AMERIBAR BAR REVIEW

AMERIBAR BAR REVIEW Multistate Bar Examination Released Questions Section 1 PRACTICE EXAM 1 EFTA00811410 AMERIBAR BARREVIEW MBE MIXED PRACTICE I Question N I — Evidence In a suit based on a will, inheritance of SI million depended upon whether the wife had survived her husband when both died in the crash of a small airplane. An applicable statute provided that, for purposes of distributing an estate after a common disaster, there was a rebuttable presumption that neither spouse had survived the other. A witness was called to testi& that as she approached the plane she heard what she thought was a woman's voice saying, dying," although by the time the two occupants were removed from the wreckage they were both dead. Is the witness's testimony admissible? (A) No, because the matter is governed by the presumption that neither spouse survived the other. (B) No, because the witness's testimony is too speculative to support a finding. (C) Yes, because the hearsay rule does not apply to statements by decedents in actions to determine rights under a will. (D) Yes, because it is relevant and not otherwise prohibited. Question N 2 - Criminal Law and Procedure The defendant subsequently moved to suppress the testimony of the teller, claiming the lineup violated his privilege against self-incrimination. At a suppression hearing, the teller testified that she had not gotten a good look at the robber's face, because the robber had been wearing a hat pulled down over most of his face, but that she was certain the defendant was the robber because she had recognized his voice at the lineup. A defendant was lawfully arrested without a warrant for bank robbery. He was not given Miranda warnings, but was immediately taken to a police station where he and five other men were placed in a lineup to be viewed by the bank teller. Each man was required to say the words spoken by the bank robber: "Give me all your money. I've got a gun." After all the men in the lineup spoke those words, the teller identified the defendant as the robber. Should the defendant's motion be granted? (A) No, because being required to speak at the lineup, while compelled, was not testimonial or communicative. (B) No. because testimony of a witness based on firsthand observation is not subject to exclusion MBE RELEASED QUESTIONS as the fruit of the poisonous tree. (C) Yes, because the defendant was compelled to speak at the lineup, and this compelled speech led to the witness's identification testimony. (D) Yes, because the defendant was never informed that he could refuse to make a statement and that any statement could be used as evidence against him. Question N 3 - Constitutional Law A city owned and operated a municipal bus system. The city sold space on its buses for the posting of placards. Under the relevant city ordinance, the administrator of the bus system had sole discretion to decide which placards could be posted on the buses, and the administrator's decision was final. Although most of the placards that appeared on city buses were commercial advertisements, the administrator had often sold space on the buses for placards promoting various political, charitable, and religious causes. After a circus bought space on the buses for placards advertising its upcoming performances, an animal rights organization asked to buy space for a placard with photographs showing the mistreatment of animals in circus shows. The administrator denied the organization's request, stating that the proposed placard would be offensive to the circus, which had paid a substantial sum to place its placards on the buses, and that a circus employee had told her that none of the photographs on the organization's placard depicted animals belonging to this particular circus. The organization sued the administrator in an appropriate court for a declaration that her denial of the organization's request for placard space for the reasons she gave violated the First Amendment as made applicable to the states by the Fourteenth Amendment. Is the organization likely to prevail? (A) No, because the administrator's denial of space to the organization was a reasonable time, place, and manner restriction of speech. (B) No, because a public official may not allow the use of public facilities for the propagation of a message that he or she believes may create a false or misleading impression. (C) Yes, because a public official may not refuse to permit the dissemination of a message in a public forum solely on the basis of its content unless that denial is necessary to serve a compelling government interest. MBE MIXED PRACTICE I EFTA00811411 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I (D) Yes, because a public official may not refuse to allow the use of any public facility to publish a message dealing with an issue of public concern. Question # 4 — Torts A landowner who owned a large tract of land in the mountains sought to protect a herd of wild deer that lived on part of the land. Although the landowner had posted signs that said, "No Hunting—No Trespassing," hunters frequently intruded to kill the deer. Recently, the landowner built an eight-foot-high chain-link fence, topped by three strands of barbed wire, across a gully on her land that provided the only access to the area where the deer lived. A wildlife photographer asked the landowner for permission to enter the land to photograph the deer. Because the landowner feared that any publicity would encourage further intrusions by hunters, she denied the photographer's request. Frustrated, the photographer attempted to climb the fence. He became entangled in the barbed wire and suffered extensive lacerations. The wounds became infected and ultimately caused his death. The photographer's personal representative has sued the landowner. Is the personal representative likely to prevail? (A) Yes, because the landowner may not use deadly force to protect her land from intrusion. (B) Yes, because the landowner had no property interest in the deer that entitled her to use force to protect them. (C) No, because the photographer entered the landowner's land after the landowner had refused him permission to do so and therefore was a trespasser. (D) No, because the potential for harm created by the presence of the barbed wire was apparent. Question # 5 — Torts An ordinance in a small town required all restaurants to designate smoking and nonsmoking sections for their customers. A cigarette smoker and a nonsmoker were seated at adjoining tables in a small restaurant. The smoker's table was in the smoking section, and the nonsmoker's table was in the nonsmoking section. When the smoker lit a cigarette, the nonsmoker politely requested that he not smoke, explaining that she had a severe allergy to cigarette smoke. The smoker ignored the nonsmoker's request and continued to smoke. As a result, the nonsmoker was hospitalized with a severe allergic reaction to the smoke. The nonsmoker brought a battery action against the smoker. Which of the following questions will NOT be an issue in the battery action? (A) Did the smoker intend to cause the nonsmoker's contact with the cigarette smoke? (B) Does smoke have the physical properties necessary for making the kind of contact required for battery? (C) Is contact with cigarette smoke from a lawful smoking section in a restaurant the kind of contact one must endure as a voluntary restaurant patron? (D) Was the smoker's conduct unreasonable under the circumstances? Question # 6 - Criminal Law and Procedure A federal officer had probable cause to believe a woman had participated in a bank robbery. Two days after the robbery, the woman checked into a local hotel room. When the woman left for the evening, the hotel manager opened the hotel room door so the officer could enter the room and look inside. The officer did not find any of the stolen money but did see, lying open on the bed, the woman's diary. The diary contained an entry describing the woman's involvement in robbing the bank. The woman was charged in federal court with bank robbery. She moved to suppress the diary. Should the court suppress the diary? (A) Yes, because the officer had no warrant. (B) Yes, because admitting the diary would violate the woman's privilege against self-incrimination. (C) No, because the hotel manager had actual authority to allow the officer into the hotel room. (D) No, because the officer reasonably relied on the hotel manager's apparent authority to allow the officer into the hotel room. Question # 7 - Real Property Thirty years ago, a landowner conveyed land by warranty deed to a church (a charity) "so long as the land herein conveyed is used as the site for the principal religious edifice maintained by said church." Twenty years ago, the landowner died intestate, survived by a single heir. There is no applicable statute. The common law Rule • MBE RELEASED QUESTIONS 2 MBE MIXED PRACTICE I EFTA00811412 MBE MIXED PRACTICE I AMERIBAR BAR REVIEW • Against Perpetuities is unmodified in the jurisdiction. One year ago, the church dissolved and its church building situated on the land was demolished. In an appropriate action, the landowner's heir and the attorney general, who is the appropriate official to assert public interests in charitable trusts, contest the right to the land. In such action, who will prevail? (A) The landowner's heir, as successor to the landowner's possibility of reverter. (B) The landowner's heir, because a charity cannot convey assets donated to it. (C) The attorney general, because cy pres should be applied to devote the land to religious purposes to carry out the charitable intent of the landowner. (3) The attorney general, because the landowner's attempt to restrict the church's fee simple violated the Rule Against Perpetuities. Question ft 8 - Constitutional Law With the advice and consent of the Senate, the President entered into a self-executing treaty with a foreign country. The treaty provided that citizens of both nations were required to pay whatever tons damages were awarded against them by a court of either nation. A man and a woman who were U.S. citizens and residents of the same state were traveling separately in the foreign country when their cars collided. The foreign court awarded the woman a judgment for S500,000 in damages for her injuries from the accident. In federal district court in their home state, the woman filed suit against the man to enforce the judgment. The man filed a motion to dismiss for lack ofjurisdiction. Should the court grant the motion to dismiss? (A) Yes, because the citizenship of the parties is not diverse. (B) Yes, because the traffic accident was a noncommercial commerce. (C) No, because the case falls within the federal question jurisdiction of the court. (3) No, because the treaty power is plenary and not subject to judicial review. transaction outside interstate Question # 9 — Contracts A fugitive was wanted for murder. The authorities offered the following reward: "$20,000 to anyone who provides information leading to the arrest and conviction of this fugitive." A private detective knew of the reward, located the fugitive, and brought him to the authorities, who arrested him. The authorities then determined that while the fugitive had, in fact, committed the crime, he had been directed to commit the crime by his boss. The authorities and the fugitive then agreed that in exchange for the fugitive's testimony against his boss, all charges against the fugitive would be dropped. The fugitive testified and was released. The authorities refused to pay the reward to the private detective on the ground that the fugitive was never convicted. Would the private detective be likely to prevail in a breach of contract action against the authorities? (A) No, because the private detective failed to notify the authorities that he had accepted the reward offer. (B) No, because the express conditions set out in the reward were not met. (C) Yes, because the authorities' agreement with the fugitive was against public policy. (D) Yes, because the authorities themselves prevented the conviction of the fugitive. Question # 10 — Evidence A defendant was on trial for burglary. The prosecutor called the arresting officer to testify that shortly after her arrest and interrogation, the defendant had orally admitted her guilt to the officer. Before the officer testified, the defendant objected that no Miranda warning had been given to her, and she requested a hearing outside the presence of the jury to hear evidence on that issue. How should the court proceed? (A) The court should grant the request, because the hearing on the admissibility of the confession must be conducted outside the presence of the jury. (B) The court may grant or deny the request, because the court has discretion whether to conduct preliminary hearings in the presence of the jury. (C) The court should deny the request and rule the confession inadmissible, because only signed confessions are permitted in criminal cases. (O) The court should deny the request and rule the confession admissible, because it is the statement of a party-opponent. 3 MBE MIXED PRACTICE EFTA00811413 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I • Question # 11- Torts Under the Federal Tort Claims Act, with certain exceptions not relevant here, the federal government is liable only for negligence. A federally owned and operated nuclear reactor emitted substantial quantities of radioactive matter that settled on a nearby dairy fans, killing the dairy herd and contaminating the soil. At the trial of an action brought against the federal government by the farm's owner, the trier of fact found that the nuclear plant had a sound design, but that a valve made by the Acme Engineering Company had malfunctioned and allowed the radioactive matter to escape, that Acme Engineering Company is universally regarded as a quality manufacturer of components for nuclear plants, and that there was no way the federal government could have anticipated or prevented the emission of the radioactive matter. If there is no other applicable statute, for whom should the trial judge enter judgment? (A) The plaintiff, on the ground that the doctrine of res ipsa loquitur applies. (B) The plaintiff, on the ground that one who allows dangerous material to escape to the property of another is liable for the damage done. (C) The defendant, on the ground that a case under the Federal Tort Claims Act has not been proved. (D) The defendant, on the ground that the Acme Engineering Company is the proximate cause of the owner's damage. Question # I2- Criminal Law and Procedure A state statute provides as follows: "In all criminal cases, whenever the Constitution permits, the burden of proof as to a defense claimed by the defendant shall rest on the defendant, and the magnitude of the burden shall be as great as the Constitution permits." The same state defines the crime of forcible rape as follows: "Forcible rape consists of sexual penetration inflicted on an unconsenting person by means of force or violence. Consent of the victim is a complete defense to a charge of rape." At a defendant's trial for forcible rape, he testified that the alleged victim had consented to having sexual intercourse with him. How should the trial judge instruct the jury regarding the issue of consent? (A) The burden of proving that the victim consented, by a preponderance of the evidence, rests on the defendant. (B) The burden of proving that the victim consented, by clear and convincing evidence, rests on the defendant. (C) The burden of proving that the victim consented, by proof beyond a reasonable doubt, rests on the defendant. (D) The burden of proving that the victim did not consent, by proof beyond a reasonable doubt, rests on the prosecution. Question # 13— Contracts A buyer and a seller entered into a contract for the sale of 10,000 novelty bracelets. The seller had the bracelets in stock. The contract specified that the seller would ship the bracelets by a third-party carrier. However, the contract did not specify either who was to pay the costs of carriage or the place of tender for the bracelets. On the above facts, when would the risk of loss of the bracelets pass to the buyer? (A) When the contract was made. (B) When the bracelets were identified to the contract by the seller, assuming the goods conformed to the contract. (C) When the bracelets were delivered to a carrier and a proper contract for their carriage was made. (O) When the bracelets were unloaded on the buyer's premises by the carrier. Question # 14 - Constitutional Law A state legislature received complaints from accident victims who, in the days immediately following their accidents, had received unwelcome and occasionally misleading telephone calls on behalf of medical care providers. The callers warned of the risks of not obtaining prompt medical evaluation to detect injuries resulting from accidents and offered free examinations to determine whether the victims had suffered any injuries. In response to these complaints, the legislature enacted a law prohibiting medical care providers from soliciting any accident victim by telephone within 30 days of his or her accident. Which of the following is the most useful argument for the state to use in defending the constitutionality of the law? (A) Because the commercial speech that is the subject of this law includes some speech that is • MBE RELEASED QUESTIONS 4 MBE MIXED PRACTICE I EFTA00811414 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I misleading, the First Amendment does not limit the power of the state to regulate that speech. (B) Because the law regulates only commercial speech, the state need only demonstrate that the restriction is rationally related to achieving the state's legitimate interests in protecting the privacy of accident victims and in regulating the medical profession. (C) The state has substantial interests in protecting the privacy of accident victims and in regulating the practice of medical care providers, and the law is narrowly tailored to achieve the state's objectives. (D) The law is a reasonable time, place, and manner regulation. Question # 15 — Evidence A defendant was charged with murder. While walking down the hallway during a recess in the defendant's trial, the judge overheard the defendant say to his attorney, "So what if I did it? There's not enough proof to convict." Upon the judge's reporting the incident to counsel, the prosecutor called the judge as a witness in the trial. Is the judge's testimony regarding the defendant's statement admissible? (A) Yes, as the statement of a party-opponent. (B) Yes, because the defendant's statement, although otherwise privileged, was made without reasonable efforts to preserve confidentiality. (C) No, because the statement was a privileged attorney-client communication. (D) No, because a judge may never testify in a trial over which he or she is presiding. Question # 16 - Real Property A man borrowed money from a bank and executed a promissory note for the amount secured by a mortgage on an office building that he owned. Several years later, the man sold the building. As specified in the contract of sale, the deed to the buyer provided that the buyer agreed "to assume the existing mortgage debt" on the building. Subsequently, the buyer defaulted on the mortgage loan to the bank, and appropriate foreclosure proceedings were initiated. The foreclosure sale resulted in a deficiency. There is no applicable statute. Is the buyer liable for the deficiency? (A) No, because even if the buyer assumed the mortgage, the man is solely responsible for any deficiency. (B) No, because the buyer did not sign a promissory note to the bank and therefore has no personal liability. (C) Yes, because the buyer assumed the mortgage and therefore became personally liable for the mortgage loan and any deficiency. (D) Yes, because the transfer of the mortgage debt to the buyer resulted in a novation of the original mortgage and loan and rendered the buyer solely responsible for any deficiency. Question # 17 — Contracts In a written contract, an architect agreed to draw up the plans for and to supervise construction of a client's new house. In return, the client agreed to pay the architect a fee of $10,000 to be paid upon the house's completion. After completion, the client claimed erroneously but in good faith that the architect's plans were defective. The client orally offered to pay the architect $7,500 in full settlement of the claim for the fee. The architect orally accepted that offer despite the fact that the reasonable value of his services was in fact $10,000. The client paid the architect $7,500 pursuant to their agreement. The architect subsequently sued the client for the remaining $2,500. In a preliminary finding, the trier of fact found that there were no defects in the architect's plans. Will the architect be likely to prevail in his action against the client for $2,500? (A) Yes, because payment of $7,500 cannot furnish consideration for the architect's promise to surrender his claim. (B) Yes, because the oral agreement to modify the written contract is not enforceable. (C) No, because the architect's promise to accept $7,500 became binding when the client made the payment. (D) No, because the architect's acceptance of partial payment constituted a novation. Question # 18 — Evidence A defendant's house was destroyed by fire and she was charged with arson. To prove that the defendant had a motive to burn down her house, the government offered evidence that the defendant had fully insured the house and its contents. Should the court admit this evidence? MBE RELEASED Qt csnons 5 MBE MIXED PRACTICE EFTA00811415 AMERIBAR BAR REVIEW • MBE MIXED PRACTICE I (A) No, because the probative value of the evidence of insurance upon the issue of whether the defendant intentionally burned her house down is substantially outweighed by the dangers of unfair prejudice and confusion of the jury. (B) No, because evidence of insurance is not admissible upon the issue of whether the insured acted wrongfully. (C) Yes, because evidence of insurance on the house has a tendency to show that the defendant had a motive to burn down the house. (D) Yes, because any conduct of a party to the case is admissible when offered against the party. Question Et 19 — Torts The owner of a shopping mall hired a construction company to design and construct the entryway to the mall. The construction company negligently selected an unusually slippery material for the floor covering. A customer at the mall slipped on the floor of the entryway, sustaining injuries. The customer sued the mall owner for the construction company's negligent design of the mall's entryway. Will the injured customer recover damages? (A) No, if the construction company was an independent contractor. (B) No, if no customers had previously slipped on the floor. (C) Yes, if the customer intended to make a purchase at the mall. (D) Yes, if the mall's duty to maintain safe conditions was nondelegable. Question N 20 — Contracts On June I, a seller agreed, in a writing signed by both the seller and the buyer, to sell an antique car to a buyer for $20,000. The car was at the time on display in a museum in a different city and was to be delivered to the buyer on August I. On July 15, before the risk of loss had passed to the buyer, the car was destroyed by fire without fault of either party. Subsequent to the contract but before the fire, the car had increased in value to $30,000. The seller sued the buyer for the contract price of $20,000, and the buyer counterclaimed for $30,000. Which of the following will the court conclude? (A) Both claims fail. (B) Only the seller's claim prevails. (C) Only the buyer's claim prevails. (D) Both claims prevail. Question k 21 - Constitutional Law A report released by a Senate investigating committee named three U.S. citizens as helping to organize support for terrorist activities. All three were employed by the U.S. government as park rangers. Congress enacted a statute naming the three individuals identified in the report and providing that they could not hold any position of employment with the federal government. Which of the following constitutional provisions provides the best means for challenging the constitutionality of the statute? (A) The bill of attainder clause. (B) The due process clause. (C) The ex post facto clause. (D) The takings clause. Question q 22 - Real Property A seller owned a single family house. A buyer gave the seller a signed handwritten offer to purchase the house. The offer was unconditional and sufficient to satisfy the statute of frauds, and when the seller signed an acceptance an enforceable contract resulted. The house on the land had been the seller's home, but he had moved to an apartment, so the house was vacant at all times relevant to the proposed transaction. Two weeks after the parties had entered into their contract, one week after the buyer had obtained a written mortgage lending commitment from a lender, and one week before the agreed-upon closing date, the house was struck by lightning and burned to the ground. The loss was not insured, because three years earlier, the seller had let his homeowner's insurance policy lapse after he had paid his mortgage debt in full. The handwritten contract was wholly silent as to matters of financing, risk of loss, and insurance. The buyer declared the contract voided by the fire, but the seller asserted a right to enforce the contract despite the loss. There is no applicable statute. If a court finds for the seller, what is the likely reason? (A) The contract was construed against the buyer, who drafted it. (B) The lender's written commitment to make a • MBE RELEASED QUESTIONS • 6 MBE MIXED PRACTICE I EFTA00811416 AMERIBAR BAR REVIEW mortgage loan to the buyer made the contract of sale fully binding on the buyer. (C) The risk of loss falls on the party in possession, and constructive possession passed to the buyer on the contract date. (D) The risk of loss passed to the buyer on the contract date under the doctrine of equitable conversion. Question # 23 - Criminal Law and Procedure A federal grand jury was investigating drug trafficking in the jurisdiction. It subpoenaed a witness to testify, and the prosecutor advised the witness that he had a Fifth Amendment privilege not to testi& if he so chose. The witness asked that his counsel be allowed to advise him inside the grand jury room, but the prosecutor refused to allow the attorney inside. The witness, after speaking with his attorney outside the grand jury room, decided to testify and ended up making self-incriminating statements. The witness subsequently was indicted for drug crimes. The indictment was based on the witness's grand jury testimony and on evidence seized in an unconstitutional search of the witness's home. The witness moved to dismiss the indictment. Should the court dismiss the indictment? (A) Yes, because the witness was denied his constitutional right to advice of counsel. (B) Yes, because the indictment was based upon illegally seized evidence. (C) No, because the witness waived his constitutional rights by testifying. (D) No, because the witness had no right to counsel inside the grand jury room and the illegally seized evidence did not affect the validity of the indictment. Question # 24 -Torts A hiker sustained a head injury when he was struck by a limb that fell from a tree. At the time of his injury, the hiker was walking through a forest on private property without the property owner's knowledge or permission. It was determined that the limb fell because the tree was infested with termites. In an action by the hiker against the property owner to recover for his head injury, will the hiker be likely to prevail? (A) No, because the property owner could not foresee that anyone would be injured. MBE MIXED PRACTICE I • (B) No, because the property owner breached no duty to the hiker, who was a trespasser. (C) Yes, because the property owner had a duty to prevent the trees on his property from becoming dangerous. (D) Yes, because the property owner is liable for hidden dangers on his property. Question # 25 - Criminal Law and Procedure United States customs officials received an anonymous tip that heroin would be found inside a distinctively marked red package mailed from a foreign country to the United States. Pursuant to this tip, United States customs officers opened the red package and found heroin inside. They then resealed the package and left the heroin inside it. The FBI was notified and, as agents watched, the package was delivered to the address. The FBI then secured a warrant to search the house for the package. About two hours after the package was delivered, the warrant was executed at the house. The man who opened the door was arrested, and the agents found the package, unopened, in an upstairs bedroom closet. After seizing the package, the agents looked through the rest of the house. In a footlocker in the basement, they found a machine gun. The man was charged with, among other crimes, unlawful possession of the machine gun. He moved to suppress its use as evidence. Should the court grant the motion to suppress the machine gun? (A) Yes, because the search exceeded the authority granted by the warrant. (B) Yes, because the initial search by the customs officers was without probable cause. (C) No, because, having found the package, the agents had probable cause to believe more narcotics could be located in the house and the gun was found in a proper search for narcotics. (D) No, because narcotics dealers are often armed and the search was justified to protect the agents. Question ii 26 — Contracts A homeowner and a contractor entered into a contract for the construction of a home for the price of $300,000. The contractor was to earn a profit of $10,000 for the job. After the contractor had spent $45,000 on labor and materials, including $5,000 on oak flooring not yet installed, the homeowner informed the contractor that the homeowner had lost MBE RELEASED QUESTIONS ESL 7 MBE MIXED PRACTICE I EFTA00811417 AXIERIBAR BAR REVIEW • MBE MIXED PRACTICE I his job and could not pay for any services. The homeowner told the contractor to stop working immediately. The reasonable market value of the labor and materials provided by the contractor at that point, including the oak flooring, was $40,000. The contractor used the $5,000 worth of oak flooring on another job. In an action by the contractor against the homeowner for damages, which of the following would be the largest amount of damages recoverable by the contractor? (A) $40,000, the reasonable value of the services the contractor had provided. (B) $40,000, the contractor's construction costs. (C) $50,000, the contractor's construction costs of $45,000 plus the $10,000 profit minus the $5,000 saved by reusing the oak flooring on another job. (D) $55,000, the contractor's construction costs of $45,000 plus the $10,000 profit. Question # 27 - Real Property A man died testate. The man's estate consisted of a residence as well as significant personal property. By his duly probated will, the man devised the residence to a friend who was specifically identified in the will. The residue of the estate was given to a stated charity. The man's friend, although alive at the time the man executed the will, predeceased the man. The friend's wife and their child, who has a disability, survived the man. The value of the residence has increased significantly because of recent zoning changes. There is credible extrinsic evidence that the man wanted his friend to own the residence after the man's death so that the friend and his wife could care for their child there. There is no applicable statute. If both the charity and the child claim the residence, to whom should the estate distribute the residence? (A) The charity, because the devise to the friend adeemed. (B) The charity, because the devise to the friend lapsed. (C) The child, because extrinsic evidence exists that the man's intent was to benefit the child. (D) The child, because no conditions of survivorship were noted in the will. Question # 28- Constitutional Law Several sites on a mountain within federal public lands are regarded as sacred to a group that for years has gathered there to perform religious ceremonies. The United States Forest Service recently issued a permit to a private developer to construct a ski facility in an area that includes the sites that are sacred to the group. The group filed suit in federal district court against the Forest Service to force cancellation of the permit. The group claimed solely that the permit violated its First Amendment right to the free exercise of religion. The Forest Service conceded that the group's religious beliefs were sincere and that the ski facility would adversely affect the group's religious practices. In order to prevail in its First Amendment claim, what must the group show? (A) Construction of the ski facility will have a discriminatory impact on the group's religious practices in relation to the practices of other religious groups. (B) The burden on the group's religious practices imposed by construction of the ski facility outweighs the government's interest in allowing the facility. (C) The Forest Service can achieve its legitimate interest in allowing the ski facility by issuing a permit that is less burdensome on the group's religious practices. (D) The permit issued by the Forest Service is aimed at suppressing the religious practices of the group. Question # 29 - Evidence A defendant was charged with battery for allegedly attacking a man as they left a local bar together. No one else witnessed the fight. At trial, each testified that he had acted only in self-defense. The defendant called his next-door neighbor as a witness to testify as to the defendant's reputation both for truthfulness and for peacefulness. The government objected to the testimony in its entirety. How should the court proceed? (A) Admit the evidence in its entirety. (B) Admit the evidence regarding the defendant's reputation for peacefulness, but exclude the evidence regarding his truthfulness. (C) Exclude the evidence regarding the defendant's reputation for peacefulness, but admit the evidence regarding his truthfulness. (D) Exclude the evidence in its entirety. • MBE RELEASED QUESTIONS 8 MBE MIXED PRACTICE I EFTA00811418 AMERIBAR BAR REVIEW • Question # 30 - Torts A cigarette maker created and published a magazine advertisement that featured a model dressed as a race-car driver standing in front of a distinctive race car. In fact, the car looked almost exactly like the very unusually marked one driven by a famous and popular driver. The driver in the ad was not identified, and his face was not shown in the advertisement. The cigarette maker published the advertisement without obtaining the famous driver's permission. The race-car driver sued the cigarette maker for economic loss only, based on common law misappropriation of the right of publicity. The cigarette maker moved to dismiss the complaint. Will the cigarette maker's motion to dismiss the complaint be granted? (A) No, because there are sufficient indicia of the driver's identity to support a verdict of liability. (B) Yes, because the driver is a public figure. (C) Yes, because there was no mention of the driver's name in the ad. (D) Yes, because the driver did not claim any emotional or dignitary loss. Question 14 31 - Criminal Law and Procedure In a city, a number of armed bank robberies were committed near closing time by a masked man wearing a white hooded sweatshirt and blue sweatpants. Police saw a man wearing a white hooded sweatshirt and blue sweatpants pacing nervously outside one of the city's banks just before it closed. The police stopped the man and frisked the outer layers of his clothing for weapons, but found none. They asked the man what he was doing outside the bank and pointed out that he was wearing clothing similar to clothing worn by the perpetrator of recent robberies. After pausing for several moments, the man confessed. The police had not provided him with any Miranda warnings. After being charged with the bank robberies, the man moved to suppress his confession. The parties agreed, and the court properly found, that the police had reasonable suspicion but not probable cause at all times before the man confessed. Should the man's motion to suppress be granted? (A) Yes, because the confession was the fruit of a Fourth Amendment violation, even though there was no Miranda violation. (B) Yes, because the confession was the fruit of a Miranda violation, even though there was no MBE MIXED PRACTICE I • Fourth Amendment violation. (C) Yes, because the confession was the fruit of both a Fourth Amendment violation and a Miranda violation. (D) No, because there was neither a Fourth Amendment violation nor a Miranda violation. Question # 32 - Real Property A man owned property that he used as his residence. The man received a loan, secured by a mortgage on the property, from a bank. Later, the man defaulted on the loan. The bank then brought an appropriate action to foreclose the mortgage, was the sole bidder at the judicial sale, and received title to the property as a result of the foreclosure sale. Shortly after the foreclosure sale, the man received a substantial inheritance. He approached the bank to repurchase the property, but the bank decided to build a branch office on the property and declined to sell. If the man prevails in an appropriate action to recover title to the property, what is the most likely reason? (A) He had used the property as his residence. (B) He timely exercised an equitable right of redemption. (C) The court applied the doctrine of exoneration. (D) The jurisdiction provides for a statutory right of redemption. Question # 33 - Real Property A farmer borrowed SI 00,000 from a bank and gave the bank a promissory note secured by a mortgage on the farm that she owned. The bank promptly and properly recorded the mortgage, which contained a due-on-sale provision. A few years later, the farmer borrowed $5,000 from a second bank and gave it a promissory note secured by a mortgage on her farm. The bank promptly and properly recorded the mortgage. Subsequently, the farmer defaulted on her obligation to the first bank, which then validly accelerated the debt and instituted nonjudicial foreclosure proceedings as permitted by the jurisdiction. The second bank received notice of the foreclosure sale but did not send a representative to the sale. At the foreclosure sale, a buyer who was not acting in collusion with the farmer outbid all other bidders and received a deed to the farm. Several months later, the original farmer repurchased her farm from the buyer, who executed a warranty MBE Et • ElleAsED QUESTIONS 9 MBE MIXED PRACTICE I EFTA00811419 AMERIBAR BAR REVIEW deed transferring the farm to her. After the fanner promptly and properly recorded that deed, the second bank commenced foreclosure proceedings on the farm. The farmer denied the validity of the second bank's mortgage. Does the second bank continue to have a valid mortgage on the farm? (A) Yes, because of the doctrine of estoppel by deed. (B) Yes, because the original owner reacquired title to the farm. (C) No, because the purchase at the foreclosure sale by the buyer under these facts eliminated the second bank's junior mortgage lien. (D) No, because of the due-on-sale provision in the farmer's mortgage to the first bank. Question # 34 - Evidence At a trial of a contract dispute, the plaintiff offered to testi& to what the defendant said in a private conversation between the two of them, which the plaintiff had secretly recorded on an audiotape that she did not offer in evidence. Is the plaintiff's testimony admissible? (A) Yes, because the plaintiff has personal knowledge of the statement of a party-opponent. (B) Yes, because the original document rule does not apply to audiotapes. (C) No, because the statement must be proved by introduction of the audiotape itself. (D) No, because of the plaintiff's deception, even if the recording was not illegal. Question # 35 - Torts A manufacturing plant located near a busy highway uses and stores highly volatile explosives. The owner of the plant has imposed strict safety measures to prevent an explosion at the plant. During an unusually heavy windstorm, a large tile was blown off the roof of the plant and crashed into the windshield of a passing car, damaging it. The driver of the car brought a strict liability action against the owner of the plant to recover for the damage to the car's windshield. Is the driver likely to prevail? (A) No, because the damage to the windshield did not result from the abnormally dangerous aspect of the plant's activity. (B) No, because the severity of the windstorm was unusual. MBE MIXED PRACTICE 1 • (C) Yes, because the plant's activity was abnormally dangerous. (D) Yes, because the plant's location near a busy highway was abnormally dangerous. Question # 36 - Contracts While waiting in line to open an account with a bank, a customer read a poster on the bank's wall that said, "New Customers! $25 FOR 5 MINUTES. If you stand in line for more than five minutes, we will pay you $25! We like happy customers!" The customer started timing his wait and just as five minutes was about to pass, the bank manager tore the poster down and announced, "The $25 stand-in-line promotion is over." The customer waited in line for 10 more minutes before being served. Does the customer have a claim against the bank for $25? (A) No, because the bank withdrew its offer before the customer completed the requested performance. (B) No, because the bank's statement was a nonbinding gift promise. (C) Yes, because the bank could not revoke its offer once the customer had commenced performance. (D) Yes, because the customer's presence in line served as notice to the bank that he had accepted. Question # 37 - Constitutional Law A federal statute required that any individual or entity owning more than 100 cars had to ensure that at least 10 percent of those cars were electric-powered. A city filed suit in federal district court against the federal official who enforced this requirement. The city sought an injunction prohibiting enforcement of the statute on the ground that it was unconstitutional. Should the court grant the injunction? (A) No, because the statute is valid under the commerce clause and does not violate the Tenth Amendment. (B) No, because the federal government has sovereign immunity and cannot be sued without its explicit consent. (C) Yes, because the statute violates the reserved rights of the states under the Tenth Amendment. (D) Yes, because as applied to state and local governments, the statute exceeds Congress's power under the commerce clause. MBE RELEASED QUESTIONS 10 MBE MIXED PRACTICE I EFTA00811420 AMERIBAR BAR REVIEW MBE MIXED PRACTICE • Question # 38 - Criminal Law and Procedure A driver stopped at a red light in his home state. A stranger opened the passenger door, got in, and pointed a gun at the driver. The stranger then directed the driver to keep driving. They drove several miles, crossed into a neighboring state, and drove several more miles. When they reached a remote location, the stranger ordered the driver to pull over. The stranger then robbed the driver of his wallet and cash, and ordered him out of the car. The stranger drove off in the driver's car. The stranger is charged with kidnapping in the neighboring state, which has adopted the Model Penal Code. Could the stranger properly be convicted of kidnapping in the neighboring state? (A) Yes, because the driver was transported under threat of force in the neighboring state. (B) Yes, because the driver in effect paid ransom for his release. (C) No, because any kidnapping took place in the driver's home state. (D) No, because the restraint was incidental to the robbery. Question # 39 - Contracts On June I, a seller received a mail order from a buyer requesting prompt shipment of a specified computer model at the seller's current catalog price. On June 2, the seller mailed to the buyer a letter accepting the order and assuring the buyer that the computer would be shipped on June 3. On June 3, the seller realized that he was out of that computer model and shipped to the buyer a different computer model and a notice of accommodation. On June 5, the buyer received the seller's June 2 letter and the different computer model, but not the notice of accommodation. At that juncture, which of the following is a correct statement of the parties' legal rights and duties? (A) The buyer can either accept or reject the different computer model and in either event recover damages, if any, for breach of contract. (B) The buyer can either accept or reject the different computer model, but if he rejects it, he will thereby waive any remedy for breach of contract. (C) The seller's prompt shipment of nonconforming goods constituted an acceptance of the buyer's offer, thereby creating a contract for sale of the replacement computer model. (D) The seller's notice of accommodation was timely .,MBE RELEASED QUESTIONS mailed and his shipment of the different computer model constituted a counteroffer. Question # 40 - Evidence A plaintiff sued a ladder manufacturer for injuries he suffered to his neck and back when a rung of the ladder on which he was standing gave way. When the plaintiff's back and neck continued to be very sore after more than two weeks, his treating physician sent him to an orthopedist for an evaluation. Though the orthopedist did not treat the plaintiff, he diagnosed an acute cervical strain. At trial, the plaintiff called the orthopedist to testify that in response to the orthopedist's inquiry about how the plaintiff had injured his back, the plaintiff told him, "I was standing near the top of a I5-foot ladder when I abruptly fell, landing hard on my back, after which the ladder toppled onto my neck." Should the statement be admitted? (A) Yes, because the plaintiff is present and can be cross-examined about it. (B) Yes, because it was made for the purpose of medical diagnosis or treatment. (C) No, because it was not made to a treating physician. (D) No, because it relates to the inception or the cause of the injury rather than the plaintiff's physical condition. Question ft 41 - Constitutional Law The United States government demonstrated that terrorist attacks involving commercial airliners were perpetrated exclusively by individuals of one particular race. In response, Congress enacted a statute imposing stringent new airport and airline security measures only on individuals of that race seeking to board airplanes in the United States. Which of the following provides the best ground for challenging the constitutionality of this statute? (A) The commerce clause of Article I, Section 8. (B) The due process clause of the Fifth Amendment. (C) The privileges and immunities clause of Article IV. (D) The privileges or immunities clause of the Fourteenth Amendment. Question # 42 - Torts A consumer bought an electric kitchen blender from the manufacturer. Soon after the purchase, the consumer was using the blender in an appropriate I I MBE MIXED PRACTICE I EFTA00811421 AMERIBAR BAR REVIEW MBE MIXED PRACTICE way when the blender jar shattered, throwing a piece of glass into the consumer's eye. The consumer brought an action against the manufacturer based solely on strict product liability. The consumer's expert testified that the blender was defectively designed. However, because the blender jar was destroyed in the accident, the expert could not determine whether the accident was caused by the design defect or a manufacturing defect. The manufacturer's expert testified that the blender was not defective. If, at the conclusion of the evidence, both parties move for directed verdicts, how should the trial judge rule? (A) Direct a verdict for the manufacturer, because the consumer's expert was unable to specify the nature of the defect. (B) Direct a verdict for the manufacturer, because the consumer's action was brought solely on a strict liability theory. (C) Direct a verdict for the consumer, because the blender was new when the jar shattered. (D) Deny both motions and send the case to the jury, because a jury reasonably could conclude that the harm probably was caused by a defect present in the product when it was sold. Question # 43 - Constitutional Law Congressional committees heard testimony from present and former holders of licenses issued by state vocational licensing boards. According