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NM Bar practice questions

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Question 1Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A Colorado corporation sells camping gear only through its website. It has no offices, employees, or bank accounts in State X, but it shipped 500 orders to State X customers over two years, generating 8% of its revenue. A State X customer sues over a defective tent bought through the website. Does State X have personal jurisdiction over the corporation?

  1. No, because a website that merely displays products is a passive website that cannot support personal jurisdiction.
  2. Yes, general jurisdiction, because the corporation's 500 shipments over two years show systematic and continuous contacts with State X.
  3. Yes, specific jurisdiction; the corporation purposefully availed itself of the State X market and the claim relates to those sales. Correct answer.
  4. No, because the corporation has no physical presence, offices, or employees within State X.

Explanation

Specific jurisdiction requires purposeful availment of the forum market plus a claim arising out of or relating to those contacts. Shipping hundreds of orders into State X is purposeful availment, and the defective-tent claim relates directly to those sales. Physical presence is not required for specific jurisdiction; general jurisdiction requires affiliations so continuous as to render the corporation at home in the forum.

Question 2Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A federal taxpayer sues to challenge a congressional appropriation that funds a general executive program, alleging that the program wastes money and is poorly managed. The taxpayer asserts no injury beyond her status as a taxpayer. What is the strongest Article III reason the suit likely fails?

  1. The suit presents a political question because Congress has exclusive control over federal spending decisions.
  2. The plaintiff lacks standing; a generalized grievance about federal spending is not a concrete injury. Correct answer.
  3. The suit is moot because appropriations are annual and the challenged funds have already been spent.
  4. The suit is barred by sovereign immunity because the defendant is the federal government.

Explanation

Article III standing requires an injury in fact that is concrete and particularized, fairly traceable to the defendant, and redressable by a court. A taxpayer's generalized objection to how the government spends federal funds is ordinarily not a concrete personal injury, so taxpayer standing generally fails outside narrow contexts such as Establishment Clause challenges.

Question 3Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

On March 1, a merchant sends a signed written offer to sell 1,000 widgets at $10 each and states that the offer will remain open until April 15. On March 20, the merchant revokes the offer. The buyer has given no consideration. On March 25, is the offer still open under the UCC?

  1. Yes, because the signed writing made the offer irrevocable for the stated period, not exceeding three months. Correct answer.
  2. No, because the buyer gave no consideration to keep the offer open, so the merchant could revoke.
  3. No, because the merchant revoked the offer before the buyer accepted it.
  4. Yes, because all merchant offers are irrevocable for 30 days under the UCC.

Explanation

Under UCC § 2-205, a merchant's signed written offer that assures it will be held open is irrevocable without consideration for the time stated, up to a maximum of three months. Because the stated period here is less than three months, the offer remained open despite the attempted revocation.

Question 4Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

During an attempted robbery, the defendant struggles with the victim and intentionally shoots at the victim but misses, killing a bystander. The defendant is charged with felony murder based on the attempted robbery. Which statement is correct?

  1. Felony murder applies only if the bystander was a co-felon rather than an innocent victim, because the felony must be independent.
  2. Felony murder cannot apply because the defendant did not intend to kill the bystander, and intent to kill is required.
  3. Felony murder applies; the death occurred during an attempted robbery, an independent inherently dangerous felony, and the shooting shows malice. Correct answer.
  4. Felony murder cannot apply because the killing was accidental and the robber did not proximately cause the death.

Explanation

Felony murder imposes liability for a death caused during the commission of an inherently dangerous felony, and the defendant need not intend the death. The underlying felony must be independent of the killing, and attempted robbery qualifies because it is separate from the homicide. The defendant's intentional shooting also supplies malice sufficient for murder.

Question 5Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A police officer arrives at a shooting scene two minutes after the shooting and finds the victim bleeding and screaming, "Jason shot me!" The victim later dies. At trial, the officer testifies to the victim's statement. Is the statement admissible?

  1. Yes, but only if the victim's later death makes it a dying declaration rather than an excited utterance.
  2. Yes, as an excited utterance; the victim was still under the stress of the shooting when she spoke. Correct answer.
  3. No, because it is testimonial and the defendant has no opportunity to cross-examine the victim.
  4. No, because it is hearsay and no exception applies to statements made to police officers.

Explanation

An excited utterance is admissible as a hearsay exception when the declarant was under the stress of a startling event and made the statement while still reacting to it. The victim's bleeding and screaming two minutes after being shot indicate she was still under the stress of the event. The statement is also not testimonial because it was made during an ongoing emergency to an officer arriving at the scene.

Question 6Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

For 25 years, A has crossed B's land on a visible path to reach a public road, without B's permission. The statutory period for prescriptive easements in the jurisdiction is 20 years. What interest has A acquired?

  1. An easement by prescription, because the use was open, adverse, and continuous for the statutory period. Correct answer.
  2. A license revocable at will, because B never gave A permission to cross the land.
  3. A fee simple absolute by adverse possession, because A used the path openly for the statutory period.
  4. An easement by necessity, because A needs access to the public road from A's landlocked parcel.

Explanation

A prescriptive easement arises when a person uses another's land openly, notoriously, adversely, and continuously for the statutory period. The use here was visible and without permission for 25 years, exceeding the 20-year period. Unlike adverse possession, prescription gives a right of use rather than fee title to the land.

Question 7Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A patient undergoes surgery and wakes with a burn on her thigh that was not present before the operation. The instrument causing the burn was under the exclusive control of the surgical team. The patient sues the surgeon. What is the effect of res ipsa loquitur?

  1. It shifts the burden of persuasion to the defendant, who must prove by a preponderance of the evidence that he was not negligent.
  2. It bars the defendant from offering evidence of due care, because the instrument was in his exclusive control.
  3. It creates a conclusive presumption of negligence, so the defendant cannot offer any evidence of due care at trial.
  4. It permits the jury to infer negligence because the injury ordinarily does not occur without negligence and the instrument was controlled by the defendant. Correct answer.

Explanation

Res ipsa loquitur is a circumstantial-evidence doctrine that allows an inference of negligence when the injury is of a kind that ordinarily does not occur without negligence and was caused by an instrumentality in the defendant's exclusive control. It shifts the burden of production, not the burden of persuasion, to the defendant. The defendant may still offer evidence of due care.

Question 8Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A plaintiff files a diversity suit in federal court asserting a state-law negligence claim. The state's highest court has not addressed whether a landowner owes a duty to a trespasser for a hidden trap, but an intermediate appellate court has ruled on the issue. How should the federal district court decide the duty question?

  1. Certify the question to the state's highest court only if the state constitution requires certification in diversity cases.
  2. Dismiss the case without prejudice because the state law is unsettled and the federal court lacks jurisdiction.
  3. Predict how the state's highest court would decide, using intermediate appellate decisions and other persuasive sources. Correct answer.
  4. Apply a federal common-law duty standard because the issue of duty is procedural rather than substantive.

Explanation

Under Erie Railroad v. Tompkins, a federal court sitting in diversity must apply state substantive law, including state common-law rules. When the state's highest court has not spoken, the federal court must predict how that court would rule, considering intermediate appellate decisions, treatises, and other persuasive authority. Certification may be available but is not generally required.

Question 9Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A city ordinance bans all billboards within city limits but allows signs placed on the premises where the advertised business operates. A billboard company challenges the ban under the First Amendment. Which standard of review applies?

  1. No scrutiny, because billboards are a form of commercial speech that the First Amendment does not protect.
  2. Intermediate scrutiny, because the ban is content-neutral and regulates the time, place, and manner of speech. Correct answer.
  3. Rational basis, because billboards are commercial speech and receive only minimal constitutional protection.
  4. Strict scrutiny, because billboards are fully protected speech and the ban restricts political expression.

Explanation

A regulation that distinguishes on-premises from off-premises signs is generally content-neutral and is analyzed as a time, place, and manner restriction. Such a regulation is valid if it serves a significant governmental interest and leaves open adequate alternative channels for communication. Strict scrutiny applies to content-based restrictions, not to this neutral sign regulation.

Question 10Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A buyer orders 1,000 blue widgets from a seller under a single-delivery contract. The seller delivers 1,000 widgets, but 50 are green. Under the UCC, what is the buyer's right?

  1. The buyer may cancel the contract only if the seller's breach is material and cannot be cured within a reasonable time.
  2. The buyer must accept the shipment and seek damages for the 50 nonconforming widgets under the UCC.
  3. The buyer may reject the entire shipment, because the perfect tender rule requires goods to conform in every respect. Correct answer.
  4. The buyer may reject only the 50 nonconforming widgets and must accept the remaining 950.

Explanation

Under the UCC perfect tender rule, a buyer may reject a shipment of goods if the goods fail in any respect to conform to the contract. Because this is a single-delivery contract and 50 widgets are the wrong color, the buyer may reject the entire shipment. Exceptions such as installment contracts, cure, and course of performance may alter this result, but none is present here.

Question 11Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

An Ohio citizen is injured in Indiana when a truck driven by an Illinois citizen crosses the center line. The Ohio citizen sues the truck driver in federal district court for the District of Indiana, invoking diversity jurisdiction and seeking $150,000. The driver moves to dismiss for improper venue. How should the court rule?

  1. Deny the motion, because a substantial part of the events giving rise to the claim occurred in Indiana. Correct answer.
  2. Grant the motion, because in a diversity action venue lies only where every party resides.
  3. Grant the motion, because the defendant resides in Illinois and the plaintiff resides in Ohio, so venue cannot lie in Indiana.
  4. Deny the motion, because the plaintiff's choice of forum controls in diversity actions.

Explanation

Under 28 U.S.C. § 1391(b)(2), venue is proper in a district where a substantial part of the events giving rise to the claim occurred. The collision happened in Indiana, so the District of Indiana is a proper venue even though no party resides there. A plaintiff's preference, standing alone, is not what makes venue proper.

Question 12Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

On May 1, a seller mailed an offer to a buyer proposing to sell a tractor for $20,000 and asking that any acceptance be sent by mail. The buyer received the offer on May 4 and mailed an unqualified acceptance on May 6. On May 7, before the seller received the acceptance, the seller telephoned the buyer and revoked the offer. The acceptance reached the seller on May 8. Was a contract formed, and if so, when?

  1. No contract was formed, because the buyer's manner of acceptance was not one the seller required.
  2. A contract was formed on May 8, when the seller received the acceptance.
  3. A contract was formed on May 6, when the buyer mailed the acceptance. Correct answer.
  4. No contract was formed, because the seller revoked before the acceptance was received.

Explanation

Under the mailbox rule, an acceptance is effective on dispatch once it is put out of the offeree's possession in the manner the offer invites. A revocation is effective only on receipt, so a revocation that arrives after dispatch comes too late. The contract therefore arose on May 6.

Question 13Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A software company, a citizen of State A, contracted with a State B public university to build a records system. After the university refused to pay, the company sued the university in federal court in State B, seeking $500,000 in damages for breach of contract. The university moved to dismiss. How should the court rule?

  1. Grant the motion, because the claim arises under state law and therefore presents no federal question for the court.
  2. Deny the motion, because the company is a citizen of a different state and the amount in controversy exceeds $75,000.
  3. Grant the motion, because the Eleventh Amendment bars this damages action against the university in federal court. Correct answer.
  4. Deny the motion, because the university waived its immunity by signing the contract.

Explanation

The Eleventh Amendment protects a state and its instrumentalities from damages suits in federal court by private citizens, including citizens of other states. A state may consent to suit, but merely entering a contract is not an unequivocal waiver of immunity in federal court. Diversity of citizenship does not overcome sovereign immunity.

Question 14Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

After a factory fire, a production-line supervisor employed by the defendant manufacturer told a fire investigator, "We knew the valve was faulty, but we kept the line running." The injured plaintiff offers the statement against the manufacturer. The manufacturer objects that the statement is hearsay. How should the court rule?

  1. Admit it, because statements by employees about plant conditions qualify under the business records exception to the hearsay rule.
  2. Exclude it, because the statement was made to an investigator rather than to a party or a court.
  3. Admit it as the statement of the manufacturer's agent concerning a matter within the scope of the agency. Correct answer.
  4. Exclude it, because the employee who spoke is not himself a party to the plaintiff's lawsuit.

Explanation

Rule 801(d)(2)(D) treats a statement offered against an opposing party as not hearsay when it was made by the party's agent or employee on a matter within the scope of that relationship while it existed. The declarant need not be a party or be unavailable. The statement need not have been against the declarant's interest when made.

Question 15Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

After a lawful arrest, officers advised the suspect of his Miranda rights and he signed a written waiver. Twenty minutes into questioning the suspect said, "If you think I need a lawyer, then maybe I should have one." The officers continued questioning, and the suspect confessed. The suspect moves to suppress the confession. How should the court rule?

  1. Admit the confession, because the signed waiver eliminated any right to counsel during questioning.
  2. Admit the confession, because the reference to counsel was ambiguous rather than an unambiguous request for a lawyer. Correct answer.
  3. Suppress the confession, because questioning should have stopped once the suspect expressed doubt about proceeding without counsel.
  4. Suppress the confession, because any mention of a lawyer requires the officers to stop questioning until counsel is appointed.

Explanation

A suspect must invoke the right to counsel unambiguously; if the reference to a lawyer is equivocal, the officers may continue questioning and any resulting confession is admissible under Davis v. United States. A valid waiver does not prevent a later invocation, but this remark was too tentative to count as one.

Question 16Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A newspaper published an article reporting that a candidate for city council had been "cited for drunken driving," when in fact the candidate had been cited for a broken taillight. The reporter relied on a single anonymous tip. The candidate sues the newspaper for defamation. What must the candidate establish?

  1. That the newspaper knew the statement was false or acted with reckless disregard for whether it was false. Correct answer.
  2. That the newspaper was negligent in failing to verify the statement before publishing it.
  3. That the newspaper acted with the specific intent to cause the candidate emotional harm.
  4. Only that the statement was false, because the article concerned the candidate's fitness for office.

Explanation

A candidate for public office is a public official for defamation purposes and must prove actual malice, meaning knowledge of falsity or reckless disregard for the truth, by clear and convincing evidence. Ordinary negligence in checking a story does not satisfy the First Amendment standard. Falsity alone is not enough for a public official.

Question 17Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

In a state with a notice recording statute, O conveys Blackacre to A on January 5. A does not record and does not take possession. On February 10, O conveys the same parcel to B, who pays fair value, has no actual or inquiry notice of A's deed, and finds nothing in the record search. B records on April 1. A records on March 1. Who owns Blackacre?

  1. B, because B purchased without notice of A's prior unrecorded deed. Correct answer.
  2. A, because A's conveyance was first in time and the statute protects only purchasers who record first.
  3. B, because B recorded within a reasonable time after receiving the deed.
  4. A, because A recorded the deed before B recorded.

Explanation

In a notice jurisdiction, a later purchaser prevails if it takes without actual, inquiry, or record notice of the prior unrecorded conveyance, regardless of who records first. B searched the record, found nothing, paid value, and A was not in possession, so B took as a bona fide purchaser. A's earlier recording does not defeat B's priority.

Question 18Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

The plaintiff sued in federal court. The defendant timely filed a Rule 12(b)(6) motion to dismiss for failure to state a claim, which the court denied. The defendant then filed an answer raising a counterclaim but said nothing about personal jurisdiction and asserted no other Rule 12 defenses. Six months later the defendant moved to dismiss for lack of personal jurisdiction. How should the court rule?

  1. Grant the motion, because a defendant may object to personal jurisdiction at any time before trial.
  2. Deny the motion, because the defendant's counterclaim arises from the same transaction as the plaintiff's claim.
  3. Grant the motion, because personal jurisdiction, like subject-matter jurisdiction, may be raised at any stage.
  4. Deny the motion, because the defense was waived by its omission from the earlier motion and the answer. Correct answer.

Explanation

Rule 12(h)(1) provides that a defense of lack of personal jurisdiction is waived if it is omitted from a Rule 12 motion or from the answer, whichever is filed first. Personal jurisdiction is a waivable defense, unlike subject-matter jurisdiction, so it cannot be resurrected later. The rationales offered in the other options confuse waivable defenses with jurisdictional ones.

Question 19Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

On April 1, a seller of goods contracted to sell to a buyer for $50,000 told the buyer, "I will not be delivering the goods." The buyer said nothing and simply waited for delivery. On April 5, before the buyer had canceled the contract or changed position in reliance, the seller notified the buyer, "I withdraw that statement; I will deliver as agreed." The buyer now refuses to accept delivery. Who prevails?

  1. The seller, because the buyer failed to demand adequate assurance of performance after the statement.
  2. The buyer, because a repudiation becomes final once it is communicated and cannot be withdrawn.
  3. The seller, because the repudiation was retracted before the buyer canceled or materially changed position. Correct answer.
  4. The buyer, because the seller's statement was an anticipatory breach that immediately discharged the buyer's remaining duties under the contract.

Explanation

Under UCC § 2-611, a repudiating party may retract the repudiation at any time before the aggrieved party cancels the contract, materially changes position, or otherwise indicates that the repudiation is final. A buyer who merely waits for performance has done none of these things, so the retraction restored the contract.

Question 20Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A construction company stored a large, unlocked cement mixer on an unfenced lot beside a public playground. The company knew neighborhood children often played on its equipment. A nine-year-old climbed into the mixer's drum and was hurt when it rolled. The child sues in a jurisdiction that follows the attractive nuisance doctrine. Did the company owe the child a duty of care?

  1. No, because the mixer was not in operation at the time of the injury.
  2. No, because the child was a trespasser to whom the company owed no duty except to refrain from willful injury.
  3. Yes, because the company knew children were likely to play on the equipment and the risk to them outweighed the burden of securing it. Correct answer.
  4. Yes, because a landowner is strictly liable for all injuries to children caused by artificial conditions on the land.

Explanation

Under the attractive nuisance doctrine, a possessor owes a duty of reasonable care to child trespassers when it knows or should know children are likely to trespass, the artificial condition creates a risk children cannot appreciate, and the risk outweighs the burden of eliminating it. The doctrine is an exception to the rule that a landowner owes no duty to undiscovered trespassers. It imposes a duty of reasonable care, not strict liability.

Question 21Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A plaintiff sues a single defendant in federal court, asserting a claim under 42 U.S.C. § 1983 and a state-law assault claim arising from the same incident. The parties are not diverse. The defendant moves to dismiss the state claim for lack of subject-matter jurisdiction. How should the court rule?

  1. Deny the motion only if the assault claim raises a substantial question of federal law.
  2. Deny the motion, because the state claim is part of the same case or controversy as a claim within the court's original jurisdiction. Correct answer.
  3. Grant the motion unless the state claim itself satisfies the amount-in-controversy requirement for diversity.
  4. Grant the motion, because the state claim has no independent basis of federal jurisdiction.

Explanation

Under 28 U.S.C. § 1367(a), a federal court has supplemental jurisdiction over state claims that are so related to a claim within its original jurisdiction that they form part of the same case or controversy. The assault claim arises from the same incident as the § 1983 claim, so it is within the court's power even without diversity. The § 1367(b) carve-outs do not apply, because no party was joined under Rules 14, 19, 20, or 24 and the case does not rest on diversity jurisdiction.

Question 22Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

At a trial arising from a car crash, the plaintiff offers testimony that the defendant, a delivery driver, "always" checked his mirrors before changing lanes, every single time he drove. The defendant objects. How should the court rule?

  1. Admit the testimony only if the defendant first places his own driving habits in issue.
  2. Exclude the testimony, because it is inadmissible character evidence offered to prove action in conformity therewith.
  3. Admit the testimony as evidence of habit, because it describes a regular response to a specific situation. Correct answer.
  4. Exclude the testimony, because habit evidence is admissible only in commercial cases involving business customs.

Explanation

Federal Rule of Evidence 406 permits proof of a person's habit, meaning a regular response to a repeated specific situation, to prove that the person acted in accordance with that habit on a particular occasion. A consistent practice of checking mirrors before every lane change is specific and automatic enough to qualify, unlike generalized character for carefulness. Habit evidence is not limited to business settings and does not depend on the opposing party opening the door.

Question 23Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

Charged with common-law burglary of a dwelling with intent to commit larceny, the defendant testifies that he was extremely intoxicated when he entered the house and that he intended only to sleep there. What is the effect of this evidence?

  1. It reduces burglary from a specific-intent crime to a general-intent crime in this jurisdiction.
  2. It requires an acquittal, because intoxication negates every form of mens rea.
  3. It may negate burglary's specific intent but does not excuse the entry itself. Correct answer.
  4. It is irrelevant, because voluntary intoxication is never a defense to any crime.

Explanation

Common-law burglary requires a specific intent to commit a felony after the unlawful entry, and voluntary intoxication may negate that intent. Voluntary intoxication is not a defense to general-intent crimes and does not privilege or excuse the unlawful entry itself. The evidence is therefore admissible and may defeat the burglary charge, while leaving liability for a general-intent offense such as trespass intact.

Question 24Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A state statute requires that all milk sold in the state be pasteurized at an in-state plant within 12 hours of milking. Out-of-state processors challenge the law. The state concedes that inspection and prompt pasteurization out of state would protect health equally well. How should a court rule?

  1. Uphold it, because the state may regulate any article shipped into the state once it enters the stream of commerce.
  2. Uphold it, because the state's broad police power over food safety permits reasonable health regulations.
  3. Strike it down, because a facially discriminatory rule is valid only if no nondiscriminatory alternative would serve a legitimate local purpose. Correct answer.
  4. Strike it down only if the plaintiffs prove that the legislature acted with a discriminatory purpose.

Explanation

A state law that discriminates against interstate commerce on its face is virtually per se invalid under the Dormant Commerce Clause unless the state shows a legitimate local purpose that cannot be served by reasonable nondiscriminatory alternatives. Public health is legitimate, but the state has conceded that out-of-state pasteurization under inspection works as well. Protectionist economic effect, not subjective legislative motive, is what triggers the doctrine.

Question 25Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

On June 1, two merchants orally agree that the buyer will purchase 5,000 pounds of coffee for $40,000. That afternoon the buyer sends the seller a signed writing confirming the agreement. The seller receives it, says nothing, and later refuses to deliver, invoking the statute of frauds. Which statement is correct?

  1. Enforceable against both parties, because the buyer's signature satisfies the statute for both of them.
  2. Unenforceable, because an oral contract for the sale of goods is voidable at the seller's election.
  3. Enforceable against neither party, because the seller never signed any writing.
  4. Enforceable against the seller, because a merchant who receives a confirmation and does not object within 10 days is bound. Correct answer.

Explanation

Under UCC § 2-201(2), between merchants a signed written confirmation that is sufficient against the sender satisfies the statute of frauds against the recipient, provided the recipient receives it, has reason to know its contents, and does not object within 10 days. The buyer's writing is sufficient against the buyer, and the seller's silence makes the contract enforceable against the seller. The rule protects a merchant who confirms in writing from a silent recipient's later statute-of-frauds defense.

Question 26Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A tenant leases a commercial storefront for a year and opens a bakery. In violation of the lease, the landlord fails to repair the broken furnace, leaving the shop unusable for weeks in winter. The tenant gives the landlord written notice twice, receives no response, vacates, and stops paying rent. In the landlord's action for rent, what is the tenant's strongest defense?

  1. The tenant's sole remedy is an action for specific performance of the repair covenant.
  2. Constructive eviction, because the landlord's substantial interference, after notice, justified the tenant's vacating. Correct answer.
  3. The tenant may withhold rent only if the lease expressly permits withholding for repair failures.
  4. The breach was partial, so the tenant still owes rent but may recover repair damages.

Explanation

Constructive eviction arises when the landlord's act or omission substantially interferes with the tenant's use and enjoyment, the tenant notifies the landlord and allows a reasonable time to cure, and the tenant then vacates within a reasonable period. Here all three elements are met, and vacating discharges the obligation to pay future rent. An express repair covenant is relevant evidence of the duty but is not a prerequisite to the doctrine.

Question 27Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A driver negligently struck and gravely injured a six-year-old in a crosswalk. The child's mother, standing 20 feet away, saw the impact, ran to the child, and suffered severe emotional distress. In her negligent-infliction action against the driver, must she prove a physical manifestation of her distress under the majority bystander rule?

  1. No, because any witness who observes an accident may recover for resulting distress.
  2. Yes, unless the accident resulted in the child's death rather than injury.
  3. Yes, because emotional distress is compensable only when accompanied by physical symptoms.
  4. No, because a close relative who contemporaneously perceives the injury need not show physical symptoms. Correct answer.

Explanation

The prevailing bystander rule allows a close relative of the victim who is present at the scene and contemporaneously perceives the injury-producing event to recover for serious emotional distress. Physical manifestation of the distress is no longer generally required. The mother's relationship and proximity satisfy the rule, and the seriousness of her distress remains a question of proof.

Question 28Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

An officer lawfully stops a car for a broken taillight, then sees a clear plastic bag of marijuana on the back seat and smells burnt marijuana. He searches the trunk and finds cocaine in a closed backpack. The driver moves to suppress. How should the court rule?

  1. Admit the cocaine only if the driver consented to the trunk search.
  2. Suppress the cocaine, because a closed backpack may never be searched without a warrant.
  3. Admit the cocaine, because probable cause to believe the car held contraband justified searching the vehicle and its containers. Correct answer.
  4. Suppress the cocaine, because a warrant was required to search the trunk after a routine traffic stop.

Explanation

The automobile exception permits a warrantless search of a vehicle and of closed containers within it when officers have probable cause to believe the vehicle contains contraband or evidence of a crime. The visible marijuana and the odor of burnt marijuana supplied probable cause before the trunk was opened. Neither a warrant nor consent was required, and the backpack was a container that could hold the suspected contraband.

Question 29Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A witness who identified the defendant in a police lineup now testifies at trial that she cannot recall the perpetrator's face. The prosecutor offers her earlier deposition testimony, given under oath, identifying the defendant. The defense objects on hearsay grounds. How should the court rule?

  1. Exclude it, because the witness claims memory loss rather than denying the earlier statement outright.
  2. Admit it only if the defense is allowed to recall the witness later in the trial.
  3. Exclude it, because prior inconsistent statements may be used only to impeach and never as substantive evidence.
  4. Admit it substantively, because the declarant testifies and is subject to cross-examination about a prior inconsistent statement given under oath. Correct answer.

Explanation

Federal Rule of Evidence 801(d)(1)(A) removes from hearsay a prior inconsistent statement made under oath at a trial, hearing, or other proceeding when the declarant testifies and is subject to cross-examination about it. Such a statement may be considered substantively, not merely for impeachment. A claimed inability to recall is generally treated as inconsistent with the earlier identification, and deposition testimony satisfies the oath requirement.

Question 30Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

P sues D in state court for battery arising from a single altercation and loses on a jury verdict. P then sues D in federal court on the same facts, alleging negligence. D invokes claim preclusion. What is the likely result?

  1. Barred, because a final judgment on the merits precludes any later suit on a claim arising from the same transaction. Correct answer.
  2. P is barred only if P actually litigated the negligence theory in the first action.
  3. P may proceed, because battery and negligence are different causes of action with different elements.
  4. P may proceed, because the earlier judgment was rendered by a state court rather than a federal court.

Explanation

Claim preclusion bars a second suit between the same parties on the same claim when the first suit ended in a final judgment on the merits. A claim encompasses all theories of recovery arising from the same transaction or occurrence, so negligence is foreclosed even though it carries different elements than battery. The full-faith-and-credit requirement obliges the federal court to give the state judgment the same effect it would have in the rendering state.

Question 31Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A plaintiff sued a defendant in state court, asserting only state-law claims for breach of contract and fraud. Within 30 days of service, the defendant filed a notice of removal, asserting that the plaintiff's claims are completely preempted by a federal statute and that preemption will be raised as a defense. The plaintiff timely moved to remand. How should the court rule?

  1. Grant remand, because the federal question must appear on the face of the plaintiff's well-pleaded complaint. Correct answer.
  2. Deny remand, because federal preemption is a federal question that supports removal.
  3. Grant remand, because the defendant failed to obtain the plaintiff's consent before removing.
  4. Deny remand, because a federal defense that is central to the litigation always creates removal jurisdiction.

Explanation

Under the well-pleaded complaint rule, the plaintiff is master of the claim, and a federal question must appear on the face of the complaint; a federal defense, including preemption, ordinarily does not create removal jurisdiction. Complete preemption is a narrow exception for statutes that wholly displace a state-law cause of action, and it is not triggered merely by asserting preemption as a defense. Because only state-law claims were pleaded, remand is required.

Question 32Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

At trial, a hospital offers a patient's laboratory report to prove the values recorded in it. The report was generated at the time of testing, was kept by the hospital in the ordinary course of its business, and the technician who ran the test is unavailable. Which foundation element must the hospital establish for the report to be admitted under the business-records exception?

  1. That the technician who performed the test is unavailable despite the proponent's reasonable efforts to secure his attendance.
  2. That the patient has adopted the report as his own statement.
  3. That the report was prepared in anticipation of litigation by a party opponent.
  4. That the report was made at or near the time of the event by someone with knowledge or from information transmitted by such a person, and was kept in the course of a regularly conducted activity. Correct answer.

Explanation

Rule 803(6) requires the proponent to show that the record was made at or near the time of the event by someone with knowledge, or from information transmitted by such a person, that it was kept in the course of a regularly conducted activity, and that making it was a regular practice of that activity. A custodian or other qualified witness must authenticate it. The declarant's unavailability is not an element of the exception.

Question 33Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A merchant of plumbing supplies signed and mailed a letter to a contractor stating: "I offer to sell you 500 faucets at $40 each, and I will hold this offer open for 60 days." The letter said nothing about consideration, and the contractor paid nothing. Thirty days later, the merchant purported to revoke. Is the offer still open?

  1. No, because the contractor gave no consideration to keep the offer open.
  2. Yes, because a signed writing by a merchant assuring that an offer will be held open makes the offer irrevocable for the stated period, up to three months, without consideration. Correct answer.
  3. No, because the merchant revoked before the contractor accepted, and revocability is the default rule.
  4. Yes, but only if the contractor reasonably relied to his detriment on the promise to hold the offer open.

Explanation

UCC section 2-205 provides that an offer by a merchant to buy or sell goods in a signed writing that gives assurance it will be held open is not revocable for lack of consideration during the stated time, or for a reasonable time if no time is stated, but in no event beyond three months. Because the offer was signed, stated 60 days, and concerned goods, it was irrevocable and the attempted revocation was ineffective.

Question 34Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A patient underwent surgery and later awoke with a burn on his thigh that was not present beforehand. The instrumentality causing the burn was under the exclusive control of the surgical team, and expert testimony established that such burns do not occur absent negligence. The patient has no direct evidence of how the burn occurred and sues the hospital. May the jury find negligence?

  1. Yes, because 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. Correct answer.
  2. No, because res ipsa loquitur is unavailable when the plaintiff cannot identify the specific individual whose negligence caused the injury.
  3. Yes, because an unexpected bad outcome in surgery creates a presumption of negligence that shifts the burden of persuasion to the defendant.
  4. No, because expert testimony is inadmissible to prove what ordinarily happens during surgery.

Explanation

Res ipsa loquitur permits an inference of negligence when the injury is of a type that ordinarily does not occur absent negligence, is caused by an instrumentality within the defendant's exclusive control, and is not attributable to the plaintiff's own conduct. It creates a permissible inference, not a presumption shifting the burden of persuasion. Where a team controlled the instrumentality, the plaintiff need not name the specific individual at fault.

Question 35Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

An owner holds title to a 40-acre wooded parcel. In 2012, a camper began using the parcel as a hunting camp, openly, notoriously, exclusively, and continuously. In 2019, the camper delivered a deed conveying whatever interest he had to a neighbor, who continued the same open and continuous possession. The governing adverse-possession statute requires ten years, and in 2023 the owner sued to eject the neighbor. Can the neighbor rely on the camper's years of possession?

  1. No, because the neighbor's own possession began in 2019 and has lasted only four years.
  2. Yes, because the owner's failure to object for more than ten years automatically vested record title in the neighbor in 2022 regardless of privity.
  3. No, because an adverse possessor acquires no title and therefore has nothing capable of being conveyed.
  4. Yes, because successive adverse possessors in privity may tack their periods, and 2012 through 2023 exceeds ten years. Correct answer.

Explanation

Successive adverse possessors may tack their periods of possession if they are in privity, meaning there is a voluntary transfer of possession such as a deed, inheritance, or contract. Because the deed from the camper to the neighbor supplied privity, the periods combine, and the continuous possession from 2012 to 2023 satisfies the ten-year statute. The owner's ejectment action therefore fails.

Question 36Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

After a defendant was indicted and arraigned on robbery charges, police placed him in a lineup without notifying his appointed counsel, who had already entered an appearance. The victim identified him, and the prosecution intends to offer the identification at trial. What is the strongest basis for excluding the identification testimony?

  1. The Fifth Amendment privilege against self-incrimination, because the lineup compelled him to display his appearance.
  2. The Fourth Amendment, because the lineup was a search conducted without a warrant or consent.
  3. Miranda, because he was not given warnings before participating in the lineup.
  4. The Sixth Amendment, because after formal charging the defendant has a right to counsel at a corporeal lineup, and the identification is suppressed absent an independent source. Correct answer.

Explanation

Once adversary judicial proceedings have been initiated, the Sixth Amendment guarantees counsel at critical stages, and a post-indictment corporeal lineup is such a stage. If counsel was absent, testimony about the lineup identification is inadmissible unless the prosecution establishes by clear and convincing evidence an independent source for the in-court identification. The right is offense-specific and attaches to the charged crime.

Question 37Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A plaintiff served a complaint containing legal claims for damages. The defendant answered on March 1, and the plaintiff served a court-ordered reply on March 10. On March 20, the defendant served a demand for a jury trial on all issues triable to a jury. No other pleadings were served. Is the demand timely?

  1. Yes, because a jury demand may be made at any time before the trial begins.
  2. Yes, because it was served within 14 days after service of the last pleading directed to the issues. Correct answer.
  3. No, because a jury demand must be included in the answer or it is waived.
  4. No, because the demand came more than 14 days after the answer was served.

Explanation

Under Rule 38(b), a party must serve a written jury demand no later than 14 days after service of the last pleading directed to any issue triable by a jury. The plaintiff's March 10 reply was the last such pleading, so the March 20 demand fell within the 14-day window and was timely. A demand is not required to be included in the answer itself.

Question 38Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A city employee held a protected property interest in continued employment. Before a 30-day suspension without pay took effect, the city gave him notice of the charges and an opportunity to respond to the supervisor who imposed the suspension; he was not given a full evidentiary hearing beforehand. He sues, alleging a due process violation. Who prevails?

  1. The employee, because a public employer must provide counsel at any pre-suspension meeting.
  2. The city, because public employment is a privilege rather than a property interest.
  3. The city, because he received notice of the charges and a chance to respond before the suspension, which is all the process due in this setting. Correct answer.
  4. The employee, because any deprivation of a property interest requires a full adversarial hearing before it occurs.

Explanation

Where a public employee has a property interest in continued employment, procedural due process requires notice of the charges and an opportunity to respond before the deprivation, and this ordinarily satisfies the Constitution. Courts balance the private interest, the risk of erroneous deprivation, and the government's burden in deciding what procedures are due, so a full trial-type hearing is not required in every case.

Question 39Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A defendant and a co-defendant were charged with robbery. After both were arrested, the co-defendant told police that the defendant had planned the robbery. The co-defendant then fled the jurisdiction and cannot be found despite diligent efforts, and the prosecution has evidence that the defendant threatened the co-defendant's sister to keep him from testifying. The statement falls within no firmly rooted hearsay exception. Is it admissible against the defendant?

  1. No, because the statement is testimonial and the co-defendant will not testify at trial.
  2. Yes, if the prosecution proves by a preponderance that the defendant procured the co-defendant's absence by wrongdoing, forfeiture by wrongdoing permits admission. Correct answer.
  3. Yes, because statements of a co-conspirator are always admissible against co-defendants, even after arrest.
  4. Yes, because the co-defendant is unavailable, and unavailability alone satisfies the Confrontation Clause.

Explanation

Forfeiture by wrongdoing allows testimonial hearsay to be admitted when the defendant engaged in conduct designed to procure the declarant's unavailability, proved by a preponderance of the evidence. Because the co-defendant's statement to police after arrest was testimonial, Crawford applies, and forfeiture is the route to admission here. The threat evidence is what supports the required showing.

Question 40Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A buyer merchant sent a purchase order for 1,000 boxes. The seller merchant responded with a signed acknowledgment that expressly accepted the order but added a term imposing a 1.5% monthly service charge on invoices more than 30 days overdue. The buyer did not object, the boxes were delivered, and the buyer paid late. A dispute arises over the service charge. Is the added term part of the contract?

  1. No, because terms may be added to a contract only by a separate writing signed by both parties.
  2. No, because an acknowledgment containing additional terms operates as a counteroffer that rejects the purchase order.
  3. Yes, because between merchants an added term in a seasonable acceptance becomes part of the contract unless it materially alters it, and this term does not. Correct answer.
  4. Yes, because a merchant's acknowledgment always displaces the terms of the offer, and the seller's terms control.

Explanation

Under UCC section 2-207, a definite and seasonable expression of acceptance operates as an acceptance even though it states additional terms, and between merchants those terms become part of the contract unless they materially alter it, the offer expressly limits acceptance to its terms, or the offeror objects within a reasonable time. A modest service charge on overdue invoices is generally not a material alteration, and the buyer did not object.

Question 41Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A plaintiff filed suit against a defendant in state court on March 1, asserting only state-law claims. The defendant, a citizen of a different state from the plaintiff, was served with the complaint on March 3. On April 10, the defendant filed a notice of removal in the federal district court embracing the state court, invoking diversity jurisdiction. The action is otherwise removable. May the defendant proceed in federal court?

  1. No, because removal requires the plaintiff's consent when the claims arise under state law.
  2. Yes, because a defendant may remove at any time before the trial begins.
  3. Yes, because the notice of removal was filed before the defendant served a responsive pleading.
  4. No, because the notice of removal was filed more than 30 days after the defendant was served. Correct answer.

Explanation

Under 28 U.S.C. § 1446(b)(1), a defendant must file the notice of removal within 30 days after being served with the initial pleading. Service occurred on March 3 and the notice was filed on April 10, 38 days later, so removal is untimely. The clock runs from service, not from the answer or from the start of trial.

Question 42Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A cashier at a grocery store was entrusted with collecting payments from customers and placing the cash in the register. Over several weeks the cashier kept some of the payments for himself. He is charged with larceny. The evidence shows he was authorized to receive the money and that he formed the intent to keep it only after the customers handed it to him. Which offense is he guilty of?

  1. False pretenses, because he obtained the cash by deceiving customers.
  2. Larceny, because he carried away cash that belonged to the store.
  3. Embezzlement, because he fraudulently converted property he lawfully possessed. Correct answer.
  4. Robbery, because he took money in the presence of customers who handed it over.

Explanation

Embezzlement is the fraudulent conversion of the property of another by a person who has lawful possession of that property. Because the cashier was entrusted with the payments and formed the intent to keep them only after receiving them, the taking was not trespassory and therefore cannot be larceny.

Question 43Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A man crept up behind a woman at night and pointed a loaded pistol at her back, intending to frighten her. The woman never saw or heard him and walked away unharmed. In the woman's tort action for assault, what result?

  1. She does not recover, because she never apprehended imminent contact. Correct answer.
  2. She does not recover, because the man never touched her.
  3. She recovers, because pointing a loaded weapon at a person is always an assault.
  4. She recovers, because the man intended to cause apprehension of harmful contact.

Explanation

Assault requires an act intended to cause apprehension of imminent harmful or offensive contact and actual apprehension by the plaintiff. Because the woman never perceived the gun, she experienced no apprehension, so no assault occurred even though the man's conduct was outrageous.

Question 44Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A retailer and a manufacturer orally agreed that the manufacturer would produce 2,000 canvas tote bags printed with the retailer's distinctive logo for $18,000, with delivery in 60 days. The manufacturer began cutting and printing the canvas, producing bags that could not be sold to anyone else. Ten days later the retailer repudiated. The manufacturer sued for breach. Is the oral agreement enforceable?

  1. Yes, because the goods were specially manufactured for the retailer and a substantial beginning was made. Correct answer.
  2. No, because the contract price exceeds $500 and there is no writing signed by the retailer.
  3. Yes, because the parties are merchants and an oral agreement between merchants is always enforceable.
  4. No, because the manufacturer had not completed production when the retailer repudiated.

Explanation

UCC § 2-201(3)(a) removes specially manufactured goods from the statute of frauds when they are not suitable for sale to others in the ordinary course of business and the seller has made a substantial beginning on their manufacture. The manufacturer's cutting and logo printing satisfy that exception, so the retailer's repudiation is a breach.

Question 45Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

In a civil action for battery, the defendant calls a witness who testifies that the plaintiff struck first. On cross-examination, the plaintiff offers a certified record showing that the witness was convicted of felony forgery three years earlier. The witness served his sentence and was released two years ago. How should the court rule on admissibility?

  1. Admissible, because forgery involves dishonesty and the conviction is within 10 years. Correct answer.
  2. Inadmissible, because convictions may be used to impeach only in criminal cases.
  3. Admissible only if the court finds that the conviction's probative value substantially outweighs its prejudicial effect.
  4. Inadmissible, because the witness was released from confinement more than one year ago.

Explanation

Under FRE 609(a)(2), a conviction for a crime involving a dishonest act or false statement is admissible to impeach any witness, in civil or criminal cases, without any Rule 403 balancing. The 10-year limit in Rule 609(b) runs from the later of conviction or release from confinement, and neither date is beyond that limit here.

Question 46Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

An owner conveyed a lakeside lot to a first buyer by a valid deed, which the first buyer did not record. Two months later the owner conveyed the same lot to a second buyer, who knew of the first conveyance because the first buyer's boat was docked there. The second buyer paid fair value and recorded the deed that same day. The jurisdiction has a race-notice recording statute. Who holds title?

  1. The first buyer, because he received the deed first in time and recording is irrelevant.
  2. The second buyer, because the first buyer failed to record his deed.
  3. The second buyer, because he recorded the deed before the first buyer recorded anything.
  4. The first buyer, because the second buyer had actual notice and is not protected by the statute. Correct answer.

Explanation

A race-notice statute protects a subsequent purchaser only if the purchaser pays value without notice of the prior conveyance and records before the prior grantee does. Because the second buyer had actual notice from the docked boat, he takes subject to the first conveyance even though he recorded first.

Question 47Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A state requires every person who commercially fishes in its coastal waters to obtain a license, but charges nonresidents $5,000 while residents pay $100. The fee covers identical regulatory costs, and the state offers no special justification. A nonresident commercial fisher challenges the fee. What is the strongest constitutional ground, and what result?

  1. The Equal Protection Clause, because the state treats nonresidents differently; the fee is valid if rationally related to a legitimate purpose.
  2. The Privileges and Immunities Clause of Article IV, because the fee burdens nonresidents' pursuit of livelihood; the fee is invalid. Correct answer.
  3. The Privileges or Immunities Clause of the Fourteenth Amendment, because fishing is a right of national citizenship.
  4. The Commerce Clause, because fishing is interstate commerce; the fee is valid because the state owns the waters.

Explanation

Article IV's Privileges and Immunities Clause bars states from discriminating against nonresidents on fundamental matters such as pursuing a livelihood unless the discrimination is closely related to a substantial state interest. A $5,000 fee borne only by nonresidents, with no justification and identical regulatory costs, cannot satisfy that standard.

Question 48Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A plaintiff served a complaint on April 1 that included a jury demand in the caption. The defendant answered on April 20, and the plaintiff filed a reply on May 5. On May 10, the defendant served a demand for a jury trial on all issues triable to a jury. Under the Federal Rules of Civil Procedure, is the defendant's demand effective?

  1. Yes, because it was served within 14 days after the last pleading on jury issues. Correct answer.
  2. No, because the plaintiff's caption demand automatically fixed the mode of trial for all parties.
  3. Yes, because Rule 38 allows a jury demand at any time before discovery closes.
  4. No, because the defendant waived a jury by answering without demanding one.

Explanation

Rule 38(b) requires a party to serve a jury demand no later than 14 days after service of the last pleading directed to the issues triable to a jury. The reply was served on May 5 and the defendant demanded on May 10, within the 14-day window, so the demand is timely.

Question 49Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

A moving company hired to clear out one apartment mistakenly loaded a neighbor's $4,000 antique writing desk onto its truck. The company stored the desk in its warehouse for two weeks, refused the owner's request to retrieve it the next day, and then returned it unscratched. The owner sues. What is the most likely result?

  1. Conversion, because the company exercised dominion and control over the desk for two weeks.
  2. Trespass to chattels, because the interference did not justify a forced sale of the desk. Correct answer.
  3. No liability, because the taking was a mistake and the desk was returned undamaged.
  4. Conversion, because any intentional interference with another's chattel is conversion.

Explanation

Conversion requires an intentional interference so serious that the defendant may fairly be required to pay the chattel's full value, while trespass to chattels covers lesser interferences that cause actual damage or a deprivation of use. A two-week refusal to return a desk that came back unscathed supports trespass to chattels rather than conversion.

Question 50Multistate Bar Examination (MBE) - 175 scored multiple-choice questions spanning Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts

An officer stopped a car for speeding and learned the driver's license was suspended. The officer arrested the driver for driving with a suspended license, handcuffed him, and locked him in the patrol car. Without consent, and with no reason to believe evidence of the license offense was in the car, the officer then searched the passenger compartment and the trunk, finding cocaine under the spare tire. The driver moves to suppress. How should the court rule?

  1. Deny the motion, because a search incident to arrest may always include the passenger compartment of the car the arrestee was driving.
  2. Deny the motion, because the cocaine was in the trunk and the automobile exception allows a warrantless search of the entire vehicle.
  3. Grant the motion, because driving with a suspended license is not an arrestable offense.
  4. Grant the motion, because the arrestee was secured and the officer lacked reason to believe evidence of the offense was in the car. Correct answer.

Explanation

Under Arizona v. Gant, a vehicle search incident to arrest is permitted only when the arrestee is unsecured and within reaching distance of the passenger compartment, or when it is reasonable to believe the vehicle contains evidence of the offense of arrest. With the driver handcuffed in the patrol car and no reason to expect evidence of a suspended-license violation, the search was unlawful.