BAR EXAM FINAL PUSH - BARBRI 200
MBE-GRADED A
Best Evidence Rule Example
A defendant was charged with murdering his boss. After obtaining a valid search
warrant and executing a valid search of the defendant's office, an officer found a love
letter from the defendant's wife to his boss describing their sexual relations. The letter
stated, "I can no longer hide my love for you from my husband. I intend to tell him about
us and leave him for you." At trial, the officer seeks to testify about the contents of the
letter as proof of the defendant's motive for killing his boss.
The defense counsel should object on which of the following grounds? - ANS-Under the
best evidence rule, the original writing must be produced when proving the material
terms of that writing. Secondary evidence of the writing, such as oral testimony
regarding the writing's contents, is permitted only after it has been shown that the
original is unavailable for some reason other than by serious misconduct of the
proponent.
A landowner who had owned and operated a small airport notified the electric company
that he was discontinuing operations and that it should shut down the electrical current
that had supplied his communications equipment. The equipment had been surrounded
by a fence and signs warning of high voltage. Because the electric company had
maintained a transformer next to the landowner's communications equipment that
contained many valuable and reusable parts, it decided to leave the power on to
prevent theft until it could schedule removal of the transformer. Three days later, a
trespasser who knew that the airport had closed went onto the property looking for
something to steal. He could find nothing of value except the transformer. He noticed
the signs warning of the high voltage but believed that the power had since been turned
off. He scaled the fence with the intent to dismantle the transformer. As soon as he
touched - ANS-Yes, because the electric company used unreasonable force to protect
its property.
The trespasser will prevail against the electric company because it did not have the right
to use deadly force to protect its property. As a general rule, one may use reasonable
force to prevent the commission of a tort against one's property. However, force that is
likely to cause death or serious bodily harm is not permitted when the invasion is
threatening property alone. Furthermore, one may not use indirect deadly force when
such force could not lawfully be directly used. Because the trespasser was threatening
only the property interest of the electric company, the use of deadly force would not be
privileged against him. By leaving the power on to prevent theft, the electric company
was using indirect deadly force to defend its property where such force could not
,lawfully be directly used. Hence, it will be liable to the trespasser for his injuries. (A) is
incorrect because the electric company's status with respect to the land is irrelevant for
the type of claim that the trespasser is asserting. In negligence actions, the limited duty
to trespassers that a landowner has is not shared by persons with an easement or
license to use the land; they owe a duty of reasonable care even to trespassers. Here,
however, the theory of the trespasser's claim is not negligence but more likely battery,
because the electric company intended to leave the power on to protect its property and
will be deemed to have intended the consequences of that conduct. Even if the electric
company had been the landowner, it would not have been privileged to leave the power
on solely to protect its property from theft. (C) is incorrect because, as discussed above,
the trespasser's status as a trespasser
To encourage minority business and foster pride in minority heritage, a state adopted
legislation exempting magazines and other periodicals from the state's receipts tax if
20% of the magazine is devoted to articles concerning minorities (a commission was set
up to sample magazines to determine on a yearly basis whether they should be
exempt). A publisher produced a sports magazine in the state that occasionally
contained articles about minority athletes, but the commission determined that the
publisher's magazine was not eligible for the receipts tax exemption. After paying the
tax assessed on her magazine, the publisher sued for a refund.
How will the court most likely rule?
B Against the publisher, because the state has a compelling interest in encouraging
minority business.
C In favor of the publisher, because the tax violates the Equal Protection Clause. - ANS-
The court should rule in favor of the publisher because the tax exemption regulates
speech based on its content in violation of the First Amendment. The freedom of the
press is guaranteed by the First Amendment. As with other areas within the First
Amendment, the freedom does not prohibit all government regulation of the press, but it
does place limits on regulation. The press and broadcasting companies can be subject
to general business regulations and taxes, but generally may not be singled out for a
special tax. Moreover, a tax impacting on the press or a subpart of the press cannot be
based on the content of the publication absent a compelling justification. Although the
state tax here appears to be a general receipts tax, the exemption is based on content,
which means that the tax also is based on content (i.e., a publication is subject to the
tax unless it contains . . . ). As discussed below, a compelling interest is not presented
here, so the exemption is invalid and the tax should fail.
A state statute prohibited the state and any county, municipality, or other governmental
unit within the boundaries of the state from hiring as a civil engineer any person who is
not a citizen. A well-qualified engineer who is not a United States citizen read that the
state's department of transportation needed a new drafting engineer. The foreign
engineer applied for the position and had the required qualifications. However, the hiring
official turned down the engineer's application, explaining that he could not hire her
because of the state statute. The engineer filed suit in federal court, claiming that the
statute violates her right to equal protection under the Fourteenth Amendment.
If the engineer prevails, what will be the most likely reason?
, C The state has failed to prove that the law is necessary to achieve a compelling
government interest. - ANS-If political form of government (teachers, police officers) ->
Then RB
If not political form of government-> Then SS for alienage
A three-car accident occurred in which the drivers were a citizen of State A, a citizen of
State B, and a citizen of State C. The State A citizen filed a negligence action against
the other two in federal district court and lost his case.
After judgment, may the State C citizen assert and maintain a negligence action against
the State B citizen seeking damages for the injuries the State C citizen sustained in the
same accident?
A Yes, because, while the State C citizen could have asserted the claim as a cross-
claim in the prior action, he may wait and assert it as an independent action. - ANS-The
State C citizen may assert and maintain a negligence action against the State B citizen.
The claim could have been asserted as a cross-claim in the prior action because it
arose from the same transaction or occurrence, but cross-claims are never compulsory.
(B) and (C) are therefore incorrect. (D) is incorrect because claim preclusion applies to
cases brought by the same claimant against the same defendant. The State C citizen
was a defendant in the first case and would be a claimant in the second. Therefore,
claim preclusion would not bar the State C citizen's claim.
A motorist was driving to a luncheon in a car that he knew did not have operating
headlights. On the way there he was rear-ended by another driver who had been driving
20 m.p.h. over the speed limit posted on that stretch of road. He suffered personal
injuries and his car was extensively damaged. The jurisdiction makes it a misdemeanor
to drive a vehicle that does not have operating headlights.
If the motorist brings an action against the other driver and the above facts are
established, will he prevail?
Yes, because the other driver violated the speeding statute, and the motorist's damages
will not be reduced despite his violation of the headlight statute. - ANS-The motorist will
recover all of his damages because the other driver's violation of the statute constituted
negligence per se. A clearly stated duty created by a criminal statute may replace the
more general duty of care if the proponent of the statutory standard shows that (i) he is
in a class intended to be protected by the statute, and (ii) the statute was designed to
prevent the type of harm that was suffered. Here, the motorist can establish that the
statutory standard regarding speeding should be applied against the other driver
because the speed limit was posted, the motorist, as a fellow driver, is in the class
intended to be protected by the statute, and it was designed to prevent accidents such
as that which occurred. No excuse for violating the statute is present in the facts; thus,
violation of the statute establishes negligence per se (i.e., duty and breach of duty). The
motorist has established causation and damages, completing the prima facie case
MBE-GRADED A
Best Evidence Rule Example
A defendant was charged with murdering his boss. After obtaining a valid search
warrant and executing a valid search of the defendant's office, an officer found a love
letter from the defendant's wife to his boss describing their sexual relations. The letter
stated, "I can no longer hide my love for you from my husband. I intend to tell him about
us and leave him for you." At trial, the officer seeks to testify about the contents of the
letter as proof of the defendant's motive for killing his boss.
The defense counsel should object on which of the following grounds? - ANS-Under the
best evidence rule, the original writing must be produced when proving the material
terms of that writing. Secondary evidence of the writing, such as oral testimony
regarding the writing's contents, is permitted only after it has been shown that the
original is unavailable for some reason other than by serious misconduct of the
proponent.
A landowner who had owned and operated a small airport notified the electric company
that he was discontinuing operations and that it should shut down the electrical current
that had supplied his communications equipment. The equipment had been surrounded
by a fence and signs warning of high voltage. Because the electric company had
maintained a transformer next to the landowner's communications equipment that
contained many valuable and reusable parts, it decided to leave the power on to
prevent theft until it could schedule removal of the transformer. Three days later, a
trespasser who knew that the airport had closed went onto the property looking for
something to steal. He could find nothing of value except the transformer. He noticed
the signs warning of the high voltage but believed that the power had since been turned
off. He scaled the fence with the intent to dismantle the transformer. As soon as he
touched - ANS-Yes, because the electric company used unreasonable force to protect
its property.
The trespasser will prevail against the electric company because it did not have the right
to use deadly force to protect its property. As a general rule, one may use reasonable
force to prevent the commission of a tort against one's property. However, force that is
likely to cause death or serious bodily harm is not permitted when the invasion is
threatening property alone. Furthermore, one may not use indirect deadly force when
such force could not lawfully be directly used. Because the trespasser was threatening
only the property interest of the electric company, the use of deadly force would not be
privileged against him. By leaving the power on to prevent theft, the electric company
was using indirect deadly force to defend its property where such force could not
,lawfully be directly used. Hence, it will be liable to the trespasser for his injuries. (A) is
incorrect because the electric company's status with respect to the land is irrelevant for
the type of claim that the trespasser is asserting. In negligence actions, the limited duty
to trespassers that a landowner has is not shared by persons with an easement or
license to use the land; they owe a duty of reasonable care even to trespassers. Here,
however, the theory of the trespasser's claim is not negligence but more likely battery,
because the electric company intended to leave the power on to protect its property and
will be deemed to have intended the consequences of that conduct. Even if the electric
company had been the landowner, it would not have been privileged to leave the power
on solely to protect its property from theft. (C) is incorrect because, as discussed above,
the trespasser's status as a trespasser
To encourage minority business and foster pride in minority heritage, a state adopted
legislation exempting magazines and other periodicals from the state's receipts tax if
20% of the magazine is devoted to articles concerning minorities (a commission was set
up to sample magazines to determine on a yearly basis whether they should be
exempt). A publisher produced a sports magazine in the state that occasionally
contained articles about minority athletes, but the commission determined that the
publisher's magazine was not eligible for the receipts tax exemption. After paying the
tax assessed on her magazine, the publisher sued for a refund.
How will the court most likely rule?
B Against the publisher, because the state has a compelling interest in encouraging
minority business.
C In favor of the publisher, because the tax violates the Equal Protection Clause. - ANS-
The court should rule in favor of the publisher because the tax exemption regulates
speech based on its content in violation of the First Amendment. The freedom of the
press is guaranteed by the First Amendment. As with other areas within the First
Amendment, the freedom does not prohibit all government regulation of the press, but it
does place limits on regulation. The press and broadcasting companies can be subject
to general business regulations and taxes, but generally may not be singled out for a
special tax. Moreover, a tax impacting on the press or a subpart of the press cannot be
based on the content of the publication absent a compelling justification. Although the
state tax here appears to be a general receipts tax, the exemption is based on content,
which means that the tax also is based on content (i.e., a publication is subject to the
tax unless it contains . . . ). As discussed below, a compelling interest is not presented
here, so the exemption is invalid and the tax should fail.
A state statute prohibited the state and any county, municipality, or other governmental
unit within the boundaries of the state from hiring as a civil engineer any person who is
not a citizen. A well-qualified engineer who is not a United States citizen read that the
state's department of transportation needed a new drafting engineer. The foreign
engineer applied for the position and had the required qualifications. However, the hiring
official turned down the engineer's application, explaining that he could not hire her
because of the state statute. The engineer filed suit in federal court, claiming that the
statute violates her right to equal protection under the Fourteenth Amendment.
If the engineer prevails, what will be the most likely reason?
, C The state has failed to prove that the law is necessary to achieve a compelling
government interest. - ANS-If political form of government (teachers, police officers) ->
Then RB
If not political form of government-> Then SS for alienage
A three-car accident occurred in which the drivers were a citizen of State A, a citizen of
State B, and a citizen of State C. The State A citizen filed a negligence action against
the other two in federal district court and lost his case.
After judgment, may the State C citizen assert and maintain a negligence action against
the State B citizen seeking damages for the injuries the State C citizen sustained in the
same accident?
A Yes, because, while the State C citizen could have asserted the claim as a cross-
claim in the prior action, he may wait and assert it as an independent action. - ANS-The
State C citizen may assert and maintain a negligence action against the State B citizen.
The claim could have been asserted as a cross-claim in the prior action because it
arose from the same transaction or occurrence, but cross-claims are never compulsory.
(B) and (C) are therefore incorrect. (D) is incorrect because claim preclusion applies to
cases brought by the same claimant against the same defendant. The State C citizen
was a defendant in the first case and would be a claimant in the second. Therefore,
claim preclusion would not bar the State C citizen's claim.
A motorist was driving to a luncheon in a car that he knew did not have operating
headlights. On the way there he was rear-ended by another driver who had been driving
20 m.p.h. over the speed limit posted on that stretch of road. He suffered personal
injuries and his car was extensively damaged. The jurisdiction makes it a misdemeanor
to drive a vehicle that does not have operating headlights.
If the motorist brings an action against the other driver and the above facts are
established, will he prevail?
Yes, because the other driver violated the speeding statute, and the motorist's damages
will not be reduced despite his violation of the headlight statute. - ANS-The motorist will
recover all of his damages because the other driver's violation of the statute constituted
negligence per se. A clearly stated duty created by a criminal statute may replace the
more general duty of care if the proponent of the statutory standard shows that (i) he is
in a class intended to be protected by the statute, and (ii) the statute was designed to
prevent the type of harm that was suffered. Here, the motorist can establish that the
statutory standard regarding speeding should be applied against the other driver
because the speed limit was posted, the motorist, as a fellow driver, is in the class
intended to be protected by the statute, and it was designed to prevent accidents such
as that which occurred. No excuse for violating the statute is present in the facts; thus,
violation of the statute establishes negligence per se (i.e., duty and breach of duty). The
motorist has established causation and damages, completing the prima facie case
