EFTA00811439.pdf

RIBAR BAR REVIEW ultistate Bar Examination Released Questions n2 RACTICE EXAM 2 EFTA00811439 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 • Question I • Contracts other eight, the state's evidence showed the following: The gang leader announced a party to In January, a teacher contracted with a summer camp celebrate the recent release of a gang member from to serve as its head counselor at a salary of $10,000 jail. But the party was not what it seemed. The gang for 10 weeks of service from the first of June to the leader had learned that the recently released gang middle of August. In March, the camp notified the member had earned his freedom by informing the teacher that it had hired someone else to act as head authorities about the gang's criminal activities. The counselor and that the teachers services would not be gang leader decided to use the party to let the other needed. In April, the teacher spent $200 traveling to gang members see what happened to a snitch. He told interview at the only other nearby summer camp for a no one about his plan. At the party, after all present position as its head counselor. The teacher was not had consumed large amounts of liquor, the gang chosen for that job. The teacher then took a position leader announced that the released gang member was teaching in a local summer school at a salary of an informant and stabbed him with a knife in front of $6,000 for the same 10-week period as the summer the others. The eight other gang members watched camp. and did nothing while the informant slowly bled to death. The jury found the eight gang members guilty In a breach-of-contract action against the camp, to of murder and they appealed. which of the following amounts, as damages, is the teacher entitled? Should the appellate court uphold the convictions? (A) $4,000 (A) No, because mere presence at the scene of a (B) $4,200 crime is insufficient to make one an accomplice. (C) $10,000 (B) No, because murder is a specific intent crime, (D) $10,200 and there is insufficient evidence to show that they intended to kill. Question 2 - Constitutional Law (C) Yes, because the gang members made no effort to save the informant after he had been stabbed. A federal statute imposes an excise tax of $100 on (D) Yes, because voluntary intoxication does not each new computer sold in the United States. It also negate criminal responsibility. appropriates the entire proceeds of that tax to a special fund, which is required to be used to purchase Question 4 - Real Property licenses for computer software that will be made available for use, free of charge, to any resident of A landlord leased an apartment to a tenant by written the United States. lease for two years ending on the last day of a recent month. The lease provided for $700 monthly rental. Is this statute constitutional? The tenant occupied the apartment and paid the rent for the first 15 months of the lease term, until he (A) No, because the federal government may not moved to a new job in another city. Without impose any direct taxes on citizens of the United consulting the landlord, the tenant moved a friend States. into the apartment and signed an informal writing (B)No, because this statute takes without just transferring to the friend his "lease rights" for the compensation the property of persons who hold remaining nine months of the lease. The friend made patents or copyrights on computer software. the next four monthly $700 rental payments to the (C) Yes, because it is a landlord. For the final five months of the lease term, reasonable exercise of the power of Congress to tax and spend for the no rent was paid by anyone, and the friend moved out general welfare. with three months left of the lease term. The landlord (D) Yes, because the patent power authorizes was on an extended trip abroad, and did not learn of Congress to impose reasonable charges on the the default and the vacancy until last week. The sale of technology and to spend the proceeds of landlord sued the tenant and the friend, jointly and those charges to advance the use of technology in the United severally, for $3,500 for the last five months' rent. States. Question 3 - Criminal What is the likely outcome of the lawsuit? Law and Procedure Nine gang (A) Both the tenant and the friend are liable for the members were indicted for tenth gang the murder of a full $3,500, because the tenant is liable on privity member who had become The gang leader an informant. of contract and the friend is liable on privity of pleaded guilty. At the trial of the estate as assignee. MBE RELEASED t'EsTIONS 31 MBE MIXED PRACTICE 2 EFTA00811440 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 (B) The hiend is liable for $1,400 on privity of moved for summary judgment, arguing that the estate, which lasted only until he vacated, and common-law firefighters' rule barred the suit. the tenant is liable for $2,100 on privity of contract and estate for the period after the friend Should the court grant the motion? vacated. (C) The friend is liable for $3,500 on privity of estate (A) No, because the firefighters' rule does not apply and the tenant is not liable, because the to police officers. landlord's failure to object to the friends (B) No, because the police officer's injuries were not payment of rent relieved the tenant of liability. related to any special dangers of her job. (D) The tenant is liable for $3,500 on privity of (C) Yes, because the accident would not have contract and the friend is not liable, because a occurred but for the emergency. sublessee does not have personal liability to the (D) Yes, because the police officer was injured on original landlord. the job. Question 5 - Evidence Question 7 - Contracts In a civil trial for professional malpractice, the A lumber supplier agreed to sell and a furniture plaintiff sought to show that the defendant, an manufacturer agreed to buy all of the lumber that the engineer, had designed the plaintiffs flour mill with manufacturer required over a two-year period. The inadequate power. The plaintiff called an expert sales contract provided that payment was due 60 days witness who based his testimony solely on his own after delivery, but that a 3% discount would be professional experience but also asserted, when allowed if the manufacturer paid within 10 days of asked, that the book Smith on Milling Systems was a delivery. During the first year of the contract, the reliable treatise in the field and consistent with his manufacturer regularly paid within the 10-day period views. On cross-examination, the defendant asked the and received the 3% discount. Fifteen days after the witness whether he and Smith were ever wrong. The supplier made its most recent lumber delivery to the witness answered, "Nobody's perfect." The defendant manufacturer, the supplier had received no payment asked no further questions. The defendant called a from the manufacturer. At this time, the supplier second expert witness and asked, "Do you accept the became aware of rumors from a credible source that Smith book as reliable?" The second witness said, "It the manufacturer's financial condition was once was, but it is now badly out of date." The precarious. The supplier wrote the manufacturer, plaintiff requested that the July be allowed to demanding assurances regarding the manufacturer's examine the book and judge for itself the book's financial status. The manufacturer immediately reliability. mailed its latest audited financial statements to the supplier, as well as a satisfactory credit report Should the court allow the jury to examine the book? prepared by the manufacturer's banker. The rumors proved to be false. Nevertheless, the supplier refused (A) No, because the jury may consider only passages to resume deliveries. The manufacturer sued the read to it by counsel or witness. lumber supplier for breach of contract. (B) No, because the plaintiffs expert in testifying did not rely on the treatise but on his own Will the manufacturer prevail? experience. (C) Yes, because an expert has testified that the (A) No, because the contract was unenforceable, treatise is reliable. since the manufacturer had not committed to (D) Yes, because the jury is the judge of the weight purchase a definite quantity of lumber. and credibility to be accorded both written and (B) No, because the supplier had reasonable grounds oral evidence. for insecurity and was therefore entitled to cancel the contract and refuse to make any future Question 6 - Torts deliveries. (C) Yes, because the credit report and audited A driver, returning from a long shift at a factory, fell financial statements provided adequate assurance asleep at the wheel and lost control of his car. As a of due performance under the contract. result, his car collided with a police car driven by an (D) Yes, because the supplier was not entitled to officer who was returning to the station after having condition resumption of deliveries on the receipt responded to an emergency. The police officer was of financial status information. injured in the accident. The police officer sued the driver in negligence for her injuries. The driver Question 8 - Constitutional Law • MBE RELEASED QUESTIONS 32 MBE MIXED PRACTICE 2 EFTA00811441  AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 • A toy manufacturer that has its headquarters and sole the friend recorded the deed from him. As soon as the manufacturing plant in the state of Green developed a daughter discovered this recording and the friend's "Martian" toy that simulates the exploration of Mars claim to the land, she brought an appropriate action by a remote-controlled vehicle. It accurately depicts against the friend to quiet title to the land. the Martian landscape and the unmanned exploratory vehicle traversing it. The toy is of high quality, safe, For whom should the court hold? durable, and has sold very well. Other toy manufacturers, all located outside Green, developed (A) The daughter, because the death of the similar toys that are lower in price. These landowner deprived the subsequent recordation manufacturers have contracts to sell their Martian of any effect. toys to outlets in Green. Although these toys are safe (B) The daughter, because the friend was dishonest and durable, they depict the Martian landscape less in reporting that he had destroyed the deed. realistically than the toys manufactured in Green. (C) The friend, because the deed was delivered to Nevertheless, because of the price difference, sales of him. these toys have cut severely into the sales of the (D) The friend, because the deed was recorded by Martian toys manufactured in Green. The Green him. legislature subsequently enacted a law "to protect the children of Green from faulty science and to protect Question 10 - Criminal Law and Procedure Green toy manufacturers from unfair competition." This law forbids the sale in Green of any toy that An undercover police detective told a local drug purports to represent extraterrestrial objects and does dealer that she wanted to buy cocaine, but that she not satisfy specified scientific criteria. The Martian needed time to raise the necessary funds. The drug toy manufactured in Green satisfies all of these dealer said that he needed time to get the cocaine. criteria; none of the Martian toys of the competing They agreed to meet again in 10 days. An hour later, manufacturers meets the requirements. without a warrant, other officers forcibly entered the drug dealer's apartment and arrested him for Is the Green law constitutional? attempted possession of a controlled substance. (A) No, because it abrogates the obligations of the If the drug dealer is prosecuted in a common-law contracts between the other toy manufacturers jurisdiction for attempted possession of cocaine, and their Green outlets who have agreed to sell should he be convicted? their Martian toys. (B) No, because it imposes an undue burden on (A) No, because he had not taken sufficient acts interstate commerce. toward commission of the crime. (C) Yes, because it deals only with a local matter, the (B) No, because he was illegally arrested. sale of toys in Green stores. (C) Yes, because by objective standards an (D) Yes, because the states interest in protecting the agreement between them had occurred. state's children from faulty science justifies this (D) Yes, because his intention to obtain the cocaine burden on interstate commerce. was unequivocally expressed. Question 9- Real Property Question 11 - Torts A landowner executed an instrument in the proper During a comprehensive evaluation of an adult form of a deed, purporting to convey his land to a patient's psychiatric condition, the psychiatrist failed friend. The landowner handed the instrument to the to diagnose the patient's suicidal state. One day after friend, saying, "This is yours, but please do not the misdiagnosis, the patient committed suicide. The record it until after I am dead. Otherwise, it will cause me no end of patient's father, immediately after having been told of days later, the trouble with my relatives." Two his son's suicide, suffered severe emotional distress, the deed to landowner asked the friend to return which resulted in a stroke. The patient's father was him should devise the because he had decided that he not present at his son's appointment with the than by deed. land to the friend by will rather psychiatrist and did not witness the suicide. The the deed The friend said that he would destroy and a day or so father brought an action against the psychiatrist to landowner that the later falsely told the recover for his severe emotional distress and the months ago, the deed had been destroyed. Six resulting stroke. a will, landowner, who had never executed died intestate, survived by a daughter as his sole heir at law. Will the father prevail? The day after the landowners death, MBE RELEAsth Qi FEsTiONS 33 MBE MIXED PRACTICE 2 EFTA00811442  MBE MIXED PRACTICE 2 AMERIBAR BAR REVIEW • terminated for this reason. sustain a physical (A) No, because the father did not employment, which of the impact. ional duty In a suit to reinstate her , because the psychiatrists profess LEAST support for the (B) No following claims provides the suffered by the did not extend to the harms woman? patient's father. was a member of the her unconstitutionally (C) Yes, because the father (A) The state's firing of ech. patient's immediate family. abridged her freedom of spe trist reasonably could unc ons titutionally denied (D) Yes, because the psychia (B) The state's firin g of her state citizenship is would result in of have foreseen that a misdiagnos her a privilege or immunity res ulting emotional the patient's suicide and the protected by Article IV. distress of the patient's fath er. violated the supremacy (C) The state's firing of her e it interfered with clause of Article VI, becaus s. Question 12 - Evidence the enforcement of federal rule of her with out affording her an (D) The state's firing an unconstitutional a car accident at an opportunity for a hearing is In a civil trial arising from on direct that he ess. intersection, the plaintiff testified denial of procedural due proc rsection. On cross- came to a full stop at the inte lawyer asked whether examination, the defendant's Question I4 - Contracts exercising due care the plaintiff claimed that he was at the time, and the plainti ff rep lied that he was tor entered into a written A landowner and a contrac tor agreed to build a bar conference, the driving carefully. At a side contract under which the contrac sidewalk for the mission to ask the cent defendant's lawyer sought per building and pave an adja ction accidents in the 0,000. Later, while plaintiff about two prior interse landowner at a pric e of $20 d traffic citations for the landowner and the last 12 months where he receive construction was proceeding, failing to stop at stop signs. The plaintiff's lawyer l modification under contractor entered into an ora obli gated to pave the objected. which the contractor was not to $200,000 upon itled sidewalk, but still would be ent Should the court allow defense counsel to ask the completed the building. completion. The contractor plaintiff about the two prior inci dents? ions with his landscaper, The landowner, after discuss tor pave the adjacent demanded that the contrac failing to stop on the . (A) No, because improperly r on the plaintiffs sidewalk. The contractor refused recent occasions does not bea ict his testimony in contract? veracity and does not contrad Has the contractor breached the this case. ication that failing to dification was in good (B) No, because there is no ind (A) No, because the oral mo stop on the recent occ asio ns led to convictions. faith and therefore enf orc eab le. failing to stop on the har ge of a contractual (C) Yes, because improperly the plaintiffs (B) Yes, because a disc recent occasions bears on obligation must be in writing. have stopped in ence rule bars proof credibility, since he claims to (C) Yes, because the parol evid this case. of the oral modification. ing to stop on the consideration for the (D) Yes, because improperly fail ict the plaintiffs (D) Yes, because there was no trad duty to pave the recent occasions tends to con discharge of the contractor's lly at the time he claim that he was driving carefu sidewalk. collided with the defenda nt. Question IS - Real Property Law Question 13 - Constitutional by quitclaim deed to A landowner conveyed his land employees may be tenants in fee simple." According to a state law, state his daughter and son "as joint woman who was both sufficient to create a fired only "for good cause." A The language of the deed was ee of the state was right of survivorship, a resident and an employ common-law joint tenancy with ground that she had The daughter then summarily fired on the sole which is unmodified by statute. that the state was not her interest in the land notified federal officials the administration duly executed a will devising will gov ern ing duly executed a following federal rules to a friend. Then the son son programs on which to a cousin. The of certain federally funded state devising his interest in the land eve r woman's request for . Neithe r had she worked. The state denied the died, and later the daughter died cou sin the charge. There is nd and the a hearing to allow her to contest married. The daughter's frie employee having been no record of any other state CE 2 MBE MIXED PRACTI 34 •• or act racy° nIIESTIONS EFTA00811443 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 survived. How is the federal court likely to rule in this action? After both wills have been duly probated, who owns (A) It will set aside the conviction, because the jury what interest in the land? was composed of fewer than 12 members. (B) It will set aside the conviction, because the 6- (A) The cousin owns the fee simple. person jury verdict was not unanimous. (B) The daughter's friend and the cousin own equal (C) It will set aside the conviction for both reasons. shares as joint tenants with right of survivorship. (D) It will uphold the conviction. (C) The daughters friend and the cousin own equal shares as tenants in common. Question IS - Real Property (D) The daughter's friend owns the fee simple. A grantor executed an instrument in the proper form Question 16 - Evidence of a warranty deed purporting to convey a tract of land to his church. The granting clause of the A defendant was charged with burglary. At trial, a instrument ran to the church "and its successors police officer testified that, after the defendant was forever, so long as the premises are used for church arrested and agreed to answer questions, the officer purposes." The church took possession of the land interrogated him with a stenographer present, but that and used it as its site of worship for many years. he could not recall what the defendant had said. The Subsequently, the church wanted to relocate and prosecutor presented the officer with a photocopy of entered into a valid written contract to sell the land to the stenographic transcript of the interrogation. The a buyer for a substantial price. The buyer wanted to officer, after looking at it, was prepared to testify that use the land as a site for business activities and he recalled that the defendant admitted to being in the objected to the church's title. The contract contained area of the burglary. The defendant objected to the no provision relating to the quality of title the church officers testimony on the ground that it violated the was bound to convey. There is no applicable statute. "original document" rule (also known as the "best When the buyer refused to close, the church sued the evidence" rule). buyer for specific performance and properly joined the grantor as a party. Should the officer's testimony concerning the defendant's recorded confession be admitted? Is the church likely to prevail? (A) No, because a photocopy cannot be used without (A) No, because the grantor's interest prevents the a showing that the original is unavailable. church's title from being marketable. (B) No, because the stenographer has not testified to (B) No, because the quoted provision is a valid the accuracy of the transcript. restrictive covenant. (C) Yes, because a photocopy is a duplicate of the (C) Yes, because a charitable trust to support religion original. will attach to the proceeds of the sale. (D) Yes, because the prosecutor is not attempting to (D) Yes, because the grantor cannot derogate from prove the contents of the document. his warranty to the church. Question 17 - Criminal Law and Procedure Question 19 - Evidence A state legislature passed a statute providing that In a civil trial for fraud arising from a real estate juries in criminal trials were to consist of 6 rather transaction, the defendant claimed not to have been than 12 jurors, and providing that jury verdicts did involved in the transaction. The plaintiff called a not have to be unanimous but could be based on 5 witness to testify concerning the defendant's votes out of 6 jurors. A defendant was tried for involvement in the fraudulent scheme, but to the murder. Over his objection, he was tried by a jury plaintiffs surprise the witness testified that the composed of 6 jurors. The jurors a vote of 5 to I found him guilty by defendant was not involved, and denied making any and, over the defendant's objection, statement to the contrary. The plaintiff now calls a the court entered a was affirmed on judgment of conviction, which second witness to testify that the first witness had appeal by the state supreme court. stated, while the two were having a dinner The defendant seeks to habeas corpus action overturn his conviction in a conversation, that the defendant was involved in the in federal court, claiming his fraudulent transaction. constitutional rights were verdict that was violated by allowing a jury jury composed not unanimous and by allowing a Is the testimony of the second witness admissible? of fewer than 12 members. • "BE RELEASED QUM-Ms 35 MBE MIXED PRACTICE 2 EFTA00811444  MBE MLXED PRACTICE 2 AMERIBAR BAR REVIEW funds that the party's legislature, and the university had no other (A) No, because a party cannot impeach could be used to pay them. own witness. within any (B) No, because it is hearsay not If the professors challenge the cons titutionality of the likely to uphold exception. ss. appropriations provision, is the court (C) Yes, but only to impeach the first witne the provision? and prove the to (D) Yes, to impeach the first witness defendant's involvement. the imposition of a (A) No, because it amounts to punishment by the legis latur e without trial. Question 20 - Torts was base d on conduct the (B) No, because it enacted. parked on a professors engaged in before it was A car owner washed her car while it was (C) Yes, because the Eleventh Amendm ent gives the tion of a statu te that prohibits to appropriate public street, in viola g rush state legislature plenary power vehic les on publ ic stree ts durin that it deem s most the washing of the state funds in the manner expe dite hours. The statute was enacted only to and conducive to the welfare of its peop le. a sudd en flow of automobile traffic. Due to Clause I of the Constitution. e water unexpected cold snap, the car owner's wast (D) Yes, because the full faith and credit clause pede stria n slipp ed on ision strictly formed a puddle that froze. A strian requires the cour t to enfo rce the prov her leg. The pede the frozen puddle and broke trial, according to its terms. ver for her injur y. At sued the car owner to reco to the pede stria n offer ed as edure the only evidence n that she Question 22- Criminal Law and Proc negligence was the car owner's admissio statu te. At the conc lusio n of the dealing was had violated the verd ict. Police officers received a tip that drug proofs, both parties moved for a directed occurring at a certain ground-fl oor dupl ex apartment. out the apar tmen t. The They decided to stake people How should the trial judge proceed? stakeout revealed that a sign ifica nt num ber of ds of time and case to the visited the apartment for short perio (A) Deny both motions and submit the then left. A man exited the apartmen t and started to on the facts , the jury may infer the man and, jury, because, walk briskly away. The officers grabbed that the car owner was negligent. when he struggled, wrestled him to the grou nd. They case to the (B) Deny both motions and submit the searched him and found a bag of hero in in one of his ider the statutory jury, because the jury may cons pockets. After discovering the hero in on the man , the violation as evidence that the car own er was apar tmen t. They knoc ked police decided to enter the an who negligent open ed by the wom because the on the door, which was (C) Grant the car owner's motion, lived there. The police asked if they could come d to offer adeq uate evidence ission to do pedestrian has faile inside, and the woman gave them perm that the car own er was negl igen t. several bags of of the car so. Once inside, the officers observed (D) Grant the pedestrian's motion, because heroin on the living room table . The woman is owner's admitted statutory violation. charged with possession of the hero in foun d on the es pretr ial to supp ress the living room table. She mov Question 21 - Constitutional Law heroin on the ground that it was obta ined by virtu e of an illegal search and seizu re. y drafted a Two tenured professors at a state universit latio n proh ibitin g certa in kinds of new university regu faculty Should the woman's motion be granted? us. Stud ents , staff , and speech on camp the viola ting convicted by campus tribunals of that (A) No, because the tip together with the heroin lties regulation were made subject to pena found in the man's pock et prov ided probable lsions, and included fines, suspensions, expu cause for the search. regu lation was termination of employment. The (B) No, because the woman consente d to the officers' was a grea t deal of public widely unpopular and there ed it. entry. profe ssor s who draft to enter the anger directed toward the (C) Yes, because the officers' decision the state legis latur e appr oved a h of the The following year, for the house was the fruit of an illegal searc in the appr opria tions bill severable provision man. university's university declaring that none of the (D) Yes, because the officers did not inform the ssors, who funding could be used to pay the two profe woman that she could refuse cons ent. . In the past, were specifically named in the provision ys been paid from the professors' salaries had alwa the Question 23 - Real Property univ ersit y by funds appropriated to the 36 MBE MIXED PRACTICE 2 MBE RELEASED QUESTIONS EFTA00811445 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 A landowner died, validly devising his land to his trial "the accused shall have the right to confront all wife "for life or until remarriage, then to" their witnesses against him face to face." A defendant was daughter. Shortly after the landowner's death, his convicted in state court of child abuse based on daughter executed an instrument in the proper form testimony from a six-year-old child. The c