RIBAR BAR REVIEW

RIBAR BAR REVIEW ultistate Bar Examination Released Questions n2 RACTICE EXAM 2 EFTA00811439 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 • Question I • Contracts In January, a teacher contracted with a summer camp to serve as its head counselor at a salary of $10,000 for 10 weeks of service from the first of June to the middle of August. In March, the camp notified the teacher that it had hired someone else to act as head counselor and that the teachers services would not be needed. In April, the teacher spent $200 traveling to interview at the only other nearby summer camp for a position as its head counselor. The teacher was not chosen for that job. The teacher then took a position teaching in a local summer school at a salary of $6,000 for the same 10-week period as the summer camp. In a breach-of-contract action against the camp, to which of the following amounts, as damages, is the teacher entitled? (A) $4,000 (B) $4,200 (C) $10,000 (D) $10,200 Question 2 - Constitutional Law A federal statute imposes an excise tax of $100 on each new computer sold in the United States. It also appropriates the entire proceeds of that tax to a special fund, which is required to be used to purchase licenses for computer software that will be made available for use, free of charge, to any resident of the United States. Is this statute constitutional? (A) No, because the federal government may not impose any direct taxes on citizens of the United States. (B)No, because this statute takes without just compensation the property of persons who hold patents or copyrights on computer software. (C) Yes, because it is a reasonable exercise of the power of Congress to tax and spend for the general welfare. (D) Yes, because the patent power authorizes Congress to impose reasonable charges on the sale of technology and to spend the proceeds of those charges to advance the use of technologyin the United States. Question 3 - Criminal Law and Procedure Nine gang members were indicted for the murder of a tenth gang member who had become an informant. The gang leader pleaded guilty. At the trial of the other eight, the state's evidence showed the following: The gang leader announced a party to celebrate the recent release of a gang member from jail. But the party was not what it seemed. The gang leader had learned that the recently released gang member had earned his freedom by informing the authorities about the gang's criminal activities. The gang leader decided to use the party to let the other gang members see what happened to a snitch. He told no one about his plan. At the party, after all present had consumed large amounts of liquor, the gang leader announced that the released gang member was an informant and stabbed him with a knife in front of the others. The eight other gang members watched and did nothing while the informant slowly bled to death. The jury found the eight gang members guilty of murder and they appealed. Should the appellate court uphold the convictions? (A) No, because mere presence at the scene of a crime is insufficient to make one an accomplice. (B) No, because murder is a specific intent crime, and there is insufficient evidence to show that they intended to kill. (C) Yes, because the gang members made no effort to save the informant after he had been stabbed. (D) Yes, because voluntary intoxication does not negate criminal responsibility. Question 4 - Real Property A landlord leased an apartment to a tenant by written lease for two years ending on the last day of a recent month. The lease provided for $700 monthly rental. The tenant occupied the apartment and paid the rent for the first 15 months of the lease term, until he moved to a new job in another city. Without consulting the landlord, the tenant moved a friend into the apartment and signed an informal writing transferring to the friend his "lease rights" for the remaining nine months of the lease. The friend made the next four monthly $700 rental payments to the landlord. For the final five months of the lease term, no rent was paid by anyone, and the friend moved out with three months left of the lease term. The landlord was on an extended trip abroad, and did not learn of the default and the vacancy until last week. The landlord sued the tenant and the friend, jointly and severally, for $3,500 for the last five months' rent. What is the likely outcome of the lawsuit? (A) Both the tenant and the friend are liable for the full $3,500, because the tenant is liable on privity of contract and the friend is liable on privity of 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 estate, which lasted only until he vacated, and the tenant is liable for $2,100 on privity of contract and estate for the period after the friend vacated. (C) The friend is liable for $3,500 on privity of estate and the tenant is not liable, because the landlord's failure to object to the friends payment of rent relieved the tenant of liability. (D) The tenant is liable for $3,500 on privity of contract and the friend is not liable, because a sublessee does not have personal liability to the original landlord. Question 5 - Evidence In a civil trial for professional malpractice, the plaintiff sought to show that the defendant, an engineer, had designed the plaintiffs flour mill with inadequate power. The plaintiff called an expert witness who based his testimony solely on his own professional experience but also asserted, when asked, that the book Smith on Milling Systems was a reliable treatise in the field and consistent with his views. On cross-examination, the defendant asked the witness whether he and Smith were ever wrong. The witness answered, "Nobody's perfect." The defendant asked no further questions. The defendant called a second expert witness and asked, "Do you accept the Smith book as reliable?" The second witness said, "It once was, but it is now badly out of date." The plaintiff requested that the July be allowed to examine the book and judge for itself the book's reliability. Should the court allow the jury to examine the book? (A) No, because the jury may consider only passages read to it by counsel or witness. (B) No, because the plaintiffs expert in testifying did not rely on the treatise but on his own experience. (C) Yes, because an expert has testified that the treatise is reliable. (D) Yes, because the jury is the judge of the weight and credibility to be accorded both written and oral evidence. Question 6 - Torts A driver, returning from a long shift at a factory, fell asleep at the wheel and lost control of his car. As a result, his car collided with a police car driven by an officer who was returning to the station after having responded to an emergency. The police officer was injured in the accident. The police officer sued the driver in negligence for her injuries. The driver moved for summary judgment, arguing that the common-law firefighters' rule barred the suit. Should the court grant the motion? (A) No, because the firefighters' rule does not apply to police officers. (B) No, because the police officer's injuries were not related to any special dangers of her job. (C) Yes, because the accident would not have occurred but for the emergency. (D) Yes, because the police officer was injured on the job. Question 7 - Contracts A lumber supplier agreed to sell and a furniture manufacturer agreed to buy all of the lumber that the manufacturer required over a two-year period. The sales contract provided that payment was due 60 days after delivery, but that a 3% discount would be allowed if the manufacturer paid within 10 days of delivery. During the first year of the contract, the manufacturer regularly paid within the 10-day period and received the 3% discount. Fifteen days after the supplier made its most recent lumber delivery to the manufacturer, the supplier had received no payment from the manufacturer. At this time, the supplier became aware of rumors from a credible source that the manufacturer's financial condition was precarious. The supplier wrote the manufacturer, demanding assurances regarding the manufacturer's financial status. The manufacturer immediately mailed its latest audited financial statements to the supplier, as well as a satisfactory credit report prepared by the manufacturer's banker. The rumors proved to be false. Nevertheless, the supplier refused to resume deliveries. The manufacturer sued the lumber supplier for breach of contract. Will the manufacturer prevail? (A) No, because the contract was unenforceable, since the manufacturer had not committed to purchase a definite quantity of lumber. (B) No, because the supplier had reasonable grounds for insecurity and was therefore entitled to cancel the contract and refuse to make any future deliveries. (C) Yes, because the credit report and audited financial statements provided adequate assurance of due performance under the contract. (D) Yes, because the supplier was not entitled to condition resumption of deliveries on the receipt of financial status information. 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 manufacturing plant in the state of Green developed a "Martian" toy that simulates the exploration of Mars by a remote-controlled vehicle. It accurately depicts the Martian landscape and the unmanned exploratory vehicle traversing it. The toy is of high quality, safe, durable, and has sold very well. Other toy manufacturers, all located outside Green, developed similar toys that are lower in price. These manufacturers have contracts to sell their Martian toys to outlets in Green. Although these toys are safe and durable, they depict the Martian landscape less realistically than the toys manufactured in Green. Nevertheless, because of the price difference, sales of these toys have cut severely into the sales of the Martian toys manufactured in Green. The Green legislature subsequently enacted a law "to protect the children of Green from faulty science and to protect Green toy manufacturers from unfair competition." This law forbids the sale in Green of any toy that purports to represent extraterrestrial objects and does not satisfy specified scientific criteria. The Martian toy manufactured in Green satisfies all of these criteria; none of the Martian toys of the competing manufacturers meets the requirements. Is the Green law constitutional? (A) No, because it abrogates the obligations of the contracts between the other toy manufacturers and their Green outlets who have agreed to sell their Martian toys. (B) No, because it imposes an undue burden on interstate commerce. (C) Yes, because it deals only with a local matter, the sale of toys in Green stores. (D) Yes, because the states interest in protecting the state's children from faulty science justifies this burden on interstate commerce. Question 9- Real Property A landowner executed an instrument in the proper form of a deed, purporting to convey his land to a friend. The landowner handed the instrument to the friend, saying, "This is yours, but please do not record it until after I am dead. Otherwise, it will cause me no end of trouble with my relatives." Two days later, the landowner asked the friend to return the deed to him because he had decided that he should devise the land to the friend by will rather than by deed. The friend said that he would destroy the deed and a day or so later falsely told the landowner that the deed had been destroyed. Six months ago, the landowner, who had never executed a will, died intestate, survived by a daughter as hissole heir at law. The day after the landowners death, the friend recorded the deed from him. As soon as the daughter discovered this recording and the friend's claim to the land, she brought an appropriate action against the friend to quiet title to the land. For whom should the court hold? (A) The daughter, because the death of the landowner deprived the subsequent recordation of any effect. (B) The daughter, because the friend was dishonest in reporting that he had destroyed the deed. (C) The friend, because the deed was delivered to him. (D) The friend, because the deed was recorded by him. Question 10 - Criminal Law and Procedure An undercover police detective told a local drug dealer that she wanted to buy cocaine, but that she needed time to raise the necessary funds. The drug dealer said that he needed time to get the cocaine. They agreed to meet again in 10 days. An hour later, without a warrant, other officers forcibly entered the drug dealer's apartment and arrested him for attempted possession of a controlled substance. If the drug dealer is prosecuted in a common-law jurisdiction for attempted possession of cocaine, should he be convicted? (A) No, because he had not taken sufficient acts toward commission of the crime. (B) No, because he was illegally arrested. (C) Yes, because by objective standards an agreement between them had occurred. (D) Yes, because his intention to obtain the cocaine was unequivocally expressed. Question 11 - Torts During a comprehensive evaluation of an adult patient's psychiatric condition, the psychiatrist failed to diagnose the patient's suicidal state. One day after the misdiagnosis, the patient committed suicide. The patient's father, immediately after having been told of his son's suicide, suffered severe emotional distress, which resulted in a stroke. The patient's father was not present at his son's appointment with the psychiatrist and did not witness the suicide. The father brought an action against the psychiatrist to recover for his severe emotional distress and the resulting stroke. Will the father prevail? MBE RELEAsth Qi FEsTiONS 33 MBE MIXED PRACTICE 2 EFTA00811442 AMERIBAR BAR REVIEW • MBE MIXED PRACTICE 2 (A) No, because the father did not sustain a physical impact. (B) No, because the psychiatrists professional duty did not extend to the harms suffered by the patient's father. (C) Yes, because the father was a member of the patient's immediate family. (D) Yes, because the psychiatrist reasonably could have foreseen that a misdiagnosis would result in the patient's suicide and the resulting emotional distress of the patient's father. Question 12 - Evidence In a civil trial arising from a car accident at an intersection, the plaintiff testified on direct that he came to a full stop at the intersection. On cross- examination, the defendant's lawyer asked whether the plaintiff claimed that he was exercising due care at the time, and the plaintiff replied that he was driving carefully. At a sidebar conference, the defendant's lawyer sought permission to ask the plaintiff about two prior intersection accidents in the last 12 months where he received traffic citations for failing to stop at stop signs. The plaintiff's lawyer objected. Should the court allow defense counsel to ask the plaintiff about the two prior incidents? (A) No, because improperly failing to stop on the recent occasions does not bear on the plaintiffs veracity and does not contradict his testimony in this case. (B) No, because there is no indication that failing to stop on the recent occasions led to convictions. (C) Yes, because improperly failing to stop on the recent occasions bears on the plaintiffs credibility, since he claims to have stopped in this case. (D) Yes, because improperly failing to stop on the recent occasions tends to contradict the plaintiffs claim that he was driving carefully at the time he collided with the defendant. Question 13 - Constitutional Law According to a state law, state employees may be fired only "for good cause." A woman who was both a resident and an employee of the state was summarily fired on the sole ground that she had notified federal officials that the state was not following federal rules governing the administration of certain federally funded state programs on which she worked. The state denied the woman's request for a hearing to allow her to contest the charge. There is no record of any other state employee having been terminated for this reason. In a suit to reinstate her employment, which of the following claims provides the LEAST support for the woman? (A) The state's firing of her unconstitutionally abridged her freedom of speech. (B) The state's firing of her unconstitutionally denied her a privilege or immunity of state citizenship protected by Article IV. (C) The state's firing of her violated the supremacy clause of Article VI, because it interfered with the enforcement of federal rules. (D) The state's firing of her without affording her an opportunity for a hearing is an unconstitutional denial of procedural due process. Question I4 - Contracts A landowner and a contractor entered into a written contract under which the contractor agreed to build a building and pave an adjacent sidewalk for the landowner at a price of $200,000. Later, while construction was proceeding, the landowner and the contractor entered into an oral modification under which the contractor was not obligated to pave the sidewalk, but still would be entitled to $200,000 upon completion. The contractor completed the building. The landowner, after discussions with his landscaper, demanded that the contractor pave the adjacent sidewalk. The contractor refused. Has the contractor breached the contract? (A) No, because the oral modification was in good faith and therefore enforceable. (B) Yes, because a discharge of a contractual obligation must be in writing. (C) Yes, because the parol evidence rule bars proof of the oral modification. (D) Yes, because there was no consideration for the discharge of the contractor's duty to pave the sidewalk. Question IS - Real Property A landowner conveyed his land by quitclaim deed to his daughter and son "as joint tenants in fee simple." The language of the deed was sufficient to create a common-law joint tenancy with right of survivorship, which is unmodified by statute. The daughter then duly executed a will devising her interest in the land to a friend. Then the son duly executed a will devising his interest in the land to a cousin. The son died, and later the daughter died. Neither had ever married. The daughter's friend and the cousin •• or act racy° nI IESTIONS 34 MBE MIXED PRACTICE 2 EFTA00811443 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 survived. After both wills have been duly probated, who owns what interest in the land? (A) The cousin owns the fee simple. (B) The daughter's friend and the cousin own equal shares as joint tenants with right of survivorship. (C) The daughters friend and the cousin own equal shares as tenants in common. (D) The daughter's friend owns the fee simple. Question 16 - Evidence A defendant was charged with burglary. At trial, a police officer testified that, after the defendant was arrested and agreed to answer questions, the officer interrogated him with a stenographer present, but that he could not recall what the defendant had said. The prosecutor presented the officer with a photocopy of the stenographic transcript of the interrogation. The officer, after looking at it, was prepared to testify that he recalled that the defendant admitted to being in the area of the burglary. The defendant objected to the officers testimony on the ground that it violated the "original document" rule (also known as the "best evidence" rule). Should the officer's testimony concerning the defendant's recorded confession be admitted? (A) No, because a photocopy cannot be used without a showing that the original is unavailable. (B) No, because the stenographer has not testified to the accuracy of the transcript. (C) Yes, because a photocopy is a duplicate of the original. (D) Yes, because the prosecutor is not attempting to prove the contents of the document. Question 17 - Criminal Law and Procedure A state legislature passed a statute providing that juries in criminal trials were to consist of 6 rather than 12 jurors, and providing that jury verdicts did not have to be unanimous but could be based on 5 votes out of 6 jurors. A defendant was tried for murder. Over his objection, he was tried by a jury composed of 6 jurors. The jurors found him guilty by a vote of 5 to I and, over the defendant's objection, the court entered a judgment of conviction, which was affirmed on appeal by the state supreme court. The defendant seeks to overturn his conviction in a habeas corpus action in federal court, claiming his constitutional rights were violated by allowing a jury verdict that was not unanimous and by allowing a jury composed of fewer than 12 members. • "BE RELEASED QUM-Ms How is the federal court likely to rule in this action? (A) It will set aside the conviction, because the jury was composed of fewer than 12 members. (B) It will set aside the conviction, because the 6- person jury verdict was not unanimous. (C) It will set aside the conviction for both reasons. (D) It will uphold the conviction. Question IS - Real Property A grantor executed an instrument in the proper form of a warranty deed purporting to convey a tract of land to his church. The granting clause of the instrument ran to the church "and its successors forever, so long as the premises are used for church purposes." The church took possession of the land and used it as its site of worship for many years. Subsequently, the church wanted to relocate and entered into a valid written contract to sell the land to a buyer for a substantial price. The buyer wanted to use the land as a site for business activities and objected to the church's title. The contract contained no provision relating to the quality of title the church was bound to convey. There is no applicable statute. When the buyer refused to close, the church sued the buyer for specific performance and properly joined the grantor as a party. Is the church likely to prevail? (A) No, because the grantor's interest prevents the church's title from being marketable. (B) No, because the quoted provision is a valid restrictive covenant. (C) Yes, because a charitable trust to support religion will attach to the proceeds of the sale. (D) Yes, because the grantor cannot derogate from his warranty to the church. Question 19 - Evidence In a civil trial for fraud arising from a real estate transaction, the defendant claimed not to have been involved in the transaction. The plaintiff called a witness to testify concerning the defendant's involvement in the fraudulent scheme, but to the plaintiffs surprise the witness testified that the defendant was not involved, and denied making any statement to the contrary. The plaintiff now calls a second witness to testify that the first witness had stated, while the two were having a dinner conversation, that the defendant was involved in the fraudulent transaction. Is the testimony of the second witness admissible? 35 MBE MIXED PRACTICE 2 EFTA00811444 AMERIBAR BAR REVIEW MBE MLXED PRACTICE 2 (A) No, because a party cannot impeach the party's own witness. (B) No, because it is hearsay not within any exception. (C) Yes, but only to impeach the first witness. (D) Yes, to impeach the first witness and to prove the defendant's involvement. Question 20 - Torts A car owner washed her car while it was parked on a public street, in violation of a statute that prohibits the washing of vehicles on public streets during rush hours. The statute was enacted only to expedite the flow of automobile traffic. Due to a sudden and unexpected cold snap, the car owner's waste water formed a puddle that froze. A pedestrian slipped on the frozen puddle and broke her leg. The pedestrian sued the car owner to recover for her injury. At trial, the only evidence the pedestrian offered as to negligence was the car owner's admission that she had violated the statute. At the conclusion of the proofs, both parties moved for a directed verdict. How should the trial judge proceed? (A) Deny both motions and submit the case to the jury, because, on the facts, the jury may infer that the car owner was negligent. (B) Deny both motions and submit the case to the jury, because the jury may consider the statutory violation as evidence that the car owner was negligent (C) Grant the car owner's motion, because the pedestrian has failed to offer adequate evidence that the car owner was negligent. (D) Grant the pedestrian's motion, because of the car owner's admitted statutory violation. Question 21 - Constitutional Law Two tenured professors at a state university drafted a new university regulation prohibiting certain kinds of speech on campus. Students, staff, and faculty convicted by campus tribunals of violating the regulation were made subject to penalties that included fines, suspensions, expulsions, and termination of employment. The regulation was widely unpopular and there was a great deal of public anger directed toward the professors who drafted it. The following year, the state legislature approved a severable provision in the appropriations bill for the university declaring that none of the university's funding could be used to pay the two professors, who were specifically named in the provision. In the past, the professors' salaries had always been paid from funds appropriated to the university by the legislature, and the university had no other funds that could be used to pay them. If the professors challenge the constitutionality of the appropriations provision, is the court likely to uphold the provision? (A) No, because it amounts to the imposition of a punishment by the legislature without trial. (B) No, because it was based on conduct the professors engaged in before it was enacted. (C) Yes, because the Eleventh Amendment gives the state legislature plenary power to appropriate state funds in the manner that it deems most conducive to the welfare of its people. Clause I of the Constitution. (D) Yes, because the full faith and credit clause requires the court to enforce the provision strictly according to its terms. Question 22- Criminal Law and Procedure Police officers received a tip that drug dealing was occurring at a certain ground-floor duplex apartment. They decided to stake out the apartment. The stakeout revealed that a significant number of people visited the apartment for short periods of time and then left. A man exited the apartment and started to walk briskly away. The officers grabbed the man and, when he struggled, wrestled him to the ground. They searched him and found a bag of heroin in one of his pockets. After discovering the heroin on the man, the police decided to enter the apartment. They knocked on the door, which was opened by the woman who lived there. The police asked if they could come inside, and the woman gave them permission to do so. Once inside, the officers observed several bags of heroin on the living room table. The woman is charged with possession of the heroin found on the living room table. She moves pretrial to suppress the heroin on the ground that it was obtained by virtue of an illegal search and seizure. Should the woman's motion be granted? (A) No, because the tip together with the heroin found in the man's pocket provided probable cause for the search. (B) No, because the woman consented to the officers' entry. (C) Yes, because the officers' decision to enter the house was the fruit of an illegal search of the man. (D) Yes, because the officers did not inform the woman that she could refuse consent. Question 23 - Real Property MBE RELEASED QUESTIONS 36 MBE MIXED PRACTICE 2 EFTA00811445 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 A landowner died, validly devising his land to his wife "for life or until remarriage, then to" their daughter. Shortly after the landowner's death, his daughter executed an instrument in the proper form of a deed, purporting to convey the land to her friend. A year later, the daughter died intestate, with her mother, the original landowner's wife, as her sole heir. The following month, the wife re-married. She then executed an instrument in the proper form of a deed, purporting to convey the land to her new husband as a wedding gift. Who now owns what interest in the land? (A) The daughters friend owns the fee simple. (B) The wife owns the fee simple. (C) The wife's new husband has a life estate in the land for the wife's life, with the remainder in the daughter's friend. (D) The wife's new husband owns the fee simple. Question 24 - Contracts During negotiations to purchase a used car, a buyer asked a dealer whether the car had ever been in an accident. The dealer replied: "It is a fine car and has been thoroughly inspected and comes with a certificate of assured quality. Feel free to have the car inspected by your own mechanic." In actuality, the car had been in an accident and the dealer had repaired and repainted the car, successfully concealing evidence of the accident. The buyer declined to have the car inspected by his own mechanic, explaining that he would rely on the dealers certificate of assured quality. At no time did the dealer disclose that the car had previously been in an accident. The parties then signed a contract of sale. After the car was delivered and paid for, the buyer learned about the car's involvement in a major accident. If the buyer sues the dealer to rescind the transaction, is the buyer likely to succeed? (A) No, because the buyer had the opportunity to have the car inspected by his own mechanic and declined to do so. (II) No. because the dealer did not affirmatively assert that the car had not been in an accident. (C) Yes, because the contract was unconscionable. (D) Yes, because the dealer's statement was intentionally misleading and the dealer had concealed evidence of the accident. Question 25 - Constitutional Law A state constitution provides that in every criminal MBE RELEASP.D QUESTIONS trial "the accused shall have the right to confront all witnesses against him face to face." A defendant was convicted in state court of child abuse based on testimony from a six-year-old child. The child testified while she was seated behind one-way glass, which allowed the defendant to see the child but did not allow the child to see the defendant. The defendant appealed to the state supreme court claiming that the inability of the witness to see the defendant while she testified violated both the United States Constitution and the state constitution. Without addressing the federal constitutional issue, the state supreme court reversed the defendant's conviction and ordered a new trial. The state supreme court held that "the constitution of this state is clear, and it requires that while testifying in a criminal trial, a witness must be able to see the defendant." The state petitioned the United States Supreme Court for a writ of certiorari. On which ground should the United States Supreme Court DENY the state's petition? (A) A state may not seek appellate review in the United States Supreme Court of the reversal of a criminal conviction by its own supreme court. (B) The decision of the state supreme court was based on an adequate and independent state ground. (C) The Sixth Amendment to the United States Constitution does not require that a witness against a criminal defendant be able to see the defendant while the witness testifies. (D) The state supreme court's decision requires a new trial, and therefore it is not a final judgment. Question 26 - Criminal Law and Procedure A husband and wife took their I2-year-old son to a political rally to hear a controversial United States senator speak. The speaker was late, and the wife stepped outside to smoke a cigarette. While there, she saw a man placing what she believed to be a bomb against a wall at the back of the building. She went back inside and told her husband what she had seen. Without alerting anyone, they took their son and left. Some 20 minutes later, the bomb exploded, killing eight persons and injuring 50. In the jurisdiction, murder in the first degree is defined as an intentional homicide committed with premeditation and deliberation; murder in the second degree is defined as all other murder at common law; and manslaughter is defined as either a homicide in the heat of passion arising from adequate provocation or a homicide caused by gross negligence or reckless indifference to consequence. 37 MBE MIXED PRACTICE 2 EFTA00811446 AMEMBAR BAR REVIEW MBE MIXED PRACTICE 2 • As to the deaths of the eight persons, what crime, if any, did the wife commit? (A) Manslaughter. (B) Murder in the first degree. (C) Murder in the second degree. (D) No crime. Question 27 - Criminal Law and Procedure A woman decided to steal a necklace that belonged to her neighbor. She knew where the neighbor kept the necklace because she had been in the neighbor's house on many occasions when the neighbor had taken off the necklace and put it away in a jewelry box in the bathroom. One night, the woman went to the neighbor's house. The neighbor was away and the house was dark. The woman opened the bathroom window, saw the jewelry box on the counter, and started to climb inside. As her leg cleared the window sill, the neighbor's cat let out a loud screech. Terrified, the woman bolted back outside and fled. The crimes below are listed in descending order of seriousness. What is the most serious crime committed by the woman? (A) Burglary, (B) Attempted burglary. (C) Attempted larceny. (D) No crime. Question 28 - Torts A host pointed an unloaded revolver at her guest, threatening to shoot him. The guest knew that the revolver was not loaded, and that the ammunition for the revolver was stored in a locked basement closet, two stories below where the two were then standing. In an action brought by the guest against the host for assault, will the guest prevail? (A) No, because the host did not intend to shoot her guest. (B) No, because the host did not put her guest in apprehension of an imminent contact. (C) Yes, because the ammunition was aressible to the host. (D) Yes, because the host threatened her guest with a revolver. Question 29 - Evidence A defendant has pleaded not guilty to a federal charge of bank robbery. The principal issue at trial is the identity of the robber. The prosecutor calls the defendant's wife to testify to the clothing that the defendant wore as he left their house on the day the bank was robbed, expecting her description to match that of eyewitnesses to the robbery. Both the defendant and his wife object to her testifying against the defendant. Should the wife be required to testify? (A) No, because the defendant has a privilege to prevent his wife from testifying against him in a criminal case. (B) No, because the wife has a privilege not to testify against her husband in a criminal case. (C) Yes, because the interspousal privilege does not apply in criminal cases. (D) Yes, because the wife's viewing of the defendant's clothing was not a confidential communication. Question 30 - Contracts On January 5, a creditor lent $1,000 to a debtor under a contract calling for the debtor to repay the loan at the rate of $100 per month payable on the first day of each month. On February 1, at the debtor's request, the creditor agreed to permit payment on February 5. On March 1, the debtor requested a similar time extension and the creditor replied, "Don't bother me each month. Just change the date of payment to the fifth of the month. But you must now make the payments by cashier's check." The debtor said, "Okay," and made payments on March 5 and April 5. On April 6, the creditor sold the loan contract to a bank, but did not tell the bank about the agreement permitting payments on the fifth of the month. On April 6, the bank wrote to the debtor: "Your debt to (the creditor) has been assigned to us. We hereby inform you that all payments must be made on the first day of the month." Can the debtor justifiably insist that the payment date for the rest of the installments is the fifth of each month? (A) No, because a contract modification is not binding on an assignee who had no knowledge of the modification. (B) No, because although the creditor waived the condition of payment on the first of the month, the bank reinstated it. (C) Yes, because although the creditor waived the condition of payment on the first of the month, the creditor could not assign to the bank his right to reinstate that condition. (D) Yes, because the creditor could assign to the bank only those rights the creditor had in the contract at the time of the assignment. • MBE RELEASED QUESTIONS 38 MBE MIXED PRACTICE 2 EFTA00811447 AMERIBAR BAR REVIEW Question 31 - Contracts A buyer entered into a written contract to purchase from a seller 1,000 sets of specially manufactured ball bearings of a nonstandard dimension for a price of $10 per set. The seller correctly calculated that it would cost $8 to manufacture each set. Delivery was scheduled for 60 days later. Fifty-five days later, after the seller had completed production of the 1,000 sets, the buyer abandoned the project requiring use of the specially manufactured ball bearings and repudiated the contract with the seller. After notifying the buyer of his intention to resell, the seller sold the 1,000 sets of ball bearings to a salvage company for $2 per set. The seller sued the buyer for damages. What damages should the court award to the seller? (A) $2 per set, representing the difference between the cost of production and the price the buyer agreed to pay. (B) $6 per set, representing the difference between the cost of manufacture and the salvage price. (C) $8 per set, representing the lost profits plus the unrecovered cost of production. (D) Nominal damages, as the seller failed to resell the goods by public auction. Question 32 - Torts A construction company was digging a trench for a new sewer line in a street in a high-crime neighborhood. During the course of the construction, there had been many thefts of tools and equipment from the construction area. One night, the construction company's employees neglected to place warning lights around the trench. A delivery truck drove into the trench and broke an axle. While the delivery driver was looking for a telephone to summon a tow truck, thieves broke into the delivery truck and stole $350,000 worth of goods. The delivery company sued the construction company to recover for the $350,000 loss and for $1,500 worth of damage to its truck. The construction company stipulated that it was negligent in failing to place Warning lights around the trench, and admits liability for damage to the truck, but denies liability for the loss of the goods. On cross-motions for summary judgment, how should the court rule? (A) Deny both motions, because there is evidence to support a finding that the construction company should have realized that its negligence could cr crieate me an opportunity for a third party to commit a MBE Rkkk.AsEn QUESTIONS MBE MIXED PRACTICE 2 • (B) Grant the construction company's motion, because no one could have foreseen that the failure to place warning lights could result in the loss of a cargo of valuable goods. (C) Grant the construction company's motion, because the criminal acts of third persons were a superseding cause of the loss. (D) Grant the delivery company's motion, because but for the construction company's actions, the goods would not have been stolen. Question 33 - Constitutional Law Several public high school students asked the superintendent of the public school district whether the minister of a local church could deliver an interdenominational prayer at their graduation ceremony in the school auditorium. None of the students or their guests at graduation would be required to pray while the minister delivered the prayer. Would the minister's delivery of such a prayer at the public high school graduation be constitutional? (A) No, because it would be an unconstitutional establishment of religion. (B) No, because it would deny attendees who are not members of the minister's denomination the right to freely exercise their religion. (C) Yes, because none of the students or their guests would be required to pray at the graduation ceremony. (D) Yes, because the idea for the prayer originated with the students and not with school officials. Question 34 - Evidence At the defendant's trial for a gang-related murder, the prosecution introduced, as former testimony, a statement by a gang member who testified against the defendant at a preliminary hearing and has now invoked his privilege against self-incrimination. If the defendant now seeks to impeach the credibility of the gang member, which of the following is the court most likely to admit? (A) Evidence that the gang member had three misdemeanor convictions for assault. (B) Testimony by a psychologist that persons with the gang member's background have a tendency to fabricate. (C) Testimony by a witness that at the time the gang member testified, he was challenging the defendant's leadership role in the gang. (D) Testimony by a witness that the gang member is 39 MBE MIXED PRACTICE 2 EFTA00811448 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 a cocaine dealer. Question 35 - Criminal Law and Procedure A defendant was charged with manslaughter. At the preliminary hearing, the magistrate dismissed the charge on the grounds that the evidence was insufficient. The prosecutor then brought the case before a grand jury. After hearing the evidence presented by the prosecutor, the grand jury refused to return an indictment. The prosecutor waited a few months until a new grand jury had been impaneled and brought the case before that grand jury, which returned an indictment charging the defendant with manslaughter. The defendant moves to dismiss the indictment on double jeopardy grounds. Should the motion be granted? (A) No, because jeopardy had not attached. (B) No, because there has been no conviction or acquittal. (C) Yes, because any proceeding after the preliminary hearing would violate double jeopardy. (D) Yes, because bringing the case before the second grand jury was a violation of double jeopardy. Question 36 - Constitutional Law Congress passed a statute directing the United States Forest Service, a federal agency, to issue regulations to control campfires on federal public lands and to establish a schedule of penalties for those who violate the new regulations. The statute provided that the Forest Service regulations should "reduce, to the maximum extent feasible, all potential hazards that arise from campfires on Forest Service lands." The Forest Service issued the regulations and the schedule of penalties directed by Congress. The regulations include a rule that provides for the doubling of the fine for any negligent or prohibited use of fire if the user is intoxicated by alcohol or drugs. Which of the following is the best argument for sustaining the constitutionality of the Forest Service's rule providing for the fines? (A) The executive branch of government, of which the Forest Service is pan, has inherent rule- making authority over public lands. (B) The rule is issued pursuant to a valid exercise of Congress's power to delegate rule-making authority to federal agencies. (C) The rule is justified by a compelling governmental interest in safeguarding forest resources. • (D) The rule relates directly to law enforcement, which is an executive rather than legislative function, and hence it does not need specific congressional authorization. Question 37 - Evidence A defendant was charged with aggravated assault. At trial, the victim testified that the defendant beat her savagely, but she was not asked about anything said during the incident. The prosecutor then called a witness to testify is when the beating stopped, the victim screamed: dying-don't let [the defendant) get away with it!" Is the testimony of the witness concerning the victim's statement admissible? (A) No, because it is hearsay not within any exception. (B) No, because the victim was not asked about the statement. (C) Yes, as a statement under belief of impending death, even though the victim did not die. (D) Yes, as an excited utterance. Question 38 - Contracts A bakery offered a chef a permanent full-time job as a pastry chef at a salary of $2,000 per month. The chef agreed to take the position and to begin work in two weeks. In her employment application, the chef had indicated that she was seeking a permanent job. One week after the chef was hired by the bakery, a hotel offered the chef a position as a restaurant manager at a salary of $2,500 a month. The chef accepted and promptly notified the bakery that she would not report for work at the bakery. Is the bakery likely to prevail in a lawsuit against the chef for breach of contract? (A) No, because a contract for permanent employment would be interpreted to mean the chef could leave at any time. (8) No, because the position the chef took with the hotel was not substantially comparable to the one she had agreed to take with the bakery. (C) Yes, because the chefs acceptance of a permanent position meant that she agreed to leave the bakery only after a reasonable time. (D) Yes, because the chefs failure to give the bakery a chance to match the salary offered by the hotel breached the implied right of first refusal. Question 39- Real Property • ern nf irsTioNs -• 40 MBE MIXED PRACTICE; EFTA00811449 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 A creditor received a valid judgment against a debtor and promptly and properly filed the judgment in the county. Two years later, the debtor purchased land in the county and promptly and properly recorded the warranty deed to it. Subsequently, the debtor borrowed $30,000 from his aunt, signing a promissory note for that amount, which note was secured by a mortgage on the land. The mortgage was promptly and properly recorded. The aunt failed to make a title search before making the loan. The debtor made no payment to the creditor and defaulted on the mortgage loan from his aunt. A valid judicial foreclosure proceeding was held, in which the creditor, the aunt, and the debtor were named parties. A dispute arose as to which lien has priority. A statute of the jurisdiction provides: "Any judgment properly filed shall, for 10 years from filing, be a lien on the real property then owned or subsequently acquired by any person against whom the judgment is rendered." A second statute of the jurisdiction provides: "No unrecorded conveyance or mortgage of real property shall be good against subsequent purchasers for value without notice, who shall first record." Who has the prior lien? (A) The aunt, because a judgment lien is subordinate to a mortgage lien. (B) The aunt, because she is a mortgagee under a purchase money mortgage. (C) The creditor, because its judgment was filed first. (D) The creditor, because the aunt had a duty to make a title search of the property. Question 40 - Torts The personnel director of an investment company told a job applicant during an interview that the company was worth millions of dollars and that the company's portfolio would triple in the next several months. The applicant was very excited about the company's prospects and accepted an offer to work for the company. Two days later, the applicant read in the newspaper that the investment company had tiled for bankruptcy reorganization. As a result of reading this news, the applicant suffered severe emotional distress but he immediately found another comparable position. Is the applicant likely to prevail in his action for negligent misrepresentation? (A) No, because the applicant did not suffer any physical injury or pecuniary loss. (B) No. because the personnel directors statement was Purely speculative. MBE REI.E.Ast Qt ES TIONS y. 4 ra (C) Yes, because the applicant relied on the personnel director's misrepresentations about the investment company. (D) Yes, because the personnel director should have foreseen that his misrepresentations would cause the applicant to be upset. Question 4! - Constitutional Law A city zoning ordinance requires anyone who proposes to operate a group home to obtain a special use permit from the city zoning board. The zoning ordinance defines a group home as a residence in which four or more unrelated adults reside. An individual applied for a special use permit to operate a group home for convicts during their transition from serving prison sentences to their release on parole. Although the proposed group home met all of the requirements for the special use permit, the zoning board denied the individual's application because of the nature of the proposed use. The individual sued the zoning board seeking decla