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NE Bar practice questions

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Question 1Multistate Bar Examination (MBE) subjects

A homeowner signs a written contract to sell her house to a buyer for $400,000. The contract describes the property and is signed by both parties but omits any mention of the price. Under the common law Statute of Frauds, which party can enforce the contract?

  1. Only the seller, because omission of the price makes the writing insufficient as to the buyer's promise
  2. Neither party, because the price is an essential term that must appear in writing
  3. Only the buyer, because the buyer is the party seeking to be protected
  4. Either party, because the writing is signed and reasonably identifies the subject matter and the promise Correct answer.

Explanation

The Statute of Frauds requires a writing signed by the party to be charged that reasonably identifies the subject matter and states the essential terms with reasonable certainty. The price is not essential if it can be determined by a market or other objective standard, so the omission does not defeat the writing. Because both parties signed, either may enforce the agreement.

Question 2Multistate Bar Examination (MBE) subjects

A defendant intentionally strikes a plaintiff without consent or privilege. The plaintiff sues for battery. Which element must the plaintiff prove in addition to the defendant's intent to cause a harmful or offensive contact?

  1. That the defendant acted with malice toward the plaintiff
  2. That a harmful or offensive contact with the plaintiff's person resulted Correct answer.
  3. That the plaintiff was aware of the contact at the moment it occurred
  4. That the plaintiff suffered actual physical injury

Explanation

Battery requires intent to cause a harmful or offensive contact (or apprehension of one) and that such a contact actually result. Nominal damages are available without proof of physical injury, and malice is not required. Awareness is not essential when the contact is to the plaintiff's person, unlike the awareness needed for offensive contact with something closely connected to the body.

Question 3Multistate Bar Examination (MBE) subjects

A pedestrian is injured by a falling sign outside a store. She sues the store owner under negligence. The owner argues that the pedestrian must prove the owner's conduct fell below a specific statutory standard. Which standard governs the owner's duty in the absence of a relevant statute?

  1. The standard of the most careful person in the community
  2. The standard of the average conduct of the store's competitors
  3. The standard of a reasonably prudent person under like circumstances Correct answer.
  4. The standard the owner personally believed was adequate

Explanation

Negligence measures conduct against what a reasonably prudent person would do under similar circumstances. The standard is objective and does not vary with the defendant's subjective belief or with industry custom, which is only evidence of reasonableness. A defendant is not held to the conduct of the most careful person.

Question 4Multistate Bar Examination (MBE) subjects

A state enacts a law requiring all booksellers to obtain a license before selling any book. A bookseller challenges the law as a prior restraint on speech. Which standard will a court apply to the licensing scheme?

  1. Strict scrutiny, because the scheme burdens protected expression and lacks narrow tailoring Correct answer.
  2. No review, because the First Amendment does not protect commercial transactions in books
  3. Intermediate scrutiny, because the scheme regulates the time, place, and manner of sales
  4. Rational basis review, because the sale of books is commercial activity

Explanation

A licensing scheme that conditions speech on official permission is a prior restraint and is subject to a heavy presumption of unconstitutionality. It must serve a compelling interest and be narrowly tailored, with clear standards and procedural safeguards. Selling books is expressive activity protected by the First Amendment.

Question 5Multistate Bar Examination (MBE) subjects

A defendant is charged with burglary of a dwelling at night. At trial, the prosecution offers the defendant's confession made after police told him that if he confessed he could go home. The defendant moves to suppress. Which is the strongest basis for exclusion?

  1. The confession was made before the defendant was arraigned
  2. The confession was made without counsel present
  3. The confession was not recorded
  4. The confession was involuntary because it was induced by a promise of leniency Correct answer.

Explanation

A confession must be voluntary, and a promise of benefit made by an official can render a confession involuntary and inadmissible under the Due Process Clause. The test asks whether the defendant's will was overborne. Absence of counsel, lack of recording, and timing before arraignment are not by themselves grounds for exclusion of a voluntary statement.

Question 6Multistate Bar Examination (MBE) subjects

A plaintiff sues a defendant in federal court for breach of contract. The plaintiff is a citizen of State A, and the defendant is a citizen of State B. The amount in controversy is $100,000. The defendant moves to dismiss for lack of subject matter jurisdiction. How should the court rule?

  1. Deny the motion, because the parties are diverse and the amount exceeds $75,000 Correct answer.
  2. Grant the motion, because the amount is less than $150,000
  3. Grant the motion, because the claim does not arise under federal law
  4. Deny the motion, because the plaintiff filed first

Explanation

Diversity jurisdiction under 28 U.S.C. § 1332 requires complete diversity of citizenship and an amount in controversy exceeding $75,000. Here the parties are citizens of different states and the claim is $100,000, satisfying both requirements. The absence of a federal question does not defeat jurisdiction.

Question 7Multistate Bar Examination (MBE) subjects

A testator executes a will leaving her estate to her two children. She later marries. Under the common law doctrine of pretermitted heirs, what is the effect of the marriage on the will?

  1. The marriage has no effect on the will
  2. The marriage automatically revokes the entire will
  3. The will is invalid because the testator lacked capacity
  4. The surviving spouse takes an intestate share unless the will makes provision for the spouse Correct answer.

Explanation

Under the common law, marriage after execution of a will does not revoke the will but entitles the surviving spouse to an intestate share unless the will provides for the spouse or shows an intent to disinherit. Some jurisdictions extend protection to children born after execution. Capacity is unaffected by the later marriage.

Question 8Multistate Bar Examination (MBE) subjects

A landowner grants a neighbor an easement for a driveway across the landowner's property. The grant is in writing, signed by the landowner, and recorded. The neighbor later sells the benefited parcel. What happens to the easement?

  1. It becomes a license revocable by the landowner
  2. It converts to a fee simple interest in the driveway
  3. It passes with the benefited parcel because it is appurtenant Correct answer.
  4. It terminates because the original neighbor no longer owns the benefited parcel

Explanation

An easement appurtenant benefits a particular parcel and passes automatically with a transfer of that dominant estate. The burden runs with the servient estate as well. It does not terminate on sale, does not become a revocable license, and does not enlarge into a fee interest.

Question 9Multistate Bar Examination (MBE) subjects

A corporation's board approves a merger. A shareholder sues to enjoin the merger, alleging the directors were grossly negligent in approving it. Which standard of review applies to the board's decision?

  1. The business judgment rule, because the directors acted in good faith and without self-interest Correct answer.
  2. The waste standard, because gross negligence is never a basis for liability
  3. The entire fairness standard, because all mergers require fair price
  4. Strict scrutiny, because shareholder interests are affected

Explanation

The business judgment rule presumes directors acted on an informed basis, in good faith, and in the corporation's best interest. Gross negligence can rebut the presumption by showing a failure to inform, but the standard of review remains the business judgment rule absent self-dealing or a change of control. Entire fairness applies in conflicted transactions, not all mergers.

Question 10Multistate Bar Examination (MBE) subjects

A buyer and seller enter into a contract for the sale of goods. The buyer sends a purchase order with terms different from the seller's offer. Under Article 2 of the UCC, what is the effect of the additional terms?

  1. They prevent contract formation because the acceptance is not a mirror image
  2. They are automatically part of the contract
  3. They are merely proposals for addition to the contract Correct answer.
  4. They become part of the contract only if the seller is a merchant

Explanation

Under UCC § 2-207, a definite and seasonable expression of acceptance operates as an acceptance even though it states additional or different terms, and those terms are construed as proposals for addition. Between merchants they enter the contract unless they materially alter it, are objected to, or the offer limited acceptance. The mirror image rule does not control.

Question 11Multistate Bar Examination (MBE) subjects

A driver speeds through a red light and collides with a pedestrian. The pedestrian was jaywalking at the time. In a contributory negligence jurisdiction, what is the effect of the pedestrian's jaywalking?

  1. It shifts the burden of proof to the driver
  2. It bars recovery entirely if it was a contributing cause of the injury Correct answer.
  3. It has no effect, because the driver's conduct was the proximate cause
  4. It reduces recovery proportionally to the pedestrian's fault

Explanation

In a contributory negligence jurisdiction, a plaintiff's own negligence that contributes to the injury bars recovery completely. The doctrine is a total bar, unlike comparative negligence, which reduces damages. The driver's negligence does not eliminate the effect of the plaintiff's fault.

Question 12Multistate Bar Examination (MBE) subjects

A homeowner discovers a trespasser injured in her swimming pool. The trespasser entered the property without permission. Under the traditional common law rule, what duty does the homeowner owe the trespasser?

  1. A duty to inspect the premises for hidden dangers
  2. A duty to exercise reasonable care in maintaining the premises
  3. A duty to refrain from willful or wanton misconduct Correct answer.
  4. A duty to warn of all known dangers

Explanation

Under the traditional rule, a landowner owes a trespasser only the duty not to injure willfully or wantonly, except for the attractive nuisance doctrine and known frequent trespassers. Reasonable care and inspection duties apply to invitees and licensees. The modern trend extends reasonable care to all entrants, but the traditional rule remains the baseline.

Question 13Multistate Bar Examination (MBE) subjects

A defendant is charged with larceny for taking a bicycle. The defendant believed the bicycle belonged to him because it was identical to his own. Which defense is most directly supported by these facts?

  1. Duress
  2. Insanity
  3. Mistake of fact Correct answer.
  4. Entrapment

Explanation

Larceny requires the trespassory taking and carrying away of another's property with intent to permanently deprive. A reasonable mistake of fact negates the required intent because the defendant believed the property was his own. Duress, entrapment, and insanity address different issues and are not supported by the facts.

Question 14Multistate Bar Examination (MBE) subjects

A police officer stops a car for a minor traffic violation. Without consent or probable cause, the officer orders the driver out and searches the passenger compartment. Under Fourth Amendment doctrine, which statement is correct?

  1. The search is invalid because the officer lacked a warrant
  2. The search is valid because the officer could order the driver out under the stop
  3. The search is valid because a traffic stop is a lawful detention
  4. The search is invalid because probable cause is required to search the passenger compartment Correct answer.

Explanation

A traffic stop permits the officer to order occupants out of the vehicle, but a search of the passenger compartment requires probable cause that it contains evidence of a crime or contraband. A lawful stop alone does not justify a search. The automobile exception requires probable cause, not a warrant.

Question 15Multistate Bar Examination (MBE) subjects

A plaintiff sues a defendant for defamation based on a statement published in a newspaper. The plaintiff is a private figure, and the statement concerns a matter of public concern. What must the plaintiff prove regarding the defendant's fault?

  1. Intent to harm the plaintiff's reputation
  2. Strict liability, because the statement was published
  3. At least negligence as to the falsity of the statement Correct answer.
  4. Actual malice, meaning knowledge of falsity or reckless disregard for the truth

Explanation

Under Gertz v. Robert Welch, a private figure involved in a matter of public concern must prove at least negligence to recover actual damages. Actual malice is required only for presumed or punitive damages, or when the plaintiff is a public official or public figure. Intent to harm is not required.

Question 16Multistate Bar Examination (MBE) subjects

A tenant signs a two-year lease. The landlord sells the building during the term. The new owner wants to evict the tenant. What is the tenant's status?

  1. The tenant must renegotiate a new lease with the new owner
  2. The tenant holds a tenancy at will subject to immediate termination
  3. The tenant must vacate because the lease terminates on sale
  4. The tenant may remain because the lease binds the new owner as a successor Correct answer.

Explanation

A lease is a conveyance of an estate for years, and a purchaser of the property takes subject to an existing lease of which the purchaser has notice. The tenant's possessory rights survive the sale for the balance of the term. The sale does not convert the tenancy into an at-will estate.

Question 17Multistate Bar Examination (MBE) subjects

An agent negotiates a contract with a third party on behalf of a disclosed principal. The agent signs the contract in the principal's name. Who is liable on the contract?

  1. The principal, because the agent acted with authority for a disclosed principal Correct answer.
  2. Neither, because the agent signed the contract
  3. The agent, because the agent negotiated the terms
  4. Both the agent and the principal, jointly and severally

Explanation

When an agent acts with actual or apparent authority for a disclosed principal, the principal is bound and the agent is not personally liable on the contract. The agent is liable only if the principal is undisclosed or partially disclosed, or if the agent exceeds authority. Signing in the principal's name confirms the agent's representative capacity.

Question 18Multistate Bar Examination (MBE) subjects

A testator executes a will leaving $100,000 to a charity and the residue to a friend. The testator later writes a valid codicil reducing the charity gift to $50,000. The testator then writes a second will revoking all prior wills. What is the effect?

  1. The first will and codicil are revoked, and the estate passes by intestacy Correct answer.
  2. The first will is revived because the second will did not name new beneficiaries
  3. The charity gift is reduced to $50,000 under the codicil
  4. Only the codicil is revoked, and the first will remains effective

Explanation

A later will that expressly revokes all prior wills revokes both the original will and the codicil. In the absence of a valid testamentary instrument, the estate passes by intestate succession. Revocation does not require naming new beneficiaries, and revocation of a revoking instrument does not automatically revive the earlier will.

Question 19Multistate Bar Examination (MBE) subjects

A plaintiff brings a § 1983 action against a state official in federal court, seeking damages for a constitutional violation. The official raises Eleventh Amendment immunity. How should the court rule?

  1. Dismiss, because states and their agencies are immune from suit in federal court
  2. Proceed, because suits against state officials for prospective relief are permitted Correct answer.
  3. Proceed, because the official acted under color of state law
  4. Dismiss, because § 1983 does not apply to state officials

Explanation

The Eleventh Amendment bars damages suits against states and state agencies in federal court, but Ex parte Young permits suits against state officials for prospective injunctive relief to stop ongoing violations of federal law. A claim for damages against the official in his official capacity is barred, but prospective relief is not. Acting under color of law is an element of § 1983, not a basis for immunity.

Question 20Multistate Bar Examination (MBE) subjects

A decedent dies intestate survived by a spouse and two children from a prior marriage. Under the Uniform Probate Code, how is the intestate estate distributed?

  1. The children take the entire estate, and the spouse receives nothing
  2. The spouse takes the entire estate
  3. The spouse and children each take equal shares
  4. The spouse takes the first $150,000 plus one-half of the balance, and the children share the remainder Correct answer.

Explanation

Under the UPC, if the decedent is survived by a spouse and descendants who are not descendants of the spouse, the spouse receives the first $150,000 plus one-half of the balance, and the descendants share the rest. The spouse does not take the entire estate when there are children from another relationship. Equal shares apply only when all descendants are also the spouse's descendants.

Question 21Multistate Bar Examination (MBE) subjects

A plaintiff and defendant enter into a contract for the sale of a rare painting. Before delivery, the defendant sells the painting to a bona fide purchaser. The plaintiff sues for breach. What remedy is available to the plaintiff?

  1. Expectation damages measured by the market value of the painting Correct answer.
  2. Restitution of any down payment only
  3. Specific performance, because the painting is unique
  4. No remedy, because the defendant no longer owns the painting

Explanation

Specific performance is available only when the legal remedy is inadequate, typically for unique goods, but it is unavailable when the seller no longer owns the item and cannot perform. The buyer may recover expectation damages measured by the difference between contract price and market value. Restitution alone is insufficient to protect the expectancy.

Question 22Multistate Bar Examination (MBE) subjects

A defendant is charged with murder. The prosecution seeks to introduce evidence that the defendant fled the jurisdiction after the crime. The defendant objects. How should the court rule?

  1. Admit the evidence only if the defendant testifies
  2. Exclude the evidence, because it is hearsay
  3. Exclude the evidence, because flight is not relevant to guilt
  4. Admit the evidence, because flight is relevant circumstantial evidence of consciousness of guilt Correct answer.

Explanation

Evidence of flight is relevant circumstantial evidence suggesting consciousness of guilt and is admissible if the defendant's flight is connected to the crime. It is not hearsay because it is not an assertion offered for its truth. It does not depend on the defendant testifying.

Question 23Multistate Bar Examination (MBE) subjects

A state passes a law that imposes a tax on out-of-state businesses that sell goods within the state while exempting in-state businesses. A business challenges the law under the Dormant Commerce Clause. Which principle is most directly implicated?

  1. The Contracts Clause
  2. The Takings Clause
  3. The prohibition on discriminatory state taxation that burdens interstate commerce Correct answer.
  4. The Privileges or Immunities Clause of the Fourteenth Amendment

Explanation

The Dormant Commerce Clause bars state laws that discriminate against interstate commerce or unduly burden it. A tax that exempts in-state businesses while taxing out-of-state sellers facially discriminates and is subject to strict scrutiny. The Privileges or Immunities Clause, Contracts Clause, and Takings Clause address different concerns.

Question 24Multistate Bar Examination (MBE) subjects

A defendant is charged with possession of a controlled substance. Police obtained evidence by entering the defendant's home without a warrant, relying on the smell of marijuana from the doorway. The defendant moves to suppress. Which doctrine is most relevant to whether the evidence is admissible?

  1. The inevitable discovery doctrine
  2. The plain smell doctrine as an exception to the warrant requirement Correct answer.
  3. The independent source doctrine
  4. The good faith exception

Explanation

Under the plain smell doctrine, an officer's detection of the odor of contraband may supply probable cause, and in some jurisdictions the odor itself justifies a warrantless entry under exigent circumstances. The independent source and inevitable discovery doctrines apply when unlawfully obtained evidence would have been found another way, and good faith applies to reliance on a warrant. The question asks which doctrine governs the odor-based entry.

Question 25Multistate Bar Examination (MBE) subjects

A corporation's controlling shareholder proposes a transaction with the corporation. The board forms a special committee of independent directors, which negotiates and approves the transaction. Under Delaware law, which standard of review will a court likely apply to the transaction?

  1. The waste standard, because the committee approved the transaction
  2. The business judgment rule, regardless of the committee's approval
  3. Entire fairness, unless the transaction is approved by a majority of the minority shareholders or the special committee's approval is effective Correct answer.
  4. Strict scrutiny, because the controlling shareholder benefits

Explanation

A controlling shareholder transaction is subject to entire fairness unless it is conditioned on the approval of both an independent special committee and a majority of the minority shareholders, or the committee approval is shown to replicate arm's-length bargaining. Committee approval alone may shift the burden of proof but does not automatically restore business judgment review.

Question 26Multistate Bar Examination (MBE) subjects

A defendant is charged with robbery. The prosecution seeks to introduce evidence that, when arrested, the defendant possessed a handgun matching the description of the weapon used in the robbery. The defendant objects, arguing that the evidence is irrelevant because the gun was not found on his person at the time of the robbery. How should the court rule?

  1. Exclude the evidence because it is circumstantial and not direct proof of the robbery.
  2. Exclude the evidence because the probative value is substantially outweighed by the danger of unfair prejudice.
  3. Admit the evidence because possession of a weapon matching the description is relevant to identity and the defendant's opportunity to commit the crime. Correct answer.
  4. Admit the evidence only if the prosecution can show that the gun was used in the robbery.

Explanation

Under Federal Rule of Evidence 401, evidence is relevant if it has any tendency to make a fact of consequence more or less probable. Possession of a gun matching the description used in the robbery makes it more likely that the defendant was the perpetrator, even if the gun was not found on his person at the time of the crime. The court may exclude relevant evidence under Rule 403 if its probative value is substantially outweighed by unfair prejudice, but the mere fact that evidence is circumstantial does not make it inadmissible. The evidence is admissible for the jury to weigh.

Question 27Multistate Bar Examination (MBE) subjects

A landowner conveys a parcel of land 'to Alice for life, then to the heirs of Alice.' At the time of the conveyance, Alice has one living child, Ben. Alice later has a second child, Carla. Alice then dies. Who owns the parcel after Alice's death?

  1. Ben and Carla, because the heirs are determined at Alice's death under the rule of convenience. Correct answer.
  2. Ben and Carla, because the grantor's heirs are determined at the time of the conveyance.
  3. Ben only, because he was the sole heir at the time of the conveyance.
  4. The landowner's estate, because the conveyance violates the Rule Against Perpetuities.

Explanation

The phrase 'heirs of Alice' creates a remainder in Alice's heirs. Under the rule of convenience, a class gift to heirs is generally construed to close when the class member is determined, but for heirs of a living person, the class remains open until that person's death because heirs cannot be ascertained until then. Therefore, both Ben and Carla, as Alice's heirs at her death, take the remainder. The Rule Against Perpetuities is not violated because the interest must vest, if at all, at Alice's death, which is within a life in being plus 21 years.

Question 28Multistate Bar Examination (MBE) subjects

A plaintiff sues a defendant for negligence after a car accident. The plaintiff alleges that the defendant ran a red light. At trial, the plaintiff calls a witness who testifies that she heard a bystander say, immediately after the accident, 'That guy in the blue car ran the red light.' The defendant objects on hearsay grounds. The bystander is unavailable to testify. How should the court rule?

  1. Exclude the statement because it is hearsay not within any exception.
  2. Admit the statement as a present sense impression because it describes the accident.
  3. Admit the statement as an excited utterance because it was made immediately after the accident. Correct answer.
  4. Admit the statement as a statement against interest because the bystander is unavailable.

Explanation

Under Federal Rule of Evidence 803(2), an excited utterance is a statement relating to a startling event made while the declarant was under the stress of excitement caused by the event. The bystander's statement was made immediately after the accident, which qualifies as a startling event, and relates to the cause of the accident. The statement is admissible regardless of the declarant's availability. The present sense impression exception (Rule 803(1)) requires the statement to describe or explain the event while the declarant was perceiving it or immediately thereafter, but the excited utterance exception is more clearly applicable here due to the stress of the accident.

Question 29Multistate Bar Examination (MBE) subjects

A defendant is charged with burglary. The prosecution seeks to introduce evidence that the defendant was convicted of theft five years earlier. The defendant objects. Under the Federal Rules of Evidence, which statement best describes the admissibility of the prior conviction?

  1. The conviction is automatically admissible to impeach the defendant's credibility because theft is a crime involving dishonesty.
  2. The conviction is admissible only if the court finds that its probative value outweighs its prejudicial effect, and the defendant's prior conviction is for a felony not involving dishonesty.
  3. The conviction is admissible if the prosecution shows that the defendant's prior theft involved dishonesty, and the court may exclude it if its probative value is substantially outweighed by unfair prejudice. Correct answer.
  4. The conviction is inadmissible because it is more than five years old.

Explanation

Under Federal Rule of Evidence 609(a), a prior conviction for a crime involving dishonesty or false statement is admissible to impeach a witness's character for truthfulness, regardless of the punishment, but the court retains discretion under Rule 403 to exclude if probative value is substantially outweighed by unfair prejudice. Theft can qualify as a crime involving dishonesty if it involved deceit or false statement, but not all thefts do. The question states the conviction was for theft, which may or may not be a crime involving dishonesty; thus, the prosecution must show that it involved dishonesty. The five-year age is not a bar because the conviction is within the 10-year limit of Rule 609(b).

Question 30Multistate Bar Examination (MBE) subjects

A plaintiff asserts a claim against a defendant for battery. The defendant admits that he touched the plaintiff but claims that the plaintiff consented to the contact. The plaintiff responds that the consent was obtained by fraud. Which statement correctly describes the effect of fraud on consent in a battery claim?

  1. Fraud always vitiates consent, so the defendant is liable for battery.
  2. Fraud is irrelevant to consent; only force or threat of force can negate consent.
  3. Fraud vitiates consent only if the fraud goes to the essential nature of the act, not merely to the collateral matter. Correct answer.
  4. Consent obtained by fraud is valid unless the plaintiff was physically harmed.

Explanation

In tort law, consent is invalid if it is obtained by fraud or duress that goes to the essential nature of the act. If the plaintiff consents to one act but the defendant substantially changes the nature of the act, the consent is vitiated. However, if the fraud concerns a collateral matter, such as the defendant's identity or motive, the consent may still be valid. Therefore, the defendant is liable for battery only if the fraud went to the essential nature of the contact.

Question 31Multistate Bar Examination (MBE) subjects

A defendant is charged with murder. At trial, the prosecution offers evidence that the defendant had a motive to kill the victim because the victim was having an affair with the defendant's spouse. The defendant objects, arguing that motive evidence is inadmissible because it is too prejudicial. How should the court rule?

  1. Admit the evidence only if the prosecution can show that the defendant actually knew about the affair.
  2. Exclude the evidence because motive is not an element of murder.
  3. Exclude the evidence because it is character evidence.
  4. Admit the evidence because motive is relevant to intent and identity, and its probative value is not substantially outweighed by unfair prejudice. Correct answer.

Explanation

Evidence of motive is relevant under Rule 401 because it tends to make it more probable that the defendant committed the crime. Motive evidence is not character evidence; it is evidence of the defendant's state of mind at the time of the offense. Under Rule 403, the court may exclude if probative value is substantially outweighed by unfair prejudice, but motive evidence is generally admissible unless it is unfairly prejudicial. The prosecution need not prove the defendant knew of the affair as a condition of admissibility; lack of knowledge goes to weight, not admissibility.

Question 32Multistate Bar Examination (MBE) subjects

A plaintiff files a lawsuit in federal court against a defendant. The plaintiff is a citizen of State A, and the defendant is a citizen of State B. The plaintiff's claim is for $100,000. The defendant moves to dismiss for lack of subject matter jurisdiction, arguing that the amount in controversy is insufficient. Which statement is correct?

  1. The motion should be granted because the plaintiff and defendant are not citizens of different states.
  2. The motion should be denied because federal courts have exclusive jurisdiction over all civil actions.
  3. The motion should be granted because the amount in controversy must exceed $75,000, and $100,000 does not exceed $75,000.
  4. The motion should be denied because the amount in controversy exceeds $75,000, and diversity of citizenship exists. Correct answer.

Explanation

Under 28 U.S.C. § 1332, federal district courts have original jurisdiction over civil actions where the matter in controversy exceeds $75,000 and is between citizens of different states. Here, the plaintiff is a citizen of State A and the defendant of State B, satisfying diversity, and the amount is $100,000, which exceeds $75,000. Therefore, subject matter jurisdiction exists, and the motion to dismiss should be denied. The other options misstate the requirements for diversity jurisdiction.

Question 33Multistate Bar Examination (MBE) subjects

A defendant is charged with arson. The prosecution seeks to introduce evidence that the defendant purchased gasoline two hours before the fire. The defendant objects, arguing that the evidence is irrelevant because many people buy gasoline. How should the court rule?

  1. Admit the evidence because it tends to show preparation and is relevant to the defendant's opportunity to commit arson. Correct answer.
  2. Exclude the evidence because it is too remote in time.
  3. Admit the evidence only if the prosecution can show that the gasoline was used in the fire.
  4. Exclude the evidence because it is circumstantial and not direct evidence.

Explanation

Evidence is relevant if it has any tendency to make a fact more or less probable. Purchasing gasoline shortly before a fire tends to show preparation and opportunity, making it more likely that the defendant committed arson. The fact that others also buy gasoline does not make the evidence irrelevant; it goes to weight, not admissibility. The evidence is circumstantial but admissible, and the prosecution need not prove the gasoline was actually used as a condition of admissibility.

Question 34Multistate Bar Examination (MBE) subjects

A plaintiff sues a defendant for breach of contract. The plaintiff alleges that the defendant agreed to sell him a car for $10,000. The defendant denies making the agreement. At trial, the plaintiff offers a written contract signed by both parties. The defendant objects, arguing that the contract is inadmissible because it is not the original. The plaintiff explains that the original was destroyed in a fire. How should the court rule?

  1. Exclude the evidence because the best evidence rule requires the original document.
  2. Admit the evidence because the original is unavailable and the plaintiff has provided a satisfactory explanation for its absence. Correct answer.
  3. Admit the evidence only if the plaintiff can produce a copy that is an exact duplicate.
  4. Exclude the evidence because the defendant denies the agreement.

Explanation

Under Federal Rule of Evidence 1002, the original writing is required to prove its content, but Rule 1004 provides an exception when the original is lost or destroyed, unless the proponent lost or destroyed it in bad faith. The plaintiff has explained that the original was destroyed in a fire, which is a satisfactory explanation. Therefore, secondary evidence, such as a copy or testimony, is admissible. The defendant's denial does not affect the admissibility of the evidence; it goes to the weight.

Question 35Multistate Bar Examination (MBE) subjects

A defendant is charged with murder. The prosecution seeks to introduce a confession obtained after the defendant was given Miranda warnings. The defendant argues that the confession was coerced because the police interrogated him for 12 hours without a break. Which standard governs the admissibility of the confession?

  1. The confession is admissible if the defendant signed a written waiver of his Miranda rights.
  2. The confession is admissible only if the prosecution proves by a preponderance of the evidence that the confession was voluntary. Correct answer.
  3. The confession is inadmissible because any interrogation longer than six hours is inherently coercive.
  4. The confession is admissible if the defendant was advised of his Miranda rights, regardless of the length of interrogation.

Explanation

The Due Process Clause requires that a confession be voluntary to be admissible. The prosecution bears the burden of proving voluntariness by a preponderance of the evidence. While Miranda warnings are a factor, they do not automatically make a confession voluntary; the totality of the circumstances, including the length of interrogation, must be considered. There is no bright-line rule that six hours is inherently coercive, but a 12-hour interrogation without a break may be coercive depending on the circumstances.

Question 36Multistate Bar Examination (MBE) subjects

A plaintiff and defendant enter into a contract for the sale of goods. The contract includes a clause stating that the defendant is not liable for any consequential damages. The plaintiff later sues for breach of contract, seeking consequential damages. The defendant moves to dismiss the claim for consequential damages based on the clause. How should the court rule?

  1. Enforce the clause because consequential damages are always waivable in a contract for the sale of goods.
  2. Refuse to enforce the clause because the UCC prohibits limitations on consequential damages.
  3. Enforce the clause unless the plaintiff shows that the clause is unconscionable or that the defendant's breach was intentional. Correct answer.
  4. Refuse to enforce the clause because limitation of consequential damages is unconscionable in all consumer contracts.

Explanation

Under UCC § 2-719(3), consequential damages may be limited or excluded unless the limitation is unconscionable. However, limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable, but limitation of damages for commercial loss is not. Additionally, if the defendant's breach is intentional or grossly negligent, the limitation may not be enforced. Therefore, the court should enforce the clause unless the plaintiff shows unconscionability or an intentional breach.

Question 37Multistate Bar Examination (MBE) subjects

A defendant is charged with larceny. The prosecution proves that the defendant took a bicycle belonging to the victim without consent. The defendant testifies that he believed the bicycle was abandoned and that he intended to keep it. The jurisdiction follows the common law. Which statement is correct regarding the defendant's mens rea?

  1. The defendant's belief is a defense only if he can show that the bicycle was actually abandoned.
  2. The defendant's belief is irrelevant because larceny is a general intent crime.
  3. The defendant's belief negates the element of trespassory taking, so he cannot be convicted of larceny.
  4. The defendant's belief that the bicycle was abandoned is a defense if it was reasonable, because larceny requires specific intent to permanently deprive. Correct answer.

Explanation

Larceny requires a trespassory taking and carrying away of another's personal property with the intent to permanently deprive. The intent to permanently deprive is a specific intent element. If the defendant honestly believed the property was abandoned, he lacks the intent to permanently deprive the owner, and thus cannot be guilty of larceny. The reasonableness of the belief is not required at common law, but an honest belief, even if unreasonable, negates specific intent. However, the question states the defendant believed it was abandoned; if that belief is honest, it is a defense.

Question 38Multistate Bar Examination (MBE) subjects

A plaintiff sues a defendant for negligence. The plaintiff alleges that the defendant's dog bit her. The defendant argues that the plaintiff provoked the dog. In the jurisdiction, the owner of a dog is strictly liable for injuries caused by the dog only if the owner knew or had reason to know of the dog's vicious propensities. Which statement correctly describes the defendant's liability?

  1. The defendant is not liable because the plaintiff provoked the dog.
  2. The defendant is liable only if the plaintiff proves that the defendant knew or had reason to know of the dog's vicious propensities. Correct answer.
  3. The defendant is strictly liable regardless of knowledge because dog bites are inherently dangerous.
  4. The defendant is liable if the plaintiff proves that the defendant was negligent in handling the dog.

Explanation

Under the common law rule for strict liability for animals, the owner of a domestic animal, such as a dog, is strictly liable for injuries caused by the animal only if the owner knew or had reason to know of the animal's dangerous propensities. The plaintiff must prove this knowledge. Provocation may be a defense, but the question asks about the basis for liability, not the effect of provocation. Therefore, the defendant is liable only if the plaintiff proves the requisite knowledge.

Question 39Multistate Bar Examination (MBE) subjects

A defendant is charged with burglary. The prosecution seeks to introduce evidence that the defendant was found in possession of burglary tools near the scene of the crime. The defendant objects, arguing that the evidence is inadmissible because it is evidence of other crimes or wrongs. How should the court rule?

  1. Admit the evidence only if the prosecution shows that the tools were used in the burglary.
  2. Exclude the evidence because possession of burglary tools is not a crime.
  3. Exclude the evidence because it is impermissible character evidence.
  4. Admit the evidence because it is relevant to the defendant's intent and preparation, and its probative value is not substantially outweighed by unfair prejudice. Correct answer.

Explanation

Evidence of possession of burglary tools is not evidence of other crimes; it is evidence of preparation and intent, which are permissible purposes under Rule 404(b). The evidence is relevant to show that the defendant intended to commit burglary and had the means to do so. Under Rule 403, the court may exclude if probative value is substantially outweighed by unfair prejudice, but the evidence is highly probative and not unfairly prejudicial. The prosecution need not prove the tools were actually used, only that they are relevant to the crime charged.

Question 40Multistate Bar Examination (MBE) subjects

A plaintiff sues a defendant for breach of contract. The plaintiff is a citizen of State A, and the defendant is a citizen of State B. The plaintiff's claim is for $80,000. The defendant files a counterclaim for $100,000. The plaintiff moves to dismiss the counterclaim for lack of subject matter jurisdiction. How should the court rule?

  1. Deny the motion because the counterclaim satisfies the amount in controversy and diversity jurisdiction exists. Correct answer.
  2. Grant the motion because the counterclaim does not independently satisfy the amount in controversy requirement.
  3. Grant the motion because the counterclaim is permissive and requires an independent basis for jurisdiction.
  4. Deny the motion because the counterclaim is compulsory and the court has supplemental jurisdiction over it.

Explanation

For a counterclaim to be within the federal court's jurisdiction, it must independently satisfy the requirements of diversity jurisdiction if it is a permissive counterclaim, or it may fall within supplemental jurisdiction if it is compulsory. Here, the counterclaim is for $100,000, which exceeds the $75,000 amount in controversy, and the parties are diverse. Therefore, the counterclaim independently satisfies diversity jurisdiction, and the motion should be denied. Even if the counterclaim were compulsory, supplemental jurisdiction would also support it, but the independent basis is sufficient.

Question 41Multistate Bar Examination (MBE) subjects

A defendant is charged with murder. The prosecution seeks to introduce evidence that the defendant fled the jurisdiction after the crime. The defendant objects, arguing that flight is not relevant because he fled for other reasons. How should the court rule?

  1. Admit the evidence because flight is relevant to consciousness of guilt, and the defendant's explanation goes to weight, not admissibility. Correct answer.
  2. Exclude the evidence because flight is not relevant to guilt.
  3. Exclude the evidence because the defendant's explanation for flight is uncontradicted.
  4. Admit the evidence only if the prosecution can prove that the defendant fled solely because of the crime.

Explanation

Evidence of flight is relevant because it tends to show consciousness of guilt. The defendant's explanation for fleeing goes to the weight of the evidence, not its admissibility. The prosecution need not prove that the defendant fled solely because of the crime; the jury may consider the evidence along with other explanations. Therefore, the court should admit the evidence.

Question 42Multistate Bar Examination (MBE) subjects

A plaintiff sues a defendant for negligence. The plaintiff alleges that the defendant, a physician, failed to obtain informed consent for a surgery. The plaintiff signed a consent form but claims that the physician did not disclose a material risk of the procedure. Which standard governs the physician's duty to disclose?

  1. The physician need not disclose any risks if the patient signed a consent form.
  2. The physician must disclose risks that a reasonable patient would consider material to the decision, or that a reasonable physician would disclose. Correct answer.
  3. The physician must disclose all risks, regardless of materiality.
  4. The physician must disclose only risks that are life-threatening.

Explanation

Informed consent requires the physician to disclose material risks. Jurisdictions apply either the professional standard (what a reasonable physician would disclose) or the patient-centered standard (what a reasonable patient would consider material). The physician's duty is not to disclose every risk, but only those that are material. A signed consent form does not absolve the physician if material risks were not disclosed. Life-threatening risks are not the only ones that must be disclosed.

Question 43Multistate Bar Examination (MBE) subjects

A defendant is charged with possession of a controlled substance. The police obtained evidence by entering the defendant's home without a warrant. The defendant moves to suppress the evidence. The prosecution argues that the entry was justified by exigent circumstances. Which statement correctly describes the exigent circumstances exception?

  1. Exigent circumstances are never applicable to home entries because the home is protected by the Fourth Amendment.
  2. Exigent circumstances justify a warrantless entry if the police have a reasonable suspicion that a crime has been committed.
  3. Exigent circumstances justify a warrantless entry only if the police have probable cause and there is a compelling need for immediate action, such as imminent destruction of evidence or hot pursuit. Correct answer.
  4. Exigent circumstances exist whenever the police believe that evidence may be destroyed, without any need for a warrant.

Explanation

The exigent circumstances exception to the warrant requirement allows police to enter a home without a warrant if they have probable cause and there is a compelling need for immediate action, such as to prevent the imminent destruction of evidence, to engage in hot pursuit of a fleeing suspect, or to provide emergency aid. A mere belief that evidence may be destroyed is insufficient; the police must have probable cause and the exigency must be real and immediate. The exception does apply to home entries when the requirements are met.

Question 44Multistate Bar Examination (MBE) subjects

A plaintiff sues a defendant for breach of contract. The contract contains a clause requiring the parties to submit any dispute to arbitration. The plaintiff files a lawsuit in court, and the defendant moves to compel arbitration. The plaintiff argues that the arbitration clause is unenforceable because it is unconscionable. Which standard applies?

  1. The court may refuse to enforce the arbitration clause only if the plaintiff shows that arbitration would be more expensive than litigation.
  2. The court must enforce the arbitration clause because arbitration clauses are always enforceable.
  3. The court must enforce the arbitration clause because the Federal Arbitration Act (FAA) preempts any state law defense of unconscionability.
  4. The court may refuse to enforce the arbitration clause if it is unconscionable under generally applicable state contract law principles. Correct answer.

Explanation

Under the Federal Arbitration Act, arbitration agreements are valid, irrevocable, and enforceable, but they may be challenged on the same grounds as any other contract, such as unconscionability, under generally applicable state law. The FAA does not preempt state law defenses that apply to all contracts. Therefore, the court may refuse to enforce the clause if it is unconscionable under state law. The other options overstate the enforceability or the preemptive effect of the FAA.

Question 45Multistate Bar Examination (MBE) subjects

A defendant is charged with murder. The prosecution seeks to introduce evidence that the defendant had a prior conviction for assault. The defendant objects, arguing that the prior conviction is inadmissible character evidence. The prosecution argues that the evidence is admissible to show the defendant's propensity for violence. How should the court rule?

  1. Exclude the evidence because prior convictions are never admissible.
  2. Admit the evidence because prior convictions are always admissible to show propensity.
  3. Admit the evidence because the defendant's prior conviction is relevant to his credibility.
  4. Exclude the evidence because it is character evidence offered to prove propensity, which is generally inadmissible in criminal cases. Correct answer.

Explanation

Under Federal Rule of Evidence 404(a), evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character trait. The prosecution cannot offer evidence of the defendant's prior assault conviction to show that he has a violent character and therefore likely committed the murder. Such propensity evidence is generally excluded in criminal cases. The evidence might be admissible for other purposes, such as impeachment if the defendant testifies, but the question specifies that it is offered to show propensity.

Question 46Multistate Bar Examination (MBE) subjects

A plaintiff sues a defendant for trespass. The defendant claims that he had an easement to cross the plaintiff's land. The defendant produces a written document granting him an easement, but the document is not recorded. The plaintiff had no notice of the easement. Which statement correctly describes the defendant's rights?

  1. The defendant's easement is enforceable because easements are not subject to recording statutes.
  2. The defendant's easement is not enforceable against the plaintiff because the plaintiff is a bona fide purchaser without notice. Correct answer.
  3. The defendant's easement is not enforceable because it was not recorded, regardless of the plaintiff's notice.
  4. The defendant's easement is enforceable against the plaintiff because it is in writing.

Explanation

An easement is an interest in land that is subject to recording statutes. If the easement is not recorded, a subsequent purchaser who takes without notice of the easement (a bona fide purchaser) takes the property free of the easement. Because the plaintiff had no notice, the defendant's unrecorded easement is not enforceable against the plaintiff. The fact that the easement is in writing does not make it enforceable against a bona fide purchaser without notice.

Question 47Multistate Bar Examination (MBE) subjects

A defendant is charged with murder. The prosecution seeks to introduce a dying declaration made by the victim. The victim said, 'The defendant shot me,' before dying. The defendant objects, arguing that the statement is testimonial and violates the Confrontation Clause. How should the court rule?

  1. Exclude the statement because it is hearsay and no exception applies.
  2. Exclude the statement because it is testimonial and the defendant has no opportunity to cross-examine the victim.
  3. Admit the statement because dying declarations are always admissible under the hearsay exception.
  4. Admit the statement if the court finds that the victim believed death was imminent and the statement concerns the cause of death, and the defendant had an opportunity to cross-examine or the statement is otherwise admissible under the forfeiture doctrine. Correct answer.

Explanation

Dying declarations are admissible under Federal Rule of Evidence 804(b)(2) if the declarant believed death was imminent and the statement concerns the cause or circumstances of death. However, under Crawford v. Washington, testimonial statements are barred by the Confrontation Clause unless the defendant had a prior opportunity to cross-examine or the statement falls within a historical exception. Dying declarations are a historical exception, but the Supreme Court has not definitively resolved whether they are always admissible against a Confrontation Clause challenge. The safest answer is that the statement is admissible if the dying declaration requirements are met and the defendant had an opportunity to cross-examine or the forfeiture doctrine applies. In many jurisdictions, dying declarations are admissible despite the Confrontation Clause, but the question requires a nuanced answer.

Question 48Multistate Bar Examination (MBE) subjects

A plaintiff sues a defendant for negligence. The plaintiff alleges that the defendant's employee, a delivery driver, negligently injured her. The defendant argues that the driver was an independent contractor, not an employee. Which factor is most important in determining whether the driver was an employee or an independent contractor?

  1. Whether the driver used his own vehicle.
  2. Whether the driver was paid a salary or by the job.
  3. Whether the driver had a written contract with the defendant.
  4. Whether the defendant had the right to control the manner and means of the driver's work. Correct answer.

Explanation

The key factor in distinguishing an employee from an independent contractor is the right to control the manner and means of the work. If the employer has the right to control the details of how the work is performed, the worker is likely an employee. Other factors, such as the method of payment, ownership of equipment, and the existence of a written contract, are relevant but not determinative. Therefore, the right to control is the most important factor.

Question 49Multistate Bar Examination (MBE) subjects

A defendant is charged with murder. The prosecution seeks to introduce evidence that the defendant had a prior bad act of assaulting the victim. The defendant objects, arguing that the evidence is inadmissible character evidence. The prosecution argues that the evidence is admissible to show motive. How should the court rule?

  1. Exclude the evidence because prior bad acts are never admissible in a criminal trial.
  2. Exclude the evidence because it is character evidence offered to show propensity.
  3. Admit the evidence because prior bad acts are always admissible to show motive.
  4. Admit the evidence if the probative value of the evidence to show motive is not substantially outweighed by the danger of unfair prejudice. Correct answer.

Explanation

Under Federal Rule of Evidence 404(b), evidence of a prior bad act is not admissible to prove character or propensity, but it may be admissible for other purposes, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. The court must then apply Rule 403 and exclude the evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Therefore, the evidence may be admitted if it is relevant to motive and passes the Rule 403 balancing test.

Question 50Multistate Bar Examination (MBE) subjects

A homeowner hired a contractor to remodel her kitchen for $40,000, payable in four equal installments as work progressed. After the contractor completed the first two stages and was paid $20,000, the homeowner wrongfully barred him from the site. The contractor had spent $18,000 on labor and materials for the completed stages and expected $4,000 profit on the entire job. The contractor sues for breach of contract. What is the most likely measure of his recovery?

  1. $20,000 in contract damages plus $4,000 in punitive damages, because the homeowner intentionally interfered with performance.
  2. $22,000, representing his expectancy under the entire contract, including profit on work he never performed.
  3. $18,000, representing restitution of the cost of labor and materials he expended on the completed stages.
  4. $20,000, representing the full contract price minus payments received, because the homeowner's prevention discharged the contractor's remaining duties. Correct answer.

Explanation

When the obligee prevents the other party from performing, the prevented party may recover damages measured by the contract price minus payments already received, without deducting costs he was saved from incurring. This expectancy measure puts him in the position he would have occupied had the contract been fully performed, so he recovers the unpaid contract balance rather than only his reliance costs. Punitive damages are not available for ordinary breach of contract.