informant.

The warrant was valid because when the informant’s information turns out to be true after the warrant is issued and executed, then that validates the affidavit of probable cause.

The warrant was invalid because affidavits of probable cause must give the name and address of the informant; an affidavit cannot be based on an anonymous informant.

Correct! Wrong!

Plaintiff was a lifeguard at a summer day camp. The camp maintenance crew placed the lifeguard chair at the shallow end of the pool. They also carelessly set the water level slightly below its normal capacity. Plaintiff decided to help a swimmer by recklessly jumping from the lifeguard chair into the most shallow point of the pool. He suffered spinal cord damage and paralysis. He sued the camp owners for negligence and substantial damages. Plaintiff admitted that he knew the relative depths of the water at all points in the pool, and that he was an experienced and knowledgeable swimmer and diver, when he engaged in the unwise action of jumping into the shallow end. The camp proved through forensic engineering testimony that the lower water level caused by the maintenance crew was not a key factor in the accident or the injury. The camp filed a motion for summary judgment, claiming that the claim was precluded as a matter of law, and thus nothing for the jury to decide. What is the likely decision of the court on the motion?

The court will likely grant the motion because the plaintiff’s act was highly extraordinary, and not foreseeable; thus, it was a superseding act that cut off the camp’s liability.

The court will likely deny the motion because it was foreseeable that the lifeguard would jump into the shallow water nearest to the negligently placed lifeguard chair.

The court will likely deny the motion because the maintenance crew did not put enough water into the pool.

The court will likely grant the motion because a lifeguard assumes the risk of all dangers encountered in that risky job.

Correct! Wrong!

The police were called to a domestic dispute. The wife told police that her husband was abusive and that he was a heavy cocaine user. The husband was present and denied the allegation. Police asked for permission to search the premises for drugs, which was consented to by the wife. The husband, however, refused to consent to the search. The police went ahead anyway and found drugs in the husband’s belongings. After being arrested on drug charges, the husband filed a motion for suppression of the evidence based on lack of consent. What should be the likely decision of the trial court?

The search was invalid and the evidence must be suppressed because the co-occupant of the premises was present and specifically refused to give consent to the search.

The search was valid because the cases say that one occupant’s consent to the search overrules the other occupant’s refusal to consent.

The search was valid because the wife’s statement established probable cause that a crime was being committed – this created exigent circumstances for the search.

The search was invalid because, even though consent was given, the police must first attempt to get a search warrant to enter a home.

Correct! Wrong!

A buyer and seller agreed on terms to transfer a property to buyer. They wrote up a contract themselves that said: Seller is selling the Old Wilson property to the Buyer, for a value they have agreed on, and the sale should be finished and done in thirty days by cash payment by buyer, or in installments if buyer cannot get a mortgage. The seller changed his mind and filed suit, asking for rescission of the document, on the basis that it was not a contract due to ambiguity and leaving out basic required information. Will the court likely order rescission?

The document would require a more clear description of the property to be sold, a more clear statement of the purchase price, amount and disposition of earnest money, date of closing and that time is of the essence. Most of these are missing and it leaves too much to guess-work, which is not an enforceable agreement. Rescission will be ordered.

No, because the terms stated are definite and precise enough to allow for a final settlement.

Yes, because the parties can always keep certain parts of the contract out of the writing, as long as they agree on those extra provisions.

Yes, the document is not a contract for the sale of real estate because it does not contain all of the information required.

Correct! Wrong!

A broker and a seller of residential real estate entered into an “exclusive right to sell” contract (an exclusive listing agreement) in which the broker had the exclusive right to sell the property for the period of nine months and would receive 6% of the sales price if the property was put under agreement during that nine-month period. The agreement also stated that “if the property is withdrawn from sale, transferred, conveyed, leased without the consent of Broker, or made unmarketable by the owner's voluntary act during the term hereof or any extension thereof," the broker would receive 6% of the selling price of the property as set forth in the listing agreement.” The broker began performing all of its duties in aggressively trying to sell the property, but shortly after the agreement, the seller advised that it didn’t want to sell anymore, and it thwarted all efforts of the broker to take further action to sell the property. The broker demanded the 6% amount set forth in the withdrawal of sale provision, but the seller claimed a right to change his mind. Will the court likely enforce the broker’s claim for 6% of the listed price?

Yes, because this is a typical enforceable contractual provision that the courts have upheld, and which reflected the intent of the parties in case of a premature rejection of the agreement by the seller.

Yes, because the broker is entitled to an amount in restitution to repay it for the value of the time it spent trying to sell the home.

No, the clause is unconstitutional because a person cannot be forced to pay for a service that it decides it doesn’t want.

Correct! Wrong!

A member of a drug ring was arrested for murder and drug dealing. It was alleged that he killed a rival drug dealer in a hit ordered by his drug lord superiors. At trial, the prosecution called another member of the gang to testify that he had observed the defendant killing someone in an uncharged crime that occurred several years earlier. The witness was allowed to describe the prior circumstances to the jury. However, specific reasons why the evidence of past acts should be allowed were not elucidated by the prosecution, nor by the trial court in its decision to admit the uncharged homicide evidence. The defense objected to the evidence on appeal claiming that it was highly prejudicial. Under the circumstances, will the appellate court order a new trial because the evidence of an uncharged murder was presented to the jury?

No, because under Rule 404(b) of the Federal Rules of Evidence, any prior bad acts are admissible to show the bad character of the defendant

Yes, because under Rule 404(b) of the Federal Rules of Evidence, prior crimes, wrongs, or acts are admissible only for certain reasons that must be specifically developed prior to their admission.

No, because evidence of the uncharged murder was proof of the defendant’s propensity to act in accordance with his bad character trait.

Yes, because evidence of a prior uncharged murder is far more probative than it is prejudicial.

Correct! Wrong!

A criminal defendant was prosecuted for theft of tons of steel casings piled up on a vacant rural parcel of land. After taking the material, the authorities arrested him and told him that the land and the steel on it were owned by the state government. He defended on the basis that he did not have any criminal intent to steal because he reasonably believed that the steel casings were abandoned and rusting away needlessly. The judge instructed the jury that a man intends the natural consequences of his actions, and that if the defendant took the casings intentionally, then there was a presumption of sufficient mens rea to establish criminal intent. The act of taking in itself established a legal presumption of felonious intent. The defendant was convicted and he appealed on the basis that the judge’s applying of a presumption of criminal intent was erroneous. What is the likely decision on appeal?

The defendant could not have believed that so much steel was abandoned, and it was proper to apply a presumption of criminal intent by the fact of taking it.

The presumption here invaded the fact-finding province of the jury and in effect applied a legal presumption of guilt simply from the act of taking the property.

The presumption of guilty intent was proper because it can never be an innocent act to take property simply because it appears to be abandoned.

The presumption was improper because the court is not allowed to instruct the jury to make presumptions of any kind.

Correct! Wrong!

A grower based in one state grew and marketed corn nationwide. The U.S. Congress passed a law attempting to stabilize the price of corn by limiting the volume of corn produced by growers to a specified volume per each cubic acre, on a semi-annual basis. The Department of Agriculture fined the grower for exceeding the production volume. He only intended to use the excess for feeding his livestock and domestic purposes, but he was ordered to destroy it. The grower brought an action claiming that his substantive due process rights had been illegally interfered with. He asked for an injunction and reparations. What would be the most likely decision of the court?

No relief was granted because Congress has the power to regulate interstate commerce, and even though he used the excess corn internally, it reduced the feed that he had to buy, thus having an effect on interstate commerce.

The fact that he used the excess corn and did not ship it resulted in no effect on interstate commerce, and the government’s actions would be enjoined as being beyond the power authorized by the Commerce Clause.

Relief would be granted because the Commerce Clause does not authorize the regulation of indirect influences on interstate commerce, making this action illegal.

No relief was granted because the Supreme Court has made it clear in numerous cases that the power of Congress to regulate interstate commerce is unlimited and unrestricted.

Correct! Wrong!

A civil case for damages depended on whether the defendant was actually the man driving the identified vehicle at the time of the accident. It was established that others had access to the vehicle so that it was important to identify the person driving at that time. The plaintiff’s attorney asked a witness on direct examination if he saw the driver in the courtroom, and while saying that he pointed, almost instinctively, to the defendant’s table and to the defendant. The witness agreed with the pointing, and said, “Yes, that’s him!” The defendant vehemently objected and called for a mistrial, claiming that this was unfair leading of the witness into answering the ultimate issue of identity. The trial court denied the objections. The defendant appealed. Will the appellate court likely order a new trial?

Yes, the plaintiff’s attorney manipulated the witness’ testimony on the ultimate issue of who was driving the car by impermissibly leading the witness to identify the opposing party.

No, cross examination is a far-reaching kind of questioning that cannot be limited in very many instances.

Yes, the examination was in violation of the rule that requires establishing a prior foundation before asking a question like that.

No, the examination was appropriate because the witness was still capable of saying whether he recognized the person or not.

Correct! Wrong!

A state started conducting random vehicle stops at highway roadblocks to look for drugs. A young man was driving alone when he was pulled over with 12 other cars for a narcotics detection search. About 30 officers were involved in conducting the drug searches. After the stop, officers walked drug-sniffing dogs around the young man’s car and the other cars. An officer advised each motorist that this was a brief stop for a drug checkpoint, and asked the young man and the other drivers to produce a license and registration. The officer looked over the young man for signs of drug impairment and conducted an open -view examination of the car from the driver’s side window and the other windows. The young man was not arrested but he later filed an injunctive action in a United States District Court, demanding the police be prohibited from continuing the random drug searches. The lawsuit claimed Fourth Amendment violations based on unreasonable searches and seizures. The district court dismissed the case, but on appeal, the U.S. Circuit Court of Appeals reversed and ordered issuance of an injunction. On appeal to the U.S. Supreme Court, did the plaintiff prevail in his assertion that the procedure was unconstitutional?

No, because this was a highway safety stop similar to drunk driving checkpoints, which were already declared constitutional by the Supreme Court.

No, because the dogs would indicate immediately whether there were drugs inside the car, which made the search reasonable within the Fourth Amendment.

Yes, because the stops were pursued for general crime investigation rather than highway safety, which is an unreasonable purpose not based on individualized suspicion of wrongdoing.

Yes, because these roadblocks used dogs to sniff to see if there were narcotics inside the car, which is always an unreasonable search under the Fourth Amendment.

Correct! Wrong!

Two parties entered into an agreement of sale for a residential property. The title insurance company called the seller’s attorney to advise that one of the owners in the seller’s prior chain of title over 40 years ago had neglected to get a first mortgage with a private lender satisfied. It was likely that the mortgage was paid but that someone neglected to file a satisfaction notice with the recorder. If the problem had been corrected back then there was no evidence of it on the record. As such, the open mortgage now constituted a cloud on title. The title company required that the seller take action to clear title before final closing could be approved. Which of the following is the most likely way for the seller to clear title so that conveyance can be made.

An action of adverse possession against the bank holding the open mortgage of record.

A quiet title action against the holder of the open mortgage, along with that party’s heirs and assigns.

A lis pendens action to remove the mortgage from the record and declare title restored in the current owner and seller.

A warranty action against the current seller demanding that the seller take action to clear his title and to convey good title at the final closing.

Correct! Wrong!

Plaintiff was injured in an accident on an interstate highway in his county of residence. The accident involved a truck and three cars in addition to plaintiff's car. Plaintiff brought suit in the federal district court in his district pursuant to diversity jurisdiction. He sued the truck driver and the truck owner, who were from another state. He also included a driver of one of the cars who resided in another state, and the driver of another car who resided in the same state as plaintiff. The amount in damages demanded by plaintiff was over $100,000. The truck company filed a motion to dismiss, claiming that plaintiff did not have diversity jurisdiction. Will the district court judge likely dismiss the complaint, and why or why not?

Yes, because there is no federal subject matter jurisdiction, which must also be present in diversity cases.

No, because the plaintiff and most of the defendants are from different states, thus conferring proper diversity jurisdiction.

Yes, the plaintiff and one of the defendants are from the same state, which destroys federal diversity jurisdiction.

No, diversity is perfectly proper as long as the amount in controversy is over $75,000 and the plaintiff and at least one defendant are from different states.

Correct! Wrong!

A married couple had an agreement to purchase land from a developer. The couple at the same time signed a contract with a builder to build a home on the land, construction to start immediately after closing on the land purchase. When the developer learned of the contract with the builder, he told the couple that he would not sell them the land. The developer told the couple that he would sell the land only if they contracted with him to build the home, and based on his experience and knowledge of the codes, inspections, permits and other requirements, the job would be done far quicker than the builder. He drew up a contract for the same specifications, but the price was 10% less than the one with the builder. Can the builder successfully sue the developer for his losses?

Yes, he can sue for intentional interference with prospective business advantage.

Yes, he can sue for intentional interference with contract because he knowingly and intentionally interfered with an existing contract.

No, there is no contract with the builder until he actually begins work on the project.

No, the developer was merely engaging in competitive free enterprise and was not committing a tortious action in bidding on the building project.

Correct! Wrong!

A woman was injured when her motorcycle crashed after it failed to handle a sharp turn in the roadway. She had been traveling on a state highway in another state. She suffered grievous injuries. There were no warning signs about the dangerous curve, and visibility was difficult due to overgrown tree branches. She sued the state and its director of highways, claiming negligent maintenance and failure to warn of a dangerous roadway. She claimed that the defendants’ negligence caused her grievous injuries. A jury awarded her a modest sum after a trial. The plaintiff then sued the same defendants in federal court due to diversity jurisdiction and claimed the same injuries from the accident, but alleged that they had gotten much worse since then. The defendants requested dismissal of the second case. Will the federal court judge likely grant the request of the defendants and why?

Yes, because the second case is not allowed due to collateral estoppel.

No, because the aggravation of injuries makes the second case sufficiently different from the first.

Yes, because the second case is precluded by res judicata.

No, because the second case is in a totally different court with different legal principles applicable to the issues.

Correct! Wrong!

A private organization applied annually for a parade permit to march in the Italian section of the city to celebrate Italian-American Immigration Day. A group of gay, lesbian and bisexual Italian-Americans applied for a permit to join in the parade. The state, pursuant to its public accommodations law, ordered the organization to allow the group in the parade. The organization filed suit, arguing that its right to free speech and expression would be interfered with by having a group with a message different from its own. Because the group was formed to celebrate the members’ sexual orientation, the organization objected to having that message included. What is the most likely decision of the court based on U.S. Supreme Court precedent?

A parade is not a form of free speech and, as such, it can be regulated by government intrusion.

Because the group identified itself as Italian-Americans of certain sexual persuasions, the same ethnic identity gave them a right to participate equally in the parade.

A parade is a form of free speech and the state’s use of its power violates the First Amendment’s rule that the speaker has the right to choose the content of his own message.

Because the parade took place under government permission, discrimination against a group due to sexual orientation was impermissible.

Correct! Wrong!

A security guard sued his former employer for terminating his employment in violation of age discrimination laws under the state law where guard resided and the termination took place. The defendant files to remove the case to federal court based on the primacy of the federal Age Discrimination Enforcement Act. Will the district court allow the removal or remand the case back?

The court wil exercise federal jurisdiction because the federal civil rights legislation always supercedes and preempts state law.

The court will allow the removal because the relief granted by federal law is broader and more complete than what is provided in the state law.

If a plaintiff has a viable state law claim, he may depend on it alone and thereby defeat attempts at removal.

Federal law preempts state law and therefore removal is always preferred when there is a federal law on the precise issue sued on.

Correct! Wrong!

A lessor leased real estate with a gas station business on it to a lessee for two-year terms that were renewable every two years until the tenth year. The property was described as being “located at 1900 Superpower Highway, fronting on the highway 100 feet and extending in depth of equal width 150 feet, as described in Deed Vol. 22, Page 10, with the privilege of using additional adjoining grounds for the general use of the business and the parking of customer's cars.” The lessor granted an option to purchase the “demised premises” at the “current market value at the end of the final term.” The lessee exercised the option (for property at Deed Vol. 22, Page 10) as provided, but the lessor refused to perform. Lessee brought an action for specific performance, to which the lessor responded that the price was indefinite and subject to debate, and that it was unclear if the option included the “additional adjoining grounds,” making specific performance unavailable. Will the court grant the complaint for specific performance and order that the plaintiff’s exercise of the option be enforced?

Yes, because the land is specifically described at the deed reference, and the “market value” at a specified time is held by courts to be a sufficiently precise description of price.

No, because it is impossible to determine if the option includes the adjoining lands; furthermore, current market value is an ambiguous term subject to debate by experts.

No, because it could not be determined whether “current market value” meant the value at the entering of the lease or the value at the end of the lease.

Yes, because specific performance applies to a right to enforce the option, and the precise terms of the option can be ironed out by the court through the taking of testimony and hearing evidence.

Correct! Wrong!

A regional planning commission ordered a temporary cessation of all construction in a large planned residential development in order to formulate a comprehensive land-use plan, and to study the environmental impact on a large natural lake adjoining the property. After some 24 months the moratorium still existed, and real estate developers sued, alleging that the moratorium constituted a taking of their property without due compensation in violation of the Fifth and Fourteenth Amendments. A lower federal court held a hearing, heard evidence, and ruled that the delay under these facts was not unreasonable and no taking occurred. How would the federal court of appeals most likely decide the issue?

The temporary cessation was not the same as a total restriction on further development and didn’t ultimately deprive the owners of all economic uses of their property.

A temporary moratorium denies the developers of all economic use of their land during the cessation, and compensation was payable.

The moratorium was an attempt by the government to appropriate private land for public use during an inordinate period of time, thus requiring compensation.

No compensation is ever due when all that is involved is a regulatory intrusion on the use of one’s property.

Correct! Wrong!

A 35-year-old married man who worked for many years as a roofing and siding installer for a contractor was rear-ended by an 18-wheeler while stopped at a stop light. He sustained multiple fractures and lesions along his spinal cord and was declared by his doctors and the trucking company’s doctors to be totally and permanently disabled. In his suit against the trucking company, the damages include a demand for compensation for the permanent loss of earnings of the plaintiff for the remainder of his work life. How does the plaintiff best prove what amount he is entitled to receive for future lost wages, i.e., permanent and total loss of earning capacity?

He must have his employer verify how much he was making and then present a disability expert to multiply that by the number of years until retirement and add a growth rate for future inflation.

By presenting an economist or actuarial witness who in general computes lost wages and benefits for the estimated remainder of his work life, adding for inflation, and then applying a discount rate to reduce that amount to present value.

There are official tables published by the government that provide the amount of lost earnings that a person suffers, for purposes of a tort recovery, for a specified period of years.

By presenting a tax specialist and certified financial planner to compute the average annual wage less all annual taxes and average expenses of living, and multiplying that net figure by the estimated remaining years of work life, reduced to present value.

Correct! Wrong!

Two businesses were involved in litigation concerning an alleged breach of contract. The plaintiff financial consulting business sued the defendant construction business claiming that the defendant breached the contract by not constructing a small office building properly as promised for the financial company’s specified needs. The construction business is accused of not following the professional engineering and architectural plans, and not getting environmental approvals as promised prior to beginning construction. The defendant offered into evidence a series of letters that were highly supportive of the defendant’s position but which were made and sent to various entities after the dispute with the plaintiff had already mushroomed and within 30 days of the scheduled trial. The material included one in-house memorandum made on the eve of trial which purported to give the “history and background of the transaction.” The plaintiff filed a motion in limine to exclude from the trial these items as being hearsay. Will the trial court likely exclude these alleged business records?

Yes, the documents were not kept in the course of a regularly conducted business activity in that they were essentially drawn up in anticipation of litigation.

Yes, the documents were excludable because they were not the records of public offices or governmental agencies.

No, the documents were admissible as being records of a regularly conducted activity, which is an exception to the hearsay rule.

No, the documents were admissible as recorded recollection, which is an exception to the hearsay rule.

Correct! Wrong!

A man was visiting his investment counselor on the 20th floor of an office building. After the meeting, he got on the elevator going down and pressed the button for the lobby. When the elevator got to the second floor it lost its momentum to stop and instead went into a freefall to the basement. The man sustained a broken back and is permanently disabled. Assume that the injured man was unable to uncover any evidence proving what caused the collapse of the elevator. He sues the building owner on a negligence theory. In order to survive a motion for summary judgment, what legal principle can he turn to for assistance?

Absolute liability.

Res Ipsa Loquitur.

The sole perpetrator doctrine.

Negligence per se.

Correct! Wrong!

A single mother and her two children received welfare benefits, including cash grants, medical assistance and other programs. The state welfare agency sent a letter of notification of cessation of benefits. The letter said that the family was no longer eligible but did not say why. The mother filed an action in federal court asking for an injunction against the state agency for taking their benefits without due process of law. They argued that a pre-termination hearing at the least was necessary under procedural due process requirements. What will be the court’s likely ruling?

The gratuitous nature of welfare benefits does not invoke the necessity of procedural due process rights prior to termination.

The interests of the government in preserving fiscal integrity and budgetary constraints overrides the interest of the recipient in a hearing prior to termination.

The recipients could have asked for a hearing after the termination which in this case would be sufficient for procedural due process purposes.

The recipient has a right to procedural due process through a pre-termination hearing in which the termination may be contested and evidence presented in rebuttal.

Correct! Wrong!

A man has a residence and is domiciled in State A. He sues a former friend who is a resident and domiciliary of State B in a federal district court in State A on the grounds of a civil assault that occurred in State A. The plaintiff is a U.S. citizen and the defendant is a citizen of France who is lawfully admitted for permanent residence in the United States. The man claims damages in excess of $100,000. Does he have federal diversity jurisdiction under Section 1332(a) in State A to bring the civil assault complaint, and why or why not?

No, because the defendant is a citizen of another country and not subject to diversity jurisdiction.

No, because as a permanent resident the defendant is not subject to diversity jurisdiction.

Yes, because the two live in different states and that is all that is required for diversity jurisdiction.

Yes, because the defendant is a citizen of France and a permanent resident who is domiciled in another state.

Correct! Wrong!

MBE Simulator Exam 7

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