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Question 1Multistate Bar Examination (MBE) subjects

A homeowner hired a contractor to remodel her kitchen for $40,000. After the contractor had completed half the work and had been paid $20,000, the homeowner wrongfully told him to stop and refused to let him return. The contractor had spent $18,000 on labor and materials and had expected $4,000 profit on the entire job. In his action for breach of contract, what can the contractor recover?

  1. $20,000, the full contract price less payments received
  2. $18,000, his cost of performance to date
  3. $22,000, his costs plus the profit he would have earned on the whole contract Correct answer.
  4. Nothing, because he had not substantially performed

Explanation

When the owner prevents performance, the builder may recover in quasi-contract or for breach the reasonable value of the work done plus expected profit on the entire contract, because the breach cut short the opportunity to earn. That expectation measure here is $18,000 in costs plus $4,000 profit, or $22,000, credited with the $20,000 already paid only if suit sought the full price. The cost-of-performance measure alone undercompensates the lost bargain.

Question 2Multistate Bar Examination (MBE) subjects

A merchant sent a signed writing promising to keep open an offer to sell goods for 60 days. No consideration was given. Twenty days later the merchant purported to revoke. The offeree had not relied on the promise. Which statement best describes the legal effect of the writing?

  1. The writing operates as an acceptance, creating a binding contract to sell the goods.
  2. The revocation is effective because option contracts require consideration, and none was given.
  3. The offer became irrevocable only when the offeree began preparations to perform.
  4. The offer is irrevocable for 60 days because a merchant's signed promise to hold an offer open is enforceable without consideration under the UCC firm-offer rule. Correct answer.

Explanation

Under UCC 2-205, a merchant's signed assurance that an offer to buy or sell goods will be held open is irrevocable without consideration, for the stated period or a reasonable time, capped at three months. Because the promise was signed and made by a merchant, the revocation at day 20 is ineffective. Reliance is not required.

Question 3Multistate Bar Examination (MBE) subjects

A defendant was charged with burglary of a dwelling. The prosecution seeks to admit evidence that, three weeks earlier, the defendant broke into a different house at night and stole a television. The defendant objects. The evidence is most likely admissible for which purpose?

  1. To impeach the defendant's character for truthfulness
  2. To show the defendant's propensity for breaking into homes
  3. To prove the defendant's intent to commit a felony inside the dwelling Correct answer.
  4. To prove motive for the charged burglary

Explanation

Evidence of other crimes is inadmissible to show propensity but may be admitted for a non-propensity purpose such as intent, identity, plan, or absence of mistake under Rule 404(b). Burglary requires intent to commit a crime inside, and a prior nighttime entry with theft supports that intent. A limiting instruction would be given.

Question 4Multistate Bar Examination (MBE) subjects

A state enacted a statute requiring any person who sells goods door-to-door to obtain a license and pay a $500 annual fee. A seller who sells only magazines published by a small in-state press is exempt from the fee. An out-of-state magazine seller challenges the fee. Which standard will a court apply?

  1. Rational basis, because the regulation concerns economic activity
  2. Intermediate scrutiny, because the classification affects commerce
  3. Strict scrutiny, because the fee burdens a fundamental right
  4. The dormant Commerce Clause, because the exemption favors in-state business Correct answer.

Explanation

A facially neutral licensing scheme that exempts local publishers while burdening out-of-state sellers discriminates against interstate commerce and is analyzed under the dormant Commerce Clause. Discriminatory state laws are valid only if they serve a legitimate local purpose that cannot be served by reasonable nondiscriminatory alternatives. The in-state exemption is the hallmark of protectionism.

Question 5Multistate Bar Examination (MBE) subjects

A pedestrian was injured when a delivery truck ran a red light. The pedestrian sued the driver, who conceded negligence. At trial the pedestrian offered a hospital bill for $30,000 to prove the amount of medical expenses. The driver objects on hearsay grounds. How should the court rule?

  1. Admit the bill as a statement made for medical diagnosis or treatment
  2. Exclude the bill because the pedestrian is a party and could testify himself
  3. Exclude the bill because it is offered to prove the truth of the matter asserted
  4. Admit the bill as a business record if a custodian testifies it was kept in the regular course of business Correct answer.

Explanation

Hospital bills are typically admissible under the business-records exception when a qualified witness establishes that they were made at or near the time by someone with knowledge, kept in the regular course of business, and created as a regular practice. The bill is hearsay but falls within Rule 803(6). The pedestrian's availability is irrelevant to that exception.

Question 6Multistate Bar Examination (MBE) subjects

A landowner granted a neighbor a written easement "for so long as the neighbor maintains a fence along the boundary." The writing was properly recorded. The neighbor later stopped maintaining the fence for two years. The landowner now sues to terminate the easement. What is the likely result?

  1. The easement continues because easements cannot be terminated for nonuse
  2. The easement continues because the recording gives the neighbor notice
  3. The easement terminates only if the landowner also re-enters the land
  4. The easement terminates because it was limited by a condition subsequent Correct answer.

Explanation

An easement may be expressly limited in duration, and language making it last only while a condition is satisfied creates a determinable or condition-based interest that ends automatically when the condition fails. Cessation of fence maintenance ends the easement by its own terms. Recording affects enforceability against purchasers, not duration.

Question 7Multistate Bar Examination (MBE) subjects

A defendant was charged with arson of an occupied building. At trial the prosecution offered evidence that the defendant had been seen fleeing the scene carrying a gasoline can. The defendant's attorney argued that the evidence was insufficient because no witness saw him start the fire. The evidence is best characterized as:

  1. Insufficient because it is not direct evidence
  2. Inadmissible because it is more prejudicial than probative
  3. Sufficient only if corroborated by eyewitness testimony
  4. Circumstantial evidence from which the jury may infer guilt Correct answer.

Explanation

Circumstantial evidence is fully competent and may support a conviction; the jury may draw reasonable inferences from flight and possession of an accelerant. Direct eyewitness testimony is not required. The probative value of flight evidence generally outweighs unfair prejudice.

Question 8Multistate Bar Examination (MBE) subjects

A woman was attacked in a parking garage. She later identified a man in a lineup. At trial she testified that she recognized him because he had robbed her two years earlier. The defense objects. The evidence is admissible to:

  1. Impeach the man's alibi witness
  2. Prove the man's bad character generally
  3. Establish the man's identity through a distinctive prior act Correct answer.
  4. Show the man's propensity for violence

Explanation

Under Rule 404(b), evidence of a prior crime may be admitted to prove identity when the prior act is sufficiently distinctive to mark the conduct as the defendant's signature. The earlier robbery of the same victim supports identification. A limiting instruction should be given.

Question 9Multistate Bar Examination (MBE) subjects

A plaintiff sued a defendant for battery after a bar fight. The defendant claims self-defense. The plaintiff offers evidence that the defendant had a reputation in the community for being peaceful. The defendant objects. The evidence is:

  1. Admissible to show the defendant acted in conformity with a peaceful character Correct answer.
  2. Inadmissible because character evidence is never admissible in civil cases
  3. Inadmissible because reputation evidence is less reliable than opinion testimony
  4. Admissible only if the defendant first offers evidence of his violent character

Explanation

When a person claims self-defense in a civil or criminal case, the opposing party may offer evidence of the person's peaceful character to show he acted in conformity with it, because the claim puts character in issue. Reputation testimony is a permissible form of character proof.

Question 10Multistate Bar Examination (MBE) subjects

A debtor owed a creditor $10,000. The debtor's friend promised the creditor in writing, "I will pay the debt if the debtor does not." The friend received no benefit. The debtor later defaulted, and the creditor sued the friend. What is the friend's best defense?

  1. The friend is discharged because the creditor did not first sue the debtor
  2. The promise was too indefinite to enforce
  3. The statute of frauds bars enforcement because the promise was oral
  4. The promise was not supported by consideration because it was a promise to answer for another's debt Correct answer.

Explanation

A promise to answer for the debt of another is within the statute of frauds and must be in writing, but it also requires consideration; a gratuitous surety promise is unenforceable absent consideration running to the surety. The main surety exception applies when the surety receives a benefit, which did not occur here. The writing requirement was satisfied, but consideration was not.

Question 11Multistate Bar Examination (MBE) subjects

A testator executed a will leaving his estate to his two children. He later married, and under state law a surviving spouse is entitled to an elective share. The testator died without changing his will. What is the surviving spouse's best claim?

  1. The spouse must elect between the will and the share within one year only
  2. The spouse may claim an elective share against the estate Correct answer.
  3. The spouse takes nothing because the will predates the marriage
  4. The spouse takes the entire estate as an omitted spouse

Explanation

A surviving spouse generally has a statutory right to an elective share of the decedent's estate regardless of the will's terms, and the will's silence does not waive that right. The share is typically a fraction of the augmented estate. The omitted-spouse rule protects a spouse married after the will's execution but is usually satisfied by the elective share.

Question 12Multistate Bar Examination (MBE) subjects

A police officer stopped a car for a burned-out taillight. The driver appeared nervous, and the officer saw a locked briefcase on the back seat. Without consent or a warrant, the officer opened the briefcase and found contraband. The driver moves to suppress. The court should:

  1. Suppress the evidence because the officer lacked probable cause to stop the car
  2. Admit the evidence because the stop was valid
  3. Suppress the evidence because the search exceeded the scope of the stop Correct answer.
  4. Admit the evidence under the automobile exception

Explanation

A traffic stop permits limited investigation related to the violation, but searching a closed container in the car requires probable cause plus the automobile exception or another warrant exception. Nervousness alone does not supply probable cause, so the search exceeded the stop's scope. The stop itself was valid because the officer observed a traffic violation.

Question 13Multistate Bar Examination (MBE) subjects

A plaintiff sued a manufacturer for injuries from a defective machine. At trial the plaintiff offered a report by an expert who was not disclosed under Rule 26 and who was not available for cross-examination. The defendant objects. The court should:

  1. Admit the report because experts may rely on hearsay
  2. Exclude the report because the expert was not subject to cross-examination Correct answer.
  3. Exclude the report only if the defendant shows bad faith
  4. Admit the report as a learned treatise

Explanation

Expert reports are hearsay, and an undisclosed expert who cannot be cross-examined deprives the opposing party of confrontation and violates the disclosure rules, so exclusion is proper. An expert may rely on hearsay in forming an opinion, but that does not make the underlying report itself admissible.

Question 14Multistate Bar Examination (MBE) subjects

A corporation's board rejected a shareholder's demand to sue a director for breach of fiduciary duty. The shareholder sued anyway. The court will dismiss unless the shareholder shows:

  1. That the director's conduct caused actual loss
  2. That the shareholder owns at least ten percent of the shares
  3. That a majority of the board was interested or the rejection was not a valid business judgment Correct answer.
  4. That the corporation has already indemnified the director

Explanation

A shareholder must make demand or show demand futility; where demand is refused, the refusal is protected by the business judgment rule unless the shareholder shows the directors were interested or did not act in good faith. The shareholder must plead particularized facts rebutting that protection.

Question 15Multistate Bar Examination (MBE) subjects

A tenant signed a one-year lease. Three months later the landlord sold the building. The new owner told the tenant to vacate because the lease was not binding on a purchaser. The tenant refuses. Who prevails?

  1. The new owner, because the lease terminated on sale
  2. The tenant, because leases cannot be assigned
  3. The tenant, because the lease binds a purchaser with notice Correct answer.
  4. The new owner, because the tenant lacked privity with him

Explanation

A leasehold is an interest in land, and a purchaser of the reversion takes subject to an existing lease of which the purchaser has notice, including actual notice from occupancy. The new owner steps into the landlord's shoes. The tenant may remain for the balance of the term.

Question 16Multistate Bar Examination (MBE) subjects

A state law requires public schools to begin each day with a moment of silence during which students may pray. A parent challenges the law. Which standard governs?

  1. The law is invalid because it mentions prayer
  2. The law is invalid unless all religions are treated equally
  3. The law is valid because silence is not speech
  4. The law is valid if it has a secular purpose and does not endorse religion Correct answer.

Explanation

Moment-of-silence statutes are analyzed under the Establishment Clause to determine whether they have a secular purpose and neither advance nor endorse religion. A law that is neutral and permits prayer among other quiet activities can survive. The mere possibility that students pray does not invalidate it.

Question 17Multistate Bar Examination (MBE) subjects

A defendant was convicted of robbery. At sentencing the judge considered a prior arrest that never resulted in conviction. The defendant objects. The judge may consider the arrest if:

  1. The information is reliable and the defendant is given an opportunity to respond Correct answer.
  2. The prosecution gives notice thirty days before sentencing
  3. The arrest is proven beyond a reasonable doubt
  4. The arrest occurred within five years of the offense

Explanation

Sentencing courts may consider a wide range of information, including uncharged conduct and arrests, provided the information bears sufficient indicia of reliability and the defendant has an opportunity to explain or rebut it. The beyond-a-reasonable-doubt standard applies to conviction, not to sentencing factors.

Question 18Multistate Bar Examination (MBE) subjects

A buyer and seller entered a contract for the sale of a used car. The buyer paid a $1,000 deposit. Before delivery, the seller sold the car to a third party for a higher price. The buyer sues. What remedy best fits?

  1. Restitution of the deposit only
  2. Specific performance, because the car is unique
  3. Expectation damages measured by the cost of a substitute car Correct answer.
  4. Punitive damages for bad faith

Explanation

For breach of a contract for goods, the buyer may recover the difference between the cost of a reasonable substitute and the contract price, plus incidental and consequential damages. Specific performance is reserved for unique goods, and a used car ordinarily has a market substitute. Punitive damages are unavailable for ordinary breach.

Question 19Multistate Bar Examination (MBE) subjects

A landowner died intestate survived by a spouse and two children from a prior marriage. Under New York's intestacy scheme, if the estate exceeds $50,000, the spouse's share is:

  1. One-half of the estate, with the children sharing the other half
  2. Nothing, because the children take all
  3. $50,000 plus one-half of the remaining estate, with the children sharing the balance Correct answer.
  4. The entire estate

Explanation

Under New York EPTL § 4-1.1, when a decedent leaves a spouse and issue, the spouse receives $50,000 plus one-half of the residue. The children share the balance. This formula applies even when the children are from a prior marriage.

Question 20Multistate Bar Examination (MBE) subjects

A tenant rented an apartment for two years. After one year the landlord raised the rent without notice and changed the locks when the tenant objected. The tenant sues. Which claim is strongest?

  1. Trespass, because the landlord entered the premises
  2. Breach of the warranty of habitability, because the rent was raised
  3. Constructive eviction, because the landlord substantially interfered with the tenant's use and enjoyment Correct answer.
  4. Conversion, because the tenant lost the use of the apartment

Explanation

A landlord's substantial interference with the tenant's possession, such as locking the tenant out, supports constructive eviction and breach of the covenant of quiet enjoyment. The tenant may treat the lease as ended and recover damages. A rent increase alone is not a habitability defect.

Question 21Multistate Bar Examination (MBE) subjects

A witness testified at a prior hearing and was cross-examined. At trial the witness asserts a valid privilege and refuses to testify. The party who called the witness at the hearing now offers the prior testimony. The court should:

  1. Admit the testimony only if the witness is dead
  2. Exclude the testimony because privileges override hearsay exceptions
  3. Exclude the testimony because the witness is unavailable for confrontation
  4. Admit the testimony as former testimony if the party against whom it is offered had an opportunity and similar motive to cross-examine Correct answer.

Explanation

Former testimony is admissible under Rule 804(b)(1) when the declarant is unavailable and the party against whom it is offered had an opportunity and similar motive to develop the testimony. A valid privilege makes the witness unavailable. The Confrontation Clause is satisfied where there was a prior opportunity for cross-examination.

Question 22Multistate Bar Examination (MBE) subjects

A company's CEO made a public statement that its new drug was "proven safe." Investors bought stock, and the drug later failed trials. In a securities fraud action, the investors must prove:

  1. That the CEO intended to defraud each investor individually
  2. Only that the stock price fell after the statement
  3. That the company failed to register the stock
  4. A material misrepresentation or omission made with scienter, reliance, and loss causation Correct answer.

Explanation

A private action under Rule 10b-5 requires a material misrepresentation or omission, scienter, reliance, economic loss, and loss causation. The fraud-on-the-market doctrine can establish reliance for publicly traded securities. A price drop alone is insufficient.

Question 23Multistate Bar Examination (MBE) subjects

A defendant is charged with larceny. The prosecution proves the defendant took a wallet from a victim's handbag without consent. The defendant claims he intended to return it. Which element is most directly at issue?

  1. Asportation
  2. Trespassory taking
  3. Lack of consent
  4. 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. A genuine intent to return negates the intent to permanently deprive, although borrowing that substantially risks loss may still qualify. The other elements are established by the taking itself.

Question 24Multistate Bar Examination (MBE) subjects

Two parties formed a general partnership. One partner, without the others' knowledge, signed a contract to buy inventory on the partnership's credit. The seller now seeks payment from the partnership. The partnership is:

  1. Not liable because the contract was not in writing
  2. Liable because a partner's act in the ordinary course of business binds the partnership Correct answer.
  3. Not liable because the partner acted without authority
  4. Liable only if the other partners ratified the contract

Explanation

Under the Revised Uniform Partnership Act, an act of a partner apparently carrying on the ordinary course of the partnership's business binds the partnership unless the partner lacked authority and the third party knew of the lack of authority. Buying inventory is within the ordinary course.

Question 25Multistate Bar Examination (MBE) subjects

A landowner conveyed a parcel "to A for life, then to A's heirs." Under the common law rule against perpetuities, the interest of A's heirs is:

  1. Void because heirs are not ascertainable
  2. Valid only if recorded within one year
  3. Valid because it is certain to vest at A's death Correct answer.
  4. Void because it violates the rule against perpetuities

Explanation

A remainder to A's heirs after a life estate in A is a remainder in the grantor's heirs that is certain to vest at A's death, so the rule against perpetuities is satisfied. Because the remainder is in the heirs of the life tenant, the doctrine of worthier title may convert it into a reversion in the grantor in some jurisdictions, but it does not violate the perpetuities rule.

Question 26Multistate Bar Examination (MBE) subjects

A homeowner signed a contract to sell her house to a buyer for $400,000, with closing set for June 1. On May 1, the homeowner told the buyer she had decided not to sell. The buyer had already spent $2,000 on a home inspection and had arranged financing. On May 2, the buyer sues for breach. What is the buyer's best theory of recovery?

  1. Anticipatory repudiation, because the homeowner's statement is a clear and unequivocal refusal to perform before the time for performance. Correct answer.
  2. Promissory estoppel, because the buyer spent money in reliance on the contract.
  3. Unjust enrichment, because the homeowner will otherwise keep the benefit of the buyer's inspection.
  4. Impossibility of performance, because the homeowner no longer wishes to sell the house.

Explanation

When a party, before the time for performance, makes a clear and unequivocal statement that she will not perform, the other party may treat that as an anticipatory repudiation and sue immediately for breach. The buyer need not wait until the June 1 closing date. The buyer's reliance expenditures are damages flowing from the breach, not a separate estoppel theory.

Question 27Multistate Bar Examination (MBE) subjects

A pedestrian sued a driver for negligence after a collision. At trial, the pedestrian's attorney asks a witness, who was standing nearby, "What did you see the driver doing just before the crash?" The defense objects. How should the court rule?

  1. Overrule the objection, because the question asks for the witness's personal observation of events. Correct answer.
  2. Sustain the objection, because the witness has not been shown to be an expert.
  3. Overrule the objection, because the question calls for a legal conclusion.
  4. Sustain the objection, because the question calls for a narrative answer.

Explanation

A lay witness may testify to facts she personally perceived through her senses, and asking what she saw is a proper request for such firsthand observation. No expert qualification is needed to describe observed events. The question is not objectionable as narrative or conclusory on its face.

Question 28Multistate Bar Examination (MBE) subjects

A state enacted a law requiring all employers with more than 50 employees to provide 12 weeks of unpaid family leave. A trade association of large employers sues, arguing that federal labor law occupies the field of employment regulation. Which standard governs whether the state law is preempted?

  1. The state law is invalid if it touches any subject that Congress has ever regulated.
  2. The state law is invalid whenever compliance with both federal and state law is theoretically possible.
  3. The state law is valid unless it conflicts with federal law or Congress clearly intended to occupy the field. Correct answer.
  4. The state law is valid unless Congress expressly stated an intent to preempt this field.

Explanation

Under Supremacy Clause preemption doctrine, state law yields when it directly conflicts with federal law or when Congress has expressed a clear intent to occupy the entire field. Field preemption requires more than the mere existence of federal regulation on a related subject. Absent such conflict or clear occupation, states may regulate concurrently.

Question 29Multistate Bar Examination (MBE) subjects

A woman died intestate survived by her husband and by one child from a prior marriage. Under the Uniform Probate Code intestacy scheme, what share of her intestate estate does the surviving spouse receive?

  1. The first $150,000 plus one-half of the balance, with the child taking the remainder. Correct answer.
  2. One-third of the estate, with the child taking two-thirds.
  3. The entire estate, because a surviving spouse always takes the whole estate.
  4. One-half of the estate, with the child taking the other half.

Explanation

Under the UPC, when the decedent leaves a surviving spouse and one descendant who is not also the spouse's descendant, the spouse takes the first $150,000 plus one-half of the remaining balance. The child takes the rest. This protects a spouse against having to share equally with a stepchild.

Question 30Multistate Bar Examination (MBE) subjects

A defendant is charged with burglary. The prosecution offers evidence that, three weeks earlier, the defendant broke into a different house at night and stole a television. The defendant objects. The prosecution argues the evidence shows intent and identity. 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 the earlier crime is too dissimilar to be probative of anything.
  3. Admit the evidence, because the earlier break-in is relevant to the defendant's intent and identity under a permitted purpose. Correct answer.
  4. Admit the evidence, because prior bad acts are always admissible to show a defendant's propensity for crime.

Explanation

Evidence of other crimes is inadmissible to prove propensity but may be admitted for a permitted purpose such as intent, identity, or modus operandi, subject to a balancing of probative value against unfair prejudice. A prior nighttime break-in with theft is probative of the defendant's intent to commit a felony inside and may support identity. The court must still weigh the evidence under the balancing test.

Question 31Multistate Bar Examination (MBE) subjects

A plaintiff sued a defendant for breach of a construction contract. At trial, the plaintiff offers a signed written statement from a project manager, now unavailable, describing the defendant's delay. The defendant objects on hearsay grounds. The plaintiff argues the statement is admissible. Which basis best supports admission?

  1. The statement is admissible as a statement of a party opponent. Correct answer.
  2. The statement is admissible as a statement against the defendant's proprietary interest.
  3. The statement is a present sense impression.
  4. The statement is admissible as a recorded recollection.

Explanation

A statement offered against a party that was made by the party or the party's agent or employee on a matter within the scope of the relationship is admissible as an opposing party's statement, and it is not excluded by the hearsay rule. A project manager speaking within the scope of the project may qualify as the defendant's agent. No unavailability showing is needed for this category.

Question 32Multistate Bar Examination (MBE) subjects

A landowner conveyed a parcel to a buyer by warranty deed, but the deed was never recorded. The buyer took possession and built a house. The landowner then conveyed the same parcel to a second buyer, who paid value and recorded immediately without inspecting the property. The jurisdiction has a race-notice recording statute. Who prevails?

  1. The first buyer, because a warranty deed always defeats a later conveyance.
  2. The second buyer, because the first buyer failed to record.
  3. The second buyer, because she recorded first and paid value.
  4. The first buyer, because she took possession, which gives constructive notice to the second buyer. Correct answer.

Explanation

Under a race-notice statute, a later purchaser prevails only if she takes without notice and records first. A purchaser is charged with notice of the rights of a person in open and visible possession of the property, so the second buyer had inquiry notice and cannot prevail despite recording first. The first buyer's possession protects her interest.

Question 33Multistate Bar Examination (MBE) subjects

A store owner hired a contractor to repair the store's roof. The contractor's employee negligently dropped a hammer on a customer. The customer sues the store owner. What is the store owner's best defense?

  1. The contractor was an independent contractor and the work was not inherently dangerous. Correct answer.
  2. The employee was not the store owner's employee.
  3. The customer assumed the risk by entering the store.
  4. The store owner did not supervise the repair work.

Explanation

A principal is generally not vicariously liable for the torts of an independent contractor, and roof repair is ordinary work rather than an inherently dangerous activity. Absence of control is consistent with independent contractor status. Thus the store owner's strongest defense is that the contractor was independent and the work was not inherently dangerous.

Question 34Multistate Bar Examination (MBE) subjects

A defendant is charged with murder. The prosecution seeks to introduce the defendant's confession, obtained after police told him that if he confessed he could go home that night. The defendant confessed. What is the strongest argument for suppression?

  1. The confession was obtained without a warrant.
  2. The confession was hearsay.
  3. The confession was involuntary because the promise of leniency induced it. Correct answer.
  4. The confession was obtained in violation of the Sixth Amendment right to counsel.

Explanation

Due process requires that a confession be voluntary, and a promise of leniency or benefit that overbears the suspect's will can render a confession involuntary and inadmissible. The police statement that he could go home if he confessed is the kind of inducement that undermines voluntariness. Coercive police conduct is the touchstone.

Question 35Multistate Bar Examination (MBE) subjects

A city enacted an ordinance prohibiting the placement of any sign on residential property except signs advertising a candidate for public office. A homeowner who wanted to display a sign reading "Support Our Schools" challenges the ordinance. What is the homeowner's strongest constitutional argument?

  1. The ordinance violates the Second Amendment right to keep and bear arms.
  2. The ordinance violates the First Amendment because it discriminates based on the content of speech. Correct answer.
  3. The ordinance is a taking of property without compensation.
  4. The ordinance is invalid because cities cannot regulate signs at all.

Explanation

A regulation that permits only political-candidate signs while banning other messages is a content-based restriction on speech and is subject to strict scrutiny, which it is unlikely to survive. The First Amendment protects noncommercial expressive signs on residential property. Content discrimination is the central defect.

Question 36Multistate Bar Examination (MBE) subjects

A partner in a general partnership, without the knowledge or consent of the other partners, signed a contract on behalf of the partnership to purchase office supplies in the ordinary course of the partnership's business. The supplier now seeks payment from the partnership. What is the result?

  1. The partnership is bound because a partner is an agent of the partnership for acts apparently carrying on the ordinary course of business. Correct answer.
  2. The partnership is bound only if the partner had actual authority.
  3. The partner is personally liable, but the partnership is not.
  4. The partnership is not bound because the other partners did not consent.

Explanation

Under partnership law, each partner is an agent of the partnership for the purpose of its business, and an act apparently carrying on the ordinary course of business binds the partnership unless the partner lacked authority and the third party knew of the lack of authority. Buying office supplies is within the ordinary course. The other partners' lack of consent does not defeat the partnership's liability to an unaware supplier.

Question 37Multistate Bar Examination (MBE) subjects

A testator's will devised a tract of land "to my brother for life, then to my brother's children who survive him." At the testator's death, the brother had two children. Later, a third child was born. Under the common law rule against perpetuities, what is the status of the gift to the children?

  1. The gift is void because it may vest beyond the perpetuities period.
  2. The gift is void because it violates the rule in Shelley's Case.
  3. The gift is valid because it is a gift to a class that will close at the brother's death. Correct answer.
  4. The gift is valid because the brother's children are ascertainable at the testator's death.

Explanation

A gift to a class of children who survive the life tenant vests, if at all, at the life tenant's death, a life in being at the creation of the interest. Because the class closes and the interest must vest or fail within that life, the gift does not violate the common law rule against perpetuities. The possibility of later-born children does not extend vesting beyond the measuring life.

Question 38Multistate Bar Examination (MBE) subjects

A plaintiff sued a defendant for fraud. The plaintiff offers evidence that the defendant previously made a similar false statement to a different person. The defendant objects. The plaintiff argues the evidence shows intent and a common scheme. The court should:

  1. Exclude the evidence, because evidence of prior fraud is privileged.
  2. Admit the evidence, because it is relevant to intent and a common scheme or plan. Correct answer.
  3. Admit the evidence, because prior bad acts are always admissible in civil cases.
  4. Exclude the evidence, because it is inadmissible propensity evidence.

Explanation

Evidence of a prior similar misrepresentation may be admitted in a fraud case to show intent, knowledge, or a common scheme or plan, provided the probative value is not substantially outweighed by unfair prejudice. The evidence is not offered merely to show a propensity to lie. The court retains discretion to balance the probative value.

Question 39Multistate Bar Examination (MBE) subjects

A defendant is charged with larceny of a bicycle. The prosecution proves the defendant took the bicycle from the victim's driveway without consent and rode away. The defendant testifies that he believed the bicycle was abandoned. What must the prosecution prove to convict?

  1. That the defendant intended to permanently deprive the victim of the bicycle at the time of taking. Correct answer.
  2. That the defendant knew the bicycle was registered to the victim.
  3. That the defendant used force to take the bicycle.
  4. That the defendant later sold the bicycle.

Explanation

Larceny requires a trespassory taking and carrying away of another's personal property with the intent to permanently deprive at the time of the taking. If the defendant honestly believed the bicycle was abandoned, he lacked the required intent. Force is an element of robbery, not larceny.

Question 40Multistate Bar Examination (MBE) subjects

A plaintiff sued a defendant for injuries from a fall on a sidewalk. The plaintiff calls a witness who testifies, "The defendant told me the sidewalk had been cracked for months." The defendant objects on hearsay grounds. The statement is offered to prove the sidewalk was cracked. How should the court rule?

  1. Admit, because it is a statement of a party opponent. Correct answer.
  2. Exclude, because it is opinion testimony.
  3. Exclude, because it is hearsay not within any exception.
  4. Admit, because it is a present sense impression.

Explanation

A statement made by a party and offered against that party is admissible as an opposing party's statement and is not barred by the hearsay rule. The defendant's own statement about the cracked sidewalk is offered to prove the condition. No exception beyond the party-opponent rule is needed.

Question 41Multistate Bar Examination (MBE) subjects

A state statute requires a permit for any parade on public streets and gives a city official unfettered discretion to grant or deny permits. A group applies to hold a protest march and is denied without explanation. What is the group's strongest First Amendment argument?

  1. The statute is void for vagueness because it does not define "parade."
  2. The statute vests unbridled discretion in an official, creating a risk of content-based discrimination. Correct answer.
  3. The statute is a bill of attainder.
  4. The statute is an ex post facto law.

Explanation

A permitting scheme for expressive activity must contain narrow, objective, and definite standards to prevent officials from discriminating based on the content or viewpoint of speech. Unfettered discretion to grant or deny permits is unconstitutional on its face. The lack of standards is the core defect.

Question 42Multistate Bar Examination (MBE) subjects

A homeowner defaulted on a mortgage. The lender sought foreclosure. The homeowner argues the foreclosure is invalid because the lender did not give notice of the default. The mortgage documents required 30 days' written notice before acceleration. The lender sent no notice. What is the likely result?

  1. The foreclosure is valid because the homeowner knew of the default.
  2. The foreclosure is invalid because the lender failed to satisfy a condition precedent to acceleration. Correct answer.
  3. The foreclosure is valid because notice is never required.
  4. The foreclosure is invalid because foreclosure always requires a court judgment.

Explanation

When the mortgage or note makes written notice a condition precedent to acceleration and foreclosure, the lender must comply before accelerating the debt. Failure to give the required notice ordinarily invalidates the acceleration and the foreclosure based on it. The homeowner's actual knowledge does not excuse a contractual notice requirement.

Question 43Multistate Bar Examination (MBE) subjects

A defendant is charged with assault. The prosecution offers evidence that the defendant had previously been convicted of assaulting the same victim. The defendant objects. The evidence is offered to show the defendant's propensity for violence. How should the court rule?

  1. Exclude, because character evidence is not admissible to prove conduct in conformity therewith in a criminal case. Correct answer.
  2. Exclude, because prior convictions are never admissible against a criminal defendant.
  3. Admit, because prior convictions are always admissible to impeach.
  4. Admit, because the prior assault shows the defendant's character for violence.

Explanation

Under the character evidence rule, evidence of a person's character is not admissible to prove that the person acted in conformity with that character on a particular occasion. Propensity use of a prior assault is therefore barred, subject to limited exceptions such as when the defendant opens the door. The evidence cannot be used merely to show a violent disposition.

Question 44Multistate Bar Examination (MBE) subjects

A plaintiff sued a defendant for negligence arising from a car accident. The plaintiff calls an accident reconstruction expert who testifies that, in her opinion, the defendant was traveling 20 miles per hour over the speed limit based on skid marks. The defendant objects that the expert did not witness the accident. How should the court rule?

  1. Exclude the testimony, because accident reconstruction is not a recognized field.
  2. Admit the testimony, because an expert may base an opinion on facts and data in the case, including physical evidence. Correct answer.
  3. Exclude the testimony, because the expert did not personally observe the accident.
  4. Admit the testimony, because experts may testify to any matter without qualification.

Explanation

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed, and may apply specialized knowledge to physical evidence such as skid marks. Personal observation of the accident is not required. The opposing party may attack the basis of the opinion on cross-examination.

Question 45Multistate Bar Examination (MBE) subjects

A corporation's board refused a shareholder's demand to bring a derivative suit against a director. The shareholder sues, arguing the board's refusal was unreasonable. Under the demand-refused framework, what must the shareholder show?

  1. That the board's decision was wrong on the merits.
  2. That the shareholder owns at least 10% of the shares.
  3. That the director's conduct was criminal.
  4. That the board's refusal was not a valid exercise of business judgment, such as because a majority of the board was not independent. Correct answer.

Explanation

When a demand is refused, a court reviews the board's decision under the business judgment rule, and the shareholder must plead particularized facts creating a reasonable doubt that the decision was a valid exercise of business judgment, commonly by showing a lack of independence or bad faith. Mere disagreement with the merits is insufficient. Independence of the deciding directors is central.

Question 46Multistate Bar Examination (MBE) subjects

A buyer and seller entered into a written contract for the sale of goods. The contract stated that the seller's acceptance was conditioned on the buyer's assent to the seller's additional term requiring arbitration of all disputes. The buyer is a merchant. Under UCC Article 2, what is the effect of the additional term?

  1. The term is ineffective because arbitration clauses are unenforceable in sales contracts.
  2. The term automatically becomes part of the contract because both parties are merchants.
  3. The term is a proposal for addition and does not become part of the contract if it materially alters the agreement. Correct answer.
  4. The term voids the entire contract because the writings do not match.

Explanation

Under UCC 2-207, additional terms in an acceptance or confirmation are treated as proposals, and between merchants they become part of the contract unless they materially alter it, the offer expressly limits acceptance to its terms, or objection is made. An arbitration clause is generally a material alteration. The contract is not voided by the differing terms.

Question 47Multistate Bar Examination (MBE) subjects

A defendant is charged with robbery. The prosecution offers evidence that the defendant fled from police when they approached him. The defendant objects, arguing flight is irrelevant. How should the court rule?

  1. Admit the evidence, because flight may be relevant as circumstantial evidence of consciousness of guilt. Correct answer.
  2. Admit the evidence, because flight proves the defendant committed the crime.
  3. Exclude the evidence, because flight is always inadmissible.
  4. Exclude the evidence, because it is hearsay.

Explanation

Evidence of flight or concealment may be relevant as circumstantial evidence of consciousness of guilt, though it does not conclusively prove guilt. The jury may consider it along with other evidence. The court may still exclude it if unfair prejudice substantially outweighs its probative value.

Question 48Multistate Bar Examination (MBE) subjects

A landowner granted a neighbor an easement to cross the landowner's property to reach a public road. The easement was created by deed but never recorded. The landowner later sold the property to a buyer who had no actual knowledge of the easement. The jurisdiction requires recording for an easement to bind subsequent purchasers. The neighbor had used the path openly and continuously for years. What is the neighbor's best argument?

  1. The easement automatically expires on sale of the property.
  2. The neighbor's open and continuous use gave the buyer inquiry notice of the easement. Correct answer.
  3. The easement is invalid because it was not recorded.
  4. The easement is a license that binds all purchasers.

Explanation

An unrecorded easement may still bind a subsequent purchaser who has inquiry notice, which can arise from visible, open, and continuous use of the path. Inquiry notice obliges the purchaser to inquire about apparent rights. The neighbor's best argument is therefore that the buyer was on notice despite the absence of recording.

Question 49Multistate Bar Examination (MBE) subjects

A police officer stopped a driver for speeding. While writing the ticket, the officer noticed a clear plastic bag of white powder on the passenger seat. The officer asked the driver to step out and then searched the car's trunk, finding contraband. The driver moves to suppress the trunk evidence. What is the likely result?

  1. Suppress, because the officer lacked probable cause to search the trunk.
  2. Suppress, because the officer needed a warrant to stop the car.
  3. Admit, because the officer had probable cause based on the visible contraband, which permitted a search of the vehicle. Correct answer.
  4. Admit, because any search incident to a traffic stop may extend to the trunk.

Explanation

A lawful stop may lead to a vehicle search when probable cause supports it, and the automobile exception permits a warrantless search of the vehicle, including containers, if there is probable cause. The visible bag of white powder gave probable cause to believe contraband was present. The trunk search may therefore be valid under the automobile exception.

Question 50Multistate Bar Examination (MBE) subjects

A plaintiff sued a defendant for breach of contract. The defendant asserts the statute of frauds as a defense to an alleged oral agreement for the sale of land. The plaintiff argues that partial performance removes the agreement from the statute. Which fact would best support the plaintiff?

  1. The plaintiff took possession and made substantial improvements to the land with the defendant's knowledge. Correct answer.
  2. The plaintiff and defendant orally agreed on all material terms.
  3. The plaintiff sent the defendant a letter summarizing the agreement.
  4. The plaintiff paid a small deposit toward the purchase price.

Explanation

Under the partial performance doctrine, an oral land sale contract may be enforced despite the statute of frauds when the buyer takes possession and makes substantial improvements in reliance on the agreement. Payment alone is generally insufficient. The improvements must be substantial and attributable to the contract.