Missed MBE questions

In a tort action, a witness testified against the defendant. The defendant then called a friend to the stand, who testified that the witness had a bad reputation for veracity. The defendant then also called a second friend to testify that the witness once perpetrated a hoax on the police. The second friend's testimony is A: admissible, because the hoax involves untruthfulness. B: admissible, because the hoax resulted in conviction of the witness. C: inadmissible, because it is merely cumulative impeachment. D: inadmissible, because it is extrinsic evidence of a specific instance of misconduct.

D

Question 409 - The question is: A defendant was prosecuted for armed robbery. At trial, the defendant testified on his own behalf, denying that he had committed the robbery. On cross-examination, the prosecutor intends to ask the defendant whether he had been convicted of burglary six years earlier. Assume that the court has already determined that the probative value of the answer outweighs the prejudicial effect to the defendant. The question concerning the burglary conviction is A: proper, because the probative value for impeachment outweighs the prejudice to the defendant. B: proper, because the prosecutor is entitled to make this inquiry as a matter of right. C: improper, because burglary does not involve dishonesty or false statement. D: improper, because the conviction must be proved by court record, not by question on cross-examination.

A

A businessman who owned Blackacre and Whiteacre, two adjoining parcels, conveyed Whiteacre to a gas company owner and covenanted in the deed to the gas company owner that when he, the businessman, sold Blackacre he would impose restrictive covenants to prohibit uses that would compete with the filling station that the gas company owner intended to construct and operate on Whiteacre. The deed was not recorded. The gas company owner constructed and operated a filling station on Whiteacre and then conveyed Whiteacre to his nephew, who continued the filling station use. The deed did not refer to the restrictive covenant and was promptly and properly recorded. The businessman then conveyed Blackacre to a man, who knew about the businessman's covenant prohibiting the filling station use but nonetheless completed the transaction when he noted that no such covenant was contained in the businessman's deed to him. The man began to construct a filling station on Blackacre. The nephew brought an appropriate action to enjoin the man from using Blackacre for filling station purposes. If the nephew prevails, it will be because A: the man had actual knowledge of the covenant to impose restrictions. B: the man is bound by the covenant because of the doctrine of negative reciprocal covenants. C: business-related restrictive covenants are favored in the law. D: the man has constructive notice of the possibility of the covenant resulting from circumstances.

A

A corporation sued its former vice president for return of $230,000 that had been embezzled during the previous two years. Called by the corporation as an adverse witness, the vice president testified that his annual salary had been $75,000, and he denied the embezzlement. The corporation calls a banker to show that, during the two-year period, the vice president had deposited $250,000 in his bank account. The banker's testimony is A: admissible as circumstantial evidence of the vice president's guilt. B: admissible to impeach the vice president. C: inadmissible, because its prejudicial effect substantially outweighs its probative value. D: inadmissible, because the deposits could have come from legitimate sources.

A

A defendant is on trial for killing the victim. The prosecutor calls a witness to testify that after being shot, the victim said, "The defendant did it." Before the testimony is given, the defendant's lawyer asks for a hearing on whether the victim believed his death was imminent when he made the statement. Before permitting evidence of the dying declaration, the judge should hear evidence on the issue from A: both sides, with the jury not present, and decide whether the witness may testify to the victim's statement. B: both sides, with the jury present, and decide whether the witness may testify to the victim's statement. C: both sides, with the jury present, and allow the jury to determine whether the witness may testify to the victim's statements. D: the prosecutor only, with the jury not present, and if the judge believes a jury could reasonably find that the victim knew he was dying, permit the witness to testify to the statement, with the defendant allowed to offer evidence on the issue as a part of the defendant's case.

A

In a civil suit by the plaintiff against the defendant, the defendant called a chemist as an expert witness and asked him a number of questions about his education and experience in chemistry. Over the plaintiff's objection that the witness was not shown to be qualified in chemistry, the trial court permitted the witness to testify as to his opinion in response to a hypothetical question. On cross-examination, the plaintiff asked the witness if he had failed two chemistry courses while doing his graduate work. The answer should be A: admitted, because it is relevant to the weight to be given to the witness' testimony. B: admitted, because specific acts bearing on truthfulness may be inquired about on cross-examination. C: excluded, because the court has determined that the witness is qualified to testify as an expert. D: excluded, because the witness's character has not been put in issue.

A

In a medical malpractice suit by a patient against his doctor, the patient seeks to introduce a properly authenticated photocopy of the patient's hospital chart. The chart contained a notation made by a medical resident that an aortic clamp had broken during the plaintiff's surgery. The resident made the notation in the regular course of practice, but had no personal knowledge of the operation, and cannot remember which of the operating physicians gave him the information. The document is A: admissible as a record of regularly conducted activity. B: admissible as recorded recollection. C: inadmissible as a violation of the best evidence rule. D: inadmissible, because it is hearsay within hearsay.

A

Question 525 - Contracts - The question is: On January 2, a landowner and a builder entered into a written contract in which the builder agreed to build on the landowner's lot a new house for the landowner, according to plans and specifications furnished by the landowner's architect at a contract price of $200,000. The contract provided for specified progress payments and a final payment of $40,000 upon the landowner's acceptance of the house and issuance of a certificate of final approval by the architect. Further, under a "liquidated damages" clause in the agreement, the builder promised to pay the landowner $500 for each day's delay in completing the house after the following October 1. The landowner, however, told the builder on January 2, before the contract was signed, that he would be on an around-the-world vacation trip most of the summer and fall and would not return to occupy the house until November 1. The builder completed the house on October 14 and, when the landowner returned on November 1, requested the final payment of $40,000 and issuance of a certificate of final approval by the architect. The landowner, however, refused to pay any part of the final installment after the architect told him that the builder "did a great job and I find no defects worth mentioning; but the builder's contract price was at least $40,000 too high, especially in view of the big drop in housing values within the past 10 months. I will withhold the final certificate, and you just hold on to your money." If the builder sues the landowner for the $40,000 final payment after the architect's refusal to issue a final certificate, which of the following will the court probably decide? A: The builder wins, because nonoccurrence of the condition requiring the architects's certificate of final approval was excused by the architects's bad-faith refusal to issue the certificate. B: The builder wins, but, because all contractual conditions have not occurred, her recovery is limited to restitution of the benefit conferred on the landowner, minus progress payments already received. C: The landowner wins, because he can prove by clear and convincing evidence that the fair-market value of the completed house is $160,000 or less. D: The landowner wins, because he can prove by clear and convincing evidence that the total payment to the builder of $160,000 will yield a fair net profit.

A

Question 600 - Evidence - A defendant is on trial for the brutal murder of a victim. The defendant's first witness testified that, in her opinion, the defendant is a peaceful and nonviolent person. The prosecution does not cross-examine the witness, who is then excused from further attendance. Which one of the following is the LEAST likely to be admissible during the prosecution's rebuttal? A: Testimony by the witness's former employer that the witness submitted a series of false expense vouchers two years ago. B: Testimony by a police officer that the defendant has a long-standing reputation in the community as having a violent temper. C: Testimony by a neighbor that the witness has a long-standing reputation in the community as an untruthful person. D: Testimony by the defendant's former cell mate that he overheard the witness offer to provide favorable testimony if the defendant would pay her $5,000.

A

Question 886: The question is: A plaintiff sued a defendant for dissolution of their year-long partnership. One issue concerned the amount of money the plaintiff had received in cash. It was customary for the defendant to give the plaintiff money from the cash register as the plaintiff needed it for personal expenses. The plaintiff testified that, as he received money, he jotted down the amounts in the partnership ledger. Although the defendant had access to the ledger, he made no changes in it. The defendant seeks to testify to his memory of much larger amounts he had given the plaintiff. The defendant's testimony is A: admissible, because it is based on the defendant's firsthand knowledge. B: admissible, because the ledger entries offered by a party opponent opened the door. C: inadmissible, because the ledger is the best evidence of the amounts the plaintiff received. D: inadmissible, because the defendant's failure to challenge the accuracy of the ledger constituted an adoptive admission.

A

Question 493 - Evidence - The question is: In a plaintiff's antitrust suit against manufacturers of insulation, the plaintiff's interrogatories asked for information concerning total sales of insulation by each of the defendant manufacturers in a particular year. The defendants replied to the interrogatories by referring the plaintiff to the Insulation Manufacturers' Annual Journal for the information. If at trial, the plaintiff offers the journal as evidence of the sales volume, this evidence is A: admissible, as an adoptive admission of the defendants. B: admissible, as a business record. C: inadmissible, because it is hearsay, not within any exception. D: inadmissible, as lacking sufficient authentication.

A.

A plaintiff sued a defendant for injuries suffered in a car accident allegedly caused by brakes that had been negligently repaired by the defendant. At a settlement conference, the plaintiff exhibited the brake shoe that caused the accident and pointed out the alleged defect to an expert, whom the defendant had brought to the conference. No settlement was reached. At trial, the brake shoe having disappeared, the plaintiff seeks to testify concerning the condition of the shoe. The plaintiff's testimony is A: admissible, because the defendant's expert had been able to examine the shoe carefully. B: admissible, because the plaintiff had personal knowledge of the shoe's condition. C: inadmissible, because the brake shoe was produced and examined as a part of settlement negotiations. D: inadmissible, because the plaintiff did not establish that the disappearance was not his fault.

B

A defendant is on trial for arson. In its case in chief, the prosecution offers evidence that the defendant had secretly obtained duplicate insurance from two companies on the property that burned and that the defendant had threatened to kill his ex-wife if she testified for the prosecution. The court should admit evidence of A: the defendant's obtaining duplicate insurance only. B: the defendant's threatening to kill his ex-wife only. C: both the defendant's obtaining duplicate insurance and threatening to kill his ex-wife. D: neither the defendant's obtaining duplicate insurance nor threatening to kill his ex-wife.

C

A defendant is tried for armed robbery of a bank. The defendant testified on direct examination that he had never been in the bank that had been robbed. His counsel asks, "What, if anything, did you tell the police when you were arrested?" If his answer would be, "I told them I had never been in the bank," this answer would be A: admissible, to prove that the defendant had never been in the bank. B: admissible, as a prior consistent statement. C: inadmissible, as hearsay not within any exception. D: inadmissible, because it was a self-serving statement by a person with a substantial motive to fabricate.

C

A driver filed a diversity action against a mechanic in federal court in State A. The mechanic was served with a complaint and summons by a 23- year-old law student. The student is unknown to both the driver and the mechanic and is working during the summer to pay for tuition. Which of the following is true? A: The mechanic's attorney must answer the complaint within 14 days and should not include an affirmative defense of insufficient service of process. B: The mechanic's attorney should file a motion to dismiss for insufficient service of process. C: The mechanic's attorney must answer the complaint within 21 days and should not include an affirmative defense of insufficient service of process. D: The mechanic's attorney must answer the complaint and include an affirmative defense of insufficient service of process.

C

Question 660 The question is: A corporation sued a defendant for ten fuel oil deliveries not paid for. The defendant denied that the deliveries were made. At trial, the corporation calls its office manager to testify that the corporation's employees always record each delivery in duplicate, give one copy to the customer, and place the other copy in the corporation's files; that he (the office manager) is the custodian of those files; and that his examination of the files before coming to court revealed that the ten deliveries were made. The office manager's testimony that the invoices show ten deliveries is A: admissible, because it is based on regularly kept business records. B: admissible, because the office manager has first-hand knowledge of the contents of the records. C: inadmissible, because the records must be produced in order to prove their contents. D: inadmissible, because the records are self-serving.

C

Question 846 - Evidence - The question is: In an automobile collision case brought by a plaintiff against a defendant, the plaintiff introduced evidence that a bystander made an excited utterance that the defendant ran the red light. The defendant called a witness to testify that later the bystander, now deceased, told the witness that the defendant went through a yellow light. The witness's testimony should be A: excluded, because it is hearsay not within any exception. B: excluded, because the bystander is not available to explain or deny the inconsistency. C: admitted only for the purpose of impeaching the bystander. D: admitted as impeachment and as substantive evidence of the color of the light.

C

Assume you are counsel to the state legislative committee that is responsible for real estate laws in your state. The committee wants you to draft legislation to make all restrictions on land use imposed by deeds (now or hereafter recorded) unenforceable in the future so that public land use planning through zoning will have exclusive control in matters of land use. Which of the following is LEAST likely to be a consideration in the drafting of such legislation? A: Compensation for property rights taken by public authority. B: Impairment of contract. C: Sovereign immunity. D: Police power.

C.

Which of the following items of evidence is LEAST likely to be admitted without a supporting witness? A: In a libel action, a copy of a newspaper purporting to be published by the defendant newspaper publishing company. B: In a case involving contaminated food, a can label purporting to identify the canner as the defendant company. C: In a defamation case, a document purporting to be a memorandum from the defendant company president to "All Personnel," printed on the defendant's letterhead. D: In a case involving injury to a pedestrian, a pamphlet on stopping distances issued by the State Highway Department.

C.

A buyer filed suit against a seller in federal court in State A. The federal district court entered a default judgment in favor of the buyer. Within one month after entry of the default judgment, the seller made a motion seeking relief from the judgment on the ground of excusable neglect. The seller made a prima facie showing that it had a meritorious defense to the buyer's claim and that the buyer would not be unfairly prejudiced by the setting aside of the default judgment. However, the record also showed that the seller had been served with the summons and complaint and knew of the action in time to appear, plead or otherwise defend against it, but failed to do any of those things. Should the court grant the seller's motion seeking relief from judgment? A: Yes, because the seller has demonstrated what is necessary to obtain relief from a default judgment: that its motion is timely, it has a meritorious defense to the action, and the plaintiff would not be unfairly prejudiced by having the default judgment set aside. B: No, because seller's failure to appear, plead or otherwise defend against the lawsuit does not constitute a form of excusable neglect. C: Yes, because courts liberally grant relief from default judgments. D: No, but the court should set aside the entry of default.

B

A grand jury returned an indictment charging the defendant with bank robbery, and when he could not make bond he was jailed pending trial. He had received Miranda warnings when arrested and had made no statement at that time. The prosecutor arranged to have an informant placed as the defendant's cellmate and instructed the informant to find out about the bank robbery without asking any direct questions about it. The informant, once in the cell, constantly boasted about the crimes that he had committed. Not to be outdone, the defendant finally declared that he had committed the bank robbery with which he was charged. At the defendant's trial, his attorney moved to exclude any testimony from the informant concerning the defendant's boast. The motion should be A: granted, because the defendant's privilege against self-incrimination was violated. B: granted, because the defendant's right to counsel was violated. C: denied, because the defendant had received Miranda warnings. D: denied, because the defendant was not interrogated by the informant.

B

A man and his friend were charged with burglary of a warehouse. They were tried separately. At the man's trial, the friend testified that he saw the man commit the burglary. While the friend was still subject to recall as a witness, the man calls the friend's cellmate to testify that the friend said, "I broke into the warehouse alone because [the man] was too drunk to help." The evidence of the friend's statement is A: admissible, as a declaration against penal interest. B: admissible, as a prior inconsistent statement. C: inadmissible, because it is hearsay not within any exception. D: inadmissible, because the statement is not clearly corroborated

B

A man and his friend were charged with conspiracy to dispose of a stolen diamond necklace. The friend jumped bail and cannot be found. Proceeding to trial against the man alone, the prosecutor calls the friend's girlfriend as a witness to testify that the friend confided to her that "[the man] said I still owe him some of the money from selling that necklace." The witness's testimony is A: admissible, as evidence of a statement by party-opponent. B: admissible, as evidence of a statement against interest by the friend. C: inadmissible, because the friend's statement was not in furtherance of the conspiracy. D: inadmissible, because the friend is not shown to have firsthand knowledge that the necklace was stolen.

B

A seller brought an action against a buyer for breach of a stock purchase agreement after the buyer failed to deliver the full purchase price. Following a jury trial, the court entered judgment in the buyer's favor. The seller then made a motion for a new trial, but this motion was ultimately denied by the court. This was the only post-trial motion that the seller made, and the seller did not make a motion for judgment as a matter of law before the case was submitted to the jury. The seller appealed from the judgment and from the denial of the seller's motion for a new trial. In support of his appeal, the seller argued that the only conclusion the evidence supported was that the buyer materially breached the contract. Which of the following actions may the appellate court properly take? A: The appellate court may alter the judgment to grant judgment in favor of the seller if it believes that the evidence was insufficient to support a verdict for the buyer. B: The appellate court may affirm the denial of the seller's post-judgment motion if it believes that the verdict was not against the clear weight of the evidence. C: The appellate court may enter judgment as a matter of law for the seller because the seller's failure to make a motion for judgment as a matter of law, before the case was submitted to the jury, is unimportant in light of the post-trial motion that the seller did make. D: The appellate court may order a new trial if it believes that, on the existing record, it is unclear which party should have won

B

Cars driven by the plaintiff and the defendant collided, and the defendant was charged with driving while intoxicated in connection with the accident. She pleaded guilty and was merely fined, although under the statute the court could have sentenced her to two years in prison. Thereafter, the plaintiff, alleging that the defendant's intoxication had caused the collision, sued the defendant for damages. At trial, the plaintiff offers the properly authenticated record of the defendant's conviction. The record should be A: admitted as proof of the defendant's character. B: admitted as proof of the defendant's intoxication. C: excluded, because the conviction was not the result of a trial. D: excluded, because it is hearsay, not within any exception.

B

During litigation on a federal claim, a plaintiff had the burden of proving that a defendant received a notice. The plaintiff relied on the presumption of receipt by offering evidence that the notice was addressed to the defendant, properly stamped, and mailed. The defendant, on the other hand, testified that she never received the notice. Which of the following is correct? A: The jury must find that the notice was received. B: The jury may find that the notice was received. C: The burden shifts to the defendant to persuade the jury of nonreceipt. D: The jury must find that the notice was not received, because the presumption has been rebutted and there is uncontradicted evidence of nonreceipt.

B

On March 1, a computer programming company orally agreed with a department store to write a set of programs for the department store's computer and to coordinate the programs with the department store's billing methods. A subsequent memo, signed by both parties, provided in its entirety: "The department store will pay the computer programming company $20,000 in two equal installments within one month of completion if the computer programming company is successful in shortening by one-half the processing time for the financial transactions now handled on the department store's Zenon 747 computer; the computer programming company to complete by July 1. This agreement may be amended only by a signed writing." On June 6, the computer programming company demanded $10,000, saying the job was one-half done. After the department store denied liability, the parties orally agreed that the department store should deposit $20,000 in escrow, pending completion to the satisfaction of the department store's computer systems manager. The escrow deposit was thereupon made. On July 5, the computer programming company completed the programs, having used an amount of time in which it could have earned $18,000 had it devoted that time to other jobs. Tests by the computer programming company and the department store's computer systems manager then showed that the computer programs, not being perfectly coordinated with the department store's billing methods, cut processing time by only 47 percent. They would, however, save the department store $12,000 a year. Further, if the department store would spend $5,000 to change its invoice preparation methods, as recommended by the computer programming company, the programs would cut processing time by a total of 58 percent, saving the department store another $8,000 a year. The department store's computer systems manager refused in good faith to certify satisfactory completion. The department store requested the escrow agent to return the $20,000 and asserted that nothing was owed to the computer programming company even though the department store continued to use the programs. Assume that the computer programming company was in breach of contract because of its four-day delay in completion and that an express condition precedent to the department store's duty to pay the contract price has failed. Can the computer programming company nevertheless recover the reasonable value of its service? A: Yes, because continued use of the programs by the department store would save at least $12,000 a year. B: Yes, because the department store was continuing to use programs created by the computer programming company for which, as the department store knew, the computer programming company expected to be paid. C: No, because failure of an express condition precedent excused the department store from any duty to compensate the computer programming company. D: No, because such a recovery by the computer programming company would be inconsistent with a claim by the department store against the computer programming company for breach of contract.

B

Question 1038 The question is: A plaintiff sued a defendant for breach of contract. The plaintiff's position was that the woman, whom he understood to be the defendant's agent, said, "On behalf of [the defendant], I accept your offer." The defendant asserted that the woman had no actual or apparent authority to accept the offer on the defendant's behalf. The plaintiff's testimony concerning the woman's statement is A: admissible, provided the court first finds by a preponderance of the evidence that the woman had actual or apparent authority to act for the defendant. B: admissible, upon or subject to introduction of evidence sufficient to support a finding by the jury that the woman had actual or apparent authority to act for the defendant. C: inadmissible, if the woman does not testify and her absence is not excused. D: inadmissible, because it is hearsay not within any exception.

B

Question 1062 - Evidence - The question is: In a jurisdiction without a Dead Man's Statute, a deceased man's estate sued the defendant claiming that the defendant had borrowed $10,000 from the deceased man, which had not been repaid as of the man's death. The man was run over by a truck. At the accident scene, while dying from massive injuries, the man told a police officer to "make sure my estate collects the $10,000 I loaned to the defendant." The police officer's testimony about the deceased man's statement is A: inadmissible, because it is more unfairly prejudicial than probative. B: inadmissible, because it is hearsay not within any exception. C: admissible as an excited utterance. D: admissible as a statement under belief of impending death.

B

Question 251 - Contracts - The question is: On March 2, a landowner and a builder orally agreed that the builder would erect a boathouse on the landowner's lot and dig a channel from the boathouse, across a neighbor's lot, to a lake. The neighbor had already orally agreed with the landowner to permit the digging of the channel across the neighbor's lot. The builder agreed to begin work on the boathouse on March 15, and to complete all the work before June 1. The total price of $10,000 was to be paid by the landowner in three installments: $2,500 on March 15; $2,500 when the boathouse was completed; $5,000 when the builder finished the digging of the channel. Assume that the landowner paid the $2,500 on March 15 and that the builder completed the boathouse according to specifications, but that the landowner then refused to pay the second installment and repudiated the contract. Assume further that the absence of a writing is not raised as a defense. Which of the following is correct? A: The builder has a cause of action against the landowner and his damages will be $2,500. B: The builder can refuse to dig the channel and not be liable for breach of contract. C: The builder can refuse to dig the channel, not be liable for breach of contract, and have a cause of action against the landowner for which his damages will be $2,500. D: The builder can refuse to dig the channel but he will liable for breach of contract.

B

Question 547 - Evidence - The question is: A defendant was prosecuted for homicide. He testified that he shot in self-defense. In rebuttal, a police officer testified that he came to the scene in response to a telephone call from the defendant. The police officer offers to testify that he asked, "What is the problem here, sir?" and the defendant replied, "I was cleaning my gun and it went off accidentally." The offered testimony is A: admissible, as an excited utterance. B: admissible, to impeach the defendant and as evidence that he did not act in self-defense. C: inadmissible, because of the defendant's privilege against self-incrimination. D: inadmissible, because it tends to exculpate without corroboration.

B

The defendant was charged with stealing furs from a van. At trial, a witness testified that she saw the defendant take the furs. The jurisdiction in which the defendant is being tried does not allow in evidence lie detector results. On cross-examination by the defendant's attorney, the witness was asked, "The light was too dim to identify the defendant, wasn't it?" She responded, "I'm sure enough that it was the defendant that I passed a lie detector test administered by the police." The defendant's attorney immediately objects and moves to strike. The trial court should A: grant the motion, because the question was leading. B: grant the motion, because the probative value of the unresponsive testimony is substantially outweighed by the danger of unfair prejudice. C: deny the motion, because it is proper rehabilitation of an impeached witness. D: deny the motion, because the defendant's attorney "opened the door" by asking the question.

B.

A man's estate plan included a revocable trust established 35 years ago with a bank as trustee. The principal asset of the trust has always been Blackacre, a very profitable, debt-free office building. The trust instrument instructs the trustee to pay the net income to the man for life, and, after the death of the man, to pay the net income to his wife for life; and, after her death, to distribute the net trust estate as she may appoint by will, or in default of her exercise of this power of appointment, to the man's son (her stepson). The man died 30 years ago survived by his wife and son. The man had not revoked or amended the trust agreement. A few years after the man's death, his wife remarried. She then had a daughter, was widowed for a second time, and then died last year. Her will contained only one dispositive provision: "I give my entire estate to my daughter, and I intentionally make no provision for my stepson." The daughter is now 22 years old. The common law Rule Against Perpetuities is unmodified by statute in the jurisdiction. There are no other applicable statutes. The stepson brought an appropriate action against the daughter to determine who was entitled to the net trust estate and thus to Blackacre. If the court rules for the daughter, it will be because A: the wife's life estate and general power of appointment merge into complete ownership in the wife. B: the Rule Against Perpetuities does not apply to general powers of appointment. C: the jurisdiction deems "entire estate" to be a reference to Blackacre or to the wife's general power of appointment. D: the wife intended that her stepson should not benefit by reason of her death.

C

A student from State A filed a diversity action against a landlord from State B in federal court in State A. The student sought $125,000 in damages arising out of a contract dispute. On January 1, 2014, the student was deposed. During his deposition, the student presented a contract signed by the landlord and testified that this was the contract at issue. On February 1, 2014, the landlord was deposed. During the landlord's deposition, the landlord testified that the signature on the contract was not his. On March 1, 2014, discovery for the parties closed. On December 1, 2014, the student's suit proceeded to trial. Which of the following is true? A: The judge could grant a motion for summary judgment on behalf of the student. B: The judge could grant a motion for summary judgment on behalf of the landlord. C: Depending on what other evidence is before the court concerning the signature, the judge could potentially grant a motion for judgment as a matter of law on behalf of the student. D: The judge could grant a motion for lack of personal jurisdiction on behalf of the landlord.

C

A threatening telephone call that purports to be from a defendant to a witness is most likely to be admitted against the defendant if A: the caller identified himself as the defendant. B: the witness had previously given damaging testimony against the defendant in another lawsuit. C: the witness had given his unlisted number only to the defendant and a few other persons. D: the witness believes that the defendant is capable of making such threats.

C

Question 1174 - Evidence At a defendant's trial for sale of drugs, the government called a witness to testify, but the witness refused to answer any questions about the defendant and was held in contempt of court. The government then calls a police officer to testify that, when the witness was arrested for possession of drugs and offered leniency if he would identify his source, the witness had named the defendant as his source. The testimony offered concerning the witness's identification of the defendant is A: admissible as a prior consistent statement by a witness. B: admissible as an identification of the defendant by a witness after having perceived him. C: inadmissible, because it is hearsay not within any exception. D: inadmissible, because the witness was not confronted with the statement while on the stand.

C

Question 118 - Evidence - The question is: A defendant is tried for armed robbery of a bank. At the request of police, the teller who was robbed prepared a sketch bearing a strong likeness to the defendant, but the teller died in an automobile accident before the defendant was arrested. At trial, the prosecution offers the sketch. The sketch is A: admissible, as an identification of a person after perceiving him. B: admissible, as past recollection recorded. C: inadmissible, as hearsay not within any exception. D: inadmissible, as an opinion of the teller.

C

Question 19 The question is: A leading question is LEAST likely to be permitted over objection when A: asked on cross-examination of an expert witness. B: asked on direct examination of a young child. C: asked on direct examination of a disinterested eyewitness. D: related to preliminary matters such as the name or occupation of the witness.

C

Question 282 - Evidence - The question is: A plaintiff sues a department store for personal injuries, alleging that while shopping she was knocked to the floor by a merchandise cart being pushed by a stock clerk and her back was injured as a result. The stock clerk testified that the plaintiff fell near the cart but was not struck by it. Thirty minutes after the plaintiff's fall, the stock clerk, in accordance with regular practice at the department store, had filled out a printed form, "Employee's Report of Accident," in which he stated that the plaintiff had been leaning over to spank her young child and in so doing had fallen near his cart. Counsel for the department store offers in evidence the report, which had been given to him by the stock clerk's supervisor. The judge should rule the report offered by the department store A: admissible, as res gestae. B: admissible, as a business record. C: inadmissible, because it is hearsay, not within any exception. D: inadmissible, because the stock clerk is available as a witness.

C

Question 321 - The question is: The driver of an automobile ran into and injured a pedestrian. With the driver in his car were his wife and another passenger. A passerby saw the accident and called the police department, which sent a sheriff to investigate. All of these people were available as potential witnesses in the case brought by the pedestrian against the driver. The pedestrian alleges that the driver, while drunk, struck the pedestrian who was in a duly marked crosswalk. The pedestrian's counsel wants to have the sheriff testify to the following statement made to him by the passenger, out of the presence of the driver: "We were returning from a party at which we had all been drinking." The trial judge should rule this testimony A: admissible as an admission of a party. B: admissible as a declaration against interest. C: inadmissible, because it is hearsay, not within any exception. D: inadmissible, because it would lead the court into nonessential side issues.

C

A consumer from State A filed a $100,000 products liability action in federal court against a manufacturer incorporated and with its principal place of business in State B. The consumer claimed that a flaw in the manufacturer's product had resulted in severe injuries to the consumer. In its answer, the manufacturer asserted a third-party complaint against the product designer, also incorporated and with its principal place of business in State B. Believing that the consumer had sued the wrong defendant, the manufacturer claimed both that the designer was solely responsible for the flaw that had led to the consumer's injuries and that the manufacturer was not at fault. The designer is aware that the manufacturer did not follow all of the designer's specifications when making the product. Which of the following arguments is most likely to achieve the designer's goal of dismissal of the third-party complaint? A: The court does not have subject-matter jurisdiction over the third-party complaint, because both the manufacturer and the designer are citizens of State B. B: The manufacturer failed to obtain the court's leave to file the third-party complaint. C: The manufacturer's failure to follow the designer's specifications caused the flaw that resulted in the consumer's injuries. D: The manufacturer's third-party complaint failed to state a proper third-party claim.

D

A plaintiff brought an action against the defendant for injuries received in an automobile accident, alleging negligence in that the defendant was speeding and inattentive. The plaintiff calls a witness to testify that the defendant had a reputation in the community for being a reckless driver and was known as a "dare-devil." The witness' testimony is A: admissible as habit evidence. B: admissible, because it tends to prove that the defendant was negligent at the time of this collision. C: inadmissible, because the defendant has not offered testimony of his own good character. D: inadmissible to show negligence.

D

A state has enacted a new election code designed to increase voter responsibility in the exercise of the franchise and to enlarge citizen participation in the electoral process. None of its provisions conflicts with federal statutes. Which of the following is the strongest reason for finding unconstitutional a requirement in the state code that each voter must be literate in English? A: The requirement violates Article I Section 2 of the Constitution, which provides that representatives to Congress be chosen "by the People of the several States." B: The requirement violates Article I, Section 4 of the Constitution, which gives Congress the power to "make or alter" state regulations providing for the "Times" and "Manner" of holding elections for senators and representatives. C: The requirement violates the Due Process Clause of the Fourteenth Amendment. D: The requirement violates the Equal Protection Clause of the Fourteenth Amendment

D

A state requires licenses of persons "who are engaged in the trade of barbering." It will grant such licenses only to those who are graduates of barber schools located in the state, have resided in the state for two years, and are citizens of the United States. Assume that a resident of the state was denied a license because she had graduated from an out-of-state barber school. Her suit in federal court to enjoin denial of the license on this ground would be A: dismissed, because there is no diversity of citizenship. B: dismissed because of the abstention doctrine. C: decided on the merits, because federal jurisdiction extends to controversies between two states. D: decided on the merits, because a federal question is involved.

D

As part of a comprehensive federal aid-to-education program, Congress included the following provisions as conditions for state receipt of federal funds: (1) Whenever textbooks are provided to students without charge, they must include no religious instruction and must be made available on the same terms to students in all public and private schools accredited by the state educational authority. (2) Salary supplements can be paid to teachers in public and private schools, up to ten percent of existing salary schedules, where present compensation is less than the average salary for persons of comparable training and experience, provided that no such supplement is paid to any teacher who instructs in religious subjects. (3) Construction grants can be made toward the cost of physical plant at private colleges and universities, provided that no part of the grant is used for buildings in which instruction in religious subject matters is offered. A federal taxpayer challenges the salary supplements for teachers in private schools where religious instruction is included in the curriculum. On the substantive constitutional issue, the most likely result is that the salary supplements will be A: sustained, because the statute provides that no supplements will be made to teachers who are engaged in any religious instruction. B: sustained, because to distinguish between private and public school teachers would violate the religious freedom clause of the First Amendment. C: held unconstitutional, because some religions would benefit disproportionately. D: held unconstitutional, because the policing of the restriction would amount to an excessive entanglement with religion.

D

By her validly executed will, a woman devised a certain tract of land to her son for his life with remainder to such of his children as should be living at his death, "Provided, however, that no such child of my son shall mortgage or sell, or attempt to mortgage or sell, his or her interest in the property prior to attaining 25 years of age: and, if any such child of my son shall violate this provision, then upon such violation his or her interest shall pass to and become the property of the remaining children of my son then living, share and share alike." The woman's will included an identical provision for each of her four other children concerning four other tracts of land. The residuary clause of the will gave the residuary estate to the woman's five children equally. The woman died and was survived by the five children named in her will and by 11 grandchildren. Several additional grandchildren have since been born. In an action for a declaration of rights, it was claimed that the attempted gifts to the woman's grandchildren were entirely void and that the interests following the life estates to the woman's children passed to the children absolutely by the residuary clause. Assuming that the action was properly brought with all necessary parties and with a guardian ad litem appointed to represent the interests of unborn and infant grandchildren, the decision should be that A: the attempted gifts to grandchildren are void under the Rule Against Perpetuities. B: the attempted gifts to grandchildren are void as unlawful restraints on alienation. C: the provisions concerning grandchildren are valid and will be upheld according to their terms. D: even if the provisions against sale or mortgage by the grandchildren are void, the remainders to grandchildren are otherwise valid and will be given effect.

D

Question 1025 - Evidence - The question is: A plaintiff's estate sued a defendant, a store, claiming that one of the defendant's security guards wrongfully shot and killed the plaintiff when the plaintiff fled after being accused of shoplifting. The guard was convicted of manslaughter for killing the plaintiff. At his criminal trial the guard, who was no longer working for the defendant, testified that the defendant's security director had instructed him to stop shoplifters "at all costs." Because the guard's criminal conviction is on appeal, he refuses to testify at the civil trial. The plaintiff's estate then offers an authenticated transcript of the guard's criminal trial testimony concerning the instructions of the defendant's security director. This evidence is A: admissible as a statement of an agent of a party-opponent. B: admissible, because the instruction from the security director is not hearsay. C: admissible, although hearsay, as former testimony. D: inadmissible, because it is hearsay not within any exception.

D

Question 1026 - The question is: A plaintiff sued a defendant for shooting her husband from ambush. The plaintiff offers to testify that, the day before her husband was killed, he described to her a chance meeting with the defendant on the street in which the defendant said, "I'm going to blow your head off one of these days." The plaintiff's testimony concerning her husband's statement is A: admissible, to show the defendant's state of mind. B: admissible, because the defendant's statement is that of a party-opponent. C: inadmissible, because it is improper evidence of a prior bad act. D: inadmissible, because it is hearsay not within any exception.

D

Question 1148 The question is: In a federal civil trial, the plaintiff wishes to establish that, in a state court, the defendant had been convicted of fraud, a fact that the defendant denies. Which mode of proof of the conviction is LEAST likely to be permitted? A: A certified copy of the judgment of conviction, offered as a self-authenticating document. B: Testimony of the plaintiff, who was present at the time of the sentence. C: Testimony by a witness to whom the defendant made an oral admission that he had been convicted. D: Judicial notice of the conviction, based on the court's telephone call to the clerk of the state court, whom the judge knows personally

D

The plaintiff sued a police officer for false arrest. The police officer's defense was that, based on a description he heard over the police radio, he reasonably believed the plaintiff was an armed robber. A police radio dispatcher, reading from a note, had broadcast the description of an armed robber on which the police officer claims to have relied. The defendant offers three items as evidence. First, the police officer's testimony relating the description he heard. Second, the police dispatcher's testimony relating the description he read over the radio. Third, the note containing the description the police dispatcher testifies he read over the radio. Which of the items are admissible on the issue of what description the police officer heard? A: Only the police officer's testimony relating the description he heard. B: Only the police officer's testimony relating the description he heard and the note containing the description the police dispatcher testifies he read over the radio. C: Only the police dispatcher's testimony relating the description he read over the radio and the note containing the description the police dispatcher testifies he read over the radio. D: All three items offered by the defendant.

D