MBE questions
At trial, questions have been raised as to whether the proposed testimony of the witness is relevant and whether it falls within the present sense impression exception to the hearsay rule. How should a preliminary determination of the admissibility of the witness's testimony be made?
A judge should decide whether the testimony falls within the present sense impression exception, but in making that determination she is not limited by the rules of evidence other than privilege.
An owner of land gave his friend a deed for a specified parcel of property. After the owner's death, the friend discovered that the owner had sold part of the property. The purchaser had been given an easement to cross over the owner's property to get to the property she had purchased, although there is no evidence that the purchaser had ever used the "right of way." If the purchaser does have the right of way over the property the owner gave to his friend, the owner's estate would be liable for breach of which covenant?
Against encumbrances.
An article in a newspaper reported that the city's professional basketball franchise announced that financial difficulties have forced them to sell the franchise to a group of investors who will probably move the team to another state. The article stated that, according to inside sources, the main reason for the financial difficulties is that the general manager of the team has been siphoning off proceeds from ticket sales to support his gambling habits. The general manager, who is well-known in the community, brought an action against the newspaper for defamation. If the newspaper stipulates at trial that the statement regarding the general manager is false, what additional facts does he have to prove to recover?
That the newspaper acted with actual malice in publishing the story.
A police officer saw a car containing three teenagers driving slowly down the street at 1 a.m. She waited for it to go by her and, after it was far enough ahead, started to follow it. Several blocks later, the car rolled through a stop sign. The officer immediately pulled the car over and requested the driver's license. A license check showed that the driver had five outstanding parking tickets. A statute in the jurisdiction permits an arrest to be made if a driver has four or more outstanding parking or traffic violations. The officer decided to take the driver in on the tickets. She informed the driver that he was under arrest and asked him to step out of the car. When the driver got out, the officer patted him down and found a gun in his waistband. Calling for backup, she decided to haul all three teenagers to jail. Subsequent testing showed that the gun had been used in a recent homicide during a store robbery by three young men. One of the passengers made a motion to prevent the introduction of the gun at his trial for murder and robbery. How should the judge rule?
Deny the motion, because the officer lawfully stopped the car.
A landowner owns 15 acres of undeveloped property. He plans to build a stadium complex on the property to house a football team two years from now, but would like to open the 15 acres to public use for picnicking and similar activities until then. Which of the following would best accomplish the landowner's goal?
Grant the city an easement for public recreational uses for two years.
An employee sued her employer in federal court for sexual harassment. The jury returned a verdict in favor of the employer. Three months after the verdict, the employee's attorney received an anonymous letter stating that a key document presented at trial by the employer had been altered. The employee moved for relief from judgment, alleging that a document presented by her employer at trial had been altered. Assuming that the employee can show that the alteration was intentional, how should the court rule?
Grant the employee's motion, because fraud and misconduct of an adverse party are proper grounds for relief, and she filed within the appropriate time frame.
A state statute provided for criminal penalties for "knowingly selling alcoholic beverages in violation of the regulations of the State Liquor Commission to any person under the age of 18." One of the State Liquor Commission regulations provided that "before an alcoholic beverage is sold to any person between the ages of 17 and 24, the seller must demand some form of photo identification to determine the buyer's age." A minor who looked much older than his age of 17 walked into a tavern located in the state and asked the bartender for a beer. The bartender never asked the minor for any form of identification, as he thought that he was at least 25 years old. Had the bartender asked for identification, the minor would have shown him a fake identification card showing that he was 21 years old. The bartender served the beer to the minor, who consumed it on the premises. The bartender was subsequently charged under the state statute for selling the beer to the minor. Is the bartender guilty?
No, because he reasonably believed that the minor was older than 25 years.
A homeowner contracted with a local heating company to install two baseboard heaters in an addition to his home for a total cost of $3,500. This figure included the heaters and labor costs for installation. Upon completion of the installation, the heating company sent an invoice to the homeowner for the $3,500. The homeowner did not immediately pay the bill because the heaters were too noisy. The heating company sent a repair worker to the home to service the heaters, but after several attempts to fix the problem, the heaters were still too loud. The homeowner contacted a qualified repairman to find out how to fix the problem and was told it would cost an additional $300 for new blowers and $150 in labor costs to replace the faulty blowers. The homeowner mailed the heating company a copy of the repair estimate and a check for $3,050—the contract price less the cost of new blowers and labor to install them—and wrote prominently on the check "Payment in full for installation of two baseboard heaters." The heating company cashed the check upon receipt. The heating company then sued the homeowner for $450, the difference between the agreed contract price and the amount paid. Is the heating company likely to prevail in its suit seeking the $450 from the homeowner?
No, because the heating company cashed the check.
A plaintiff was injured in an automobile accident caused by the defendant. The plaintiff sued the defendant for his injuries. In preparation for trial, the plaintiff's attorney hired a doctor to examine the plaintiff. At trial, the defense attorney attempts to call the doctor as a witness to testify about statements the plaintiff made in confidence to the doctor about his injuries, which the doctor then communicated to the plaintiff's attorney. The state recognizes only the common law privileges. Should this testimony be admitted?
No, because the plaintiff's statements are protected by the attorney-client privilege.
A smoothie retailer and a fruit processor entered into an oral agreement that provided that the processor would deliver to the retailer 100 barrels of fruit each month at a price of $10 per barrel, with delivery on the first of the month and payment of the $1,000 to a creditor of the fruit processor on the 15th of each month. However, when the agreement was reduced to a writing, the fruit processor's manager inadvertently wrote $20 per barrel, and neither party noticed before signing. The creditor first learned of the agreement between the parties when he received a copy of it the day after it was signed, showing that he was to receive $2,000 per month. One day later, the retailer discovered the mistake and alerted the food processor. The parties prepared a revised writing reflecting the correct contract price of $10 per barrel, and also agreed in writing that the retailer would receive a $2 per barrel discount the first month because it discovered the mistake by the fruit processor. The first delivery under the contract was made two days late, on the third of the month. On the 15th of the month, the creditor demanded payment of $2,000 from the retailer according to the terms of the original writing. If the retailer contends that it is not liable to pay the full $2,000, which of the following would NOT be relevant to its defense?
The fruit processor owed its creditor only $1,600.
A state law required all automobile drivers to carry liability insurance; however, because of the high number of auto accidents in the state, the cost of insurance became prohibitive. A study sponsored by the state legislature showed that males under the age of 21 were four times more likely to get into automobile accidents than any other group, including females in the same age group. The study predicted that prohibiting males under the age of 21 from driving would result in a 15% reduction in all other persons' automobile insurance rates. Ultimately, the legislature raised the minimum age for obtaining a driver's license to age 21 for males. Females were still allowed to obtain licenses at age 16. An 18-year-old male living in the state when the limit was raised, and who worked as a pizza delivery driver, was fired from his job and replaced by a 17-year-old female. If the young man sues to have the law set aside and prevails, what is the most likely reason?
The state could not prove that the law was substantially related to an important government interest.
A plaintiff corporation filed an antitrust action against two defendant corporations in federal district court. The action seeks damages based on the defendants' allegedly conspiring to fix prices in violation of federal antitrust statutes. The plaintiff has in its possession three internal memoranda written by key officers of the defendants that indicate that the defendants in fact were conspiring to fix prices. Absent an applicable discovery request from the defendants, must the plaintiff disclose to the defendants the plaintiff's knowledge and possession of the memoranda?
Yes, because the plaintiff must produce without any request all documents in its possession that it may use as evidence to support its claim.
Congress passed a law imposing a 50% excise tax on each pack of cigarettes manufactured for sale in the United States. An amendment was successfully added to the original bill requiring that all proceeds from the tax be used for antismoking advertisements. The amendment included severability language (indicating that if the amendment were stricken for some reason, the remainder of the law should stand). The various tobacco companies were required to pay the tax directly to the federal government. A tobacco company filed suit in the appropriate federal court, contending that the tax should be struck down as a violation of the freedom of speech protected by the First Amendment. Is the court likely to find the tax constitutional?
Yes, because the tax does not force the tobacco companies to speak.
A man purchased a large flat screen television and decided to mount it on the ceiling over his bed. The manual that came with the product included detailed instructions and illustrations on how to mount the television on different types of walls, along with all the required hardware, but contained neither instructions nor warnings regarding mounting on the ceiling. The man carefully followed the wall-mounting instructions and was satisfied that it would hold. In fact, however, the mounting was not appropriate for ceilings. The next night, a woman who was the man's overnight guest was seriously injured when the television came loose and fell on the bed. Will the woman prevail in a suit against the company that manufactured the television?
Yes, if the manufacturer knew that its television was sometimes mounted on ceilings rather than walls.
