Free Bar Exam MBE (Constitutional Law II) Questions and Answers — Questions and Answers
Question 1: On a public street, an elderly woman was mugged and robbed. The victim only saw her assailant's eyes at the time of the crime. The remainder of his face was hidden by a hooded sweatshirt and a bandana. While waiting to be interrogated a few days later, the victim noticed the defendant being led through the courts in jail garb and restrained by handcuffs and leg irons. He was soon identified as the offender by her. Will the court accept such identification as proof?
- No, because past identification claims are considered hearsay and are never admitted into evidence.
- Yes, if the witness saw the perpetrator's eyes and made the identification based on that, it was trustworthy enough to be admitted.
- Yes, because all that is required is for the witness to recognize someone; the witness' dependability or trustworthiness is subject to cross examination.
- No, because it is insufficiently dependable, and there was far too much speculation to make an exact identification. (Correct answer)
Correct answer: No, because it is insufficiently dependable, and there was far too much speculation to make an exact identification.
Eyewitness identification can be unreliable, especially when initial observations are limited and subsequent identification procedures are suggestive. In this case, the victim only saw the assailant's eyes, and then saw the defendant in jail garb and restraints, which is a highly suggestive setting. Such circumstances make the identification insufficiently dependable, as it creates a substantial likelihood of misidentification, thus violating due process.
Question 2: Due to intense agony, a patient who had surgery to correct a spleen rupture got a complete body MRI. The technicians discovered at least two distinguishable sponges in her body during the MRI. She needed to be admitted to the hospital for more surgery. The patient filed a medical malpractice lawsuit against the hospital and the doctor. She failed to present the MRI printouts. Rather, she tried to testify about what she saw on the MRI scan. The defense raised an objection and demanded that she present the original MRI reports. What is the most likely outcome of the judge's decision on the objection?
- Because a layperson cannot testify to personal observations, she must present the MRI scan.
- She is not required to produce the MRI scan since a layperson can testify to things like the appearance of a sponge.
- The MRI records must be produced since they are the best evidence under the best evidence criterion. (Correct answer)
- She is exempt from producing the MRI scan because she can testify about the contents of her own medical records.
Correct answer: The MRI records must be produced since they are the best evidence under the best evidence criterion.
The Best Evidence Rule (or Original Document Rule) generally requires that to prove the content of a writing, recording, or photograph, the original must be produced. Here, the MRI printouts are the 'original' evidence of what the scan showed regarding the sponges. The patient's testimony about what she *saw* on the scan is secondary evidence, and the rule requires the primary evidence (the printouts) unless an exception applies, which is not indicated.
Question 3: A four-year-old tenant's daughter fell from their apartment building's second-floor outside stairwell. The renter sued the landlord for the negligent stairwell, step, and railing construction and maintenance. The stairwell was designed on a dangerously steep inclination, the steps were loose, and the railing was inadequate to prevent the baby from slipping over the edge. The jury determined that the landlord was negligent in the design and construction of the stairs, as well as in neglecting to keep the stairs, steps, and railing in good condition. The landlord appealed based on his immunity from suit and the tenant's inability to state any exception to his immunity. Will the appellate court uphold the jury's verdict against the landlord under modern rule?
- Yes, the modern law states that the landlord, like anybody else, has a responsibility to take reasonable precautions to safeguard its tenants and others from harm caused by a foreseeable danger of harm. (Correct answer)
- No, because even under current law, a landlord cannot be held accountable for faulty design or upkeep.
- Yes, the landlord is solely responsible for the unreasonably unsafe state he allowed to exist.
- No, because the landlord is still protected by the common law notion of "lessee beware," and residential property is still rented "as is."
Correct answer: Yes, the modern law states that the landlord, like anybody else, has a responsibility to take reasonable precautions to safeguard its tenants and others from harm caused by a foreseeable danger of harm.
Under modern landlord-tenant law, the traditional common law rule of 'lessee beware' has largely been abandoned. Landlords now owe a duty of reasonable care to their tenants and others lawfully on the premises. This includes a responsibility to maintain the property in a safe condition and to address foreseeable dangers, such as negligently designed or maintained stairwells, to prevent harm.
Question 4: A police officer in a small town stopped a motorist for speeding. He thought the driver was impatient and fidgety, but he couldn't put his finger on why. He checked the car nevertheless and discovered two boxes of freshly canned peaches that had been reported stolen from the driver's neighbor's porch 24 hours before. According to the state criminal law, he was charged with theft. His plea for the evidence to be suppressed due to an illegal search was refused. Will the appellate court likely overturn the lower court's denial of the motion to suppress on appeal?
- Yes, because when a car is pulled over for speeding, the officer is required to get a search warrant before conducting any investigation.
- Yes, since the search was unconstitutional because the officer lacked probable cause to search the vehicle. (Correct answer)
- No, because a fidgety driver is enough to warrant a comprehensive car search for probable cause.
- No, the stop and search were legal and proper for a speeding stop.
Correct answer: Yes, since the search was unconstitutional because the officer lacked probable cause to search the vehicle.
While a traffic stop for speeding is legal, an officer needs independent probable cause or reasonable suspicion to conduct a search of the vehicle beyond a basic safety check. The officer's subjective feeling that the driver was 'impatient and fidgety' without any other articulable facts suggesting criminal activity does not meet the Fourth Amendment standard for probable cause to search the car. Therefore, the search was unconstitutional, and the evidence should be suppressed.
Question 5: A pizza and Italian food restaurant owner establishes a new site on a street where another restaurant owner operates a burger joint. The pizza shop owner notices that sales is slow and blames it on his competitor, the burger vendor. The pizzeria proprietor begins to make false claims about the burger joint's inferior ingredients, which he claims are causing ptomaine poisoning in some of the restaurant's patrons. Can a burger establishment owner sue for conversion if he loses customers and revenue to a pizza joint owner?
- Yes, conversion is a deliberate tort, and the pizzeria owner did want to convert and did convert a portion of his burger operation.
- Yes, since the pizza shop owner infringed on his right to quiet enjoyment of his business and disrupted his operations.
- No, because he had no interference with his personal property ownership or possession rights. (Correct answer)
- No, because conversion entails stealing someone else's real estate.
Correct answer: No, because he had no interference with his personal property ownership or possession rights.
Conversion is an intentional tort that involves the wrongful exercise of dominion and control over the personal property of another, to the exclusion of or inconsistent with the owner's rights. The pizza shop owner's actions, while potentially constituting defamation or tortious interference with business relations, did not involve taking or interfering with the burger joint owner's physical personal property. Therefore, a claim for conversion is not applicable.
Question 6: A witness to a murder in the park is summoned to testify in court. Is it permissible for the defense attorney to question her about her practice of feeding pigeons during cross examination? She was cited for illegally feeding the pigeons many times, according to the defense. “You have a long history of feeding the pigeons, don't you?” defense counsel tries to question. You've been ticketed countless times for feeding pigeons, haven't you, and you still do it?" Will the witness be questioned about these topics by the trial court?
- No, because a witness can never be questioned about previous bad behavior.
- Yes, because feeding pigeons in the park and continuing to do so after being ticketed may indicate that the witness is antisocial.
- No, because the question has no bearing on the witness's or defendant's credibility or guilt. (Correct answer)
- Yes, because the witness' attention was always drawn to the pigeons, according to the statement.
Correct answer: No, because the question has no bearing on the witness's or defendant's credibility or guilt.
For cross-examination questions about prior bad acts to be permissible for impeachment, they must relate to the witness's character for truthfulness or untruthfulness. Illegally feeding pigeons, even repeatedly, does not inherently demonstrate a propensity for dishonesty or untruthfulness. Therefore, this line of questioning is irrelevant to the witness's credibility regarding the murder testimony and should be excluded.
Question 7: At his cattle ranch, where he has a stable of prolific, fertile cows, a pet breeder is in the business of producing calves. The newborn calves require regular care and attention. One of the employees mistakenly leaves the fence door open one day, and a freshly born calf escapes to his neighbor's property. The breeder went to the neighbor's property to get the calf and ensure that it was secure. However, after accessing the property, he was detained for trespassing. The breeder filed an appeal. Will the charge be dismissed by the court?
- Because of the tender pet doctrine, temporary admission is permitted to retrieve infant animals.
- No, because any living chattels that passed onto his territory belonged to the neighbor.
- No, because his status as a breeder disqualified him from obtaining a restricted license.
- Yes, because he was only allowed to enter the property on a limited basis in order to protect his chattel. (Correct answer)
Correct answer: Yes, because he was only allowed to enter the property on a limited basis in order to protect his chattel.
The doctrine of 'private necessity' allows a person to enter the land of another to protect their own property from serious harm, even if it constitutes a technical trespass. In this case, the breeder had a limited privilege to enter the neighbor's property to retrieve his escaped calf, which is considered chattel, to prevent its loss or harm. This privilege is limited to what is reasonably necessary to protect the chattel.
Question 8: A foreign visitor was accused of snatching a little child and was on trial. According to the prosecutor, the visitor knew the child personally, which is why the child accompanied him, and the culprit was aware that the child's parents were rich. “I am looking forward to visiting with the child and his parents,” the culprit told the witness, according to the prosecutor. The defense objected to the proposed testimony, saying, "They have a great luxurious mansion that I will enjoy staying there." Will the objection be upheld by the court?
- No, if the accused takes the stand, the statement can be utilized as impeachment as well as a party admission to prove the material facts of knowing the child and the family's financial situation. (Correct answer)
- Yes, the statement has no bearing on whether or not someone is guilty or innocent.
- No, if the accused takes the stand, the statement can be used to impeach him and prove he is lying on the stand.
- Yes, the statement's prejudicial value will surpass its probative value.
Correct answer: No, if the accused takes the stand, the statement can be utilized as impeachment as well as a party admission to prove the material facts of knowing the child and the family's financial situation.
The statement 'I am looking forward to visiting with the child and his parents... They have a great luxurious mansion that I will enjoy staying there' is a party admission. Party admissions are generally admissible as non-hearsay and can be used to prove the truth of the matter asserted, such as the accused's knowledge of the child and the family's wealth, which are relevant to the kidnapping charge. If the accused testifies inconsistently, it could also be used for impeachment.
Question 9: A juvenile was on trial for illegally invading another person's property and stealing an automobile. For the prosecution, the witness can simply affirm that a car was stolen, the model and kind of automobile, and that it was taken from the property on a specific day. “Isn't it possible that my client did not steal the automobile, that someone else stole it, and that the police are lying about the charges against him?” the defense asks the witness. The question was opposed to by the prosecution. Will the objection be upheld by the court?
- Yes, because it is illegal to call the police's credibility into question without significant evidence.
- Yes, since this is an obnoxious question based only on assumption. (Correct answer)
- No, because a cross-examiner is granted broad questioning latitude because the witness may know something he isn't telling.
- No, interrogation concerning the potential of other culprits or police malfeasance is always allowed.
Correct answer: Yes, since this is an obnoxious question based only on assumption.
Cross-examination questions must be based on facts in evidence or reasonable inferences drawn from them, not on pure speculation or unsupported accusations. The defense attorney's question, 'Isn't it possible that my client did not steal the automobile, that someone else stole it, and that the police are lying about the charges against him?' is speculative, argumentative, and assumes facts not in evidence, making it an improper question.
Question 10: Which provision of the United States Constitution guarantees the right to freedom of speech?
- First amendment (Correct answer)
- Second amendment
- Fourth amendment
- Fifth amendment
Correct answer: First amendment
The First Amendment to the United States Constitution explicitly guarantees several fundamental rights, including freedom of speech, freedom of the press, freedom of religion, and the right to assemble peacefully. It serves as a cornerstone of individual liberties in the U.S., protecting citizens from government infringement on these essential freedoms.
Question 11: Under the Equal Protection Clause of the Fourteenth Amendment, a state law that treats men and women differently will be subject to which level of scrutiny?
- Rational basis review
- Intermediate scrutiny (Correct answer)
- Strict scrutiny
- Minimal scrutiny
Correct answer: Intermediate scrutiny
Under the Equal Protection Clause of the Fourteenth Amendment, laws that classify individuals based on gender (sex) are subject to intermediate scrutiny. This means the government must demonstrate that the classification serves important governmental objectives and is substantially related to the achievement of those objectives. This level of scrutiny is higher than rational basis review but lower than strict scrutiny.
Question 12: Which Constitutional clause prohibits the government from making any law "respecting an establishment of religion"?
- Free Exercise Clause
- Due Process Clause
- Establishment Clause (Correct answer)
- Equal Protection Clause
Correct answer: Establishment Clause
The Establishment Clause, found in the First Amendment, prohibits the government from establishing or endorsing a religion. It ensures governmental neutrality towards religion, preventing the state from favoring one religion over others or religion over non-religion. This clause is crucial for maintaining the separation of church and state.
Question 13: Which type of speech is given the least protection under the First Amendment?
- Political speech
- Commercial speech (Correct answer)
- Artistic expression
- Religious speech
Correct answer: Commercial speech
While protected by the First Amendment, commercial speech (speech proposing a commercial transaction) receives less protection than other forms of speech, such as political or artistic expression. It can be regulated more extensively, for example, to prevent false or misleading advertising, as long as the regulation serves a substantial government interest and is narrowly tailored. This allows for consumer protection without unduly restricting truthful commercial communication.
Question 14: In criminal cases, the government must prove the defendant's guilt "beyond a reasonable doubt." Which Constitutional principle does this reflect?
- Right to a fair trial
- Right to due process (Correct answer)
- Right to confront witnesses
- Right to counsel
Correct answer: Right to due process
The requirement that the government prove guilt 'beyond a reasonable doubt' in criminal cases is a fundamental component of the Fifth and Fourteenth Amendments' Due Process Clauses. This high standard of proof protects individuals from unjust convictions and ensures that the state bears the heavy burden of convincing the jury of the defendant's guilt with a very high degree of certainty. It is a cornerstone of a fair trial.
Question 15: Which amendment protects individuals from unreasonable searches and seizures?
- First Amendment.
- Second Amendment.
- Fourth Amendment. (Correct answer)
- Fifth Amendment.
Correct answer: Fourth Amendment.
The Fourth Amendment protects individuals from unreasonable searches and seizures by the government. It generally requires law enforcement to obtain a warrant, based on probable cause, before conducting searches or making arrests. This amendment safeguards personal privacy and security by limiting governmental intrusion into private affairs.
Question 16: A law that restricts the right to vote based on race, color, or previous condition of servitude violates which Constitutional Amendment?
- First amendment
- Tenth amendment
- Thirteen amendment
- Fifteenth amendment (Correct answer)
Correct answer: Fifteenth amendment
The Fifteenth Amendment to the United States Constitution explicitly prohibits states from denying or abridging a citizen's right to vote 'on account of race, color, or previous condition of servitude.' It was ratified after the Civil War to ensure voting rights for African American men, addressing historical disenfranchisement and promoting equality in political participation.
Free Bar Exam MBE (Constitutional Law II) Questions and Answers
On a public street, an elderly woman was mugged and robbed.
The victim only saw her assailant's eyes
at the time of the crime.
The remainder of his face was hidden by a hooded sweatshirt and a bandana.
While waiting to be interrogated a few days later, the victim noticed the defendant being led through the
courts in jail garb and restrained by handcuffs and leg irons.
He was soon identified as the offender by her.
Will the court accept such identification as proof?