MBE Simulator Exam 8

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

In an employment law litigation, a former police officer sued a municipality for wrongful termination, alleging race discrimination and retaliation. The complaint was filed in a United States District Court. At trial, after the direct and cross-examination of the former officer was completed, the federal trial judge decided to clarify the plaintiff’s testimony for the jury. He asked about a dozen questions, taking the former officer through the procedures for reporting violations of office protocol, which was a key issue. Various details of the proper protocol were elicited by the judge’s questions. He ended the questioning and asked both counsel if they had anything further to add. They declined to add anything further. The jury came in with a substantial verdict in favor of the plaintiff. On appeal, the municipality argued that the judge’s questioning was in effect advocating on behalf of the plaintiff and prejudiced the jury against the defendant. What is the likely decision of the appellate court on that issue?

A judge should not show favoritism toward one party, and that was the general appearance of such extensive questioning, making a new trial necessary.

The judge’s questioning favored the plaintiff’s side of the case by showing how the office ran and what procedures were supposed to be followed -- a new trial will be ordered.

The court has an absolute right to question on behalf of a plaintiff or a defendant at his own discretion.

The judge conducted a fair questioning that brought out necessary details that the jury might have missed – a judge has the absolute authority to question witnesses as long as it is done fairly.

Correct! Wrong!

Some landowners had residential premises in a development called “The Lakes.” One owner’s 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, “keep out.” 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?

Yes, because the granting of a license to use one’s property to perform a certain activity usually ripens into an easement if the use is regular and continual.

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 the use granted was merely a license to go on a neighbor’s land to go swimming, and the users of the free license did not expect that they were obtaining an interest in the land.

No, because land that abuts a lake or other body of water is not subject to the creation of an easement.

Correct! Wrong!

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 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.

The appeal is denied because in federal court all witnesses are competent to testify under any circumstances.

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.

Correct! Wrong!

A business woman rented a second-floor office suite for her consulting business. It was located above a bank on the first floor, and partly on top of the bank vault. She obtained blueprints and brought drilling tools into the office. She studied bank activities and determined when at night she might be able to drill through to the vault. She inserted microscopic binoculars through the floor to explore the layout below. Before she started drilling, however, she noticed that more security persons appeared to be in the bank at night. Growing suspicious and losing the desire to take such a great risk, she hid the tools in her garage at home and did nothing further. A few weeks later, she was arrested by police based on reports regarding her suspicious nighttime activities. Does she have a viable defense to the attempted burglary charges?

No, the courts do not accept abandonment as a defense to criminal attempt because it cannot negate the original intent to commit the crime.

Yes, it doesn’t matter when the abandonment comes; it is always effective if carried out prior to consummation of the total crime.

No, when she sent the lenses down to spy on the bank, she had completed an attempt that could not be abandoned, and her asserted abandonment was motivated by fear of being caught.

Yes, she abandoned the crime before it occurred, and had no intent to resume the activities, making it a complete abandonment.

Correct! Wrong!

An article appeared in a magazine dealing with public issues. The article discussed the author’s “personal theory” that a small group of industrial magnates, called the American Illuminati, controlled the government of the United States, regardless of the political party in power. The article mentioned names, and described how they generally aggrandized their economic power by keeping the poor down and concentrating all wealth at the top. The author believed that as long as these “fascist” individuals were ruling behind the scenes, that children here would continue to be deprived of food, a quality education and the right to true freedom. He called the group the “murderers” of the American spirit that once lived free. He concluded that if his “theory” was true, then the country must rise up and “bring down” this system of non-democratic governance. One of the individuals mentioned in the article, a well-known billionaire philanthropist who supported various political movements and candidates, brought a libel action against the author and the magazine. The defendants asked the court to dismiss the action because it failed to state a valid legal claim. Which of the following is the most likely ruling of the court under these circumstances?

The case would proceed; the plaintiff is a public figure who must prove publication of defamatory falsehood with knowledge that it was false or with reckless disregard of whether it was false or not.

The plaintiff was a private figure never holding a public office and the limited privilege of the New York Times case would not be given to the defendants, so that the case will go to trial.

The defendants had a constitutional right to discuss and publish theories of politics and ideas that were not presented as truth but as theory of the current political system, and the case would be dismissed.

The media cannot be censored – it enjoys an absolute privilege to publish controversial allegations of fact regardless of whether it commits injurious falsehood, so that the case would be dismissed.

Correct! Wrong!

Two men discussed how to set up a drug network over the phone. The conversation was tape-recorded inadvertently by one of them. The one who did the recording said on the tape that he had already contacted his cocaine sources to ratchet up the pace for starting up the business. The conspiracy continued from that point and became a full-fledged drug trafficking player within a few years thereafter. The two conspirators were arrested for drug dealing and charged with conspiracy about five years after the initial taped conversation. The tape recording was found in the first man’s belongings. The authorities attempted to introduce the tape at the trial of the second man, who had never possessed or seen the tape. The second man objected that the tape was hearsay and should be excluded. Will the court most likely exclude the tape?

No, the tape is admissible pursuant to Rule 801(d)(2)(E), it being a non-hearsay statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

No, the tape is admissible because it was an adoptive admission against interest.

Yes, the tape must be excluded because it is pure hearsay without any applicable exception.

Yes, the tape must be excluded because it violated the constitutional right to privacy of the second man.

Correct! Wrong!

The plaintiff’s decedent was an executive who died while piloting a small-engine aircraft made and marketed by the defendant company. The aircraft had plunged to the ground after he reported autopilot irregularities and an icing problem. At trial, the plaintiff tried to present evidence of a fatal plane crash two years earlier involving the same make and model plane. The pilot in that crash called in to report icing problems but didn’t mention autopilot problems. In the present case, the decedent’s aircraft plunged nose-down into a field, whereas in the earlier crash the plane hit the trees at a slight angle only. The two planes had been flying at significantly different altitudes. The theories of causation are different in the two cases. The trial court disallowed the evidence because it had low probative value that was outweighed by a high danger of prejudicial effect. The jury decided against the plaintiff, who then appealed the evidentiary exclusion of the prior accident. What will the appellate court likely decide?

A new trial is required so that the similarities in the two crashes can be reviewed and evaluated by a jury prior to making its decision.

A new trial is necessary because the evidence of the earlier crash has probative value in showing how easily the defendant’s aircraft fail to respond to emergency situations.

The trial court’s decision is affirmed because the evidence of what caused a separate air crash is never relevant or admissible to prove what caused the subject crash.

The trial court’s decision is affirmed because there are too many differences between the two crashes, with the potential for prejudice outweighing any probative effect.

Correct! Wrong!

A church located in a western state was a branch of a church originating in a South American country. It received a large shipment from its home church of a special hallucinogenic tea that is used in the church’s sacramental religious services. The federal government seized the shipment, preventing the religious use of the tea. The church filed for an injunction requesting permission to import the tea for religious purposes and to prohibit any federal prosecutions. The government presented no evidence as to the dangers of the tea or reasons to outlaw it other than an analysis of its ingredients contained a natural chemical compound that was listed as a Schedule I prohibited substance. What is the most likely decision of the federal district court to the petition of the church?

The injunction will be granted because the government cannot under any circumstances interfere with religious freedom.

The injunction will be denied because a church from South America is not entitled to have its branches in this country exempted from the drug laws for religious reasons.

The injunction will be denied because the inclusion in the tea of a Schedule I substance is in itself proof of a compelling government interest.

The injunction will be granted because the government did not prove a compelling government interest in interfering with this particular religious practice.

Correct! Wrong!

A customer was shopping at a large retail mall. She slipped and broke her hip on a patch of clear oily residue. It had accumulated over a two-day period in front of a massage kiosk, and spread several feet onto the main walking area for customers. There was a small sign as a part of the massage kiosk display on the front counter that said, “Beware of slippery floors.” The customer had been looking ahead and walking when her feet slid wildly off of the floor and sent her body somersaulting into the air and down onto the concrete foundation. After learning that she would be disabled permanently, she sued the mall and the massage company. Will she likely prevail in her negligence claim against the mall?

No, because the mall cannot be responsible for a danger that emanated from a kiosk in that it doesn’t even have the authority to inspect the potential dangers in and around the kiosk area.

No, because the mall owes no duty to business invitees to inspect the premises and to fix or warn of potential dangers that it discovers.

Yes, because the mall is strictly liable to licensees who are allowed on the land for all injuries that they may sustain.

Yes, because the mall owes a duty to its business invitees to inspect and discover dangerous artificial conditions on the premises; the mall must make these safe or post a conspicuous warning of the danger.

Correct! Wrong!

A woman conveyed by deed her farm to her nephew, for the nephew’s life. The nephew died prior to his aunt. The deed was silent on what happens on the nephew’s death. The nephew’s heirs tried to assert control and ownership of the property. The aunt sued them to assert her claimed superior interest in the property. Will the court return the property to the aunt?

No, because the nephew’s fee simple interest passed to his heirs upon his death.

No, because the nephew’s life estate was transferred to his heirs upon his death.

Yes, because the life estate terminated on the nephew’s death and title reverted back to the aunt.

Yes, because the nephew’s death prior to the aunt created a unexpected condition subsequent.

Correct! Wrong!

A subcontractor submitted an offer to a general contractor for proposed drywall work on a small office building being constructed. The bid was for $20,000 for all drywall supplies and labor. The contractor factored the experienced subcontractor’s bid into its final bid and was awarded the contract. A few days later the subcontractor informed the contractor that it had worked on the figures and realized that it underestimated the cost of the project. The subcontractor refused to do the job for less than $35,000. The contractor hired another subcontractor to do the work for $30,000 and sued the first subcontractor for the $10,000 difference over the original bid of $20,000. Will the court likely award the $10,000 to the contractor and against the first subcontractor?

No, because in the law of contracts an offer can be revoked or modified at any time that substantial changes are required by circumstances and prior to the acceptance of the offer.

No, because the contractor had no right to rely on an initial bid of a subcontractor in computing general contractor bid because it knew that such bids would be subject to change with time.

Yes, because the contractor had reasonably relied on the subcontractor’s offer when making its bid, and it suffered a detriment that can only be avoided by enforcement of that offer.

Yes, because the contractor accepted the offer of $20,000 before it was revoked, making the subcontractor legally bound to his offer.

Correct! Wrong!

Two women are married in a state that recognizes same-sex marriages. One of them is driving home from work one day when a man in a pickup truck goes through a red light and rams into the woman’s car. She has to be extricated and is taken to the hospital. This puts a terrible strain on her spouse, and numerous functions in their life are disrupted. The injured woman sues the pickup driver for tort damages. Her spouse joins as a plaintiff. The defendant objects, arguing that there is no legal basis for allowing the marital partner to join in the case. Will the court order the spouse to be dismissed from the action?

Yes, the spouse is not suing for her own damages and has no legal basis to be included as a plaintiff.

Yes, the state recognizes same-sex marriages, but has exercised its legal right to restrict and eliminate certain legal privileges to same-sex partners that it provides to male-female marriages.

No, the court cannot order a party removed from an action; instead, that is a function of the jury.

No, the spouse has a right to assert a separate count for loss of consortium as long as they are legally married.

Correct! Wrong!

A consumer purchases a lawn mower from a retail store. It contains a tag that says the purchaser should read the instruction book that is included. He reads the book, which contains a warning not to use the mower over gravel or stones or grassy areas mixed with rock or stone. The consumer remembers the warning but when he sees how smoothly the mower operates and how effortlessly it goes over a few small stones mixed in the grass, he decides to continue using the mower in areas filled with loose stones and rocks. One day a rock flies up and shatters the consumers face, causing him to lose an eye and suffer a broken nose and jawbone. He sues the manufacturer for putting out a defective product unreasonably dangerous to the consumer. What defense may give the manufacturer the best chance of having the case dismissed?

Contributory negligence.

Assumption of the risk.

Waiver of warranty.

Lack of privity.

Correct! Wrong!

A woman gets a phone call from a man representing himself to be a disabled veteran, asking for funding for the charitable group, “Veterans Welfare United,” that contributes its funds to disabled veterans of the Iraq and Afghanistan wars. He tells her that it is an established and respected national organization that has helped thousands of veterans. He tells her that a good 80% of the funds collected go directly to disabled veterans. She agrees to enter a program for automatic payments from her checking account of $500 per month. After one year, she discovers that the organization is only 20 months old, it provides 40% of its funds directly to disabled veterans and it has helped no more than a few dozen people since it started its operation. She sues the organization for misrepresentation, and includes the foregoing facts in the complaint. The organization files a motion to dismiss, arguing that the complaint fails to allege the elements of misrepresentation and the case should be dismissed as a matter of law. Will the court likely dismiss the action for failing to state a legal claim? No, because the organization made material misstatements of fact in an attempt to mislead the woman into making an investment. No, because the tort of misrepresentation is based on negligence, and the organization was negligent in making the claims that it made. Yes, the organization was merely engaging in “puffing” and exaggerating its claims for general effect. Yes, the telemarketer who called her was exercising his first amendment right to express an opinion; it is always up to the buyer to research a telephone solicitation for accuracy and truthfulness.

No, because the organization made material misstatements of fact in an attempt to mislead the woman into making an investment.

No, because the tort of misrepresentation is based on negligence, and the organization was negligent in making the claims that it made.

Yes, the organization was merely engaging in “puffing” and exaggerating its claims for general effect.

Yes, the telemarketer who called her was exercising his first amendment right to express an opinion; it is always up to the buyer to research a telephone solicitation for accuracy and truthfulness.

Correct! Wrong!

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 collectors’ 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 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.

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.

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.

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.

Correct! Wrong!

Two employees of a large multi-state corporation sued the company for violations of the wage and hour laws of state A, where the two worked and resided. They sued in a state court in state A, and requested class certification on behalf of their co-workers who also worked and resided in State A. The company filed to remove the case to the federal district court in state B based on federal diversity jurisdiction. The plaintiffs objected to removal because they asserted that the company's principal place of business was in State A, which destroyed diversity jurisdiction under the circumstances. The company argued that its principal place of business was in State B, thus creating diversity jurisdiction in the federal court. Which of the following would be the main basis for the court’s determination of where the company had it principal place of business?

In the state with the highest population and the greatest potential for the most customers.

In the state where the highest volume of activity is conducted in terms of volume of sales.

In the state where the officers direct, control, and maintain its activities.

In the state where its incorporation papers were filed and where its registered agent officially accepts all papers and service of process.

Correct! Wrong!

An investor filed a federal securities fraud complaint against a large public corporation. The defendant filed a motion to dismiss under Rule 12(b)(6) alleging that the complaint failed to state a claim upon which relief could be granted. Due to the need to plead fraud with specificity under Rule 9(b), the district court granted the the dismissal and entered final judgment. Instead of filing an amended complaint as a matter of right under Rule 15(a), the plaintiff had answered the motion by stating that it had “filed all of the facts" that it knew. The plaintiff duly filed a notice of appeal. On appeal, the plaintiff stated that it found the detailed facts that it needed and requested permission to file an amended complaint. Will the court grant the request to amend and what will be its reason?

Yes, because amendments must be granted freely under Rule 15(a).

Yes, because the interests of justice require that the appellate court honor substance over form.

No, the plaintiff will be held to its original position that it had pleaded all of the facts that it knew, thus making an amendment futile.

No, the plaintiff failed to first file to alter or set aside the judgment in the district court under Rule 59 or Rule 60; it is too late to ask for leave to amend on appeal.

Correct! Wrong!

A defendant charged with homicide had a long and tortured history of mental illness. He related several outrageous paranoid fantasies to the authorities and was sent to a mental hospital for evaluation of his ability to stand trial. The doctors reported that the only hope to restore the defendant to relative normalcy where he could stand trial was to administer widely-used anti-psychotic medicine. The man was also a danger to himself and others, and the medicine was in his medical best interests. The defendant asserted that the administration of drugs against his will would violate his liberty interest to substantive due process. Will the court likely order that the defendant should be involuntarily administered the anti-psychotic medications?

Yes, the administration of medications to render the defendant capable of standing trial, without serious side effects, is an important governmental interest, and even more so in a homicide case.

Yes, the individual has no right to be protected from involuntary medical treatment when he is in custody of federal authorities.

No, the individual has an absolute constitutional right to be free from intrusion of medications into his system against his will.

No, the involuntary administration of medications to a criminal defendant is considered to be cruel and unusual punishment in violation of state and federal constitutional protections.

Correct! Wrong!

A female driver approached an intersection and went through just as the yellow light appeared. She accelerated to make sure she made it through in time. She collided into a car driven by a male motorist coming from the intersecting street who was getting a jump on his red light that was in the process of turning green. The two cars collided, and the male motorist was seriously injured. He sued the other motorist for negligence. A jury assessed the man’s damages award at $100,000. It found that female driver was 40 percent at fault whereas the male driver was 60 percent at fault. What, if anything, can he collect from this verdict in a pure comparative negligence state?

He cannot collect because he is more than 50 percent at fault.

He can collect $40,000, representing the percentage of fault of the other driver.

He can collect his full damages because the other driver was substantially at fault.

Correct! Wrong!

A pedestrian found an elderly woman lying on the ground conscious but bruised from an attack and mugging that occurred a few minutes earlier. The woman related that the thugs who attacked her took her purse. However, she pulled out a money wallet and told him that they did not find the wallet, which had $2,000 cash in it. After calling 911 to get help for the woman, the pedestrian snatched the wallet from the woman’s hands and ran off. It happened so quickly that the woman had no time to react. The authorities caught him soon thereafter, and charged him with robbery and theft charges. What will be the most likely outcome of the robbery charge?

He will most likely be convicted of robbery because the woman was already in fear from the prior incident when he took her money.

He cannot be convicted of robbery because he did not use violence, force or intimidation.

He cannot be convicted of robbery because he did not take it from her person, but he simply snatched it out of her hands.

The robbery charge will result in a conviction because he took the property of another with the intent to deprive her permanently of it.

Correct! Wrong!

A federal statute makes it a crime for anyone to “knowingly” use, transfer, acquire, alter, or possess food stamps in any manner not authorized by statute or federal regulations. A restaurant owner purchased food stamps from a undercover federal agent several times for a price below face value. At trial, the judge refused to charge the jury that this was a specific intent crime requiring proof that the defendant knew that he was acting illegally. The government urged that no mens rea, or "evil-meaning mind” had to be proved. The court simply told the jury that “knowingly” means that the Defendant realized what he was doing, and did not act through ignorance, mistake, or accident. The owner was convicted and appealed. What will the federal appellate court likely decide regarding the lower court’s interpretation of the criminal intent required under the statute?

Some statutes are written without the need to prove any particular mens rea, and this statute appears to be one of them, making the court’s instructions appropriate.

Where all that is available regarding intent is the use of the word “knowingly”, the prosecution must at least prove that the defendant knew his conduct to be unauthorized by statute or regulations.

This is a strict liability crime that requires no proof of criminal knowledge or specific criminal intent.

The prosecution must prove that the defendant had specific knowledge of the precise provisions of the federal food stamp law and the specific actions that were prohibited. Hint

Correct! Wrong!

A woman was walking to a bus stop after leaving her workplace. A teen in a parked car waved a gun at her and asked in an obscene tone of voice if she would like a ride. She kept walking and he did not pursue, but she heard him yelling in her direction that maybe he should get out and teach her a lesson. The woman went straight to a police officer and reported the incident, stating that she was afraid. The police went to the car and found the teen, and the gun. The gun was unloaded. Will the police be able to successfully prosecute the man for simple assault?

No, a criminal assault is not supported where the gun is unloaded and the person therefore had no intent to use it.

No, this was a joking gesture that was not intended to put the woman in fear of immediate bodily harm; there is no assault when the perpetrator’s intent is not to inflict harm.

Yes, this was assault because the woman was placed in fear of receiving immediate bodily harm; even if the gun was unloaded she did not know it and was frightened.

Yes, this was assault because waving a weapon, whether loaded or not, is always sufficient to constitute assault under any circumstances.

Correct! Wrong!

An owner signed papers and a deed to sell a piece of property to buyer one, who held his deed and did not record it. The next month the original owner sold the same property to a second buyer. Buyer two had information that buyer one had bought the property, but he knew that buyer one had not yet recorded a deed. Buyer two recorded five days later. The next day after the deed was executed and delivered to the second buyer, the original owner conveyed a deed to the same property to a third buyer, who was a good faith purchaser for value and who recorded his deed the very same day. Which buyer has superior title under a race-notice recording statute?

Buyer three has better title because he had no notice of any prior transactions and recorded first.

The first buyer has superior title because he innocently purchased the property for value, and was not aware of any other transactions.

Buyer two has superior title because he was defrauded by the seller and the courts will enforce his purchase to avoid injustice.

Buyer one has superior title because he is the only one who acted in good faith without knowledge of prior transactions.

Correct! Wrong!

An owner of a small online startup company sued a competitor for copyright infringement and interference with contract. At trial, the owner's attorney questioned a juror who stated that she had worked for the competitor for 10 years in the past and still did regular part-time work for the company when it was extra busy. However, under questioning she stated that she could hear the case fairly and without prejudice. Can the attorney prevail in a motion to strike the juror for cause?

Yes, because the juror had a business relationship with the defendant that has not yet even ended, there is too much chance for bias.

No, because the assertion that she could fairly decide the case erases the tendency to presume bias on her part.

Yes, because by having knowledge of the business practices of the defendant it makes her absolutely unqualified to serve as a juror on any cases involving the same type of business.

No, because having worked for one of the litigants is not a grounds to make any assumptions whatsoever about the potential juror's ability to be fair.

Correct! Wrong!

The defendant was convicted under a criminal statute of raping a child under the age of 12. The court sentenced him to death pursuant to the permissible provisions of the criminal statute. The defendant appealed the death sentence, claiming that it violates the Eighth Amendment by imposing a sentence that is cruel and unusual based on the crime committed. Based on U.S. Supreme Court Eighth Amendment jurisprudence, what will be the most likely outcome?

This was as heinous a crime as can be imagined and the penalty of death is therefore justified despite the fact that the victim survived the brutal sexual attack.

The death penalty can never be imposed on someone who did not take human life despite the despicable nature of the crime.

With respect to crimes against individuals, the death penalty should not be extended to instances where human life was not taken.

The death penalty can be imposed whether or not human life was taken as long as the statute includes it as a specified punishment.

Correct! Wrong!

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