mbe mixed review

Question 1

Torts

Answer 1

An actor is subject to liability to another for false imprisonment if (a) he acts intending to confine the other or a third person within the boundaries fixed by the actor and (b) his act directly or indirectly results in such a confinement of the other, and (c) the other is conscious of the confinement or is harmed by it.

Question 2

Torts

Answer 2

The essence of a private nuisance is an interference with the use and enjoyment of the land. The ownership or rightful possession of land necessarily involves the right not only to unimpaired conditions of the property itself but also to some reasonable comfort and convenience in its occupation…it is important to distinguish between nuisance, which is an interference with one’s use and enjoyment of land and trespass which is an invasion of plaintiff’s interest in the exclusive possession of land.

Question 3

Torts

Answer 3

Self Defense: “An actor is privileged to use reasonable force not intended or likely to to cause death or serious bodily injury, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believed that another is about to inflict intentionally upon him. Further, a reasonable mistake as to the existence of danger does not violate the defense.

Question 4

Torts

Answer 4

IIED: the extreme and outrageous character of the conduct may arise out of the actor’s knowledge that the other s particularly susceptible to emotional distress by reason of some physical or mental condition or peculiarity. The conduct may become heartless, flagrant and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know. It must be emphasized, however, that major outrage is essential to the tort; and the mere fact that the actor knows that the other will regard the conduct as insulting or have his feelings hurt is not enough.

Question 5

Torts

Answer 5

One who sells any product in a defective condition unreasonably dangerous to the use or consumer or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

Question 6

Torts

Answer 6

Mistake is no defense for intentional trespass

Question 7

Torts

Answer 7

Where the defendant’s negligence causes only mental disturbance, without accompanying physical injury, illness or other physical consequences and in the absence of some independent basis for the tort liability, the great majority of courts still hold that there can be no recovery.

Question 8

Torts

Answer 8

As a general rule of thumb, if the defendant (in a tort action) is a seller, manufacturer or distributor of defective products, then the proper case of action is strict liability. Otherwise, it will generally be negligence action action (unless the facts indicate some other tort basis)

Question 9

Torts

Answer 9

With regard to negligence, there has been a dispute as to whether the retailer of goods manufactured by another is under a duty to inspect them before sale, to discover defects of which he does not know…”in any case where the nature of the goods themselves makes it more likely that defects will lead to serious injury, something more careful than such causal examination will be required, and if there is any special reason to believe that he particular product may be defective, very thorough inspection may be required before it is sold.

Question 10

Torts

Answer 10

As a general rule, comparative negligence statutes have the effect of apportioning damages based on the parties respective degrees of fault…As a result plaintiff’s recovery will be diminished in proportion to his negligence.

Question 11

Torts

Answer 11

A common carrier (bus, plane, etc.) may be held vicariously liable for the intentional tort of its passengers.

Question 12

Torts

Answer 12

One who sells any product in a defective condition unreasonably dangerous to the user of consumer or his property is subject to strict liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, ad (b) it is expected to and does reach the user without substantial change in the condition in which it is sold.

Question 13

Torts

Answer 13

One who carries on an abnormally dangerous activity is subject to liability for that harm to the person, land, or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. Thus, strict liability is limited to the kind of harm, the possibility of which makes the activity normally dangerous.

Question 14

Torts

Answer 14

One carrying on an abnormally dangerous activity is subject to strict liability for the resulting harm although it is caused by the unexpectable (a) innocent negligent or reckless conduct of a 3rd party, or (b) action of an animal, or (c) operation of force of nature.

Question 15

Torts

Answer 15

One who acts negligently and engangers only himself is als liable for the resulting injuries of anyone who undertakes to rescue him.

Question 16

Torts

Answer 16

in a claim for conversion the plaintiff may recover the fair market value of the converted item

Question 17

Torts

Answer 17

An independent contractor is liable for his own torts. An exception would exist in a case where the contractor is carrying out an inherently dangerous activity on the property of his employer. (in which case employer would have a non-delegable duty to foreseeable plaintiffs)

Question 18

Torts

Answer 18

In cases of NIED most courts today would allow stand-alone emotional harm to be recoverable where there has been a breach of duty, the person affected had a special relationship to the person to whom the duty was owed and the emotional suffering was severe.

Question 19

Torts

Answer 19

Private nuisance is a condition or activity that interferes with a landowner’s use and enjoyment of his land. to such an extent that the landlord cannot reasonably be expected to bare the condition without being compensated. the scope of the interference is personal discomfort to the occupants or tangible harm to the property resulting in diminution of its market value. Nuisance does not require proof of negligence, just proof of actual damages.

Question 20

Contracts

Answer 20

A past transaction which creates no duty at all upon the promisor, though it may have been inducing cause of his promise, is insufficient consideration (gratuitous) and the subsequent promise is void.

Question 21

Contracts

Answer 21

The delegation of duties (or assignment of rights) will not discharge the assignor’s liability under the terms of the contract. Only a novation consented to by the obligor will have this effect.

Question 22

Contracts

Answer 22

As a general rule, where the offeree begins the performance contemplated he thereby impliedly promises to complete it. However, in order that the act of part performance may be treated as implying a promise to complete the following requirements must be met: (1) the offer was for an entire contract, and not for a series of separate contracts; (2) that what is begun must be a part of the actual performance bargained for, and not mere preparation for performance; (3) such implied acceptance must be communicated to the offeror or he must have had knowledge of it.

Question 23

Contracts

Answer 23

Under restatement 2nd (common law) an express promise to pay all or part of an indebtedness of the promisor, discharged or dischargeable in a bankruptcy proceeding begun before the promise is made, is binding [without additional consideration]

Question 24

Contracts

Answer 24

Generally, the parol evidence rule provides that when a contract is expressed in writing which is intended to be the complete and final expression of rights and duties of the parties, parol evidence, of prior oral or written negotiations or agreements of the parties or of their contemporaneous agreements, which varies or contradicts the written contract is not admissible. However, parol evidence is admissible to show that a condition did not occur (and therefore no contract was formed).

Question 25

Contracts

Answer 25

Where a party to a contract for an agreed exchange of performance knowingly prevents, hinders or makes more costly the other's performance, such conduct is a breach of contract for which an action will lie. The breach is of implied promise against prevention (promise not to get in the way)

Question 26

Contracts

Answer 26

There must be a meeting of the minds in order for there to be mutual assent to the same bargain at the same time.

Question 27

Contracts

Answer 27

"course of dealings," "trade usage," "course of performance," are UCC considerations and cannot be added to supplement terms of a contract governed by the common law.

Question 28

Contracts

Answer 28

According to the UCC, a seller may resell goods after the buyer has repudiated or breached the contract. where the resale is made in good faith and in a commercially reasonable manner the seller may recover the difference between the resale price and the contract price together with incidental damages.

Question 29

Contracts

Answer 29

In accordance with the UCC, an offer by a merchant to buy or sell goods in a signed writing which by its terms gives assurance that it will behalf open is not revocable, fr lack of consideration during the time stated, or if no time is stated then for a reasonable ie, bit in no event may such period or irrevocability exceed 3 months (90 days); but any such term of assurance on a form supplied by the offeree must be separately signed by the offeror.

Question 30

Contracts

Answer 30

Pursuant to the UCC, on rightful rejection or justifiable revocation of acceptance a buyer has a security interest in goods in his possession or control for any payments made on their price and any expenses reasonably incurred in their inspection receipt, transportation, care and custody and may hold such goods and resell them in like manner as an aggrieved seller...Buyer's right to resell at a private sale exists only if the seller is given reasonable notice.

Question 31

Contracts

Answer 31

The mailbox rules does not apply to make acceptance effective upon dispatch when the offeror specifically requests performance as acceptance.

Question 32

Crim Law

Answer 32

Failure to seek medical attention for an illness [usually of a child or someone in the defendant's care] is generally insufficient for the finding of malice aforethought. such criminal negligence would result in an involuntary manslaughter.

Question 33

Crim Law

Answer 33

In larceny cases, courts will presume that a statute requires an intentional act on the part of the defendant. Larceny is specific intent crime.

Question 34

Crim Law

Answer 34

Robbery is defined at common law as the taking, by force or threat of force, of personal property of another with intent to permanently deprive the owner of the property. there must be a nexus between the use or threat of force and the taking.

Question 35

Crim Law

Answer 35

Burglary is defined at common law as the breaking and entering into the dwelling of another with intent to commit a felony therein.

Question 36

Crim Law

Answer 36

Burglary requires that the perpetrator break and enter a building with the intent of committing a felony therein. when a store is open to the public there can be no breaking.

Question 37

Crim Law

Answer 37

A charge of conspiracy requires that there exist an agreement that a crime be committed and that at least 2 of the co-conspirators intended that the crime be committed.

Question 38

Crim Law

Answer 38

Attempt consist of (1) an intent to do an act or bring about certain consequences which would in law amount o a crime; and (2) an act in furtherance of that intent which goes beyond mere preparation

Question 39

Crim Law

Answer 39

Intoxication (whether voluntary or involuntary) negates the mental state requirement/intent element necessary to commit a specific intent crime (so long as intent wasn't manifested prior to the intoxication).

Question 40

Crim Law

Answer 40

The traditional definition of conspiracy requires (1) an agreement between 2 or more persons (which constitutes the act) and (2) an intent to achieve a criminal or unlawful objective.

Question 41

Crim Law

Answer 41

There are 3 distinct ways of committing a (criminal) battery: (1) where the defendant acts (or omits to act) with intent to injure; (2) where he or she acts with criminal negligence but has no intent to injure; 93) where the defendant commits an unlawful act (that does not amount to criminal negligence) where bodily injury results

Question 42

Crim Law

Answer 42

Reckless endangerment is defined as placing another person in danger of death or serious bodily injury...usually reckless endangerment occurs when defendant points a firearm at or in the direction of another. if however, the defendant discharges the gun and the bullet strikes the victim, then the crime is battery.

Question 43

Crim Pro

Answer 43

The supreme court has held that "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police that the police should know or should have known are reasonably likely to elicit incriminating response from the suspect.

Question 44

Crim Pro

Answer 44

The supreme court has held that multiple representation in the sense that the same counsel actively represented 2 defendants charged with the same crime does not violate the 6th Amendment unless it gives rise to a conflict of interest. the court further states that since a conflict of interest inheres in almost every instance of multiple representation, a defendant who objects to it must have the opportunity to show a potential conflict which imperils his right to a fair trial.

Question 45

Crim Pro

Answer 45

The supreme court held that self-incrimination guarantee of the 5th Amendment as applicable to the states under the 14th Amendment, forbids either comment by the prosecution of an accuse's silence or instructions by the court that such silence if evidence of guilt.

Question 46

Crim Pro

Answer 46

When a police officer has made a lawful custodial arrest of the occupant of an automobile, the police officer ay, as a contemporaneous incident of arrest, search the passenger compartment of that automobile.

Question 47

Crim Pro

Answer 47

A suspect may waive his rights as long as the waiver was knowingly, voluntarily and intelligently made by the suspect.

Question 48

Crim Pro

Answer 48

A person's expectation of privacy in personal luggage are substantially greater than in an automobile..when the circumstances are sufficiently "exigent" to allow the police to make a warrantless seizure of personal property, this does not permit the far greater intrusion of examining the contents thereof but only the continued possession of personal effects while a warrant is sought

Question 49

Crim Pro

Answer 49

A random stopping of vehicle on the highway where the officer has no suspicion of wrongdoing is unconstitutional because it leaves too much discretion in the police officer.

Question 50

Crim Pro

Answer 50

Reprosecution following dismissal by the judge upon the defendant's motion which does not constitute an acquittal on the merits is not prohibited by the double jeopardy clause.

Question 51

Crim Pro

Answer 51

Absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony unless he was represented by counsel.

Question 52

Crim Pro

Answer 52

The right to jury exists whenever the accused faces a sentence of possibly more than six months.

Question 53

Evidence

Answer 53

Hearsay is defined as an out of court statement offered for the truth of the matter asserted. Hearsay is inadmissible without an exception

Question 54

Evidence

Answer 54

A statement made for the purpose of medical diagnosis or treatment must describe medical history, or past or present symptoms, pain or sensations or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. However, statements pointing to persons responsible or the condition are considered irrelevant to medical diagnosis or treatment and do not fall within the hearsay exception.

Question 55

Evidence

Answer 55

Generally, the prior consistent statements of a witness are not admissible to support the witness's testimony at trial. However, where the testimony of a witness is assailed as a recent fabrication it may be confirmed by proof of declarations of the same tenor before the motive to falsify existed

Question 56

Evidence

Answer 56

A written statement made out of court, by a non-party, which is offered for the truth of the matter asserted is hearsay.

Question 57

Evidence

Answer 57

A witness may refer to collateral documents (documents that have no probative value for the issues at trial) without providing the documents themselves

Question 58

Evidence

Answer 58

Evidence of peaceful, non-violent character, if presented in the form of reputation evidence, is relevant to show the unlikelihood of attacking another without provocation.

Question 59

Evidence

Answer 59

A witness may invoke the 5th Amendment to avoid incriminating himself in criminal wrongdoing and subjecting himself to possible criminal sanctions.

Question 60

Evidence

Answer 60

When a defendant is granted immunity (to testify without incrimination), any evidence that is found solely as a result of defendant's testimony is inadmissible.

Question 61

Evidence

Answer 61

Prior inconsistent statements given by a witness who is subject to cross examination on the stand can be used both for impeachment and as substantive evidence if the prior statements were given under oath, and under penalty of perjury.

Question 62

Evidence

Answer 62

Settlement offers are inadmissible. Evidence of conduct or statements made in compromise negotiations is also inadmissible (non-severable)

Question 63

Evidence

Answer 63

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's character for truthfulness may not be proved by extrinsic evidence.

Question 64

Evidence

Answer 64

The doctor-patient privilege is held by the patient, not the physician. Only the patient, or a lawyer acting on the patient's behalf, has the right to invoke and waive the privilege.

Question 65

Evidence

Answer 65

Leading questions are generally not permitted if they are asked on direct examination of a disinterested witness

Question 66

Evidence

Answer 66

A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition is admissible as present sense impression exception to hearsay

Question 67

Evidence

Answer 67

When a defendant is on trial for a crime (in this case it was armed robbery), evidence of his commission of other crimes in inadmissible against him because its much more prejudicial than probative.

Question 68

Evidence

Answer 68

Reply Letter Doctrine states that a writing may be authenticated by evidence that it was written in response to a communication sent to the claim author

Question 69

Evidence

Answer 69

An affidavit made/signed by a now deceased witness is inadmissible hearsay

Question 70

Evidence

Answer 70

A party may challenge a [expert] witness's qualifications when the challenge is relevant to the weight given to the witness's opinion

Question 71

Evidence

Answer 71

Extrinsic evidence that is used to prove/disprove a collateral matter is inadmissible because it is irrelevant.

Question 72

Evidence

Answer 72

A leading question is one that suggests a an answer, and such are objectionable on direct examination

Question 73

Evidence

Answer 73

Non-responsive Answer: a witness's response may be stricken as non-responsive if it goes beyond the scope of the specific question that has been asked.

Question 74

Evidence

Answer 74

Authentication: oral statements must be authenticated in cases where identity of the speaker is important. statements made over the phone can be authenticated by testimony as to one of he following (1) the witness recognizes the speakers voice; (2) the speaker has knowledge of certain facts that only a particular person would have; or (3) the speaker has identified himself

Question 75

California Evidence

Answer 75

CEC: Hearsay is excluded from Proposition 8 and so ordinary rules of evidence apply to hearsay in criminal cases.

Question 76

Evidence

Answer 76

Speculation: An examining may not ask a witness to speculate or hypothesize as to the existence of meaning of a fact.

Question 77

Evidence

Answer 77

Lay Opinion: An opinion by a lay witness is, generally, inadmissible, except when it is (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness's testimony or to the determination of material fact.

Question 78

Evidence

Answer 78

Statements made for purposes of medical diagnosis or treatment and statements describing medical history, or past or present symptoms, pain or sensations or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment are exceptions to the hearsay rule and are admissible.

Question 79

Evidence

Answer 79

An admission by a party opponent can take the form of any statement that is adopted by the party opponent and the admission is specifically excluded from the definition of hearsay.

Question 80

Con Law

Answer 80

Congress, as an aspect of its broad power over immigration and naturalization, enjoys rights to distinguish among aliens that are not shared by the states

Question 81

Con Law

Answer 81

Non-content neutral regulation, such as requiring that signs only relate to advertising the business of the owner-occupant, receives strict scrutiny review and will likely be struck down.

Question 82

Con Law

Answer 82

The house has unreviewable power to determine the residency, age and citizenship of its members. Such questions presented before a court would constitute a non-justiciable political question

Question 83

Con Law

Answer 83

Allowing "unfettered discretion" in local officials in the regulation of the use of streets is unwarranted abridgment of one's freedom of speech and assembly as secured by the first amendment and applied to the state by the 14th

Question 84

Con Law

Answer 84

A person asking a court to hold a statute unconstitutional must be able to show, not only that the statute is invalid but that "he has sustained or is immediately in danger of sustaining some direct injury as a result of its enforcement." if the statute has yet to take effect at the time of the suit then the claim will be deemed unripe.