BARBRI LAST 100 MBE PRACTICE EXPECTED
QUESTIONS WITH VERIFIED ANSWERS
Question 1.
A statute passed by both houses of Congress and signed by the President authorizes a federal agency
to select a site for and to construct a monument honoring members of the capitol police force killed in
the line of duty. The statute appropriates the necessary funds but provides that the funds may not be
expended until both houses of Congress have adopted a concurrent resolution, not subject to
presentment to the President, approving the agency's plans for the monument's location and design.
Is the provision requiring further congressional approval before expenditure of the funds
constitutional?
A No, because decisions regarding the placement and design of government-owned structures are an
exclusively executive function with which Congress may not interfere by any means.
B No, because the provision amounts to an unconstitutional legislative interference with an executive
function.
C Yes, because Congress may attach reasonable conditions to its appropriation of funds to executive
departments, and its special interest in the members of its own police force makes the provision a
reasonable condition.
D Yes, because the provision is part of a statute that was passed by both houses of Congress and
signed by the President.
ANSWER
(B) is correct. The enactment of laws by Congress requires passage of the law in both houses
(bicameralism) and approval of the law by the President (that is, the presentment requirement)
or an override of a presidential veto. Here, Congress passed a law and the President signed it,
but Congress sought further control by requiring expenditures to be approved specifically by
Congress without presentment to the President. Such a requirement usurps the power of the
executive branch to execute laws and places it in the hands of Congress in violation of the
doctrine of separation of powers. (A) is incorrect. Under the Spending Clause, Congress
certainly has the power to adopt a law specifying where a monument should be placed, and if
such a law were passed by Congress and the President signed the law, it would be valid.
However, that is not what happened here. Here, the law left it to an agency to select a site. (C)
is incorrect for the reasons stated above; requiring subsequent Congressional approval of
agency site selection is unconstitutional. (D) is incorrect for the same reason.
,Question 2.
Under the authority of a federal voting rights statute, some states drew congressional districts in a
manner calculated to increase the likelihood that members of historically disadvantaged minority
racial groups would be elected. The U.S. Supreme Court declared these districts to be unconstitutional,
as improper racial gerrymanders.
In response to this ruling, Congress passed a new statute that explicitly denies the Supreme Court
appellate jurisdiction over all future cases challenging the constitutionality of action taken under the
authority of the federal voting rights statute.
Which of the following is the most persuasive argument for the constitutionality of the new statute
restricting the Supreme Court's appellate jurisdiction?
A Article III of the Constitution explicitly states that the Supreme Court's appellate jurisdiction is
subject to such exceptions and regulations as Congress shall make.BThe constitutional principle of
separation of powers authorizes Congress to pass statutes calculated to reduce the effects of Supreme
Court decisions that interfere with the exercise of powers that have been delegated to the legislative
branch.CThe establishment and apportionment of congressional districts directly affect interstate
commerce, and the Constitution authorizes Congress to use its plenary authority over such commerce
for any purpose it believes will promote the general welfare.DThe Fifteenth Amendment authorizes
Congress to enforce the amendment's voting rights provisions by appropriate legislation, and
Congress could reasonably determine that this restriction on the Supreme Court's appellate
jurisdiction is an appropriate means to that end.
ANSWER
(A) is correct. Article III explicitly gives Congress the power to make exceptions to the Supreme
Court's appellate jurisdiction. (B) is incorrect. The separation of powers doctrine is described as
a series of checks and balances among the three branches of government - just the opposite
of what this choice suggests. (C) is incorrect. Although Congress has broad powers under the
Commerce Clause, they are not without limit. The Commerce Clause gives Congress power to
adopt laws concerning channels of interstate commerce, such as roads and airways;
instrumentalities of interstate commerce, such as trucks and trains; and economic or
commercial activities - even ones that take place solely within one state - that in aggregate
have a substantial effect on interstate commerce. Congressional voting districts do not fall
within any of these categories. Moreover, the General Welfare Clause is part of Congress's
spending power (it may spend for the general welfare) and is not part of Congress's commerce
power. (D) is incorrect because it is not as strong an answer as (A). Article III explicitly allows
Congress to make exceptions to the Supreme Court's appellate jurisdiction without
qualification. The enabling clause of the Fifteenth Amendment allows Congress to adopt
legislation protecting the right to vote from discrimination. A law taking away from the
Supreme Court jurisdiction to hear cases under a voting rights statute would seem to be the
opposite of what is allowed by the Fifteenth Amendment's enabling clause.
,Question 3.
A man was in jail after being arrested for burglary. When the police attempted to question him, the
man invoked his Miranda rights and refused to answer any questions. The man was subsequently
tried, convicted, and sentenced to a prison term for the burglary. Three years later, while the man was
serving his prison sentence for the burglary, a police detective from a nearby town questioned him
about an unsolved homicide. The detective did not know that the man had invoked Miranda at an
earlier time. The man waived his Miranda rights and made several incriminating statements to the
detective. When he was later charged with the homicide, the man moved to suppress these
statements, claiming that his earlier refusal to waive his Miranda rights should have been honored.
Should the court suppress the statements? Press Enter or Space to submit the answerANo, because
the detective was unaware that the man had originally invoked his Miranda rights.BNo, because the
man's prior invocation of his Miranda rights did not preclude the later interrogation.CYes, because the
man had earlier invoked his Miranda rights, and the police were not permitted to resume questioning,
even after a time lapse of years.DYes, because the man was incarcerated, and his earlier invocation of
his Miranda rights shielded him from further questioning until he was released.
ANSWER
(B) is correct. As a general rule, police officers must scrupulously honor a detainee's invocation
of Miranda rights. If the invocation is not scrupulously honored, statements made by the
detainee are inadmissible. The prohibition against questioning a detainee after invoking
Miranda rights lasts the entire time the detainee is in custody for interrogation purposes, plus
14 more days after the detainee returns to his normal life (which can include his "normal life"
in jail). Here, the detainee invoked Miranda rights three years before the questioning in the
current case. Thus, far more than 14 days had passed since he had returned to his "normal
life" in jail. Therefore,
(B) is correct and (C) and (D) are incorrect. (A) is incorrect because whether the detective knew
the man had originally invoked his Miranda rights is irrelevant: his incarceration and time
lapse of three years rendered the prior invocation of his rights moot. The man would need to
be given new Miranda warnings regardless.
, Question 4.
A defendant is on trial in federal court for bank robbery. Before the police had any suspects, a police
officer interviewed an eyewitness at the police station and showed her a "mug book" containing
dozens of photographs. The eyewitness identified the defendant's photograph as that of the robber.
At trial, the eyewitness surprises the prosecutor by testifying that she is unable to identify the
defendant as the robber. The prosecutor calls the officer to testify that the eyewitness identified the
defendant from the photograph in the police station. The eyewitness remains present in the
courthouse and can be recalled.
Is the officer's testimony admissible?
Press Enter or Space to submit the answerANo, because the eyewitness was unable to identify the
defendant at trial.BNo, because the eyewitness's testimony has disappointed the prosecutor but has
not affirmatively harmed the prosecution's case.CYes, because the eyewitness's statement of
identification as reported by the officer is not excluded by the hearsay rule.DYes, because the hearsay
rule does not exclude out-of-court statements if a declarant testifies and is available for
cross-examination.
ANSWER
(C) is correct. A declarant's prior statement identifying someone she perceived earlier is not
hearsay under the Federal Rules of Evidence if the declarant is now testifying at trial and
subject to cross-examination about the prior statement. Here, the eyewitness testified at trial
and can be recalled and cross-examined, so her prior statement identifying the defendant as
the robber is admissible. (A) is incorrect. Even though the eyewitness was unable to identify
the defendant at trial, her prior statement of identification is admissible because she is
testifying and subject to cross-examination about the statement.
(B) is incorrect. A testifying witness's prior statement of identification is admissible regardless
of whether the witness's current testimony has affirmatively harmed the examiner's case. (D) is
incorrect. This answer choice is too broad. Only certain out-of-court statements of a testifying
witness are categorized as nonhearsay-prior inconsistent statements made under oath, prior
statements of identification, and prior consistent statements that rehabilitate the witness.
Otherwise, the general rule is that a declarant-witness's out-of-court statements are hearsay if
offered for their truth and must fall within an exception to be admissible.
QUESTIONS WITH VERIFIED ANSWERS
Question 1.
A statute passed by both houses of Congress and signed by the President authorizes a federal agency
to select a site for and to construct a monument honoring members of the capitol police force killed in
the line of duty. The statute appropriates the necessary funds but provides that the funds may not be
expended until both houses of Congress have adopted a concurrent resolution, not subject to
presentment to the President, approving the agency's plans for the monument's location and design.
Is the provision requiring further congressional approval before expenditure of the funds
constitutional?
A No, because decisions regarding the placement and design of government-owned structures are an
exclusively executive function with which Congress may not interfere by any means.
B No, because the provision amounts to an unconstitutional legislative interference with an executive
function.
C Yes, because Congress may attach reasonable conditions to its appropriation of funds to executive
departments, and its special interest in the members of its own police force makes the provision a
reasonable condition.
D Yes, because the provision is part of a statute that was passed by both houses of Congress and
signed by the President.
ANSWER
(B) is correct. The enactment of laws by Congress requires passage of the law in both houses
(bicameralism) and approval of the law by the President (that is, the presentment requirement)
or an override of a presidential veto. Here, Congress passed a law and the President signed it,
but Congress sought further control by requiring expenditures to be approved specifically by
Congress without presentment to the President. Such a requirement usurps the power of the
executive branch to execute laws and places it in the hands of Congress in violation of the
doctrine of separation of powers. (A) is incorrect. Under the Spending Clause, Congress
certainly has the power to adopt a law specifying where a monument should be placed, and if
such a law were passed by Congress and the President signed the law, it would be valid.
However, that is not what happened here. Here, the law left it to an agency to select a site. (C)
is incorrect for the reasons stated above; requiring subsequent Congressional approval of
agency site selection is unconstitutional. (D) is incorrect for the same reason.
,Question 2.
Under the authority of a federal voting rights statute, some states drew congressional districts in a
manner calculated to increase the likelihood that members of historically disadvantaged minority
racial groups would be elected. The U.S. Supreme Court declared these districts to be unconstitutional,
as improper racial gerrymanders.
In response to this ruling, Congress passed a new statute that explicitly denies the Supreme Court
appellate jurisdiction over all future cases challenging the constitutionality of action taken under the
authority of the federal voting rights statute.
Which of the following is the most persuasive argument for the constitutionality of the new statute
restricting the Supreme Court's appellate jurisdiction?
A Article III of the Constitution explicitly states that the Supreme Court's appellate jurisdiction is
subject to such exceptions and regulations as Congress shall make.BThe constitutional principle of
separation of powers authorizes Congress to pass statutes calculated to reduce the effects of Supreme
Court decisions that interfere with the exercise of powers that have been delegated to the legislative
branch.CThe establishment and apportionment of congressional districts directly affect interstate
commerce, and the Constitution authorizes Congress to use its plenary authority over such commerce
for any purpose it believes will promote the general welfare.DThe Fifteenth Amendment authorizes
Congress to enforce the amendment's voting rights provisions by appropriate legislation, and
Congress could reasonably determine that this restriction on the Supreme Court's appellate
jurisdiction is an appropriate means to that end.
ANSWER
(A) is correct. Article III explicitly gives Congress the power to make exceptions to the Supreme
Court's appellate jurisdiction. (B) is incorrect. The separation of powers doctrine is described as
a series of checks and balances among the three branches of government - just the opposite
of what this choice suggests. (C) is incorrect. Although Congress has broad powers under the
Commerce Clause, they are not without limit. The Commerce Clause gives Congress power to
adopt laws concerning channels of interstate commerce, such as roads and airways;
instrumentalities of interstate commerce, such as trucks and trains; and economic or
commercial activities - even ones that take place solely within one state - that in aggregate
have a substantial effect on interstate commerce. Congressional voting districts do not fall
within any of these categories. Moreover, the General Welfare Clause is part of Congress's
spending power (it may spend for the general welfare) and is not part of Congress's commerce
power. (D) is incorrect because it is not as strong an answer as (A). Article III explicitly allows
Congress to make exceptions to the Supreme Court's appellate jurisdiction without
qualification. The enabling clause of the Fifteenth Amendment allows Congress to adopt
legislation protecting the right to vote from discrimination. A law taking away from the
Supreme Court jurisdiction to hear cases under a voting rights statute would seem to be the
opposite of what is allowed by the Fifteenth Amendment's enabling clause.
,Question 3.
A man was in jail after being arrested for burglary. When the police attempted to question him, the
man invoked his Miranda rights and refused to answer any questions. The man was subsequently
tried, convicted, and sentenced to a prison term for the burglary. Three years later, while the man was
serving his prison sentence for the burglary, a police detective from a nearby town questioned him
about an unsolved homicide. The detective did not know that the man had invoked Miranda at an
earlier time. The man waived his Miranda rights and made several incriminating statements to the
detective. When he was later charged with the homicide, the man moved to suppress these
statements, claiming that his earlier refusal to waive his Miranda rights should have been honored.
Should the court suppress the statements? Press Enter or Space to submit the answerANo, because
the detective was unaware that the man had originally invoked his Miranda rights.BNo, because the
man's prior invocation of his Miranda rights did not preclude the later interrogation.CYes, because the
man had earlier invoked his Miranda rights, and the police were not permitted to resume questioning,
even after a time lapse of years.DYes, because the man was incarcerated, and his earlier invocation of
his Miranda rights shielded him from further questioning until he was released.
ANSWER
(B) is correct. As a general rule, police officers must scrupulously honor a detainee's invocation
of Miranda rights. If the invocation is not scrupulously honored, statements made by the
detainee are inadmissible. The prohibition against questioning a detainee after invoking
Miranda rights lasts the entire time the detainee is in custody for interrogation purposes, plus
14 more days after the detainee returns to his normal life (which can include his "normal life"
in jail). Here, the detainee invoked Miranda rights three years before the questioning in the
current case. Thus, far more than 14 days had passed since he had returned to his "normal
life" in jail. Therefore,
(B) is correct and (C) and (D) are incorrect. (A) is incorrect because whether the detective knew
the man had originally invoked his Miranda rights is irrelevant: his incarceration and time
lapse of three years rendered the prior invocation of his rights moot. The man would need to
be given new Miranda warnings regardless.
, Question 4.
A defendant is on trial in federal court for bank robbery. Before the police had any suspects, a police
officer interviewed an eyewitness at the police station and showed her a "mug book" containing
dozens of photographs. The eyewitness identified the defendant's photograph as that of the robber.
At trial, the eyewitness surprises the prosecutor by testifying that she is unable to identify the
defendant as the robber. The prosecutor calls the officer to testify that the eyewitness identified the
defendant from the photograph in the police station. The eyewitness remains present in the
courthouse and can be recalled.
Is the officer's testimony admissible?
Press Enter or Space to submit the answerANo, because the eyewitness was unable to identify the
defendant at trial.BNo, because the eyewitness's testimony has disappointed the prosecutor but has
not affirmatively harmed the prosecution's case.CYes, because the eyewitness's statement of
identification as reported by the officer is not excluded by the hearsay rule.DYes, because the hearsay
rule does not exclude out-of-court statements if a declarant testifies and is available for
cross-examination.
ANSWER
(C) is correct. A declarant's prior statement identifying someone she perceived earlier is not
hearsay under the Federal Rules of Evidence if the declarant is now testifying at trial and
subject to cross-examination about the prior statement. Here, the eyewitness testified at trial
and can be recalled and cross-examined, so her prior statement identifying the defendant as
the robber is admissible. (A) is incorrect. Even though the eyewitness was unable to identify
the defendant at trial, her prior statement of identification is admissible because she is
testifying and subject to cross-examination about the statement.
(B) is incorrect. A testifying witness's prior statement of identification is admissible regardless
of whether the witness's current testimony has affirmatively harmed the examiner's case. (D) is
incorrect. This answer choice is too broad. Only certain out-of-court statements of a testifying
witness are categorized as nonhearsay-prior inconsistent statements made under oath, prior
statements of identification, and prior consistent statements that rehabilitate the witness.
Otherwise, the general rule is that a declarant-witness's out-of-court statements are hearsay if
offered for their truth and must fall within an exception to be admissible.
