NCBE National Conference of Bar Examiners Multistate Bar Examination – 2024 Online MBE Practice Exam 2 100 actual verified questions with well explained correct answers

NCBE National Conference of Bar Examiners Multistate Bar Examination – 2024 Online MBE Practice Exam 2 100 actual verified questions with well explained correct answers Question # 1 - Evidence In a suit based on a will, inheritance of $1 million depended upon whether the wife had survived her husband when both died in the crash of a small airplane. An applicable statute provided that, for purposes of distributing an estate after a common disaster, there was a rebuttable presumption that neither spouse had survived the other. A witness was called to testify that as she approached the plane she heard what she thought was a woman’s voice saying, “I’m dying,” although by the time the two occupants were removed from the wreckage they were both dead. Is the witness’s testimony admissible? (A) No, because the matter is governed by the presumption that neither spouse survived the other. (B) No, because the witness’s testimony is too speculative to support a finding. (C) Yes, because the hearsay rule does not apply to statements by decedents in actions to determine rights under a will. (D) Yes, because it is relevant and not otherwise prohibited. Correct. The testimony is not barred by the hearsay rule or any other rule and is relevant on the issue of whether the wife survived the husband. Question # 2 - Criminal Law and Procedure A defendant was lawfully arrested without a warrant for bank robbery. He was not given Miranda warnings, but was immediately taken to a police station where he and five other men were placed in a lineup to be viewed by the bank teller. Each man was required to say the words spoken by the bank robber: “Give me all your money. I’ve got a gun.” After all the men in the lineup spoke those words, the teller identified the defendant as the robber. The defendant subsequently moved to suppress the testimony of the teller, claiming the lineup violated his privilege against self-incrimination. At a suppression hearing, the teller testified that she had not gotten a good look at the robber’s face, because the robber had been wearing a hat pulled down over most of his face, but that she was certain the defendant was the robber because she had recognized his voice at the lineup. Should the defendant’s motion be granted? (A) No, because being required to speak at the lineup, while compelled, was not testimonial or communicative. Correct. The defendant properly could be required to utter the words spoken by the bank robber. The privilege against self-incrimination extends only to compelled “testimonial” communications; “[t]hus, even though the act may provide incriminating evidence, a criminal suspect may be compelled . . . to make a recording of his voice.” United States v. Hubbell, 530 U.S. 27, 34–35 (2000) (citing United States v. Wade, 388 U.S. 218 (1967)). (B) No, because testimony of a witness based on firsthand observation is not subject to exclusion as the fruit of the poisonous tree. (C) Yes, because the defendant was compelled to speak at the lineup, and this compelled speech led to the witness’s identification testimony. (D) Yes, because the defendant was never informed that he could refuse to make a statement and that any statement could be used as evidence against him. Question # 3 - Constitutional Law A city owned and operated a municipal bus system. The city sold space on its buses for the posting of placards. Decisions on the type of placards that could be posted on the buses were left wholly to the discretion of the administrator of the bus system. Although most of the placards that appeared on city buses were commercial advertisements, the administrator had often sold space on the buses for placards promoting various political, charitable, and religious causes. A circus bought space on the city buses for placards advertising its forthcoming performances. An animal rights organization asked the administrator to sell it space for a placard with photographs showing the mistreatment of animals in circus shows. The administrator denied the organization’s request. She said that the display of this placard would be offensive to the circus, which had paid a substantial sum to place its placards on the buses, and that she had been told by a circus employee that none of the photographs on the organization’s placard depicted an animal belonging to this particular circus. Under the relevant city ordinance, the administrator’s decision was final. The organization sued the administrator in an appropriate court for a declaration that she could not, consistent with the First Amendment as made applicable to the states by the Fourteenth Amendment, refuse to sell the organization space for its placard for the reasons she gave. Will the organization prevail? (A) No, because the administrator’s denial of space to the organization was a reasonable time, manner, and place restriction of speech. (B) No, because a public official may not allow the use of public facilities for the propagation of a message that he or she believes may create a false or misleading impression. (C) Yes, because a public official may not refuse to permit the dissemination of a message in a public forum wholly on the basis of its content unless that denial is necessary to serve a compelling government interest. Correct. The space on city buses used for the posting of placards qualifies as a designated public forum because it is public property that the city has decided to open for an expressive use. The organization’s placard was consistent with the city’s designated use of the forum. The city administrator’s denial of space to the organization was based on the content of the placard and therefore triggered strict scrutiny, which requires that the denial be necessary to serve a compelling government interest. The reasons cited for the city’s denial of the organization’s request do not implicate compelling government interests that would justify a content-based speech restriction. (D) Yes, because a public official may not refuse to allow the use of any public facility to publish a message dealing with an issue of public concern. Question # 4 - Torts A landowner who owned a large tract of land in the mountains sought to protect a herd of wild deer that frequented the area. Although the landowner had posted signs that said, “No Hunting—No Trespassing,” hunters frequently intruded to kill the deer. Recently, the landowner built an eight-foot chain-link fence, topped by three strands of barbed wire, across a gully on her land that provided the only access to the area frequented by the deer. A wildlife photographer asked the landowner for permission to enter the property to photograph the deer. Because the landowner feared that any publicity would encourage further intrusions, she denied the photographer’s request. Frustrated, the photographer attempted to climb the fence. He became entangled in the barbed wire and suffered extensive lacerations. The wounds became infected and ultimately caused his death. The photographer’s personal representative brought an action against the landowner. Will the plaintiff prevail?