Multistate Bar Flashcards

Under common law, which of the following is NOT a requirement for a valid contract?

Answer: Performance

Under common law, the essential requirements for a valid contract are mutual assent (offer and acceptance), consideration, and capacity. While performance is the fulfillment of contractual obligations, it is not a prerequisite for the *formation* of a valid contract. A contract can be validly formed and enforceable even before any performance has occurred.

In tort law, which of the following is a defense to a claim of negligence?

Answer: Assumption of Risk

Assumption of risk is a recognized defense to a claim of negligence. This defense applies when the plaintiff voluntarily and knowingly encountered a known risk created by the defendant's negligence. If successful, it can bar or reduce the plaintiff's recovery, as they are deemed to have consented to the potential harm. Strict liability and vicarious liability are types of liability, not defenses, and negligent infliction of emotional distress is a type of claim.

Under the Federal Rules of Criminal Procedure, what is the primary purpose of a preliminary hearing?

Answer: To assess whether there is probable cause to charge the defendant

Under the Federal Rules of Criminal Procedure (Rule 5.1), the primary purpose of a preliminary hearing is for a magistrate judge to determine whether there is probable cause to believe that an offense has been committed and that the defendant committed it. This hearing serves as a crucial check on the prosecutor's decision to charge, ensuring sufficient evidence exists before proceeding to trial. It is not about determining guilt or sentencing.

What is the primary test used to determine whether a government action violates the Establishment Clause of the First Amendment?

Answer: Lemon Test

The Supreme Court's 'Lemon Test,' established in *Lemon v. Kurtzman*, is the primary test used to determine whether a government action violates the Establishment Clause of the First Amendment. For a law to be constitutional under this test, it must have a secular legislative purpose, its primary effect must neither advance nor inhibit religion, and it must not foster excessive government entanglement with religion. This test provides a framework for evaluating church-state separation.

In a civil lawsuit, the plaintiff wants to admit a statement made by a witness who is unavailable to testify. The statement, made during a business meeting, describes the witness’s opinion on a company’s financial status. Under the Federal Rules of Evidence, which statement is correct?

Answer: The statement is not admissible because it is an opinion about the company's financial status.

While the business records exception (FRE 803(6)) allows for the admission of records of regularly conducted activity, it generally applies to factual observations or data, not subjective opinions or diagnoses unless they are part of a regularly conducted business activity and meet other foundational requirements. An opinion on financial status, especially from an unavailable witness, would likely be considered inadmissible hearsay, lacking the reliability usually associated with business records. The other exceptions are not applicable here.