MBE Practice Test Questions: Get Ready for Your 2026 Bar Exam

1. Q1 A man who was emotionally upset due to marital problems voluntarily checked into a private medical facility for treatment. State law provided that if he tried to leave against m...

   A man who was emotionally upset due to marital problems voluntarily checked into a private medical facility for treatment. State law provided that if he tried to leave against medical advice, the hospital could hold him for 72 hours while trying to convince him to stay. During the stay, he told his medical providers that he was intensely angry at his wife, who was living with another man, and he wanted to harm her.
   
   Despite that knowledge, the hospital issued him an unrestricted weekend pass. When he got out he shot and killed his wife. The man’s children sued the hospital for negligence. The hospital filed a motion to dismiss mainly because there was no privity with the decedent and no duty owed to her.
   
   Will the court grant the motion to dismiss?

   1. A.No, because the hospital is strictly liable for releasing patients who it knows or should know represent an unreasonable danger to third persons.
   2. B.No, because the special relationship and the control between doctor and an in-patient mandates due care by the doctor to prevent a foreseeable danger to others. Correct answer
   3. C.Yes, because there is no duty to control the conduct of another person to prevent that person from harming others.
   4. D.Yes, because the intervening acts of third parties are unforeseeable and cannot give rise to liability.

   Hint: Look at the relationship and foreseeability.

   Rationale:
   Where the treatment of a mental patient involves an exercise of "control" by a physician who knows or should know that the patient is likely to cause bodily harm to others, an independent duty arises from that relationship requiring the doctor to exercise reasonable care to prevent the harm.
   
   See, for example, Bradley Center v. Wessner, 296 SE 2d 693, 250 Ga. 199, 200 (Ga. Supreme Court 1982). Also, see Restatement (Second) of Torts § 319, Duty Of Those In Charge Of Person Having Dangerous Propensities: One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.

   Need more torts practice? Torts MBE practice

2. Q2 A man with a long history of criminal violence who is a psychopathic personality, often enjoys the act of mercilessly brutalizing innocent elderly people by physical torture tha...

   A man with a long history of criminal violence who is a psychopathic personality, often enjoys the act of mercilessly brutalizing innocent elderly people by physical torture that is heinous and shocking. He decides to torture the victim’s father for no good reason. After the beating, the father is hospitalized and in intensive care.
   
   The victim was not present but read about it in the newspaper and heard about it from the authorities. Victim suffered extreme emotional distress and required medical treatment.
   
   Can victim bring a successful action against perpetrator for intentional infliction of emotional distress? (IIED)

   1. A.No, because victim was not present at the time that the outrageous behavior occurred. Correct answer
   2. B.Yes, because the activity was outrageous and shocking.
   3. C.No, because perpetrator did not know that the father had immediate family members.
   4. D.Yes, because in torture cases there is strict liability imposed on the perpetrator.

   Hint: With respect to an immediate family member, what generally is the other major requirement in addition to outrageous and extreme behavior?

   Rationale:
   The generally recognized elements of IIED are: (1) extreme and outrageous conduct with the intent to cause, or with reckless disregard of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the defendant's conduct is the legal cause of the plaintiff's emotional distress.
   
   Where the outrageous actions are not directed at the plaintiff, but instead at a family member or a third person, the plaintiff in most jurisdictions must be “present” for tortious intent to travel from the actual subject of torture to the spectator. The Restatement (Second) of Torts § 46(2) states that only present third parties may recover for an IIED claim.
   
   However, emerging case law may modify the doctrine somewhat. For example, a federal court has held that where there is a terrorist attack on service men, the plaintiff family member does not have to be present. See Peterson v. Islamic Republic of Iran, 515 F. Supp. 2d 25 (D.C., Dist. of Columbia, 2007). But in the hypothetical test question, it is not a terrorist attack and the normal rule applies.

   Need more torts practice? Torts MBE practice

3. Q3 A homeowner buys a new leaf blower and is so impressed with its power that he gets carried away and blows large amounts of his work onto the next door neighbor's yard. In additi...

   A homeowner buys a new leaf blower and is so impressed with its power that he gets carried away and blows large amounts of his work onto the next door neighbor's yard. In addition to leaves, he also blew large amounts of pest-infested plant debris onto the neighbor's property. The material has accumulated into large, unsightly piles and caused damage to the neighbor's healthy plants.
   
   He has to pay workers to haul the material away and he incurs expenses to replace infected perennials. The neighbor sues for the tort of trespass. The homeowner files a motion to dismiss because the neighbor cannot prove that homeowner acted with an intent to trespass or to do harm.
   
   Will the court grant the motion to dismiss?

   1. A.No, because the infected debris constituted an abnormally dangerous condition and homeowner could be held strictly liable for the trespass.
   2. B.No, because trespass is based on an intentional act of entering the land or sending something onto the land, and the actor does not have to intend harm to be liable for the tort. Correct answer
   3. C.Yes, because the homeowner had no practical way of controlling where the material went and he acted without malice or ill will.
   4. D.Yes, because the homeowner expected the wind to carry the debris away and did not think that it would accumulate on the neighbor's property.

   Hint: Intent here means that the act results in its foreseeable consequences.

   Rationale:
   Although trespass is an intentional tort, the tort does not require proof of intent to trespass or intent to harm. Proof of intent to perform the act that leads to the trespass is all that is needed. With trespass, causing something to go onto the land is sufficient without a personal intrusion by the defendant. Thus, intending to blow the leaves is all that is needed here.
   
   See Harris County v. Cypress Forest Pub. Utility Dist., 50 SW 3d 551, 554 (TX Ct of App. 2001). A trespass is an intentional tort because it involves an intent to commit an act which violates a property right, or would be practically certain to have that effect, although the actor may not know that the act he intends to commit is such a violation. Id.
   
   See also, Cleveland Park Club v. Perry, 165 A. 2d 485, 488-89 (Dist of Col. Mun. Ct. of App. 1960).

   Need more torts practice? Torts MBE practice

4. Q4 An owner of a pizza and Italian foods restaurant opens a new location on a street where another owner has a burger restaurant. It seems like business is slow for the pizza place...

   An owner of a pizza and Italian foods restaurant opens a new location on a street where another owner has a burger restaurant. It seems like business is slow for the pizza place owner and he eyes up his competitor, the burger man, as the reason.
   
   The pizza owner starts to make false statements about the burger restaurant and its inferior ingredients, which he says have been causing ptomaine poisoning in some of the customers.
   
   When burger joint owner loses customers and business income to pizza place owner, can he sue for conversion?

   1. A.Yes, because the pizza owner interfered with his right of peaceful enjoyment and disrupted his business activities.
   2. B.Yes, conversion is an intentional tort and the pizza owner acted intentionally to convert and did convert part of the burger business.
   3. C.No, because conversion consists of appropriating another's real property.
   4. D.No, because there was no interference with his ownership or right of possession to his personal property. Correct answer

   Hint: Was there an interference with and a taking of the owner's personal property?

   Rationale:
   Conversion is the substantial and intentional interference with another person’s right of ownership over his personal property, such as goods or personal chattels. The unauthorized exercising of total control and dominion over it to the exclusion of the owner is the tort of conversion. See Moore v. Regents of University of California, 51 Cal.3d 120, 136-37 793 P. 2d 479 (Cal. Supreme Ct. 1990).
   
   The burger restaurateur may be able to sue for defamation, interference with business relationships, or a related tort, but not conversion because there was no interference with his ownership rights to personal property. The taking of "business" is not taking or converting personal property, such as goods or chattels.

   Need more torts practice? Torts MBE practice

5. Q5 At a metro station in the city, there is always significant construction going on, including a rebuild of the elevator shaft between the platform and the ground level. There is ...

   At a metro station in the city, there is always significant construction going on, including a rebuild of the elevator shaft between the platform and the ground level. There is a sign warning “this elevator is not available at this time, please do not ride it.”
   
   A passenger sees the signs, but tries to ride the elevator anyway, and is injured when she falls into the shaft. When the passenger sues the city for negligence, the city states that she assumed the risk.
   
   Is that a valid and accurate defense under the circumstances?

   1. A.Yes, because she was fully informed and should have known that the elevator was unsafe based upon the signs.
   2. B.Yes, because the signs make her contributorily negligent and a legal cause of her own injury.
   3. C.No, because the sign did not explain the danger and only told her that it was not available, and she therefore did not know what she was encountering. Correct answer
   4. D.No, because the city has strict liability when everyone is depending on the subway.

   Hint: The defense involves full knowing and understanding of the danger and deciding to encounter it anyway.

   Rationale:
   The main issue in most assumption of the risk disputes is whether the plaintiff knew the nature of the danger and decided to risk taking it, knowing full well that she was encountering a specifically known dangerous or unsafe condition. In this case, the plaintiff knew only that the elevator was "unavailable", which was not explanatory of the danger and risk involved at all.
   
   See, for example, Rutter v. Northeastern Beaver Cty., 496 Pa. 590, 602, 437 A. 2d 1198 (1981). See also See Restatement of Torts 2d § 496 et seq.
   
   See Little v. Liquid Air Corp., 37 F.3d 1069, 1079 n.26 (5th Cir. 1994) (With assumption of the risk plaintiff's conduct is a willful, venturous challenge to a fully-appreciated danger to his own self-interest and safety.)

   Need more torts practice? Torts MBE practice

6. Q6 An inexperienced bicycle rider took her new bike for a test run. At an intersection, she could not stop for a red light and went into the intersection, where she slipped off the...

   An inexperienced bicycle rider took her new bike for a test run. At an intersection, she could not stop for a red light and went into the intersection, where she slipped off the bike. While attempting to remount it, a car coming into the intersection with a green light ran her over, causing severe injuries.
   
   The car driver was distracted by his cell phone and received a careless driving ticket from the police. The woman filed a claim for damages, asserting that the car driver was negligent per se. She claimed that a finding of negligence per se prevented the driver from asserting comparative negligence under a state statute.
   
   Will the trial court likely grant the woman's motion to preclude the man's attempted comparative negligence defense?

   1. A.Yes, because the driver had the last clear chance to avoid the accident, which abrogates the comparative negligence law.
   2. B.Yes, because negligence per se is a final judgment of total negligence against the driver and it cannot be modified or rebutted.
   3. C.No, because the common law doctrine of negligence per se does not abrogate the defendant's right to apportion fault under the comparative negligence statute. Correct answer
   4. D.No, because she entered the intersection knowing it was a red light, thereby putting herself voluntarily and knowingly in danger, and she assumed the risk.

   Hint: Under comparative negligence statutes, the jury must apportion the percentage of negligence attributed to each party.

   Rationale:
   Under the comparative negligence statute the relative degrees of the plaintiff's and defendant's fault must be ascertained to determine whether and what amount of recovery is proper. Lyons v. Nasby, 770 P. 2d 1250, 1259 (Colo. Supreme Court 1989).
   
   The common-law doctrine of negligence per se should not be applied to abrogate the legislatively imposed requirement that a jury apportion the degree of negligence attributable to the plaintiff and defendant. McCall v. Meyers, 94 P. 3d 1271, 1273 (Colo. Ct of App, 1st Div. 2004).
   
   See Traphagan v. Mid-America Traffic Marking, 555 NW 2d 778, 783 (Neb. Supreme Court 1996).

   Need more torts practice? Torts MBE practice

7. Q7 Some homeless people started residing on a strip of land located under a bridge. The land was owned by a nearby chemical manufacturer. The squatters did not ask permission, and ...

   Some homeless people started residing on a strip of land located under a bridge. The land was owned by a nearby chemical manufacturer. The squatters did not ask permission, and the company did not feel it was an urgent problem.
   
   The squatters used a small lake on the property for bathing and drinking water. Within a few days, two squatters died from what was later revealed to be highly polluted water coming from the company's waste discharges. The company knew that it had a waste discharge problem.
   
   The estates of the two decedents sued the company. Will they likely prevail on their tort claim despite the company's defense that the decedents were trespassers?

   1. A.Yes, because even though they trespassed, the owner had a duty to warn because it knew that they were in danger. Correct answer
   2. B.Yes, because the owner was strictly liable for any injuries caused by the hazardous condition of the water in the lake.
   3. C.No, because owner owes no duty to trespassers except if it acts with willful or wanton disregard.
   4. D.No, because an owner of land never has to worry about protecting the safety of trespassers.

   Hint: Landowner's knowledge of the danger increases the duty owed.

   Rationale:
   At common law, negligence requires a duty which has been violated. As a general rule, no duty is owed to a trespasser, except to refrain from acting with wanton and willful disregard.
   
   Where the owner knows about the trespassers and knows about the dangerous condition, the owner must at least take sufficient action to warn trespassers and others of the danger. See Lee v. Chicago Transit Authority, 605 NE 2d 493, 498-99 (IL Supreme Court 1992); Brett v. Great American Recreation, Inc., 144 N.J. 479, 677 A. 2d 705 (NJ Supreme Court 1996).

   Need more torts practice? Torts MBE practice

8. Q8 A pet breeder is in the business of breeding calves at his cattle ranch where he has a stable of prolific cows who are very fertile. The newborn calves need constant attention a...

   A pet breeder is in the business of breeding calves at his cattle ranch where he has a stable of prolific cows who are very fertile. The newborn calves need constant attention and care.
   
   One day one of the employees inadvertently leaves the fence door open and a newly-born calf breaks free and goes to his neighbor's land. The breeder went to the neighbor's land to retrieve the calf for its safety and to make sure it was unharmed.
   
   However, he was arrested on a trespass charge after entering the land. The breeder appealed. Will the court dismiss the charge?

   1. A.Yes, because he had a limited privilege to enter the land to prevent harm to his chattel. Correct answer
   2. B.Yes, because the tender pet doctrine allows temporary entry to retrieve baby animals.
   3. C.No, because the neighbor had a right to keep any living chattels that crossed onto his land.
   4. D.No, because his status as a breeder made him unqualified for a limited license.

   Hint: A trespasser can become a licensee for certain necessary or justifiable entries onto the land of another.

   Rationale:
   Answer 1 is the best choice under these facts. An exception exists under Restatement § 345 for one who enters another's land under a public or private privilege. Under Restatement § 198, one is privileged to enter to retrieve chattel to which one has the right of immediate possession, and which went on the land without consent.
   
   Under Restatement § 197 a person "is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to . . . the actor, or his land or cattle. . . ." In both instances the intruder would be classified as a licensee. See, Restatement § 345; 198. See also, Walsh v. Sun Oil Co., 437 Pa. 80, 262 A.2d 128 (1970); Carpenter v. Penn Central Transp. Co., 409 A. 2d 37 (Pa. Super. 1979).
   
   The tort principle is sometimes applicable in a criminal case where it indicates no criminal intent on the part of the intruder. For example, see State v. Logsdon, 160 Ohio App. 3d 517, 520 (Ohio Ct. App. 2005), where the Court adopts the following heading prior to part of its discussion: “III. If It's Not Even a Tort, It's Not a Crime.”
   
   Answer 2 is incorrect because there is no tender pet doctrine. Answer 3 is incorrect because there is no such rule of law. Answer 4 is incorrect because his status as a breeder is irrelevant to the issue of whether he is protected by a license implied by law.

   Need more torts practice? Torts MBE practice

9. Q9 An elderly man died with a will that had the following clause: “After payment of such debts and funeral expenses, I give and bequeath to my beloved wife the farm on which we now...

   An elderly man died with a will that had the following clause: “After payment of such debts and funeral expenses, I give and bequeath to my beloved wife the farm on which we now reside and all my personal property, so long as she remains my widow.” The wife retained the property and did not remarry. Some years prior to her death, she conveyed a deed in fee simple to her oldest son.
   
   After her death, her youngest son filed a claim against the estate contending that the father’s will devised only a life estate to his wife. A state statute said that a fee simple would be presumed where the intent of the testator did not clearly show an intent to devise a lesser estate.
   
   The lower court held that the widow had received a defeasible fee conditioned on her remaining a widow. Because she did not marry, the deed to the son ripened into an indefeasible fee absolute at the time of conveyance. The younger son appealed.
   
   Will the appellate court likely reverse the lower court’s decision and rule that the oldest son did not receive full title to the property?

   1. A.Yes, because it was a life estate that ends on her remarriage or death, with a remainder over to all of the sons.
   2. B.Yes, the deed could not convey more than a life estate because of the condition in the will.
   3. C.No, because the will devises a fee simple that was defeasible if she had remarried; the title and the deed ripened into an indefeasible fee simple when she conveyed the property. Correct answer
   4. D.No, the deed superseded anything that was stated in the will because she was still alive when she conveyed title to her oldest son.

   Hint: A fee simple can have a condition added to it which would terminate the fee simple estate if the condition was breached, with the fee being unaffected if the condition is not breached.

   Rationale:
   Answer 3 is the best answer and the majority view in most states. The wording here indicates a full conveyance of fee simple and not a mere life estate, despite it being qualified by a condition that she remain a widow. The fee could have been terminated if she remarried but that did not happen so that the fee remained fully intact, giving her the right to convey full title at any time that she remained a widow.
   
   The condition had not occurred and therefore she transferred full fee simple to the grantee. There was also a state statutory provision that protected such language in the will unless there was clear evidence of a contrary intent. If there had been a devise over in the will to another heir in the event the wife remarried, that would have favored a life estate according to court opinions but that is not the case here.
   
   For very similar facts and the above resolution see Kautz v. Kautz et al., 365 Pa. 450, 452-53 (Pa. Supreme Court 1950). See Cooley v. Williams, 31 SW 3d 810 - Tex: Court of Appeals 2000 and Lewis v. Searles, 452 SW 2d 153, 159 Mo: Supreme Court, 2nd Div. 1970.

   Need more real property practice? Real Property MBE practice

10. Q10 The state charged the accused with the intentional murder of a former girlfriend. He admitted to killing her, but asserted that he lacked the intent to murder, due to his suffer...

    The state charged the accused with the intentional murder of a former girlfriend. He admitted to killing her, but asserted that he lacked the intent to murder, due to his suffering from a personality disorder complicated by two days of drinking alcohol heavily.
    
    The trial judge instructed the jury that "the law presumes that a person intends the ordinary consequences of his voluntary acts." The judge did not tell them that they had a choice or could infer another conclusion; they were told only that the law presumed it. The accused was convicted of depraved heart murder and sentenced to 100 years in prison.
    
    On appeal, the appellant argued that the court took the fact-finding task of determining criminal intent out of the jury’s hands by in effect ordering them to find intent. The jury could have felt that they were being told that they had no other choice. The state supreme court affirmed the conviction, but the United States Supreme Court granted certiorari.
    
    Will the Court likely reverse the conviction?

    1. A.Yes, because the wording of the instruction could have been viewed by jurors as a mandatory direction to find that there was intent to murder. Correct answer
    2. B.Yes, because the wording in effect caused the defendant to be a witness against himself by having him intend everything that he did.
    3. C.No, because the defendant could raise an argument to rebut the permissible inference created by the jury instruction.
    4. D.No, because the instruction was only a presumption that the jury did not have to consider in its deliberations.

    Hint: A presumption must be applied by the jury unless it has been disproved by a preponderance of the evidence.

    Rationale:
    This presumption conflicts with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime. The state cannot create intent through a presumption and thus take away the prosecution’s need to prove the intent element.
    
    The prosecution would be relieved of proving affirmatively the guilt of the defendant beyond a reasonable doubt. There is no way to tell if the jurors were swayed by the instruction. With no way to know if the finding of intent was an independent one, the verdict is tainted and must be reversed.
    
    See Sandstrom v. Montana, 442 US 510, 517, 518, 519, 523 (1979).

    Need more criminal law and procedure practice? Criminal Law and Procedure MBE practice

11. Q11 A small town police officer pulled over a driver for speeding. He believed that the driver was acting irritable and fidgety, but he had no articulable reason to think anything w...

    A small town police officer pulled over a driver for speeding. He believed that the driver was acting irritable and fidgety, but he had no articulable reason to think anything was wrong. He searched the car anyway and found two cartons of freshly canned peaches, which were owned by the driver's neighbor and reported stolen off of her porch 24 hours earlier.
    
    Authorities charged him with theft under the state criminal code. His motion to suppress the evidence because of an unlawful search was denied.
    
    On appeal, will the appellate court likely reverse the lower court decision denying the motion to suppress?

    1. A.Yes, because the search was unconstitutional due to the officer having no probable cause that would justify searching the car. Correct answer
    2. B.Yes, because when a car is pulled over for speeding, the officer must always obtain a search warrant prior to making any search.
    3. C.No, the stop and the search were within the normal bounds of propriety for a speeding stop.
    4. D.No, because driver being fidgety is enough for a probable cause full search of the vehicle.

    Hint: What is legally required before a search may be made of a vehicle that was pulled over in a traffic stop?

    Rationale:
    Answer 1 is the correct and best answer. A traffic stop for speeding requires only reasonable suspicion, similar in concept to a Terry stop. See United States v. Brown, No. 16-10365, at *4 (9th Cir. Mar. 21, 2018) (“Under the Fourth Amendment, law enforcement officials may conduct an investigatory stop of a vehicle only if they possess "reasonable suspicion…"), quoting from, United States v. Twilley, 222 F.3d 1092, 1095 (9th Cir. 2000).
    
    The fact that there has been justification for pulling the vehicle over for a perceived traffic violation does not mean that there are grounds to search the vehicle. See, e.g. United States v. Landaverde, 10-cr-531 (BMC), at *4-5 (E.D.N.Y. Jan. 8, 2020) ("Police may conduct a warrantless search of a readily mobile motor vehicle if probable cause exists to believe the vehicle contains contraband or other evidence of a crime"), citing United States v. Gaskin, 364 F.3d 438, 456 (2d Cir. 2004).
    
    Probable cause to search a vehicle, however, must be independently established from the reasons for the traffic stop. See Rodriguez v. United States, 575 U.S. 348, 354 (2015). In our hypothetical, the officer had no probable cause to search the vehicle. The officer had no evidence or indications that anything illegal was taking place. The search therefore was an obvious violation of the Fourth Amendment, and the evidence must be suppressed. See Knowles v. Iowa, 525 US 113 (1998).
    
    Answer 2 is incorrect because it is a false statement. There are several reasons for conducting a search without getting a search warrant, most prominently, the existence of probable cause that is observed by the officer after making the traffic stop. Answer 3 is incorrect because the normal bounds due not entail allowing a search of a vehicle just because the driver is pulled over for a traffic stop, which is based on reasonable suspicion and not probable cause. Answer 4 is incorrect because a fidgety driver is not evidence of criminal activity – he may be normally nervous, anxious from the stop itself, or he may have facial ticks or any number of innocent reasons to look fidgety.

    Need more criminal law and procedure practice? Criminal Law and Procedure MBE practice

12. Q12 The United States Congress passed, and the President signed, a law called the “American Morality Leadership Act” which limits the amount of makeup that women or men can wear in ...

    The United States Congress passed, and the President signed, a law called the “American Morality Leadership Act” which limits the amount of makeup that women or men can wear in public and precludes the wearing of short dresses. Men over 65 must wear only brown or grey attire, while those under 65 must wear button down dress shirts with neckties, except for when they are exercising or working physically.
    
    The Act has other restrictions and specifications for dress and grooming mandates for men and women. A class action was filed to challenge the Act based on a constitutional attack. Which argument listed below more closely reflects the constitutional argument that is most likely to succeed in court?

    1. A.The law is unconstitutional because it violates Title VII of the Civil Rights Act.
    2. B.The law is unconstitutional because it is primarily discriminatory against women’s rights.
    3. C.The law is unconstitutional because it violates procedural due process.
    4. D.The law is unconstitutional because it infringes on fundamental rights of the individual. Correct answer

    Hint: The right to free expression encompasses fundamental rights of appearance and uniqueness.

    Rationale:
    This is an example of egregious, irrational government regulation of dress and grooming of the public at large. See, generally, Williams v. Pryor, 229 F.3d 1331 (11th Cir. 2000). Governmental actions that infringe a fundamental right will generally receive strict scrutiny; other claims receive rational basis review. Seal v. Morgan, 229 F.3d 567, 574 (6th Cir.2000). Rational basis requires proof that the law is "rationally related to a legitimate state interest." Id. at 575.
    
    In this case, the right to dress individually and with distinct appearance are basic to the right of expression under the First Amendment. Furthermore, it is today settled that the right of a person to have a certain look or way of dress elicits concepts of fundamental liberty. See DeWeese v. Town of Palm Beach, 812 F.2d 1365, 1369 (11th Cir. 1987) (Town’s regulating the dress of citizens at large, by prohibiting male joggers from appearing in public without a shirt, is so manifestly weak that it cannot justify the intrusion upon DeWeese's liberty interest in his chosen mode of dress.”) See also, Gowri Ramachandra n, Freedom of Dress: State and Private Regulation of Clothing, Hairstyle, Jewelry, Makeup, Tattoos, and Piercing, 66 Md. L. Rev. 11 (2007).
    
    The restrictions in this hypothetical are too arbitrary and violative of free expression to withstand constitutional scrutiny, under any of the tests, i.e., heightened scrutiny, intermediate scrutiny and the rational basis test. The rights are so fundamental, however, that one can safely predict that such review will be with strict scrutiny. See McPeters v. Edwards, 806 F. Supp. 2d 978, 984 (S.D. Tex. 2011) (““if a classification does target a suspect class or impact a fundamental right, it will be strictly scrutinized and upheld only if it is precisely tailored to further a compelling government interest.””)

    Need more constitutional law practice? Constitutional Law MBE practice

13. Q13 A creditor initiated a garnishment action against a woman, seeking to recover a past-due debt from a personal loan she had taken. At the commencement of the action, the creditor...

    A creditor initiated a garnishment action against a woman, seeking to recover a past-due debt from a personal loan she had taken. At the commencement of the action, the creditor had not yet secured a judgment. The creditor served the notice of garnishment on the garnishee, the debtor's employer, who complied by withholding all the woman's earnings in an escrow account pending the creditor's lawsuit and the entry of final judgment against the debtor. The state, where the debtor resided and worked, had provisions allowing for pre-judgment garnishment, provided the funds were held and not distributed until a judgment was entered. The money would be returned to the debtor if a judgment was not entered within the next 120 days. The debtor subsequently filed a lawsuit against her employer, demanding the release of her earnings. Will the court order the garnishee to release the funds to the debtor?

    1. A.No, because the state procedure for protecting the woman's money until a judgment is entered is a fair one that comports with procedural due process.
    2. B.No, because the state has an interest in protecting the rights of creditors to collect debts through the garnishment procedure.
    3. C.Yes, because the only party that has garnishment rights in the United States is the Internal Revenue Service.
    4. D.Yes, because the interim (pre-judgment) freezing and holding of a debtor’s wages without notice and a chance to be heard, is clearly unconstitutional. Correct answer

    Hint: The case raises constitutional issues regarding the right of someone to possess their own earnings prior to any court determination of a judgment against them.

    Rationale:
    Answer 4 is correct. The interim freezing of wages without notice and an opportunity for a hearing violates procedural due process as articulated in the Fourteenth Amendment. See Sniadach v. Family Finance Corp. of Bay View, 395 US 337, 341-42 (1969). A pre-judgment garnishment procedure like this one is notably inappropriate and should be challenged in jurisdictions where such a procedure is statutorily allowed. Without prior notice, a hearing, or a pre-existing judgment, the procedure is unconstitutional (see Id. at 343, Harlan concurring). The withholding of one's earnings without sufficient due process is prohibited by our Constitution. See Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922 (1982) and N. Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 606-07 (1975).
    
    Also, remember that even when a judgment is already on record, the law in that jurisdiction may prohibit most wage garnishments for monetary debts; the statute may allow garnishment only for child or spousal support or other essential necessities. When a person faces a recorded judgment against them, in most cases, the judgment does not serve as the basis for a wage garnishment. This is where the garnishment statute must be closely examined. The law generally frowns upon a procedure that impairs one's right to earn a living due to the existence of a typical debt for money owed, even if it is reflected in a civil judgment.
    
    Answer 1 is incorrect, as this is not a fair procedure that aligns with due process. Answer 2 is also incorrect because it makes a false claim; the state has no obligation to protect the rights of creditors in such situations. Answer 3 is incorrect because the law permits many different parties to engage in garnishment, depending on the provisions of the statute.

    Need more constitutional law practice? Constitutional Law MBE practice

14. Q14 A man is sitting on a beach chair, peacefully and in a relaxed meditative state, when a truck racing on the sand ran down a sunbathing elderly person. The man said out loud, “Oh...

    A man is sitting on a beach chair, peacefully and in a relaxed meditative state, when a truck racing on the sand ran down a sunbathing elderly person. The man said out loud, “Oh God, look what that truck driver did. The man driving that truck was racing and going about 100 mph.! Someone call 911!!"
    
    A woman, who was sitting on the beach nearby, but facing the other way, heard the man’s outcry. When the case comes to trial, will the court allow both the man and the woman to testify about the man's utterances?

    1. A.Yes, both the woman and the man can testify because it is an excited utterance exception to the hearsay rule that goes to the material issue of the case. Correct answer
    2. B.Yes, because this is not hearsay and it is not being entered for the truth of the statement by either witness so that they can both testify.
    3. C.No, neither of them can testify because the man was impaired due to being too relaxed from his meditation, and the woman cannot repeat the utterances of an impaired witness.
    4. D.No, neither can testify because the utterances do not fit any of the exceptions to the hearsay rule.

    Hint: Is there a hearsay exception that closely fits the situation?

    Rationale:
    This fits within the definition of an excited utterance, which is one that is blurted out by a person in response to a startling or shocking event or condition. It is an exception to the hearsay rule, allowing both persons to testify to it.
    
    The idea behind the excited utterance exception is that "circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication." US v. Boyce, 742 F. 3d 792, 796-97 (7th Cir. 2014). In other words, the statement must have been a spontaneous reaction to the startling event and not the result of reflective thought. 2 McCormick on Evidence § 272 (7th ed.2013).

    Need more evidence practice? Evidence MBE practice

15. Q15 A young woman joined a social media service that provided networking with other business persons and entities nationwide. The woman discovered that the service was selling her p...

    A young woman joined a social media service that provided networking with other business persons and entities nationwide. The woman discovered that the service was selling her personal profile information, and the information pertaining to thousands of other members, to third party purchasers for tracking of their Internet activities and buying habits.
    
    In her class action breach of contract action against the service, she alleged two theories of damages. First, she contended that she and the class members suffered "embarrassment and humiliation" from the disclosure, and second, that she and the others must be compensated for the market value of the information seized.
    
    Will the court likely recognize these allegations as sufficient to state a claim for breach of contract?

    1. A.Yes, because the service breached the duty of good faith inherent in every contract.
    2. B.Yes, because these are common types of damages that are authorized in breach of contract cases.
    3. C.No, because Internet laws protect absolutely all communications and downloads of this nature as part of the service's guaranteed scope of free speech rights.
    4. D.No, because humiliation is not an item of damages in a breach of contract case, and the unauthorized collection of personal data does not establish an economic loss. Correct answer

    Hint: Contract damages are rarely punitive — they must be based on the dollar amount of the interest that is to be compensated.

    Rationale:
    Emotional and physical distress damages are generally not recoverable on a breach of contract claim. Low v. LinkedIn Corp., 900 F. Supp. 2d 1010, 1028-29 (Dist. Court, ND California 2012).
    
    In addition, the unauthorized collection of personal information by a third-party is not seen as an "economic loss" under breach of contract case law. In re DoubleClick, Inc., Privacy Litig., 154 F.Supp.2d 497, 525 (S.D.N.Y.2001) (the unauthorized collection of personal information by third-party is not "economic loss"); see also In re JetBlue Airways Corp., Privacy Litig., 379 F.Supp.2d 299, 327 (E.D.N.Y.2005) (airline's disclosure of passenger data to third party in violation of airline's privacy policy had no compensable value).

    Need more contracts practice? Contracts MBE practice

16. Q16 A property owner agreed to sell one of his real estate parcels to a neighbor. He wrote up an agreement of sale with the sale price of $200,000 and he signed the document. The ne...

    A property owner agreed to sell one of his real estate parcels to a neighbor. He wrote up an agreement of sale with the sale price of $200,000 and he signed the document. The neighbor took it and returned with a bank check for the full amount, demanding that the deed be tendered.
    
    The property owner then decided that the terms were not reasonable and he returned the money and refused to tender a deed. Neighbor sued for specific performance. The property owner defended on the basis that the neighbor did not accept the agreement's terms and did not sign the document.
    
    Neighbor sued for specific performance of the transaction. Is the court likely to rule in favor of the neighbor?

    1. A.No, because the neighbor did not expressly state that he accepted the agreement.
    2. B.No, because the neighbor had to put his signature on the document to make it a binding contract.
    3. C.Yes, because neighbor manifested his assent by his conduct of tendering the full sale price, at which point a contract existed. Correct answer
    4. D.Yes, because the property owner created a binding contract when he prepared an agreement containing the agreed terms.

    Hint: Are there enough indicia of mutual assent in these facts to indicate that the parties entered into a contract?

    Rationale:
    The neighbor’s actions in conformance with the offer, which, in this case, are payment, a written agreement, combined with the property owner's offer and signature in writing, are consistent with the Statute of Frauds, and enough to make a binding contract. See Cottom v. Kennedy,140 Ill. App.3d 290, 293, 488 NE 2d 682 - Ill: Appellate Court, 5th Dist. 1986.
    
    Under a typical statute of frauds, the party being sued is the one who must have signed it. Id. at 293.
    
    Under contract law, see Heritage Roofing, LLC v. Fischer, 164 S.W.3d 128, 134 (Mo.App.E.D. 2005) ("A signature is not required in order to show mutuality or assent to the terms of a writing. Assent can be shown in other ways, such as by the parties' conduct." (citations omitted)). See also, Baier v. Darden Restaurants, 420 SW 3d 733, 738-39 (Mo. Ct. of App., Western Dist. 2014).

    Need more contracts practice? Contracts MBE practice

17. Q17 The President and sole stockholder of a small business negotiated to sell the business to an individual investor. The parties met and signed a "Letter Agreement", which set fort...

    The President and sole stockholder of a small business negotiated to sell the business to an individual investor. The parties met and signed a "Letter Agreement", which set forth the price, down payment amount, financing terms, the assets to be included, and a host of other pertinent details. The final closing date was not stated, but the purchasers left a down payment of $20,000 with the seller.
    
    The letter stated that the terms comprised their essential agreement, but that a formal document would be drafted by the parties' attorneys. Before that happened, the seller returned the check and refused to perform. The investor brought an equity action for specific performance to compel the sale.
    
    The equity court ruled that there was a complete and binding contract that must be specifically performed. Will the appellate court likely affirm the lower court's decision?

    1. A.No, because closing date was left out and the attorneys were supposed to compose the final contract with all of the remaining details put in.
    2. B.No, because this type of letter is basically a "gentlemen's agreement" that is not intended to be legally binding.
    3. C.Yes, because a letter of intent is legally binding if it sets forth the price, describes the business and is signed by both parties.
    4. D.Yes, because where the letter contains all of the essential terms required for a contract, it will be enforced as a contract. Correct answer

    Hint: The absence of a closing date means that the closing will take place within a reasonable time.

    Rationale:
    Where the parties have settled upon the essential terms and the only remaining act to be done is the formalization of the agreement, a contract has been formed. Field v. Golden Triangle Broad., Inc., 451 Pa. 410, 418 (Pa. Supreme Ct. 1973). Where the equity court rules that there was a binding contract containing all of the essential terms, an appellate court will not reverse unless there was a clear abuse of discretion. Id. at 415. The parties must agree to all the essential terms and intend the letter to be binding upon them. Id. at 419.
    
    In the hypothetical, the parties leave nothing out of the letter-agreement and by all objective appearances, they intend the final document to be a mere memorial of their letter of intent. In addition, when the closing date is not mentioned, the settlement is to be held within a reasonable time. Id. at 418-419.
    
    See also, Block v. Magura, 949 N.E.2d 1261, 1266 (Ind. Ct. App. 2011) (Regarding a preliminary agreement, the Court held that, “the parties' agreement specifies the Partnership interest to be purchased, by and from whom, the purchase price, the condition of the asset, and the timing of the sale. These are all of the essential terms for an enforceable contract.”); See Brodie v. Viking Dev., LLC, No. 46A03-1311-CC-442, at *15 n.9 (Ind. App. Jan. 21, 2015) (parties may enter into an enforceable agreement that "obligates them to execute a subsequent final written agreement" provided that the initial agreement contained all essential terms that were intended to be incorporated into the final document. Sands v. Helen HCI, LLC, 945 N.E.2d 175 180 (Ind. Ct. App. 2011)”)
    
    Answer 1 is incorrect because the closing date, when absent, is interpreted to be within a reasonable time. Answer 2 is incorrect because when the parties sign and state that the essential terms are contained therein, along with leaving a reasonable down payment, that is not in any way a ‘gentleman’s agreement” but connotes an enforceable agreement.
    
    Answer 3 is incorrect because it is an incomplete statement of what would be needed to express the essential terms. For example, a mere description of the business tells us nothing about the terms of the sale, the terms of payment, the specific nature and identification of the assets to be transferred and other similar details.

    Need more contracts practice? Contracts MBE practice

18. Q18 Two cousins took title to real estate as joint tenants with the right of survivorship. Shortly thereafter, the first cousin put up his interest in the joint tenancy as security ...

    Two cousins took title to real estate as joint tenants with the right of survivorship. Shortly thereafter, the first cousin put up his interest in the joint tenancy as security for a $20,000 loan and signed a judgment note. It was later entered as a lien against the first cousin's interest in the real estate. The first cousin died a year later. The second, who never signed or agreed to the lien, decided to sell the property, but the lien holder filed an action to prevent the sale and to enforce its interest in the property. The second cousin defended on the basis that any lien on the first cousin's interest in the property was extinguished on the first cousin's death by operation of law.
    
    Will the court enforce the lien of the creditor against the sale of the property by the surviving second cousin?

    1. A.Yes, because the second cousin's assent to the judgment lien was presumed by law and that assent destroyed the joint tenancy.
    2. B.Yes, because a mortgage or judgment lien against one joint tenant destroys the tenancy and destroys the right of survivorship.
    3. C.No, because a joint tenant cannot legally file a judgment note on just that joint tenant's interest because it would be an unconstitutional interference with the other’s property rights.
    4. D.No, because when the first cousin died the second cousin became the sole owner due to the right of survivorship, as per the joint tenancy which was still fully intact. Correct answer

    Hint: Can a mortgage or other lien against one joint tenant’s interest in the property extinguish the right of survivorship?

    Rationale:
    Answer 4 is correct. Remember to always choose the best answer. A judgment note or mortgage lien given by one joint tenant on his interest in the property does not sever the joint tenancy. The second cousin's right of survivorship became operative on the death of the first cousin. As such, he became the sole owner of the estate, in its entirety. See Webster v. Mauz, 702 P.2d 297, 298 (Colo. App. 1985) ("Upon the death of a joint tenant, the surviving tenant becomes sole owner of the property free from any liens of the deceased); Biggers v. Crook, 283 Ga. 50, 53, 656 S.E.2d 835, 838 (2008) (security interest against deceased joint tenant terminated at his death); Harms v. Sprague, 105 Ill. 2d 215, 224, 473 N.E.2d 930, 934 (Ill Supreme Court 1984) (mortgage executed by deceased joint tenant does not survive as a lien on the successor joint tenant’s ownership of the property); see also Internal Revenue Manual § 5.17.2.5.2.2(4) ("In most states, if the individual, against whose property a federal tax lien attaches, dies before any of the other joint tenants, then the lien ceases to attach to the property . .”; Grant v. Grant, 380 WDA 2023, at *13 (Pa. Super. Ct. Dec. 13, 2023) (“Thus, on the death of a joint tenant, the entire estate goes to the survivor or survivors free from creditors’ claims); Miller v. Emans, 19 N.Y. 384, 388 (N.Y. 1859) (“In cases of joint tenancy the right of survivorship is absolute to the tenant who survives.”); Gau v. Hyland, 230 Minn. 235, 239 (Minn. 1950) (“Because the interest of a joint tenant terminates at his death, a lien thereon also terminates); People v. Nogarr, 164 Cal.App.2d 591 (Cal. Ct. App. 1958) (same). The full and instant vesting of ownership in the second cousin made the judgment lien invalid with respect to any claim on the first cousin’s prior interest in the property. When the first cousin dies, his interest in the real estate ceases to exist due to the legally established survivorship rights. Id. at 224. A judgment is merely a lien on that tenant’ s interest while he remains alive rather than a conveyance of title. This is the prevailing modern rule that is applied by the vast majority of courts. Another key consideration in modern practice is that a commercial lender would not competently loan money and take a lien signed by only one of two or more joint tenants. That lender would be considered negligent and would face a great risk of being unprotected.
    
    Answer 1 is incorrect because the second cousin’s right of survivorship was not severed when the first cousin signed a judgment note that was filed against his interest. Note that when both parties voluntarily sign, the lien will remain on the property even when the first of the joint tenants dies (regardless of who took out the loan or received the proceeds). Answer 2 is incorrect because the judgment against the first cousin does not sever the second cousin’s legal right of survivorship. Answer 3 is incorrect because the joint tenant can sign and allow filing of a judgment on his or her share of the joint tenancy without constitutional infirmity. As stated above, however, the joint tenancy and the legal right of survivorship still remains intact and will act to transfer title instantly to the second cousin by operation of law when the first cousin dies.

    Need more real property practice? Real Property MBE practice

19. Q19 A man sued a manufacturer of video and home theater equipment after his home theater started a raging fire, destroying the equipment and part of his home. He sued the manufactur...

    A man sued a manufacturer of video and home theater equipment after his home theater started a raging fire, destroying the equipment and part of his home. He sued the manufacturer in federal court. At trial, the defendants filed a motion to preclude the report and testimony of the plaintiff's expert under Fed.R.Evid. 702. The defendants claim bias, lack of scientific support, failure to conduct testing, divergence of opinion among experts, and that the expert was trained for large commercial fires.
    
    The expert had investigated over 500 fires, wrote a book that was used in courses nationwide and taught a course in forensic fire investigations in a university. Her report ruled out all other possible causes. The court did a gate-keeping review as required by Rule 702 and ruled that the expert was highly qualified and that she used accepted scientific methodologies in arriving at her opinion.
    
    The defendants appealed the ruling. Is the appellate court likely to go against the ruling under these facts?

    1. A.Yes, because the charge of bias against an expert witness requires a "trial within a trial" and that was not done.
    2. B.Yes, because whenever the expert does not back up her conclusion with experimental testing, an expert's opinion will be insufficiently reliable to be allowed.
    3. C.No, the court did the required gate-keeping inquiry and found that the witness was not only qualified and competent, but also used the accepted methodologies. Correct answer
    4. D.No, the court has absolute discretion in deciding the competency of the expert for purposes of giving expert trial testimony and evidence.

    Hint: There will always be some divergence in opinion between experts.

    Rationale:
    See Westfield Ins. Co. v. J.C. Penney Corp., 466 F.Supp.2d 1086, 1094 (W.D.Wis.2006) (rejecting challenge to fire investigator's opinion testimony based on his failure to perform tests).
    
    See Shuck v. CNH Am., LLC, 498 F.3d 868, 875 n. 3 (8th Cir.2007) (clarifying that there is no rule that expert opinions in fire cases always must be supported by testing.)
    
    In addition, criticisms of methodology are usually best dealt with on cross-examination at trial. See MMG INSURANCE CO. v. Samsung Electronics America, Inc., (Dist. Court, D. N.H. 2013) (Civil No. 11-cv-430-JL, Opinion No. 2013 DNH 061.)
    
    See Adams v. J. Meyers Builders, Inc., 671 F. Supp. 2d 262 (Dist. Ct. N.H. 2009.).

    Need more evidence practice? Evidence MBE practice

20. Q20 A patient who had surgery to repair a rupture in her spleen followed up with a full body MRI due to excruciating pain that had developed. During the MRI, the technicians saw at ...

    A patient who had surgery to repair a rupture in her spleen followed up with a full body MRI due to excruciating pain that had developed. During the MRI, the technicians saw at least two identifiable sponges that had been left in her body. She had to be hospitalized for additional surgery.
    
    The patient sued the hospital and doctor for medical malpractice. She did not produce the printouts of the MRI. Instead, she attempted to testify to what she observed on the MRI scan. The defense objected and insisted that she must produce the actual MRI printouts.
    
    What is the most likely ruling of the trial judge with respect to the objection?

    1. A.She does not have to produce the MRI scan because a layperson can testify to things of common knowledge, such as what a sponge looks like.
    2. B.She does have to produce the MRI scan because a layperson cannot testify to personal observations.
    3. C.She does not have to produce the MRI scan because she can testify as to the content of her own medical records.
    4. D.She must produce the MRI records because it represents the best evidence under the best evidence rule. Correct answer

    Hint: Is a layperson qualified to testify to the meaning of a complex diagnostic test?

    Rationale:
    Answer 4 is the correct answer. While normally the general rule is that a witness may testify to things that the witness has observed in person, here the general rule does not apply. Allowing layperson testimony on a specific, complex medical report or pictorial depiction carries the danger of a wide scope of inaccurate and uninformed testimony. The general rule in this case is superseded also by the best evidence rule. The best evidence rule applies where a party attempts to introduce outside evidence to prove what the contents of a document are. Fed.R.Evid. 1002. See Doe v. US, 805 F. Supp. 1513, 1517 (Dist. Court, D. Hawaii 1992). In our hypothetical, the patient-plaintiff is trying to prove the contents and meaning of the diagnostic printout instead of using the correct procedure, which is to produce the printout or film and having a qualified professional explain its contents.
    
    The patient herself cannot identify or explain the medical content and meaning of diagnostic test documents. What appears to be a sponge may be a normal bodily part. A qualified physician or other medical specialist must interpret the images on a medical translation of the patient’s bodily contents. The purpose of the best evidence rule is to prevent fraud and evidentiary inaccuracy. See 6 Weinstein's Federal Evidence § 1002.03 (2006). See also, US v. Bennett, 363 F. 3d 947, 953-54 (9th Cir. 2004) (rule violated where witness testifies about computer printouts instead of introducing them). Note that in some cases, the rules of evidence may allow various records to be admitted without expert testimony if they have been corroborated as authentic by the custodian of the records.
    
    Answer 1 is therefore incorrect because a layperson cannot testify to the contents of a medical diagnostic test result. Answer 2 is incorrect because a layperson can testify to personal observations. If she saw a doctor insert the sponges and sew her up, that would be admissible personal observation.
    Answer 3 is incorrect because a patient cannot testify to the professional data and conclusions in her own medical records. The plaintiff usually retains an expert or relies on a treating physician or the custodian of the records in more general non-medical records. Therefore, Answer 4 is the correct answer! The MRI or x-rays or other test results must be authenticated and testified to by a qualified medical professional.

    Need more evidence practice? Evidence MBE practice

21. Q21 A furniture dealer sold furniture to a young couple with less than perfect credit. They signed a contract that said that if they purchased new items on the account, they would n...

    A furniture dealer sold furniture to a young couple with less than perfect credit. They signed a contract that said that if they purchased new items on the account, they would not own the old purchases until the new ones were paid in full. That provision was in hard-to-read fine print on the reverse side of the agreement.
    
    When husband lost his job, they had by that time paid for everything purchased on the account except for one chair they bought a few weeks earlier. The store sued, trying to repossess all furniture ever sold to the couple.
    
    Will the couple likely prevail on a defense of unconscionability?

    1. A.No, because they might be able to find another store to sell them furniture, which proves that there was no lack of bargaining power.
    2. B.No, because the store was nice enough to extend credit, and the couple should be expected to pay for everything before they own any of it.
    3. C.Yes, because any time a seller puts terms in fine print it is proof of bad faith and unconscionability.
    4. D.Yes, because a combination of factors makes it likely that the court will recognize unconscionability under these circumstances. Correct answer

    Hint: The substantive terms can appear to be so unfair that the enforceability of the agreement is put in doubt.

    Rationale:
    Answer 4 is the correct answer. Any one factor is generally not enough, and unconscionability will be found on a thorough examination of all factors that demonstrate a lack of bargaining power, unfair terms, small print, and an oppressive situation favoring the party with all the bargaining power.
    
    Solo v. Am. Ass'n of Univ. Women, 187 F. Supp. 3d 1151, 1158 (S.D. Cal. 2016) (“An evaluation of unconscionability is highly dependent on context.... The doctrine often requires inquiry into the commercial setting, purpose, and effect of the contract or contract provision." Unconscionability refers to "an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party."
    
    "Sanchez v. Valencia Holding Co., LLC, 61 Cal.4th 899, 912, 190 Cal.Rptr.3d 812, 353 P.3d 741 (2015). Unconscionability is concerned...with terms that are unreasonably favorable to the more powerful party. The ultimate issue in every case is whether the terms of the contract are sufficiently unfair, in view of all relevant circumstances, that a court should withhold enforcement. Id. at 912, As with any contract, the court examines the totality of the agreement's substantive terms as well as the circumstances of its formation to determine whether the overall bargain was unreasonably one-sided.
    
    Sonic – Calabasas A, Inc. v. Moreno, 57 Cal.4th 1109, 1146, 163 Cal.Rptr.3d 269, 311 P.3d 184 (2013).”) See also Shamoun & Norman, LLP v. Yarto International Group, LP, 398 S.W.3d 272, 294 n.23 (Tex. App. 2012) (Unconscionability is determined by a variety of factors, which aim to prevent oppression and unfair surprise; in general, a contract will be found unconscionable if it is grossly one-sided.) (citing Restatement (Second) of Contracts § 208, cmt. a (1979).
    
    Answer 1 is incorrect because similar practices prevail in similar retail business operations. Answer 2 is a naïve statement that simply justifies the oppressive tactics used by some businesses. Answer 3 is not a correct statement because each situation must be evaluated separately, and you cannot say ‘any time,’ which means ‘always.’

    Need more contracts practice? Contracts MBE practice

22. Q22 A man went shopping to buy a used car. He found one on a used car lot that was offered "as is." He looked at it thoroughly. The tag on the window indicated a special 30-point in...

    A man went shopping to buy a used car. He found one on a used car lot that was offered "as is." He looked at it thoroughly. The tag on the window indicated a special 30-point inspection was done on the car. The 30 points included the drive train, the engine, spark plugs, oil, transmission, and numerous other major items.
    
    The man put a $1,000 down payment on the car. He took the car to an independent mechanic who told him that the car had been in an accident and had sustained severe damage, including a cracked engine block. The mechanic offered that the dealer must have known of that kind of massive damage.
    
    The man tried to return the car and get his down payment back, but the dealer refused, claiming the car was sold “as is,” and all express or implied warranties under the Uniform Commercial Code were disclaimed in the purchase contract. Stuck with a lemon, the man sued the company under a common law fraud theory. The company counterclaimed for the balance of the purchase price.
    
    Will the man likely prevail in the litigation against the car dealer?

    1. A.Yes, because the dealer withheld material information intentionally and knowingly misrepresented the condition of the car. Correct answer
    2. B.Yes, because the dealer has a duty to give every reason why an "as is" car may go bad and to list those reasons on the window.
    3. C.No, because the dealer cannot be held responsible for possible damage that the used car may have developed after years of use.
    4. D.No, because the dealer is absolutely protected when he sells a used car in "as is" condition, and where the warranties under the Uniform Commercial Code are duly waived.

    Hint: The extent of the hidden damage is an important factor in such cases.

    Rationale:
    Answer 1 is the correct answer. Fraud is the intentional misrepresentation of a material fact or the knowing failure to reveal material information. The test for determining whether a fact is material in a consumer fraud context is whether knowledge of the fact would have caused the consumer to act differently. See Totz v. Continental Du Page Acura, 602 NE 2d 1374, 1382 (IL App Ct, 2nd Dist. 1992). This case clearly meets consumer fraud elements.
    
    The 30 point inspection says that the engine passed but the expert mechanic who examined the machine finds massive damage, including a cracked engine block. The “as is” designation does not hold up in the face of intentional misrepresentation and common law fraud. The purchaser who has been deceived may return the car, rescind the contract and sue in fraud for damages. See City Dodge, Inc. v. Gardner, 130 Ga. App. 502, 203 SE 2d 729 (Ga. Ct of App. 1973). See also, Testo v. Russ Dunmire Oldsmobile, 554 P. 2d 349 (Wash: Court of Appeals, 2nd Div. 1976).
    
    Also, note that one must always look for implied warranties. For example, for a merchant who sells goods of that kind, there is an implied warranty of merchantability, but it was duly waived in this case. UCC Sec. 2-314(1). In these cases, also always look to the state consumer protection laws to expand the consumer’s protection. See Testo, supra.
    
    Answer 2 is incorrect because there is no such duty regarding an “as is” item. Answer 3 is incorrect because although the dealer cannot be held responsible for possible damage after many years of use, nonetheless the dealer will be held responsible for intention material misrepresentation where key information is not only withheld but, as in this case, it is the subject of lies contained in the 30 point inspection sticker on the car window. Answer 4 is incorrect because the “as is” designation does not “absolutely” protect the dealer and it does not mean, as explained above, that the seller can commit actionable fraud by making false and material misrepresentations about the vehicle.

    Need more contracts practice? Contracts MBE practice

23. Q23 Two people who have been cohabitating decide to get married. The man asks the woman to agree that all of his property that he now owns will remain in his name if they ever get d...

    Two people who have been cohabitating decide to get married. The man asks the woman to agree that all of his property that he now owns will remain in his name if they ever get divorced. She agrees to that but demands a written document.
    
    However, they got married without having signed anything. Three months later, the husband leaves the wife for another woman. He sends her notice to vacate the home due to their prenuptial agreement. When she doesn't move, husband sues, asking for enforcement of the oral prenuptial contract.
    
    Will the court likely enforce the husband's claim?

    1. A.Yes, because the consideration for the contract was the marriage and the consummation of the marriage made the contract complete and enforceable.
    2. B.Yes, because prenuptial agreements are given the benefit of the doubt when it comes to enforcement decisions.
    3. C.No, because a contract in consideration of marriage must be in writing and the prenuptial was therefore not legal as long as it remained oral. Correct answer
    4. D.No, because husband did not live up to his promise to put the agreement in writing and therefore he was guilty of fraud.

    Hint: What is required for a contract in consideration of marriage to be enforceable?

    Rationale:
    Promises made in consideration of marriage must be in writing to be enforceable as per most state statute of fraud laws.
    
    For example, the New Hampshire Statute of Frauds, Section 506:2 provides that any agreement in consideration of marriage must be in writing. In Washington State, § 19.36.010 of the Revised Code of Washington says essentially the same thing.
    
    See Lieber v. Mercantile National Bank at Dallas, 331 SW 2d 463, 469-470 (TX Ct. of Civil Appeals 1960).

    Need more contracts practice? Contracts MBE practice

24. Q24 A witness in a murder case does not make the same statement faithfully, but rather he has given different versions of his observations at different times to different persons an...

    A witness in a murder case does not make the same statement faithfully, but rather he has given different versions of his observations at different times to different persons and investigators. The prosecution put the witness on the stand at trial to tell what he observed. The defendant’s counsel impeached his testimony by bringing up prior inconsistent statements and accusing him of changing his story for trial.
    
    The prosecution then attempted to rehabilitate his credibility by referencing prior consistent statements. Prior consistent statements are not generally admissible because they are said to be repetitive, cumulative and to unfairly bolster the witness’s credibility. Will the court likely allow the prosecution to rehabilitate the witness using prior consistent statements under these facts?

    1. A.No, because the witness cannot be rehabilitated once a successful impeachment has occurred.
    2. B.No, because it would tend to confuse the jury with too much conflicting evidence.
    3. C.Yes, because it is being used to rehabilitate a witness whose credibility was attacked. Correct answer
    4. D.Yes, because all repetitive prior statements are important to show the consistency of the witness’ testimony.

    Hint: Is this being offered to repetitively bolster the testimony or to repair attacked credibility?

    Rationale:
    Prior consistent statements are repetitive and improperly bolster the witness’ testimony. There is an exception, however, where the prior consistent statement is needed to rehabilitate the witness where the credibility of the witness was impeached on cross-examination.
    
    In a 2014 Amendment to the Federal Rules of Evidence, Rule 801(d)(1)(B) was changed to include two reasons for allowing the prior consistent statement: "(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or (ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground.” Fed. R. Evid. 801(d)(1)(B)(i) and (ii) (2015).
    
    The rule gives sufficient reason to allow the rehabilitation questions. See, for example, Mason v. US, 53 A. 3d 1084, 1090 (DC Ct of App 2012).

    Need more evidence practice? Evidence MBE practice

25. Q25 A female employee was fired as an executive assistant at a time when she was seven months pregnant. She brought a Title VII civil rights action in federal court for gender discr...

    A female employee was fired as an executive assistant at a time when she was seven months pregnant. She brought a Title VII civil rights action in federal court for gender discrimination against the employer.
    
    At trial, a former co-worker of the woman was not allowed to testify that she heard the human relations manager saying in an informal meeting that the plaintiff and her predecessor were both fired due to what the manager described as “pregnancy complications.” The proposed witness had been a vice-president of the company and a close adviser to the president.
    
    Without the benefit of that vital testimony, the jury entered a verdict for the defendant employer. On appeal, the plaintiff argued that the testimony should have been allowed and that it was not hearsay under the federal rules. Will the court likely grant the appeal, and order a new trial?

    1. A.No, because the statement is clearly hearsay with no exception to the hearsay rule being applicable.
    2. B.No, because it was based on things that the co-worker heard from others, making double-hearsay that is never admissible.
    3. C.Yes, because that kind of testimony is reliable and not excludable as hearsay. Correct answer
    4. D.Yes, because it was admissible under the "spontaneous utterance" exception to the hearsay rules.

    Hint: What do the federal rules of evidence say with respect to proposed testimony of an agent of the employer, such as the proposed witness in this case?

    Rationale:
    Rule 801(d)(2)(D) provides in relevant part: A statement is not hearsay if it is offered against a party and is made by the party's agent or servant concerning a matter within the scope of the agency or employment ... during the existence of the relationship.
    
    See Zaken v. Boerer, 964 F. 2d 1319, 1322-23 (2nd Cir. 1992). Those factors give the statement a high degree of reliability and tend to support its admission as a non-hearsay statement, which is essentially made against the employer's interest by the employers agent or servant while in the scope of employment.

    Need more evidence practice? Evidence MBE practice

26. Q26 A college student attended a fraternity party. He noticed a young woman flirting with him in a sexually suggestive way. He took her home and ended up forcefully raping her again...

    A college student attended a fraternity party. He noticed a young woman flirting with him in a sexually suggestive way. He took her home and ended up forcefully raping her against her will. She escaped after the rape and went directly to the authorities.
    
    The police filed charges of rape. The student-defendant found several men willing to testify that the woman was promiscuous, that they had relations with her and that she was very prolific in her sexual life.
    
    Will the trial court likely permit the witnesses to testify to the woman’s sexual predisposition under the Federal Rules of Evidence?

    1. A.Yes, because the rules permit evidence of a victim’s sexual predisposition to test credibility.
    2. B.Yes, because the evidence will help the jury see that there may be two sides to the story and that the woman was thus the sexual predator instead of the man.
    3. C.No, because such "sexual predisposition" evidence is generally prohibited by the rules of evidence except under narrow exceptions. Correct answer
    4. D.No, because the rules of evidence prohibit all evidence of a victim’s prior sexual history.

    Hint: What is the main purpose of the proffered testimony by the other men who have nothing to do with the current subject matter of the rape charges against the defendant?

    Rationale:
    Answer 3 is the correct selection. Fed.R.Evid. 412 prohibits evidence of sexual predisposition and of prior sexual activities. The exception is where evidence of prior acts would bear directly on the defendant's innocence. Also, in certain factual scenarios it may be relevant to showing consent by the victim.
    
    However, evidence of a rape victim's chastity, relating to her sex life in general, whether in the form of testimony concerning her general reputation or testimony concerning specific acts with other persons, is ordinarily not probative either of her general credibility as a witness or of her consent to intercourse with the defendant. United States v. Kasto, 584 F. 2d 268, 271-72 (8th Cir. 1978). See also, Grant v. Demskie, 75 F. Supp. 2d 201, 210 (S.D.N.Y. 1999) (“The [rape shield] bill therefore limits the introduction of such evidence and attempts to strike a reasonable balance between protection of a victim's privacy and reputation while not infringing on the defendant's right to a fair trial based on the presumption of innocence. . . .”).
    
    Answer 1 is incorrect because questions about the victim’s sexual predisposition are precisely the kinds of questions that are prohibited by Rule 412. Answer 2 is incorrect because it is a twisted and incorrect perception of the range of the rape shield law – any questions that go beyond the subject incident and travel into areas of the victim’s life or characteristics are in violation of Rule 412.
    
    Answer 4 is not correct because the rules do try to keep out prior sexual history of the victim, but there are very limited areas where that subject matter may be relevant to whether the victim is telling the truth about the current. See Rule 412. These events with other men are not an exception to Rule 412 and are not admissible into evidence.

    Need more evidence practice? Evidence MBE practice

27. Q27 A purse snatcher ran up to a woman, grabbed her purse and ran off. There was a witness at the scene. The witness worked with the police a few days later to try and create a comp...

    A purse snatcher ran up to a woman, grabbed her purse and ran off. There was a witness at the scene. The witness worked with the police a few days later to try and create a composite sketch of the purse snatcher.
    
    This was used by the police to capture the purported purse snatcher. The witness died several days before the trial. When the witness’s drawing was offered by the prosecution as evidence at trial, is the trial judge likely to accept it as admissible evidence?

    1. A.Yes, because the police took it and used it to find someone, therefore it must be an accurate representation of the perpetrator; the exhibit must be admitted.
    2. B.Yes, because it is in the nature of the written recollection of the decedent at a time close to the crime and it therefore has testimonial reliability.
    3. C.No, because the defense had no opportunity to cross-examine the witness under oath about the drawing prior to her death and such sketches are inherently unreliable in any event. Correct answer
    4. D.No, because it was drawn up days after the event and is in violation of the best evidence rule.

    Hint: Is the exhibit reliable, and has it been fully vetted to determine its accuracy?

    Rationale:
    A composite sketch is an out of court statement by a witness, and it is hearsay that does not fall under any exception. Generally, the prior testimony or evidence of a witness who is now deceased is inadmissible unless that witness was cross-examined about the evidence prior to the trial. See, for example, Crawford v. Washington, 541 US 36, 50 (2004).
    
    Also, the sketch was likely inadmissible in the first place because their reliability is seriously questioned. See People v. Maldonado, 97 N.Y.2d 522, 528-529, 769 NE 2d 1281 (NY Ct of Appeals 2002).
    
    In addition, creating a composite sketch carries the potential suggestiveness of having a police artist interpret and possibly influence the perceptions of the witness. Id. at 527.

    Need more evidence practice? Evidence MBE practice

28. Q28 An elderly woman was mugged and robbed on a public street. At the time of the offense, the victim only saw her assailant's eyes. A hooded sweatshirt and bandana concealed the re...

    An elderly woman was mugged and robbed on a public street. At the time of the offense, the victim only saw her assailant's eyes. A hooded sweatshirt and bandana concealed the rest of his face.
    
    A few days later, while the victim waited to be interviewed, she observed the defendant being escorted through the courthouse, in jail clothing, and restrained by handcuffs and leg irons. She identified him as the perpetrator shortly thereafter.
    
    Will the court allow that identification into evidence?

    1. A.No, because it is not reliable enough and there was too much suggestion to make a reasonably accurate identification. Correct answer
    2. B.No, because prior statements of identification are considered hearsay and never allowed into evidence.
    3. C.Yes, if the witness perceived the perpetrator by seeing his eyes, and made the identification on that basis it was reliable enough to be admitted.
    4. D.Yes, because the witness' recognition of someone is all that is needed; the reliability or credibility of it is subject to cross examination.

    Hint: Focus on the issue of the reliability of the identification.

    Rationale:
    The key question with eyewitness testimony is reliability. If it is shown to have sufficient indicia of reliability, it may be admitted without violating due process. Here, the circumstances demonstrated a prior identification that was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.
    
    It is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country. See State v. Henderson, 27 A. 3d 872, 877-78 (NJ Supreme Ct 2011). See also, Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

    Need more evidence practice? Evidence MBE practice

29. Q29 Several persons together stole a painting from an art museum. One of them, who was the driver, was caught during the commission of another crime. He told police that “I didn't e...

    Several persons together stole a painting from an art museum. One of them, who was the driver, was caught during the commission of another crime. He told police that “I didn't even get any money from the art museum. It all went to the first guy and the second guy.”
    
    When the first and second guy go on trial for the theft of the art painting, is the driver’s statement admissible in court?

    1. A.Yes, as an admission by a party opponent.
    2. B.Yes, as a statement against the interests of the other defendants.
    3. C.No, because it was made while in custody and therefore is unreliable.
    4. D.No, because the statement was not made in the course of or in furtherance of the conspiracy and thus it is hearsay. Correct answer

    Hint: The timing of the statement sometimes defeats the hearsay exception.

    Rationale:
    The statement is hearsay because the co-conspirator did not make the statement during the course of the conspiracy. To establish a foundation for admission of evidence under the co-conspirator exception to the hearsay rule, the government show: (1) the existence of a conspiracy, (2) the statement was made by a co-conspirator of a party, (3) it was made during the course of the conspiracy, and (4) it was made in furtherance of the conspiracy.
    
    The statement cannot by itself establish 'the existence of the conspiracy or participation in it.' Fed.R.Evid. 80 1(d)(2). There must be 'independent evidence' establishing the conspiracy. United States v. El-Mezain, 664 F.3d 467, 502 (5th Cir. 2011).
    
    See U.S. v. Gigante, 166 F.3d 75 (2d Cir. 1999) (discussing application of the co-conspirator exception to the hearsay rule).

    Need more evidence practice? Evidence MBE practice

30. Q30 A painter working for a construction company was working with a group of construction co-workers on a house construction when a section of the house fell down on the owner. The ...

    A painter working for a construction company was working with a group of construction co-workers on a house construction when a section of the house fell down on the owner. The painter declared, “I knew they should have reinforced the standing wall better than they did! It is all their fault!” It turned out that he was referring to co-workers employed by the same construction company.
    
    The owner filed suit for damages against the construction business. He tried to put the statement from the painter into evidence but the defendant objected. Will the court sustain the company's objection to the admission of the painter's statements?

    1. A.Yes, because the painter is not qualified to make such statements regarding non-painting duties.
    2. B.Yes, because the painter is not a participant as a negligent party in the catastrophic mistake that occurred.
    3. C.No, because the painter works for the same company as the negligent workers, and he made his statements within the scope and course of his employment. Correct answer
    4. D.No, because the painter may testify as a subcontractor to what he observed while on the location.

    Hint: The painter was working with a group of construction co-workers and could have obtained detailed information about the failure of the wall.

    Rationale:
    Answer 3 is the correct answer. Rule 801(d)(2)(D) of the Federal Rules of Evidence provides that a statement is not hearsay if it is "offered against an opposing party and ... was made by the party's agent or employee on a matter within the scope of that relationship and while it existed." The painter is an employee and agent of the construction company, and the statement was made while he was acting within the “scope of the agency relationship,” as an employee, since he was on site and acting as a painter. [FRE 801(d)(2)(D)]. See Back v. Nestle USA, Inc., 694 F. 3d 571, 577 (6th Cir. 2012).
    
    See also, Tucker v. Norfolk Western Ry. Co., 849 F. Supp. 1096, 1099 (E.D. Va. 1994) (“. . . [T]he sweep of Rule 801 is not as threatening as it may seem at first blush. It is true that the Federal Rules of Evidence . . . now eliminate the need for the employee to have authority to speak before the employee's statements can constitute an admission by the employer. . . . However, the statement still must be within the scope of the agency or employment of the employee. . . . Employees do not come under Fed.R.Evid. 801(d)(2)(D) unless their job function has something to do with the issue at hand. . . .”
    
    In our hypothetical the lean most strongly toward approving the painter’s testimony because his job did likely have a close connection to the issue at hand because of his working with the construction crew. Answer 1 is incorrect for the foregoing reasons – due to his working with the construction crew and indicating his personal knowledge of the details involved.
    
    Answer 2 is incorrect because the painter does not have to be a participant in the actual negligence. Answer 4 is not correct because the painter was not described as a subcontractor but is instead referred to as an employee of the contractor.

    Need more evidence practice? Evidence MBE practice

31. Q31 A businessperson sent his employee, an administrative assistant, to represent him at a conference where business deals are often negotiated. The principal gave the assistant all...

    A businessperson sent his employee, an administrative assistant, to represent him at a conference where business deals are often negotiated. The principal gave the assistant all of the materials to set up a table with the principal's cards, brochures, promotional materials, price lists and even some order forms with businessperson's logo on them.
    
    In addition, the assistant represented to third parties that she was there officially representing the principal and that she was authorized to execute contracts on his behalf. The assistant negotiated a deal for the businessperson with a third party, which the businessperson refused to honor because he did not like the terms that were negotiated.
    
    Will the third party likely prevail in enforcing the contract against the businessperson?

    1. A.Yes, because the furnishing of the indicia of authority to act to the employee was sufficient proof to bind the principal. Correct answer
    2. B.Yes, because the principal is bound to the employee's actions whenever he sends an employee to attend a convention on his behalf.
    3. C.No, because people dealing with an assistant at a convention have a duty to determine whether that person is in fact an authorized agent.
    4. D.No, because the technological revolution makes it easy these days for a potential customer to first confirm the existence of actual authority.

    Hint: Under these facts, what would be the reasonable perception of the third party who wants to negotiate a deal with the assistant?

    Rationale:
    Apparent authority exists where a reasonable person would understand that the assistant had authority to act. Here, giving the assistant the materials to set up an official table at the convention, barring any unusual qualifying facts, is sufficient to allow a reasonable person to believe that there is actual authority. The principal is thus bound by the agent's actions.
    
    This applies even where actual authority does not exist. It is said that the principal is estopped from denying the agent's authority when the principal has conferred what reasonably appears to be authority to the apparent agent.
    
    See Jarvis v. K & E RE ONE, LLC, 390 SW 3d 631, 640 (TX Ct of Appeals, 5th Dist. 2012). See also, Haviland v. Simmons, 45 A. 3d 1246, 1260 (RI Supreme Ct 2012); Coppola Const. v. Hoffman Enterprises LP, 71 A. 3d 480, 488 (CT Supreme Ct 2013).

    Need more contracts practice? Contracts MBE practice

32. Q32 A witness sees a murder in the park and is called to testify in the criminal case. Can the defense attorney ask her on cross examination about her habit of feeding the pigeons? ...

    A witness sees a murder in the park and is called to testify in the criminal case. Can the defense attorney ask her on cross examination about her habit of feeding the pigeons? The defense knows that she was cited several times for illegally feeding the pigeons.
    
    Defense counsel tries to ask, “You have a longtime habit of feeding the pigeons, don't you? You have in fact been ticketed several times for feeding pigeons, haven't you, and yet you persisted in doing it, isn't that so?" Will the trial court likely allow the witness to be questioned on these matters?

    1. A.No, because the question has no probative value regarding the credibility of the witness or the guilt of the defendant. Correct answer
    2. B.No, because a witness can never be asked about personal prior bad acts.
    3. C.Yes, because the statement indicates that the witness' attention was always focused on feeding the pigeons.
    4. D.Yes, because feeding pigeons in the park and persisting in it after being ticketed may show an antisocial trait of the witness.

    Hint: Would the question be helpful in challenging the witness’ credibility or proving guilt of the defendant?

    Rationale:
    The question has no probative value regarding the credibility of the witness or the guilt of the defendant. There is no issue about feeding pigeons or seeing pigeons that is in the case. The citations are too trivial and immaterial to challenge her credibility.
    
    There is no relevancy to the issues in the murder case. It would also be a far-removed collateral matter that would disrupt the flow of the trial for no good reason. The question would be an impermissible trek into outside territories and would serve no useful purpose of any kind.
    
    See, for example, Kelin v. Aronchick, 85 A. 3d 487, 500 (Pa. Superior Ct. 2014).

    Need more evidence practice? Evidence MBE practice

33. Q33 A dance student worked very hard to strengthen her legs, including performing additional activities such as leaping and bounding up multiple flights of stairs in her apartment b...

    A dance student worked very hard to strengthen her legs, including performing additional activities such as leaping and bounding up multiple flights of stairs in her apartment building. While she was performing her exercises, one of the janitors in the building warned her that “she was bound to get hurt if she keeps it up, because there are problems with the floor.”
    
    After falling and breaking a leg due to a loose floorboard, she brought suit against the building owner. The building owner wants to testify: “The janitor told me, ’I told her that running too fast is dangerous and she was bound to get hurt.'". Is the building owner’s statement likely to be held admissible?

    1. A.Yes, because it is as an exception to hearsay as a spontaneous declaration to an opponent-party.
    2. B.Yes, because the building owner can testify and be questioned about what the janitor told him.
    3. C.No, because it is irrelevant and immaterial.
    4. D.No, because it is hearsay within hearsay, and there are no hearsay exceptions that apply. Correct answer

    Hint: Would permitting the owner to testify about what a third person told him about what that third person said to the dancer be a reliable way to get to the facts?

    Rationale:
    Answer 4 is correct. This is an out-of-court statement quoting another out-of-court statement. In these cases, each statement must fit an exception to the hearsay rule to be admissible. Neither of these falls within any exceptions. Under Fed.R. Evid. 805, hearsay within hearsay is admissible if each part of the combined statements fits an exception to the hearsay rule. See Boren v. Sable, 887 F. 2d 1032, 1035 (10th Cir. 1989).
    
    In addition, with every increased level of hearsay, there is a corresponding decrease in reliability. Every level of hearsay provides another possibility that the declarant inaccurately reported the facts, either intentionally or unintentionally, or misunderstood by the person to whom the statement was made. Id. at 1036. See also, Gross v. Burggraf Const. Co., 53 F. 3d 1531, 1541 (10th Cir. 1995).
    
    Answer 1 is not correct because the circumstances described do not qualify as a spontaneous statement to a party opponent – the building owner was not a party opponent to the janitor. Answer 2 is incorrect because that ignores the problem of double hearsay and does not provide any exceptions to the hearsay rule. Answer 3 is incorrect because the statement can be relevant to what the dancer knew about a dangerous condition, so the statement in Answer 3 is false. The presentation of what the janitor told the dancer is pure double hearsay when presented by the owner in the described manner.

    Need more evidence practice? Evidence MBE practice

34. Q34 A foreign visitor was on trial for kidnapping a small child. The prosecutor stated that the visitor knew the child personally, which is why the child went with him, and that the...

    A foreign visitor was on trial for kidnapping a small child. The prosecutor stated that the visitor knew the child personally, which is why the child went with him, and that the perpetrator knew the child’s parents had money.
    
    The prosecutor called a witness to testify that the perpetrator told the witness “I am looking forward to visiting with the child and his parents. They have a wonderfully luxurious house that I will enjoy staying in.’’ The defense objected to the proposed testimony.
    
    Will the court likely sustain the objection?

    1. A.No, the statement is admissible to impeach the accused and establish he is lying on cross, if he takes the stand.
    2. B.No, the statement can come in as impeachment if the accused takes the stand, and as a party admission to show the material facts of knowing the child and that the family had money. Correct answer
    3. C.Yes, the prejudice of the statement will greatly outweigh its probative value.
    4. D.Yes, the statement is irrelevant to the issue of guilt or innocence.

    Hint: If the information appears to be material to the issues, then the court will tend to let it in.

    Rationale:
    Fed.R.Evid. 801(d)(2)(A) and (B) defines an opposing party's out-of-court statement as non-hearsay. Impeachment is allowed for material issues of the case, and all of the described purposes are material to the case and appropriate uses of a party admission. The statement is not hearsay because perpetrator said it so it is a party admission.
    
    Fed. R. Evid. 801(d)(2) provides that out-of-court statements are admissible if the statements are offered against the party who made them. See FED. R. EVID. 801(d)(2)(A) (deeming admissible statements offered against an opposing party that were made by the party); see also Rodriguez v. Modern Handling Equip. of NJ, Inc., 604 F. Supp. 2d 612, 622 (S.D.N.Y. 2009) (party to lawsuit made statements on OSHA report; they are admissible under 801(d)(2)(B).").

    Need more evidence practice? Evidence MBE practice

35. Q35 A college student initiated a criminal case against his former roommate, claiming the former roommate snuck in and removed his state-of-the-art home theater equipment from his h...

    A college student initiated a criminal case against his former roommate, claiming the former roommate snuck in and removed his state-of-the-art home theater equipment from his house. The college student took the complaint papers that were approved by the prosecution and filed them with a magistrate court.
    
    An ongoing police investigation later determined, however, that the college student was a vengeful person not averse to creating stories, and that he and the former roommate had been arguing over several related issues. They also determined that he never had any quality sound or video equipment. The police dropped the prosecution, and the criminal case was dismissed at the preliminary hearing.
    
    When the former roommate filed a civil case against the college student alleging the tort of malicious prosecution, will evidence of the student’s reputation for dishonesty be admissible and why?

    1. A.Yes, because dishonesty at any time in the past is always relevant to a malicious prosecution complaint.
    2. B.Yes, because even though character evidence is too collateral to be admitted for circumstantial evidence, it is admissible if it is directly at issue in the case. Correct answer
    3. C.Yes, because reputation evidence, just like most character evidence, is virtually always admissible.
    4. D.Yes, because while most character evidence is not admissible, some is, and reputation evidence is always admissible.

    Hint: Will the evidence for dishonesty help in resolving the malicious prosecution issues?

    Rationale:
    Character evidence may be offered when it is relevant to the material facts of the case, including, as here, when the original complainant is now defending himself against an accusation in a civil court of the tort of malicious prosecution, character goes to the college student’s state of mind at the time he caused a criminal case to be filed against the former roommate.
    
    Malicious prosecution in a civil case is proved by showing that a prosecution was maliciously, and without probable cause, instituted against the plaintiff, and has been terminated in the plaintiff's favor. The college student’s character is therefore at issue under these particular facts.
    
    See Federal Rules of Evidence 405. See, for example, US v. Talamante, 981 F. 2d 1153, 1156 (10th Cir. 1992). See also, Bell v. City of Philadelphia, 341 Pa. Superior Ct. 534, 544-45, 491 A. 2d 1386 (Pa Supreme Court 1985).

    Need more evidence practice? Evidence MBE practice

36. Q36 A man who was reportedly a renowned art thief was on trial for stealing several Picassos from a museum. The paintings had been recovered and were in the courtroom. The prosecuti...

    A man who was reportedly a renowned art thief was on trial for stealing several Picassos from a museum. The paintings had been recovered and were in the courtroom. The prosecution presented a professor of art history to authenticate each piece.
    
    The defense objected on the basis that the museum curator where the paintings were housed had to identify if these were in fact the paintings that were stolen. Assuming that others will testify to the fact of the burglary, is the court likely to reject this witness as being qualified to authenticate the paintings in question, and why or why not?

    1. A.Yes, because art works and other physical evidence must be authenticated by their official custodian.
    2. B.Yes, because an outside person may be able to partially authenticate the painting but he can't say whether it is the one that was in the museum or that was stolen.
    3. C.No, granting the objection will simply waste the court's time if the court has to bring in the museum curator and go through hoops to authenticate the paintings.
    4. D.No, because the authentication can be accomplished in several different ways that will verify that it is the genuine piece of art in question. Correct answer

    Hint: Authentication is intended to show that the exhibit is what it purports to be.

    Rationale:
    The details of the burglary will be covered by other testimony separate from the expert testimony on the authentic quality and source of the stolen items. Authentication is satisfied by evidence sufficient to conclude that the matter in question is what its proponent claims, i.e., that a Picasso is indeed an original Picasso. Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (citing Fed. R. Evid. 901(a)).
    
    To meet the 901(a) threshold, the party introducing physical evidence must provide "a basis for the jury to resolve the authenticity question in favor of" that party. United States v. Capers, 61 F.3d 1100, 1106 (4th Cir.1995). A proper foundation may rest on any manner permitted by Federal Rule of Evidence 901(b) or 902. See Fed.R.Evid. 901(b) (providing ten approaches to authentication).
    
    In this case, authentication by someone who can verify the title, subject, and background of the painting would be sufficient. It does not have to be the original artist. The details of the theft will be established by museum employees who are not qualified to testify to the authentic aspect of the paintings. This is the difference between the expert testimony and the fact testimony regarding what happened.

    Need more evidence practice? Evidence MBE practice

37. Q37 A teenage male was on trial on charges of illegally entering an owner’s property and stealing a car. The witness can only confirm for the prosecution that a car was stolen, the ...

    A teenage male was on trial on charges of illegally entering an owner’s property and stealing a car. The witness can only confirm for the prosecution that a car was stolen, the model and type of car, and that it was missing from the property on a certain date.
    
    The defense asks the witness “isn’t it possible that my client did not steal the car, that someone else did it, and that the police are lying about the charges against him?” The prosecution objected to the question.
    
    Will the court likely sustain the objection?

    1. A.Yes, because this is an objectionable question based on pure speculation. Correct answer
    2. B.Yes, because it is not permissible to question the credibility of the police without substantial supporting evidence.
    3. C.No, questioning about the possibility of other perpetrators, or about police misconduct, is always permissible.
    4. D.No, because the witness may know something that he is not revealing and for that reason, a cross-examiner is given wide latitude in questioning.

    Hint: Practical considerations, including usefulness of questioning and common sense come into play in questions like this one.

    Rationale:
    Questions raised on cross examination must relate to evidence or information already on the record. Leading questions are acceptable, but random questions that do not relate to the case, or are speculative, are not allowed. Irrelevant, argumentative and speculative questions are also not productive and are time-wasters.
    
    See People v. Chatman, 42 Cal.Rptr.3d 621, 653-655, 133 P. 3d 534 (CA Supreme Ct 2006). Courts may, within their sound discretion, deny cross-examination if the evidence sought is vague, argumentative, or speculative. State v. Darden, 41 P. 3d 1189, 1193 (WA Supreme Ct 2002).

    Need more evidence practice? Evidence MBE practice

38. Q38 A detective found a footprint from a left-foot shoe at a murder scene. The print was preserved appropriately as evidence. It had distinctive tread marks and an unusual wear patt...

    A detective found a footprint from a left-foot shoe at a murder scene. The print was preserved appropriately as evidence. It had distinctive tread marks and an unusual wear pattern on the sole. It also had a “V” mark on the heel bottom that indicates the brand was a Victory shoe.
    
    The detective, armed with a proper search warrant, searched the suspect’s apartment, where he found a shoe to a right foot that of the same size, and with a similar wear pattern and the same “V” mark as the shoeprint found at the scene. The shoe for the left foot was not found but the shoe for the right foot was seized from the suspect’s closet and offered as evidence at trial.
    
    Is this admissible evidence?

    1. A.Yes, because it is direct evidence of guilt.
    2. B.Yes, because it is appropriate circumstantial evidence of guilt. Correct answer
    3. C.No, because this shoe is irrelevant and will have no residue or other probative evidence relating to it.
    4. D.No, because footprint evidence is highly speculative unless both shoes and shoe prints are offered and authenticated.

    Hint: It is admissible if it permits an inference to be made in order to establish a particular fact.

    Rationale:
    This is admissible circumstantial evidence because it requires one or more inferences to be made in order to conclude that it was the suspect’s shoeprint at the scene. The conclusion associated with the inference must still be proved beyond a reasonable doubt.
    
    Direct evidence is like an eyewitness account — no inference is required – you just have to believe the credibility of the witness. See People v. Farmer, 47 Cal.3d 888, 913, 765 P. 2d 940 (CA Supreme Ct 1989).

    Need more evidence practice? Evidence MBE practice

39. Q39 A pet store owner opened a store in a new town. She was not aware that the city council had recently passed a law prohibiting the sale of cats and dogs from a retail pet store. ...

    A pet store owner opened a store in a new town. She was not aware that the city council had recently passed a law prohibiting the sale of cats and dogs from a retail pet store. The statute had a provision that allowed the pet store to give space to a non-profit humane society to adopt animals from the pet store.
    
    The owner sued the city in federal court, claiming a violation of due process and equal protection under the Fourteenth Amendment. The court used the rational basis test to conclude that the statute served a legitimate state interest and was enforceable.
    
    The pet store owner appealed the decision. Will the appellate court likely affirm the decision of the lower court?

    1. A.Yes, because the pet store owner was not treated differently than any other pet store owner.
    2. B.Yes, because the correct test requires only that the law in question will satisfy any set of facts that could establish a rational basis for achieving legitimate government ends. Correct answer
    3. C.No, the pet store owner has a vested constitutional right to earn a living and that is unreasonably precluded by the law in question.
    4. D.No, because this ordinance is so invidiously discriminatory that it must pass the strict scrutiny test, which it fails to do.

    Hint: Is the pet store owner in a protected class of persons that it deserves strict scrutiny of the ordinance in question?

    Rationale:
    Social and economic regulation is generally subject to rational basis review, and is therefore afforded a presumption of validity. Kittery Motorcycle, Inc. v. Rowe, 320 F.3d 42, 47 (1st Cir.2003).
    
    Under rational basis review, a law requires only some reasonably conceivable set of facts that could establish a rational relationship between the challenged laws and the government's legitimate ends. See Perfect Puppy, Inc. v. City of East Providence, 98 F. Supp. 3d 408, 419-20 (Dist. Ct, D. Rhode Island 2015).
    
    A government's interest in preventing the evils associated with "puppy mills", including inhumane treatment of animals and overpopulation, are plainly legitimate ends of government. Id. 98 F.Supp. at 419.

    Need more constitutional law practice? Constitutional Law MBE practice

40. Q40 The buyer asked a manufacturer to make him 100,000 widgets for $1,000,000. The buyer intended to retail them by mail order sales. The widgets had to have the buyer's logo imprin...

    The buyer asked a manufacturer to make him 100,000 widgets for $1,000,000. The buyer intended to retail them by mail order sales. The widgets had to have the buyer's logo imprinted on them. The manufacturer ordered the raw material and made a new widget mold that contained buyer's logo.
    
    The buyer wanted quick delivery of at least 10,000 right away. The manufacturer rushed the order and sent 10,000 conforming widgets two days later. The buyer paid for the widgets but rejected delivery on the remaining 90,000 widgets.
    
    The manufacturer filed suit and claimed damages for breach of contract. Defendant buyer filed a motion to dismiss the complaint on the basis that the statute of frauds was violated in that it was a contract for over $500 that was unenforceable under state law.
    
    Will the court likely grant the motion to dismiss?

    1. A.Yes, the statute of frauds must be enforced when it involves goods over $500.
    2. B.Yes, the manufacturer did not protect its interests by agreeing to an oral contract and it must pay for its bad business practices.
    3. C.No, because there is an exception for goods that are specially made for a buyer. Correct answer
    4. D.No, the law will enforce the "benefit of the bargain" rule.

    Hint: Circumstances may indicate a contract despite there being no written verification.

    Rationale:
    There are several exceptions to the rule. One is where there is full performance, the defendant will be liable for the balance. Another exception is where the goods were specially manufactured for the buyer.
    
    Another is where the goods could not be sold on the market to others. It is also germane that the manufacturer had already started the manufacturing process and with a special mold made for that purpose.
    
    See, for example, Beautytech, Inc. v. Flageoli Classic Limited, (Dist. Ct. SD Florida 2015).

    Need more contracts practice? Contracts MBE practice

41. Q41 A vehicle operator was driving on a highway at night. His girlfriend was in the passenger seat. They were returning from a college night class. She was smoking marijuana, blowin...

    A vehicle operator was driving on a highway at night. His girlfriend was in the passenger seat. They were returning from a college night class.
    
    She was smoking marijuana, blowing it out the open window, and not sharing it with the driver. The driver fell asleep, causing the car to veer off the highway and go into a ditch where it landed upside-down. Both the driver and passenger were seriously injured.
    
    She sued the operator for negligence. The operator filed a counterclaim asking for damages against the passenger by arguing that the passenger was herself negligent by "smoking weed" and causing him to fall asleep.
    
    Is the court likely to grant the passenger's motion to dismiss the counterclaim?

    1. A.Yes, because the passenger was not actively participating in a joint enterprise and did not do enough to contribute to the cause of the accident. Correct answer
    2. B.Yes, because a vehicle operator is always liable and a passenger cannot be made liable for the driver's actions under any circumstances.
    3. C.No, because the driver has properly alleged a joint enterprise situation where the passenger is liable for her share of the negligence in causing the accident.
    4. D.No, because the passenger was breaking the law, making her negligent per se.

    Hint: Did the passenger encourage the driver to take drugs or to get sleepy?

    Rationale:
    A passenger may be found liable for injuries to others in an accident if the passenger's conduct substantially encouraged or assisted the driver's negligence. Here, there is no possibility of that based on the given facts.
    
    The driver clearly had a duty to stay awake and drive carefully. Breaching that duty by falling asleep dictates an award of damages to the passenger. See, for example, Price v. Halstead, 355 SE 2d 380, 389 (WV Supreme Ct of App 1987).
    
    See also, Restatement (Second) of Torts, § 876(a) and (b) (1977), which may apply in some states, but in all tests the issue is whether the passenger encouraged the negligent behavior.

    Need more torts practice? Torts MBE practice

42. Q42 A regulation prevents persons with a drug arrest and conviction and/or those undergoing current treatment for drug abuse from working in certain state run facilities for the saf...

    A regulation prevents persons with a drug arrest and conviction and/or those undergoing current treatment for drug abuse from working in certain state run facilities for the safety of the general public.
    
    One employee of the department of treasury brought an action claiming a denial of equal protection and due process by taking away his right to a job.
    
    It is claimed that the prohibition is necessary to protect the public from potential problems that could arise.
    
    Which test of constitutional validity would be likely applied to this regulation?

    1. A.Strict scrutiny, since drug users are a special class of persons often discriminated against by the public.
    2. B.Intermediate scrutiny, because, like gender, this can be a sensitive area where discrimination is common.
    3. C.The rational basis test, because discrimination is generally favored with drug users or even those getting treatment.
    4. D.The rational basis test, because the regulation need only be related to a legitimate state interest to be valid. Correct answer

    Hint: What protection would generally be given to persons with drug convictions and/or those who are currently under medical care for a drug addiction problem?

    Rationale:
    The rational basis test is used to review laws and statutes that do not directly impact a suspect class, and do not directly burden a fundamental right. While the right to work is fundamental, the right to work at a given place, as a government or state employee, is not considered a fundamental right.
    
    Those with a history of drug problems would not be given special status or recognized as a protected group. See, Wadsworth v. State, 275 Mont. 287, 301, 911 P.2d 1165, 1173 (Supreme Ct of Montana, 1996). See Treasury Employees v. Von Raab, 489 US 656, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989).

    Need more constitutional law practice? Constitutional Law MBE practice

43. Q43 The owner of a state-licensed massage parlor sued the state for arbitrarily canceling its license and prior business permits to conduct a massage parlor at a given location in t...

    The owner of a state-licensed massage parlor sued the state for arbitrarily canceling its license and prior business permits to conduct a massage parlor at a given location in the city. Due to allegations of illegal activities in other massage parlors not affiliated with this owner, the city canceled the owner's personal license and revoked the business permits. The only information provided was a general notice from the city declaring a new policy on massage parlors that had to be rapidly instituted for the welfare of the community.
    
    She sued the city in federal court, claiming that her business had been taken without just compensation in violation of the Fifth Amendment takings clause. She claimed a lack of procedural due process under the Fourteenth Amendment. The court granted a motion to dismiss based on her not having a property interest that was affected, including in the license and permits. She appealed the decision.
    
    Will the federal Court of Appeals affirm the lower court dismissal of her case?

    1. A.Yes, because there is no right to earning a living under the substantive due process clause.
    2. B.Yes, because the state interest in protecting the public from illegal activities required the state action that was taken.
    3. C.No, because once the parlor had opened with all the proper permits, it could not be deprived of its licenses for any reason until they were up for renewal.
    4. D.No, because she had a property right in her license and permits, which were taken without any procedural due process. Correct answer

    Hint: Does the procedure taken by the city appear to be fair and appropriate and consistent with the standards of society in general?

    Rationale:
    Privileges, licenses, certificates, and franchises qualify as property interests for purposes of procedural due process. See Bowlby v. City of Aberdeen, Miss., 681 F. 3d 215, 220 (5th Cir. 2012.) Once issued, a license or permit "may become essential in the pursuit of a livelihood." Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). They may not be taken away without due process. Bell, 402 U.S. at 539, 91 S.Ct. 1586.
    
    It must be determined whether the process the State provided was constitutionally adequate. Zinermon v. Burch, 494 U.S. 113, 126, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). Due process requires the opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
    
    In most cases, "a meaningful time" means prior to the deprivation of the liberty or property right at issue. Zinermon, 494 U.S. at 127, 110 S.Ct. 975.

    Need more constitutional law practice? Constitutional Law MBE practice

44. Q44 At a yard sale, seller puts out an old etching he inherited from his aunt. He labels it with a price tag of $10. A buyer comes by, fully aware that it is the work of a famous It...

    At a yard sale, seller puts out an old etching he inherited from his aunt. He labels it with a price tag of $10. A buyer comes by, fully aware that it is the work of a famous Italian Renaissance artist, and quietly offers the $10 for an etching he knows to be worth at least $100,000.
    
    When the seller finds out that he made an awful mistake, and that the buyer knew that it was a precious work of art, he sued to get the $100,000 or for return of the etching. The buyer defended by alleging that the seller did not act reasonably to protect himself by knowing what he was selling.
    
    Under the Restatement of Contracts and the majority rule in the case law, will the court grant the buyer's motion to dismiss the seller's complaint?

    1. A.Yes, the seller should have had the items appraised before selling them. The seller always must know the value of what is being offered for sale.
    2. B.Yes, the seller cannot rescind a contract just because he later regrets it; either party may end up with the superior deal depending on luck, knowledge and variety of factors.
    3. C.No, because in some unilateral mistakes, rescission is allowed if there has been an unconscionably unequal exchange of values, and there is no substantial hardship to the other party. Correct answer
    4. D.No, because a party always has a right to rescind a contract where the value of the product or services does not live up to his reasonable expectation.

    Hint: Under modern contract theory, the law will act in some circumstances to bring a fair result or to prevent hardship in appropriate cases.

    Rationale:
    The Restatement says that in unilateral mistake, if enforcing the transaction is (1) grossly unfair, oppressive, or at least, would result in an unconscionably unequal exchange of values; and (2) there is no substantial hardship to the other party, there may be a rescission. It is even more compelling when the buyer knows the true value of the property, thereby suffering no true hardship.
    
    See Gamewell Mfg., Inc. v. HVAC Supply, Inc., 715 F. 2d 112, 117 (4th Cir. 1983), (applying rule of Restatement (Second) of Contracts § 153(a) (1981)). See also, E.A. Farnsworth, Contracts § 9.4 (1982).
    
    See also, In re Marriage of Manzo, 659 P.2d 669, 672 (Colo.1983) (en banc) (Generally, a contract may be rescinded where the party taking advantage of the error knew the true value of the property) Accord, Belk v. Martin, 39 P. 3d 592 (Idaho: Supreme Court 2001) (rescission due to knowledge of the mistake by the other party).

    Need more contracts practice? Contracts MBE practice

45. Q45 A man published a website wherein he billed himself as a crusader for justice and a hero with special powers. He wrote mainly about consumer issues, while acting like a watchdog...

    A man published a website wherein he billed himself as a crusader for justice and a hero with special powers. He wrote mainly about consumer issues, while acting like a watchdog exposing wrongdoers.
    
    He wrote one article about a female preacher with a local church that had no affiliations and only a local blog on the internet. He wrote that she was "conspiring with the devil" to figure out "how to lead people’s minds astray” and to live a nice "sheltered role of pure moral superiority at the expense of inferiors" like himself and his readers. He called the woman's fashion Medieval and her hair style was like a bag of "hot wires ready to electrocute anyone who dares come too close."
    
    The preacher was not amused, and she filed a defamation action claiming libel per se and demanding damages along with an injunction against the web site. The defendant filed a motion to dismiss. Will the court likely grant the motion to dismiss?

    1. A.Yes, because the defendant was expressing opinions more than factual assertions, and opinions in this context are constitutionally protected. Correct answer
    2. B.Yes, because statements about religious beliefs or practices cannot be the subject of private defamation actions.
    3. C.No, because the preacher's allegations are based on serious factual distortions that will destroy her career if she doesn't get protection.
    4. D.No, because a defamation action cannot be subject to a motion to dismiss – the plaintiff is always entitled to present evidence to prove the tort.

    Hint: Does the article lean toward sarcasm, irony and other exaggerated or hyperbolic material?

    Rationale:
    The courts have developed the doctrine of constitutionally protected opinion. Gertz v. Robert Welch, 418 U.S. 323, 339-40 (1974) (“There is no such thing as a false idea.”). See, e.g., Ollman v. Evans, 750 F.2d 970 (D.C.Cir.1984) (en banc), cert. denied, 471 U.S. 1127, 105 S.Ct. 2662, 86 L.Ed.2d 278 (1985) (determining statements of fact from statements of opinion).
    
    Courts have held that the doctrine of constitutionally protected opinion requires an examination of the "totality of the circumstances" surrounding an alleged defamation. Information Control Corp. v. Genesis One Computer Corp., 611 F.2d 781 (9th Cir.1980).
    
    Generally, an expression of pure opinion is not actionable. It receives First Amendment protection accorded to the expression of ideas, no matter how vituperative or unreasonable it may be. Expressions of an opinion, false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions. See McCabe v. Rattiner, 814 F. 2d 839, 843 (1st Circ. 1987) (context, first person narratives, imprecise and unverifiable statements, lead to opinion and not fact).

    Need more torts practice? Torts MBE practice

46. Q46 A retailer agreed to purchase an orchard's total cherry production for a 12-month period. The contract included this provision: "Terms: Cash upon delivery — deliveries to be mad...

    A retailer agreed to purchase an orchard's total cherry production for a 12-month period. The contract included this provision: "Terms: Cash upon delivery — deliveries to be made at least twice per month." The deliveries went as scheduled.
    
    At the beginning of the fifth month, the orchard sent notice to the retailer that a load of cherries was ready for pick up. The truck driver, however, forgot to take the retailer's check with him. The orchard turned over the cherries but advised the retailer to pay within three days.
    
    The retailer sent the check by mail but it arrived late by two days. The orchard refused to deliver any more cherries. The retailer sued the orchard for breach of the installment contract and demanded the difference in price between the cherries on the open market and what he would have paid under the contract.
    
    The orchard claimed that the delayed payment impaired the value of the contract and moved to dismiss. Will the court grant the orchard's motion to dismiss?

    1. A.Yes, the agreement called for cash at delivery, which was not done when the driver forgot to deliver the check.
    2. B.Yes, the failure to make an installment on time was a breach because time is of the essence in all installment agreements.
    3. C.No, there is always a grace period of ten days for any single payment pertaining to an installment contract.
    4. D.No, the delay in one payment under these facts was not enough to impair the value of the contract under the Uniform Commercial Code. Correct answer

    Hint: The seller may stop performance on the contract if the delayed payment impaired the value of the whole contract.

    Rationale:
    An installment contract is an agreement to purchase items on a periodic basis over a length of time. The buyer usually makes payments as each delivery of goods is received.
    
    Generally, a non-breaching party to an installment contract may cancel the contract only when a breach or cumulative breaches substantially impairs the value of the entire contract. See U.C.C. Section 2-612. In order to find a breach, the nonperformance would normally go beyond a slight delay in one installment. See U.C.C. § 2-612(3).
    
    The record must show some evidence of impairment of the value of the whole contract, which does not exist in this case. See Dangerfield v. Markel, 252 NW 2d 184, 192 (ND Supreme Ct 1977). Also, time is not generally the essence of the agreement and one payment would not generally establish a breach. See, Laredo Hides Co., Inc. v. H & H Meat Products Co., Inc., 513 SW 2d 210, 216-217 (1974).

    Need more contracts practice? Contracts MBE practice

47. Q47 Two women lived in a one-bedroom house with 20 dogs. A dog-walker who entered the house was appalled by their deplorable living conditions. The animals' excrement was deposited ...

    Two women lived in a one-bedroom house with 20 dogs. A dog-walker who entered the house was appalled by their deplorable living conditions. The animals' excrement was deposited throughout the house, they were kept in tiny pens, and some of the animals were sick. The visitor called the SPCA, a private non-profit humane society.
    
    State law authorized humane societies to receive abused or neglected animals from animal control officers, to care for them and adopt them out. The SPCA took the animals designated by the officers. The officers then arrested the women for animal neglect.
    
    At a hearing, the prosecutor was unprepared, and the judge dismissed the charges. The women then sued the officers and the SPCA under 42 U.S.C. § 1983 for civil rights violations. The SPCA defendants filed a motion to dismiss based on the absence of the "state action" on their part.
    
    Will the court likely grant the motion to dismiss?

    1. A.Yes, because there was nothing that was done by the humane society that involved police action.
    2. B.Yes, because the SPCA personnel did not at any time act “under color of law” in their actions.
    3. C.No, because the SPCA was organized under a non-profit certificate of incorporation that was issued by the state.
    4. D.No, because the SPCA acted under the authority of the state statute and cooperated with state authorities to perform the authorized functions. Correct answer

    Hint: Was the private conduct so entwined with a governmental character that it became in essence state action?

    Rationale:
    The “state action” requirement of the civil rights statutes requires action done under "color of law," as opposed to private action. However, private action may become so entwined with governmental policies or so impregnated with a governmental character that it can be regarded as governmental action. Rendell-Baker v. Kohn, 457 U.S. 830, 847, 102 S.Ct. 2764, 73 L.Ed.2d 207*207 418 (1982).
    
    But a private entity does not become a state actor merely on the basis of "the private entity's creation, funding, licensing, or regulation by the government." Cranley v. Nat'l Life Ins. Co. of Vt., 318 F.3d 105, 112 (2d Cir.2003). Rather, there must be a close nexus between the state and the challenged action. Id. at 111.
    
    Here, this is state action because the SPCA was part of the state function of animal control delegated to the SPCA by state law.

    Need more constitutional law practice? Constitutional Law MBE practice

48. Q48 A tenant's four-year old daughter fell from a second-floor outdoor stairway at their apartment building. The tenant sued the landlord for negligent construction and maintenance ...

    A tenant's four-year old daughter fell from a second-floor outdoor stairway at their apartment building. The tenant sued the landlord for negligent construction and maintenance of the stairway, steps, and railing. The stairs were built on a dangerously steep incline, the steps were loose, and the railing was insufficient to keep the baby from falling over the side.
    
    The jury found that the landlord was negligent in the design and construction of the stairs and in failing to maintain the stairs, steps and railing in a safe condition. The landlord appealed on the basis of immunity from suit and the failure of the tenant to assert any exception to landlord immunity.
    
    Under the modern rule, will the appellate court affirm the jury's verdict against the landlord?

    1. A.Yes, the landlord is strictly liable for the abnormally dangerous condition that he knowingly allowed to exist.
    2. B.Yes, the modern rule is that the landlord, like anyone else, has a duty to use due care to protect its tenants and others from injury caused by a foreseeable risk of harm. Correct answer
    3. C.No, because the landlord still enjoys the common law protection of the doctrine of "lessee beware," and residential property is generally still rented "as is."
    4. D.No, because a landlord cannot be held liable for negligent design or maintenance, even under the modern rule.

    Hint: The modern rule sent landlord immunity to the history books.

    Rationale:
    At common law property was rented as is, and the rallying call was "buyer beware." Generally, landlords can now be liable for regular negligence principles in exposing tenants to unsafe conditions. This is closely related to the implied warranty of habitability that is now generally imposed on landlords.
    
    See Sargent v. Ross, 113 NH 388, 308 A.2d 528 (N.H. Supreme Ct. 1973), which is a landmark case that started the trend of rulings from state courts that imposed general tort liability on landlords.

    Need more torts practice? Torts MBE practice

49. Q49 The state constitution in one state guaranteed the right to marry to same-sex and opposite-sex couples alike. A political group got a proposition on the ballot, and a majority o...

    The state constitution in one state guaranteed the right to marry to same-sex and opposite-sex couples alike. A political group got a proposition on the ballot, and a majority of the people voted to eliminate the right of same-sex couples to marry. The proposition did not affect any of the other rights that same-sex couples may have possessed from existing state law.
    
    Persons affected sued the state government for unconstitutionally taking away the rights that they had and doing it for no legitimate purpose, in violation of the due process clause of the Fourteenth Amendment. Will the court grant the requests of the lawsuit and declare the proposition void and reinstate the rights of same-sex couples to marry?

    1. A.Yes, under the due process clause no compelling state interest justifies denying same-sex couples the fundamental right to marry. Correct answer
    2. B.Yes, because under the Fourth Amendment it would be an illegal interference against the right of privacy guaranteed to everyone.
    3. C.No, because the people voted to take a provision out of the existing constitution and when that is done by public vote it cannot be altered.
    4. D.No, because the ballot proposition was properly placed on the ballot and all statutory procedures were followed, thus precluding the courts from taking adverse action.

    Hint: Can a vested constitutional right be taken away by a majority vote?

    Rationale:
    Answer 1 is the correct selection. A vested constitutional right cannot be taken away by a majority vote of a state’s voters. The 14th Amendment of the United States Constitution guarantees due process of law before the government can deprive an individual of life, liberty or property and it prevents a state from ''enforcing, facilitating, encouraging or authorizing such private discrimination." It also guarantees equal protection of the law, which was denied by this referendum by the act of singling out a disfavored group for unequal treatment and stripping them, without a legitimate justification, of a right as important as the right to marry.
    
    The foregoing reasoning and the full recognition of the constitutional right of same-sex couples to marry was mandated in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), where the Court held that, “[T]he right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry . No longer may this liberty be denied to them. ”) Id. 135 S. Ct. at 2604-05.
    
    Answer 2 is incorrect because the Fourth Amendment (example: right to privacy and protection from improper search and seizure) is not relevant to this constitutional mandate, as explained above.
    
    Answer 3 is incorrect because even a public vote cannot overrule the constitution and impose severe deprivations of liberty and equal protection on a group that was in the past disfavored for arbitrary reasons.
    
    Answer 4 is incorrect because the placing of an unconstitutional provision on the ballot is a void act regardless of whether the specified statutory procedure was followed to place the issue on the ballot. The Supreme Law of the land is set forth in the interpretational decisions of the Supreme Court and neither the legislature nor a majority of voters can legitimately pass a law that intends to supersede the Constitution.

    Need more constitutional law practice? Constitutional Law MBE practice

50. Q50 Two companies, a construction company and a landscaping firm, got into a contract dispute over the nature of landscaping services that had to be provided to the construction com...

    Two companies, a construction company and a landscaping firm, got into a contract dispute over the nature of landscaping services that had to be provided to the construction company. The landscaping firm was incorporated in New York and did all of its business in that state. The construction company was an LLC that had been filed in New York, with its members being domiciled in Pennsylvania, Vermont and Virginia.
    
    The landscaping firm filed a breach of contract claim in federal court in New York claiming diversity jurisdiction with an amount in dispute that was in excess of $100,000. The construction firm filed a motion to dismiss, claiming the landscaper-plaintiff did not have diversity jurisdiction.
    
    Will the court likely grant the motion to dismiss?

    1. A.Yes, there is clearly no diversity in that the construction company LLC and the landscaper corporation were both registered and filed in New York, making them citizens of the same state.
    2. B.Yes, because diversity must be between natural citizens and business entities are not entitled to diversity but must find some other reason for federal jurisdiction.
    3. C.No, the motion to dismiss is premature and must wait until all discovery is completed before it will be considered.
    4. D.No, the plaintiff is a citizen of New York and the three members of the LLC are each from a different states, which gives complete diversity of citizenship. Correct answer

    Hint: Is the rule for determining complete diversity of an LLC different from the rule of citizenship applying to a business corporation?

    Rationale:
    Answer 1 would be correct if both entities were corporations but a different rule of citizenship applies under federal law if one of the parties is an LLC. The citizenship of an LLC is determined by the citizenship of its members. For complete diversity to exist, all of the LLC's members must be diverse from all parties on the opposing side.
    
    See Lincoln Ben. Life Co. v. AEI LIFE, LLC, 800 F. 3d 99, 104-05, (3rd Cir. 2015). Accord, Cosgrove v. Bartolotta, 150 F.3d 729, 731 (7th Cir. 1998) (“the citizenship of an LLC for purposes of diversity jurisdiction is the citizenship of its members. ”) See also, Onepoint v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007) (“Complete diversity of citizenship exists where no defendant holds citizenship in the same state where any plaintiff holds citizenship.
    
    In the hypothetical, the members of the LLC are from three separate states and the corporation is from a fourth different state making this a proper case of complete diversity of citizenship. Answer 2 is an incorrect statement of law in that business entities may also take advantage of the diversity laws.
    
    Answer 3 is incorrect because a motion to dismiss based on a claim of no jurisdiction may be filed at any time. This leaves Answer 4 as the correct answer based on the facts and law pertaining to this factual scenario.

    Need more civil procedure practice? Civil Procedure MBE practice

Build your MBE study plan

Use this test as part of a broader MBE practice loop: start with free bar exam questions, review a daily question, then drill weak subjects until your score is stable across all seven MBE areas.

• Civil Procedure MBE practice
• Constitutional Law MBE practice
• Contracts MBE practice
• Criminal Law and Procedure MBE practice
• Evidence MBE practice
• Real Property MBE practice
• Torts MBE practice