MBE Questions I Miss

Question 1

What happens when a party does not rebut a rebuttable presumption in trial?

Answer 1

a rebuttable presumption that has not been rebutted must be given preclusive effect. The trier of fact does not have a choice in such case as to whether to apply the presumption

Question 2

For a state to restrict fighting words, what must the state be careful not to do?

Answer 2

while the state may be able to restrict fighting words, it cannot restrict fighting words that express only certain viewpoints

Question 3

M’Naghten test

Answer 3

a defendant is not guilty if he does not know the nature, quality, or wrongfulness of his act because of his mental disease.

Question 4

A conviction may not be used for impeachment purposes if the witness has been pardoned, provided that either

Answer 4

(i) the action was based on a finding of innocence; or (ii) the witness has not been subsequently convicted of another felony.

Question 5

For a past criminal conviction, less than 10 years old, have to involve dishonesty or false statement to be admitted against a witness?

Answer 5

No

Question 6

When removal is based solely on diversity jurisdiction, the action may or may not be removed if the defendant is a citizen of the state in which the action is filed?

Answer 6

may NOT

Question 7

Wharton Rule

Answer 7

requires that a conspiracy have more parties than are necessary to complete the crime

Question 8

Must a lawyer be present with client during ID line-up?

Answer 8

If pre-indictment (before 6th A right to counsel attaches), then NO. There’s no 5th A right to counsel at line-ups so right doesn’t attach until critical stage, with SC says isn’t a pre-indictment line-up

Question 9

If judge grants summary judgment but doesn’t decide issue of damages, is this considered final for appellate purposes?

Answer 9

No - damages left undecided keeps it from being final.

Question 10

May an attorney rely on discovery as a means to support a claim?

Answer 10

Yes - as long the attorney believes he will discover the necessary information in discovery

Question 11

Is the “intelligible principle” standard hard to meet re delegating powers?

Answer 11

no - almost all pass

Question 12

When is notice required for class action lawsuits

Answer 12

only required under 23b(3) class actions, not 23b(1)

Question 13

When does class action fairness act apply?

Answer 13

when damages are at least 5 mill

Question 14

larceny by trick

Answer 14

A person who obtains possession of, but not title to property owned by another by lies, with the intent to permanently deprive the victim of that property and resulting in the conversion of the property, is guilty of larceny by trick.

Question 15

Embezzlement

Answer 15

requires that the embezzler have been in lawful possession of the property at the time the intent to defraud occurs.

Question 16

false pretenses

Answer 16

false pretenses requires title to the property to pass from the victim to the defendant

Question 17

Do D’s have reasonable epectation of privacy over bank records?

Answer 17

no

Question 18

A state (or the federal government) may not require a person on whom a criminal penalty would be imposed (e.g., a defendant) to disprove an element of the offense. Give example:

Answer 18

If ability to make child support payments is an element of criminal contempt, rather than inability to pay being an affirmative defense, state cannot require father to prove his inability to pay. It’s state’s burden to show ability!

Question 19

What are the tree permissible authorized forms of service in federal court

Answer 19

Federal Rules authorize service only on a defendant personally, on a person of suitable age and discretion at defendant’s usual abode, or on an agent authorized by a defendant or by law to receive service

Question 20

Can state law service of process be used in fed court?

Answer 20

yes

Question 21

Can a statement taken in violation of Miranda ever be used?

Answer 21

Yes but only for impeachment

Question 22

What experts. do you not have to tell the opponent about?

Answer 22

Experts who are not expected to be called as a witness at trial generally need not be identified in discovery, regardless of whether the manufacturer specifically requested the identity of all experts consulted through an interrogatory.

Question 23

does a defendant need min contacts with state for their property to be levied there based on other state’s judgment?

Answer 23

NO

Question 24

What does the enabling clause do?

Answer 24

Enabling Clause of the Fourteenth Amendment permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the amendment

Question 25

What defense must a D have in order to introduce rep or op testimony about V’s character

Answer 25

self defense

Question 26

When must D respond to P’s amended complaint?

Answer 26

14 days after it’s served so long as the date is later than the the 21-day period after the original complaint is filed

Question 27

existence of diversity jurisdiction is tested at the time that the complaint is filed or when case is heard?

Answer 27

filed! so if party dies and is replaced by representative of estate, then

Question 28

When does a party have to demand a jury trial?

Answer 28

Any party may demand a jury trial so long as it is within 14 days of service of last pleading.

Question 29

What happens when a defendant is tried as an accomplice when that person’s action is itself an essential element of the crime.

Answer 29

A defendant is not guilty as an accomplice when that person’s action is itself an essential element of the crime.

Question 30

Who bears the burden under rational basis test?

Answer 30

challenger - not state

Question 31

What level of scrutiny applies to state’s laws on voting

Answer 31

for more extreme restrictions, strict scrutiny because it’s interfering with fundamental right.

for a lesser burden, like 30 day residency requirement, rational basis is ok. Burden is on P to show it’s not.