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Question 1Multistate Bar Examination (MBE)

A driver ran a red light and struck a pedestrian in a crosswalk. The pedestrian had just stepped off the curb without looking. The jurisdiction follows traditional contributory negligence. If the pedestrian sues the driver for negligence, what is the most likely outcome?

  1. The pedestrian recovers nothing, because stepping off the curb was an assumption of the risk.
  2. The pedestrian recovers nothing, because his own negligence contributed to his injury. Correct answer.
  3. The pedestrian recovers full damages, because the driver's violation of the traffic law establishes negligence as a matter of law.
  4. The pedestrian recovers half damages, because the jurisdiction compares the parties' fault.

Explanation

In a traditional contributory negligence jurisdiction, any negligence by the plaintiff that contributes to his own injury bars recovery entirely. Entering the crosswalk without looking is a breach of the standard of care, so the pedestrian's own fault defeats the claim even though the driver was also negligent.

Question 2Multistate Bar Examination (MBE)

A merchant of building supplies signed a written offer to sell 500 tons of gravel to a contractor, stating that the offer would remain open for 60 days. No consideration was paid for the promise to keep the offer open. Thirty days later, the merchant attempted to revoke. Is the revocation effective under the UCC?

  1. No, because the firm-offer rule applies only when the offeree is also a merchant.
  2. No, because a merchant's signed assurance that the offer will be held open is binding for the stated period. Correct answer.
  3. Yes, because a promise to keep an offer open is unenforceable without consideration from the offeree.
  4. Yes, because the merchant revoked the offer before the contractor accepted it.

Explanation

Under UCC section 2-205, a signed offer by a merchant giving assurance that it will be held open is irrevocable for the time stated, or for a reasonable time if none is stated, up to three months, and no consideration is required. The merchant's attempted revocation within the 60-day period is therefore ineffective.

Question 3Multistate Bar Examination (MBE)

During a bank robbery, a police officer fired at a fleeing robber and accidentally killed a teller. The jurisdiction applies the agency theory of felony murder and treats robbery as an inherently dangerous felony. The robber is charged with felony murder. What is the likely result?

  1. Guilty, because the robber's conduct was the proximate cause of the teller's death during the robbery.
  2. Guilty, because the death occurred during the commission of a dangerous felony.
  3. Not guilty, because the fatal shot was fired by a non-participant in the felony. Correct answer.
  4. Not guilty, because the teller was not the intended victim of the robbery.

Explanation

Under the agency theory of felony murder, a felon is liable only for killings committed by the felon or by an accomplice acting in furtherance of the felony. A shot fired by a police officer is not attributable to the robber, so the felony-murder charge fails even though the death was a foreseeable consequence of the robbery.

Question 4Multistate Bar Examination (MBE)

A robbery victim identified the defendant from a photo array six weeks after the robbery. At trial, the victim testifies that she does not remember the defendant's face and cannot identify him in court. The prosecutor seeks to introduce the victim's testimony that she picked the defendant out of the photo array. Defense counsel objects on hearsay grounds. How should the court rule?

  1. Admit it, because a prior identification by a testifying witness subject to cross-examination is not hearsay. Correct answer.
  2. Exclude it, because a photo array identification is testimonial and the defendant had no chance to cross-examine it.
  3. Exclude it, because the victim is now unable to identify the defendant in court.
  4. Admit it only to impeach the victim, not as substantive evidence.

Explanation

Federal Rule of Evidence 801(d)(1)(C) removes from hearsay a declarant's statement identifying a person after perceiving that person, when the declarant testifies at trial and is subject to cross-examination. The victim is on the stand and available to be questioned about the prior identification, so it is admissible as substantive evidence.

Question 5Multistate Bar Examination (MBE)

A state enacts a law requiring that all milk sold within the state be bottled and processed at plants located in the state. The state defends the law as ensuring freshness and supporting local dairy farmers. A national dairy company challenges the law. Which standard of review will the court apply?

  1. The law is per se invalid unless the state shows no nondiscriminatory alternative could serve its purpose. Correct answer.
  2. The law is valid if the state obtains congressional approval of the bottling requirement.
  3. The law is valid if it is rationally related to a legitimate state interest.
  4. The law is valid if its burden on interstate commerce is clearly excessive when weighed against the local benefits.

Explanation

A state law that discriminates against interstate commerce on its face is per se invalid unless the state can show that it serves a legitimate local purpose that cannot be served by reasonable nondiscriminatory alternatives. Requiring in-state bottling is economic protectionism, so the state must satisfy that demanding burden.

Question 6Multistate Bar Examination (MBE)

O conveys Blackacre to A by warranty deed. A does not record. O then conveys Blackacre to B, who pays fair value and has no actual, inquiry, or record notice of the prior conveyance. B records immediately. The jurisdiction has a notice recording statute. A and B both claim title. Who prevails?

  1. A, because A received the deed first in time and O had nothing left to convey to B.
  2. A, because B had constructive notice of A's deed from the public records.
  3. B, because a notice statute protects any subsequent purchaser who records before the prior grantee.
  4. B, because B took without notice of A's unrecorded conveyance. Correct answer.

Explanation

Under a notice recording statute, a subsequent purchaser prevails if it takes without notice, whether actual, inquiry, or record, of the prior unrecorded conveyance. B paid value, had no notice of any kind, and recorded, so B's title is protected against A even though A's deed came first.

Question 7Multistate Bar Examination (MBE)

A plaintiff from State A sues a defendant from State B in federal court on a state-law tort claim. The complaint alleges damages of exactly $75,000. The defendant moves to dismiss for lack of subject-matter jurisdiction. How should the court rule?

  1. Grant the motion, because the amount in controversy must exceed $75,000, exclusive of interest and costs. Correct answer.
  2. Grant the motion, because a state-law tort claim cannot be heard in federal court.
  3. Deny the motion, because the plaintiff's good-faith damages allegation controls unless it appears to a legal certainty that the claim is worth less.
  4. Deny the motion, because the parties are completely diverse and $75,000 satisfies the statutory amount.

Explanation

Diversity jurisdiction under 28 U.S.C. section 1332 requires complete diversity of citizenship and an amount in controversy that exceeds $75,000, exclusive of interest and costs. A claim pleaded at exactly $75,000 does not cross that threshold, so the case must be dismissed.

Question 8Multistate Bar Examination (MBE)

A drug manufacturer marketed a prescription medication with a package insert warning that the drug carried a small risk of liver damage. The patient's physician read the insert and prescribed the drug anyway. The patient, who never read the insert, suffered liver damage. The patient sues the manufacturer for failure to warn. In a jurisdiction that follows the learned-intermediary rule, what is the likely result?

  1. The manufacturer is not liable, because the patient's failure to read the package insert was the cause of the injury.
  2. The manufacturer is liable, because a prescription drug is unreasonably dangerous as a matter of law.
  3. The manufacturer is liable, because it failed to warn the patient directly of the risk.
  4. The manufacturer is not liable, because its warning to the prescribing physician satisfied its duty to warn. Correct answer.

Explanation

Under the learned-intermediary rule, a prescription drug manufacturer discharges its duty to warn by giving adequate warnings to the prescribing physician, who stands between the manufacturer and the patient. Because the physician received and read the warning before prescribing, the manufacturer is not liable for failing to warn the patient directly.

Question 9Multistate Bar Examination (MBE)

On June 1, a seller and a buyer contracted for the sale of 1,000 widgets to be delivered on August 1. On June 15, the seller unequivocally told the buyer that it would not deliver. The buyer did nothing in response and made no other arrangements. On July 20, the seller called the buyer, retracted the repudiation, and promised to deliver on time. The seller tendered conforming widgets on August 1, and the buyer refused them. Who prevails?

  1. The seller, because a repudiation may be retracted before the buyer cancels or materially changes position. Correct answer.
  2. The buyer, because the seller's retraction came too late once the buyer had treated the contract as at an end.
  3. The seller, because an anticipatory repudiation is never effective unless it is in writing.
  4. The buyer, because a repudiation immediately discharges the buyer's duty to accept the goods.

Explanation

Under UCC section 2-611, a repudiation may be retracted until the aggrieved party has canceled the contract, materially changed position in reliance on it, or otherwise indicated that it considers the repudiation final. The buyer did none of these things, so the July 20 retraction restored the contract and the buyer's refusal of conforming goods was a breach.

Question 10Multistate Bar Examination (MBE)

Police arrested a suspect at his home and took him to the station, where they interrogated him for two hours without giving the warnings required by Miranda v. Arizona. The suspect confessed. The prosecution seeks to introduce the confession in its case-in-chief. How should the court rule?

  1. Admit it, because the suspect was not subjected to physical coercion.
  2. Exclude it, because custodial interrogation without the required warnings makes the confession inadmissible. Correct answer.
  3. Admit it, but only if the suspect signed a written waiver of his rights before the interrogation began.
  4. Exclude it, because a confession obtained at a police station is never admissible.

Explanation

Miranda warnings must precede custodial interrogation, and a confession obtained without them is inadmissible in the prosecution's case-in-chief even absent physical coercion. The suspect was in custody at the station and was questioned for two hours with no warnings, so the confession must be excluded.

Question 11Multistate Bar Examination (MBE)

A woman borrowed her roommate's bicycle for an afternoon ride, intending to return it that evening. Midway through the ride, she decided to keep the bicycle permanently and never returned it. The jurisdiction follows the common law of larceny. Is she guilty of larceny?

  1. Yes, because the roommate's consent to the initial taking was conditioned on the bicycle being returned.
  2. No, because the bicycle was not taken from the roommate's person or presence.
  3. Yes, because she formed the intent to permanently deprive while she had possession of the bicycle.
  4. No, because the intent to permanently deprive did not exist when she took the bicycle. Correct answer.

Explanation

Common-law larceny requires a trespassory taking and carrying away of another's personal property with the intent to permanently deprive at the moment of taking. Because the woman intended only a temporary borrowing when she took the bicycle, her later decision to keep it did not supply the required intent. The initial taking was not trespassory, so the continuing-trespass doctrine does not convert the later conversion into larceny.

Question 12Multistate Bar Examination (MBE)

At a battery trial, the plaintiff offers evidence that immediately after the attack she told a paramedic, "My ribs hurt so badly I can hardly breathe." The defendant objects on hearsay grounds. The statement is offered to prove the extent of the plaintiff's injuries. How should the court rule?

  1. Inadmissible because the statement describes a past memory rather than a current sensation.
  2. Admissible only if the paramedic, rather than the plaintiff, repeats the statement at trial.
  3. Admissible under the exception for a declarant's then-existing physical condition. Correct answer.
  4. Inadmissible because the statement was made to a medical provider rather than to a family member.

Explanation

Federal Rule of Evidence 803(3) excepts from the hearsay rule a statement of the declarant's then-existing physical condition, such as pain or bodily health. The statement was made immediately after the attack and describes how the plaintiff felt at that moment, so it is admissible to prove the extent of injury. The plaintiff may testify to her own statement when a hearsay exception applies.

Question 13Multistate Bar Examination (MBE)

On March 1, a merchant orally promised a buyer, "I will keep my offer to sell you 100 tons of coal open until April 1." The buyer paid nothing and did nothing in reliance. On March 20, the merchant revoked the offer. The buyer seeks to enforce the offer. Under the UCC, which statement is correct?

  1. The revocation is effective only if the merchant gave reasonable notice before March 20.
  2. The revocation is effective because the promise to keep the offer open was not in a signed writing. Correct answer.
  3. The offer was irrevocable because the buyer relied on it by preparing to accept.
  4. The offer was irrevocable because it concerned a sale of goods.

Explanation

Under UCC § 2-205, a merchant's firm offer is irrevocable without consideration only if it is made in a signed writing that gives assurance it will be held open. An oral promise to keep an offer open is not enforceable as a firm offer, and the buyer gave no consideration. The merchant therefore could revoke before acceptance.

Question 14Multistate Bar Examination (MBE)

A state agency terminates a recipient's disability benefits without prior notice or hearing, relying on a statute that provides only for a post-termination hearing. The recipient challenges the procedure. Under the Due Process Clause, which is the strongest argument?

  1. A post-termination hearing always satisfies due process for every kind of government benefit claim.
  2. No hearing is required because disability benefits are not a protected property interest.
  3. Government benefits are merely a privilege, so the state owes no process before terminating them.
  4. Pre-termination notice and a chance to respond are required by the Mathews balancing test. Correct answer.

Explanation

Mathews v. Eldridge requires balancing the private interest, the risk of erroneous deprivation under the current procedures, and the government's administrative burden. Termination of disability benefits can cause severe hardship, and a pre-termination notice and opportunity to respond reduce error at modest cost. Due process therefore requires some pre-termination process, not merely a post-termination hearing.

Question 15Multistate Bar Examination (MBE)

A customer in a grocery store was struck by a sealed box of cereal that fell from a shelf. Store employees had placed the box on the top shelf, and no customer was near the shelf. The customer sues the store. The doctrine of res ipsa loquitur permits an inference of negligence if the customer shows that:

  1. the cereal box was defective when it left the manufacturer and the defect caused the customer's injury
  2. the store had actual knowledge that the shelf was dangerous before the box fell
  3. the accident ordinarily does not occur without negligence and the shelf was controlled by the store Correct answer.
  4. the store owned the shelf, no customer was near it, and the customer did nothing to cause the fall

Explanation

Res ipsa loquitur permits an inference of negligence when the accident is of a kind that ordinarily does not occur without negligence, the instrumentality was in the defendant's exclusive control, and the plaintiff did not contribute. The customer's evidence fits those elements because store employees placed the box and no customer was near the shelf. The doctrine shifts the burden of production, not the ultimate burden of persuasion.

Question 16Multistate Bar Examination (MBE)

For 25 years, a landowner used a gravel path across her neighbor's land to reach a public road. She used the path openly, continuously, and without the neighbor's permission. The neighbor now sues to bar the use. The statutory period is 20 years. What is the landowner's best claim?

  1. A prescriptive easement, because she used the path exclusively for 25 years.
  2. A license, because the neighbor did not object to the use.
  3. An easement by necessity, because the path reaches a public road.
  4. A prescriptive easement, because exclusivity is not required for prescription. Correct answer.

Explanation

A prescriptive easement arises from open, notorious, continuous, and adverse use of another's land for the statutory period. Unlike adverse possession, prescription does not require exclusivity, so the landowner's shared use of the path does not defeat the claim. The 25-year use exceeds the 20-year period.

Question 17Multistate Bar Examination (MBE)

A plaintiff files a federal-question claim against a defendant in federal court. The plaintiff also joins a state-law claim against the same defendant arising from the same transaction. The state claim lacks an independent basis for federal jurisdiction. The defendant moves to dismiss the state claim for lack of subject-matter jurisdiction. How should the court rule?

  1. Dismiss, because the state claim lacks diversity jurisdiction.
  2. Deny, because the court has supplemental jurisdiction over the state claim. Correct answer.
  3. Deny, because the state claim is converted into a federal claim.
  4. Dismiss, because federal courts cannot hear state-law claims.

Explanation

Under 28 U.S.C. § 1367(a), federal courts have supplemental jurisdiction over state-law claims that are part of the same case or controversy as a claim within original jurisdiction. The state claim here arises from the same transaction as the federal claim, so the court has power to hear it. The court may decline supplemental jurisdiction in enumerated circumstances, but lack of an independent basis is not itself a reason to dismiss.

Question 18Multistate Bar Examination (MBE)

A plaintiff sues a defendant for breach of contract. The defendant offers a statement made by the plaintiff's deceased business partner: "I told the plaintiff that I had no authority to sign the contract on behalf of the partnership." The statement is offered to show that the partner lacked authority. The partner is unavailable. Is the statement admissible?

  1. No, because the statement is inadmissible hearsay and no recognized exception applies to it.
  2. Yes, but only if the partner's statement is corroborated by other evidence in the record.
  3. No, because the partner was not a party and his statement cannot be used against the plaintiff.
  4. Yes, under the statement against interest exception, because it disserved the partner's pecuniary interest when made. Correct answer.

Explanation

Federal Rule of Evidence 804(b)(3) excepts a statement that, when made, was so contrary to the declarant's pecuniary or proprietary interest that a reasonable person would not have made it unless believing it true. The partner's admission that he lacked authority could expose him to liability and undermine his own interests, and the partner is unavailable. It is therefore admissible against the plaintiff under the statement against interest exception.

Question 19Multistate Bar Examination (MBE)

A contract requires a seller to deliver 1,000 custom-made machine parts by June 1. On May 25, the seller delivers the parts, but 50 are slightly off-specification. The buyer rejects the entire shipment and cancels the contract. The seller promptly notifies the buyer that it will cure the defect by June 1. Under the UCC, may the seller cure?

  1. No, because custom-made goods cannot be cured once the buyer rejects them.
  2. No, because the buyer may reject any nonconforming shipment under the perfect-tender rule.
  3. Yes, because the seller has a reasonable time to cure if the time for performance has not expired. Correct answer.
  4. Yes, but only if the buyer first accepts the nonconforming goods.

Explanation

UCC § 2-508 gives a seller the right to cure a nonconforming tender if the time for performance has not yet expired and the seller seasonably notifies the buyer of an intention to cure. The buyer's perfect-tender rejection does not automatically cancel the contract before the agreed delivery date. Because the seller promised to cure by June 1, the original performance date, the cure right applies.

Question 20Multistate Bar Examination (MBE)

Police lawfully arrest a driver in his car for driving with a suspended license. After securing the driver in a patrol car, officers search the passenger compartment and find a closed container with illegal drugs. The offense is not one for which evidence would likely be found in the car. Under the Fourth Amendment, the search is:

  1. invalid because the driver was secured and the offense did not involve evidence likely in the car Correct answer.
  2. valid because automobiles are always subject to search incident to arrest
  3. invalid because police needed a warrant to arrest the driver
  4. valid as a search incident to arrest because the arrest occurred in the car

Explanation

Under Arizona v. Gant, a vehicle search incident to arrest is permitted only when the arrestee is within reaching distance of the passenger compartment or when it is reasonable to believe the vehicle contains evidence of the offense of arrest. The driver was secured, and a suspended-license offense does not suggest evidence in the car. The search therefore violated the Fourth Amendment.

Question 21Multistate Bar Examination (MBE)

A plaintiff is a citizen of State A. She sues a corporation in federal court for $200,000. The corporation is incorporated in State A and has its principal place of business in State B. The corporation's factories are all located in State B. Does the federal court have diversity jurisdiction?

  1. No, because the corporation's factories are all located in State B.
  2. No, because the corporation is a citizen of State A. Correct answer.
  3. Yes, because the corporation's principal place of business is in State B.
  4. Yes, because the amount in controversy exceeds $75,000.

Explanation

For diversity jurisdiction, a corporation is a citizen both of its state of incorporation and of the state where it has its principal place of business. Complete diversity requires that no plaintiff share citizenship with any defendant. Because the corporation is incorporated in State A, it is a citizen of State A, the same state as the plaintiff, so diversity jurisdiction is absent regardless of the amount in controversy.

Question 22Multistate Bar Examination (MBE)

A divorced father and mother signed a settlement agreement in which the father promised to pay their daughter's college tuition for four years. The mother promised to forgo her claim for increased child support. The father later refused to pay, and the daughter sued him. Can the daughter enforce the tuition promise?

  1. No, because the daughter gave no consideration for the father's promise.
  2. No, because the mother was the only party who could enforce the agreement.
  3. Yes, because the daughter was an intended beneficiary. Correct answer.
  4. Yes, because the daughter was a creditor beneficiary of the father's promise.

Explanation

A third party can enforce a contract if the contracting parties intended to confer a direct benefit on that party. A child named in a divorce settlement as the recipient of tuition payments is a classic intended donee beneficiary, so she may sue the promisor even though she gave no consideration. The mother's forbearance supplied consideration for the father's promise.

Question 23Multistate Bar Examination (MBE)

A man agreed to act as lookout for a planned warehouse burglary. On the night of the burglary, before the burglars entered, he told them he would not participate and walked away. The others carried out the burglary. The man is charged as an accomplice to the burglary. Is he guilty?

  1. No, because a lookout cannot be convicted as an accomplice unless he is present at the scene.
  2. Yes, because his withdrawal did not undo his earlier agreement.
  3. Yes, because he was a member of the conspiracy when he agreed to act as lookout.
  4. No, because he timely withdrew and gave no assistance. Correct answer.

Explanation

An accomplice who withdraws before the crime must communicate the withdrawal to the principals and take steps to neutralize prior assistance. If the withdrawal is timely and effective, the former accomplice is not liable for the subsequent crime. Because he told the others before entry and gave no aid, he is not liable as an accomplice to the burglary.

Question 24Multistate Bar Examination (MBE)

Police obtain a warrant to search a suspect's apartment for stolen laptops. While lawfully searching a bedroom closet for laptops, an officer sees a handgun in plain view on the shelf. The officer knows the suspect is a convicted felon prohibited from possessing firearms. May the officer seize the gun?

  1. Yes, because the gun was in a closet that the warrant authorized the officer to search.
  2. No, because the officer was not looking for a gun when he found it.
  3. No, because the warrant authorized only a search for laptops.
  4. Yes, because the officer was lawfully present and the gun's illegality was apparent. Correct answer.

Explanation

Under the plain-view doctrine, an officer may seize evidence without a warrant if the officer is lawfully present, the item is in plain view, and its incriminating character is immediately apparent. The warrant allowed the officer to search the closet for laptops, and the gun's illegality was apparent from the suspect's felon status. The seizure is lawful.

Question 25Multistate Bar Examination (MBE)

A homeowner calls 911 and says, "A man just broke my window and ran toward Elm Street." At trial for vandalism, the prosecution offers the recording to prove the man ran toward Elm Street. The caller is unavailable. Is the statement admissible?

  1. No, because the statement is hearsay and no exception applies.
  2. Yes, because the statement is admissible as a dying declaration.
  3. No, because the caller is unavailable and the statement is testimonial.
  4. Yes, because it is a present sense impression. Correct answer.

Explanation

A present sense impression is a statement describing or explaining an event made while or immediately after the declarant perceived it. The 911 call described the break-in and flight right after the event, so it falls within the exception. Unavailability is not required, and the statement is not testimonial because it was made to address an ongoing emergency.

Question 26Multistate Bar Examination (MBE)

A grantor conveys Blackacre "to Alice and her heirs, but if Blackacre is ever used for commercial purposes, then to Boris and his heirs." Alice later begins operating a retail shop on Blackacre. Who owns Blackacre?

  1. Boris, because he holds a remainder that vested when Alice used the land commercially.
  2. Boris, because the executory limitation automatically shifted title to him. Correct answer.
  3. Alice, because Boris had only a possibility of reverter that never became possessory.
  4. Alice, because the condition is an unreasonable restraint on alienation.

Explanation

The grant creates a fee simple subject to an executory limitation in Alice, with a shifting executory interest in Boris. When the stated condition occurs, title automatically shifts to the holder of the executory interest without any need for entry or legal action. Alice's commercial use triggered that shift, so Boris owns the property.

Question 27Multistate Bar Examination (MBE)

A patient went into surgery for a routine appendectomy and was unconscious during the operation. When she awoke, she had a burn on her thigh that was not present before surgery. The surgical team had exclusive control of the operating room and equipment. The patient sues the surgeon for negligence and offers no direct evidence of how the burn occurred. May the jury infer negligence under res ipsa loquitur?

  1. Yes, because the surgeon is strictly liable for all injuries occurring during surgery.
  2. Yes, because the unexplained burn supports an inference of negligence. Correct answer.
  3. No, because res ipsa loquitur is unavailable in medical malpractice cases.
  4. No, because the patient cannot identify the specific act that caused the burn.

Explanation

Res ipsa loquitur permits an inference of negligence when the injury is of a kind that ordinarily does not occur without negligence, was caused by an instrumentality in the defendant's exclusive control, and was not due to the plaintiff's own conduct. The unexplained burn during unconscious surgery fits those conditions. The patient need not identify the precise negligent act.

Question 28Multistate Bar Examination (MBE)

A city police officer writes a memo to his supervisor complaining that officers are routinely falsifying traffic citations. The memo is part of his ordinary job duties, which include reporting misconduct. The city fires him. He sues under the First Amendment. Is he likely to prevail?

  1. No, because police officers have no First Amendment rights at work.
  2. Yes, because the memo addresses a matter of public concern.
  3. No, because the memo was made as part of his official duties. Correct answer.
  4. Yes, because he reported misconduct within the department rather than to the public.

Explanation

Under Garcetti v. Ceballos, a public employee's speech made pursuant to official job duties is not protected by the First Amendment, even if it addresses a matter of public concern. Because reporting misconduct was part of the officer's ordinary duties, the memo is unprotected. The public-concern inquiry does not rescue speech made as part of the job.

Question 29Multistate Bar Examination (MBE)

At trial, a witness testifies that she saw the defendant take money from the register. On cross-examination, defense counsel asks whether she recently met with the prosecutor and suggests she changed her story to avoid prosecution. The prosecution then offers a video of the witness telling the same story to a friend two days after the incident. Is the video admissible?

  1. Yes, because it rebuts an implied charge of recent fabrication or improper motive. Correct answer.
  2. No, because it was made to a friend rather than under oath.
  3. No, because it is hearsay not subject to any exception.
  4. Yes, because all prior consistent statements are admissible to bolster a witness's credibility.

Explanation

A prior consistent statement is admissible nonhearsay when the declarant testifies and is cross-examined, the statement is consistent, and it is offered to rebut an express or implied charge of recent fabrication or improper influence. Defense counsel's question implied that the witness changed her account after meeting the prosecutor. The earlier video directly rebuts that implication.

Question 30Multistate Bar Examination (MBE)

A seller contracts to sell 100 crates of oranges to a buyer. The contract authorizes the seller to ship the oranges by common carrier but does not specify the terms of delivery. The seller delivers the crates to a common carrier and tenders the required documents to the buyer. The oranges are destroyed in transit through no fault of either party. Who bears the risk of loss?

  1. The seller, because the goods were destroyed before the buyer received them.
  2. The seller, because the contract did not expressly say the buyer bears risk in transit.
  3. The buyer, because risk passed when the seller delivered the goods to the carrier. Correct answer.
  4. The buyer, because risk always passes to the buyer when a common carrier is used.

Explanation

When a contract authorizes or requires the seller to ship goods by carrier but does not require delivery at a particular destination, it is a shipment contract. Under UCC risk-of-loss rules, the risk passes to the buyer when the seller delivers the conforming goods to the carrier and makes a proper tender of documents. The carrier's subsequent loss therefore falls on the buyer.

Question 31Multistate Bar Examination (MBE)

In a civil battery trial, the plaintiff testifies that the defendant said, "I hit him because he looked at me wrong," shortly after the incident. The defendant objects on hearsay grounds. How should the court rule?

  1. Admit it only if the defendant testifies and denies making the statement.
  2. Admit it as an opposing party's statement. Correct answer.
  3. Exclude it because the defendant did not intend to assert a fact.
  4. Exclude it because the statement is testimonial.

Explanation

A statement offered against an opposing party is not hearsay under Federal Rule of Evidence 801(d)(2). The defendant's admission about hitting the plaintiff is therefore admissible even though it was made outside court, and the plaintiff need not show that the defendant intended to assert a fact.

Question 32Multistate Bar Examination (MBE)

An offeror mails an offer to an offeree on June 1. On June 3, the offeree reliably learns from a third party that the offeror has sold the subject matter to someone else. On June 4, before any revocation reaches the offeree, the offeree mails an acceptance. Is there a contract?

  1. Yes, because the offer became irrevocable once it was mailed.
  2. No, because reliable information of the offeror's inconsistent sale revoked the offer. Correct answer.
  3. No, because the offeree knew the offeror had changed position.
  4. Yes, because the offeree accepted before receiving a revocation.

Explanation

An offer can be revoked indirectly when the offeree reliably learns that the offeror has taken definite action inconsistent with the offer, such as selling the subject matter to another person. That indirect revocation is effective when the offeree learns the information, so the later acceptance did not create a contract.

Question 33Multistate Bar Examination (MBE)

A newspaper publishes a false statement that a candidate for city council has accepted bribes. The candidate sues for defamation. The newspaper had serious doubts about the story's truth but published it anyway. What must the candidate prove to recover compensatory damages?

  1. Negligence in failing to verify the story before publication.
  2. That the newspaper intended to harm the candidate's reputation.
  3. Knowledge of falsity or reckless disregard for the truth. Correct answer.
  4. Special damages, because the statement involves a public concern.

Explanation

A public official suing for defamation must prove actual malice by clear and convincing evidence. Actual malice means knowledge that the statement was false or reckless disregard for whether it was true, and the newspaper's serious doubts support that showing.

Question 34Multistate Bar Examination (MBE)

A state enacts a law requiring all trucks operating on its highways to use special mudguards that are manufactured only in that state. The law's stated purpose is highway safety, but no other state requires the guards and they cost significantly more. Out-of-state trucking companies challenge the law. Which principle is most likely to invalidate it?

  1. The Equal Protection Clause, because the law treats truckers differently from other drivers.
  2. The Privileges and Immunities Clause, because trucking is a fundamental right.
  3. The Dormant Commerce Clause, because the law discriminates against interstate commerce. Correct answer.
  4. The Contracts Clause, because it impairs existing shipping contracts.

Explanation

A state law that discriminates against interstate commerce is invalid under the Dormant Commerce Clause unless the state can show a legitimate local purpose that cannot be served by reasonable nondiscriminatory means. Requiring in-state manufactured mudguards without adequate justification is protectionist discrimination.

Question 35Multistate Bar Examination (MBE)

O conveys Blackacre to A, who does not record. O then conveys the same parcel to B, who pays fair value, takes without notice of A, and records immediately. The jurisdiction has a notice-race recording statute. Who owns Blackacre?

  1. O, because the second conveyance is void under the statute.
  2. A, because A received the prior conveyance.
  3. B, because B recorded first and took without notice. Correct answer.
  4. A and B as tenants in common, because both deeds are valid.

Explanation

Under a notice-race statute, a subsequent purchaser prevails if the purchaser takes without notice of the prior conveyance and records first. B paid value, lacked notice, and recorded before A, so B cuts off A's interest.

Question 36Multistate Bar Examination (MBE)

A plaintiff sues a defendant in federal court in State A. The defendant is a corporation incorporated in State B with its principal place of business in State C. The defendant has no offices, employees, or property in State A and has made no sales there. The claim arises from an unrelated accident in State D. Does State A have general personal jurisdiction over the defendant?

  1. Yes, because federal courts have nationwide jurisdiction over corporations.
  2. Yes, because the defendant does business in more than one state.
  3. No, because the defendant is not at home in State A. Correct answer.
  4. No, because the defendant has not consented to jurisdiction in State A.

Explanation

General personal jurisdiction over a corporation exists only where the corporation is essentially at home, typically its place of incorporation or principal place of business. The defendant is at home in States B and C, not State A, so State A lacks general jurisdiction.

Question 37Multistate Bar Examination (MBE)

A merchant seller contracts to ship 500 lamps to a buyer. The contract says "F.O.B. seller's warehouse." The seller delivers the lamps to a common carrier in good condition and receives a negotiable bill of lading. The carrier's negligence destroys the lamps in transit. Who bears the loss?

  1. Seller, because the seller retained the bill of lading.
  2. Buyer, because the goods were nonconforming.
  3. Seller, because the carrier was negligent.
  4. Buyer, because the F.O.B. term shifts risk once the seller delivers to the carrier. Correct answer.

Explanation

An F.O.B. place-of-shipment term creates a shipment contract under the UCC. In a shipment contract, the risk of loss passes to the buyer when the seller delivers conforming goods to the carrier, even if the carrier later negligently destroys them.

Question 38Multistate Bar Examination (MBE)

A defendant is charged with assault. At trial, the defendant calls a witness who testifies, "The defendant has a reputation in the community for being peaceful and nonviolent." The prosecution objects. How should the court rule?

  1. Exclude it, because character evidence is never admissible in criminal cases.
  2. Admit it, because the defendant may offer a pertinent character trait. Correct answer.
  3. Exclude it, because reputation testimony is inadmissible hearsay.
  4. Admit it, but only if the defendant first testifies.

Explanation

In a criminal case, the defendant may offer evidence of a pertinent character trait, such as peacefulness in an assault prosecution. Reputation testimony is a permissible form of character evidence, and the defendant need not testify to present it.

Question 39Multistate Bar Examination (MBE)

A manufacturer sells a power saw with a blade guard that can be removed easily. A worker removes the guard and is injured. In a strict products liability design defect claim using the risk-utility test, what must the injured worker show?

  1. A reasonable alternative design could have reduced the risk. Correct answer.
  2. The worker did not know that the blade guard could be removed.
  3. The manufacturer failed to warn of a danger that was obvious to the worker.
  4. The saw was more dangerous than every other saw on the market.

Explanation

Under the risk-utility test for design defect, the plaintiff must show that a reasonable alternative design would have reduced the foreseeable risk without substantially impairing the product's utility. The availability of such a design makes the product unreasonably dangerous.

Question 40Multistate Bar Examination (MBE)

On March 1, a merchant signs and sends a writing to a buyer offering to sell 500 widgets at $10 each and stating that the offer will remain open until April 15. The buyer gives no consideration for the promise to keep the offer open. On March 20, before the buyer accepts, the merchant revokes. The buyer then attempts to accept on March 25. What is the buyer's best argument that a contract was formed?

  1. The offer became an option contract when the merchant promised to keep it open, even without consideration.
  2. The merchant's signed promise was a UCC firm offer, which needs no consideration to be irrevocable. Correct answer.
  3. The buyer's reliance on the offer made it irrevocable under promissory estoppel.
  4. The merchant's revocation was ineffective because the buyer had a reasonable time to accept.

Explanation

Under UCC § 2-205, a signed offer by a merchant to buy or sell goods that gives assurance it will be held open is irrevocable for the stated time, even without consideration. The merchant's writing satisfies that rule, so the attempted revocation before April 15 is ineffective and the buyer's later acceptance can form a contract.

Question 41Multistate Bar Examination (MBE)

A plaintiff files a diversity action in federal court in State A alleging a state-law negligence claim. The defendant moves to dismiss for failure to state a claim. The Federal Rules of Civil Procedure govern pleading, but State A has a stricter pleading rule requiring detailed facts. Which law should the federal court apply?

  1. The Federal Rules of Civil Procedure, because they govern procedure in federal court. Correct answer.
  2. Neither; the court must certify the pleading question to the state supreme court.
  3. State A's pleading rule, because federal courts must follow all state rules in diversity cases.
  4. State A's pleading rule, because it is substantive under Erie.

Explanation

Erie requires a federal court in a diversity case to apply state substantive law, but the Federal Rules govern federal procedure. Pleading requirements are procedural, and a valid Federal Rule controls over a conflicting state rule.

Question 42Multistate Bar Examination (MBE)

A woman believes that a local ordinance makes it illegal to sell fireworks. In fact, the ordinance was repealed, and selling fireworks is lawful. She offers to sell fireworks to an undercover officer and is charged with attempted illegal sale of fireworks. What is the most likely result?

  1. Guilty, because factual impossibility is never a defense to attempt.
  2. Not guilty, because an offer to sell is mere preparation for the sale.
  3. Not guilty, because the conduct she intended to commit was not a crime. Correct answer.
  4. Guilty, because her belief supplied the mens rea and her offer was a substantial step.

Explanation

Attempt requires intent to commit a crime plus a substantial step. Legal impossibility-where the completed conduct would not actually be a crime-is a defense, and her mistake concerned the law rather than a factual circumstance. Thus she cannot be guilty of attempting an offense that could not exist.

Question 43Multistate Bar Examination (MBE)

At a trial for breach of contract, a plaintiff offers a delivery receipt created by the defendant's shipping clerk, who is unavailable. The receipt was made at the time of delivery and kept in the ordinary course of the defendant's business. The defendant objects on hearsay grounds. How should the court rule?

  1. Admit it only if the plaintiff shows that the clerk is unavailable.
  2. Admit it as a business record kept in the ordinary course of business. Correct answer.
  3. Exclude it, because the clerk is unavailable and the defendant has a right to confront her.
  4. Exclude it, because it contains an assertion by a person who is not in court.

Explanation

The business records exception admits records of a regularly conducted activity made at or near the time by someone with knowledge and kept in the ordinary course, shown through a custodian or qualified witness. Unavailability of the clerk is not required, and the Confrontation Clause does not apply in this civil contract case.

Question 44Multistate Bar Examination (MBE)

A landowner sells a parcel that is completely surrounded by the landowner's remaining land and has no access to a public road. The deed makes no mention of an easement. The buyer later seeks a right-of-way across the seller's remaining land. What is the buyer's strongest claim?

  1. An express easement, because the deed conveyed the parcel to the buyer.
  2. A license, because the seller's remaining land is burdened by the buyer's use.
  3. An easement by prescription, because the buyer's use would be open and continuous.
  4. An easement by necessity, because the severance left the parcel landlocked. Correct answer.

Explanation

An easement by necessity arises when a parcel is landlocked by a severance and reasonable necessity exists for access. Because the sale left the buyer's parcel surrounded by the seller's land with no public-road access, the buyer can claim a right-of-way over the seller's remaining land.

Question 45Multistate Bar Examination (MBE)

A patient undergoes surgery and wakes with a burn on her thigh that was not present before. The burn was caused by a heating pad used during surgery, an instrument under the exclusive control of the hospital staff. The patient sues the hospital for negligence and offers no direct evidence of how the burn occurred. What is the patient's best theory?

  1. Strict products liability, because the heating pad was a defective product sold to the hospital.
  2. Negligence per se, because hospital safety regulations prohibit this type of burn during surgery.
  3. Res ipsa loquitur, because the injury was unusual and the pad was controlled by the staff. Correct answer.
  4. Battery, because the patient consented only to surgery and not to being burned by a heating pad.

Explanation

Res ipsa loquitur permits an inference of negligence when the injury is of a kind that ordinarily does not occur without negligence and the instrumentality was under the defendant's exclusive control. The burn and the hospital staff's control of the heating pad fit those conditions, allowing the case to reach the jury without direct proof.

Question 46Multistate Bar Examination (MBE)

A seller contracts to deliver 1,000 custom-printed shirts to a buyer by May 1. On April 25, the seller delivers the shirts, but 50 shirts have the wrong logo. The buyer rejects the entire shipment. The seller has time to cure before May 1. Under the UCC, what is the most likely result?

  1. The buyer may reject the entire shipment, because the perfect tender rule allows rejection for any nonconformity.
  2. The buyer may reject only the 50 nonconforming shirts, because the contract is divisible.
  3. The buyer must accept the entire shipment, because the nonconformity is minor.
  4. The seller may cure the nonconforming tender before the May 1 deadline. Correct answer.

Explanation

Under UCC § 2-508, a seller whose tender is rejected for nonconformity may cure if the time for performance has not expired and the seller seasonably notifies the buyer. Because the seller can cure before May 1, the buyer's rejection does not automatically terminate the contract.

Question 47Multistate Bar Examination (MBE)

After a grand jury indicts a defendant on robbery charges, police place him in a lineup without notifying his attorney. The victim identifies him. At trial, the prosecution plans to introduce the victim's identification testimony. The defendant objects. What is the most likely ruling?

  1. Exclude the identification automatically, because counsel was absent from a critical stage.
  2. Suppress it unless the prosecution shows an independent source for the identification. Correct answer.
  3. Admit the identification, because the defendant had not yet retained an attorney for the lineup.
  4. Admit the identification, because the Sixth Amendment right to counsel applies only at trial.

Explanation

The Sixth Amendment right to counsel attaches after formal proceedings and applies at critical stages, including a post-indictment lineup. A violation does not always require automatic exclusion; the identification may be admitted if the prosecution proves an independent source.

Question 48Multistate Bar Examination (MBE)

A plaintiff sues a manufacturer for injuries caused by a ladder that collapsed. At trial, the plaintiff seeks to introduce evidence that, after the accident, the manufacturer reinforced the ladder's hinges. The manufacturer objects. What is the most likely ruling?

  1. Admit it only if the manufacturer denies owning or controlling the ladder.
  2. Exclude it for all purposes because post-accident repairs are irrelevant.
  3. Exclude it for negligence but admit it to show ownership or control. Correct answer.
  4. Admit it to prove negligence because the repair shows the ladder was defective.

Explanation

Evidence of subsequent remedial measures is inadmissible to prove negligence or culpable conduct, but it may be admitted for other purposes such as ownership, control, or feasibility. The court should exclude the evidence on negligence but allow it if offered for a permitted purpose.

Question 49Multistate Bar Examination (MBE)

A plaintiff sues a defendant in federal court in State A. The defendant is a corporation incorporated in State B with its principal place of business in State C. The defendant has no offices, employees, or property in State A. It sells products to customers in State A through a website and earns substantial revenue there. The plaintiff's claim arises from a defective product sold in State A. May the court exercise specific personal jurisdiction over the defendant?

  1. No, because a website alone can never establish minimum contacts.
  2. No, because the defendant is neither incorporated nor headquartered in State A and has no offices there.
  3. Yes, because the defendant's substantial revenue in State A establishes general jurisdiction.
  4. Yes, because the defendant purposefully targeted State A and the claim arises from that contact. Correct answer.

Explanation

Specific jurisdiction requires purposeful availment of the forum and a claim arising out of or relating to the defendant's contacts. Selling products into State A and earning substantial revenue there satisfies purposeful availment, and the defective-product claim arises from those sales.

Question 50Multistate Bar Examination (MBE)

At a trial arising from a collision at an intersection, a witness testifies that a bystander looked up from her phone, saw the crash, and immediately exclaimed, "That truck just ran the red light!" The bystander is unavailable to testify. The defendant objects that the statement is hearsay. How should the court rule?

  1. Admissible as a present sense impression, because the bystander described the event immediately after perceiving it. Correct answer.
  2. Inadmissible as hearsay because the bystander did not observe the truck's driver.
  3. Inadmissible as hearsay because the statement expresses an opinion rather than a fact.
  4. Admissible as an excited utterance only if the bystander is shown to be unavailable.

Explanation

Present sense impression under FRE 803(1) covers a statement describing or explaining an event or condition made while or immediately after the declarant perceived it. The bystander's immediate reaction qualifies, and availability is irrelevant because this is an exception to the hearsay rule.