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BarBri MBE Preview Diagnostic Questions and
Correct Answers/ Latest Update / Already Graded
A "wind farm" was constructed on the open land next to a gas station where a
mechanic is employed. The huge windmills generated electrical power and
oscillated at low speeds, resulting in very low-frequency but high-amplitude sound
waves that caused extreme discomfort in a substantial minority of people. The
mechanic is one of the people adversely affected by such sound waves; the
vibrations from the windmills give him severe headaches and upset his immune
system. If the mechanic brings an action for nuisance against the owners of the
wind farm and loses, what is the most likely explanation? (A) Sound waves are not
the kind of physical phenomenon on which liability for nuisance can be based. (B)
The owners of the wind farm cannot generate power without producing the
offending sound waves, despite their best efforts to find an alternative technology.
(C) At least six out of 10 people are not affected by low-frequency
Ans: (D) If the mechanic loses, it will be because he does not own or rent the
affected property. A private nuisance is a substantial and unreasonable
interference with the use and enjoyment of real property. Because the mechanic
does not own or rent the property where he works, he may not pursue a claim
based on interference with that real property's use and enjoyment. (A public
nuisance is an interference with the rights of the community at large—a situation
not presented by the fact pattern.) (A) is wrong because sound waves may be a
basis for a nuisance action. (C) is wrong because, if 40% of the people are
bothered by the sound waves, they probably are a nuisance. It is not necessary for
a majority of the population to be affected for there to be a nuisance, but more
than one must be affected. The choice between (B) and (D) is a difficult one.
Nuisance requires an unreasonable interference with the property, and if the facts
in (B) were true, the defendants could arguably be acting reasonably. However,
(D) is more clearly a basis for the mechanic to lose than (B).
The plaintiff and defendant in a lawsuit were in an accident in which the plaintiff
was injured. As a result of the accident, the plaintiff incurred medical expenses of
$100,000. At the time of the accident, the plaintiff and defendant both lived in
State A. Before the action was filed, the plaintiff moved permanently to State B.
© 2025/ 2026 | ® All rights reserved
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The plaintiff then filed a negligence action against the defendant in federal district
court, with subject matter jurisdiction being based on diversity of citizenship.
After the action was filed but before the defendant was served with process, the
defendant was transferred by his employer and moved permanently to State B.
For purposes of evaluating the court's diversity of citizenship jurisdiction, what
are the citizenships of the two parties? (A) Both are citizens of State A. (B) The
plaintiff is a citizen of State B and the defendant is a citizen of State A. (C) The
plaintiff is a citizen
Ans: (B) The plaintiff is a citizen of State B and the defendant is a citizen of State
A. In addition to an amount in controversy that exceeds $75,000, diversity of
citizenship jurisdiction requires complete diversity, meaning that each plaintiff
must be a citizen of a different state from every defendant. Whether complete
diversity exists is determined when the suit is filed, not when the cause of action
arose or when the defendant is served with process. The citizenship of a natural
person is the state in which he is domiciled. A new state citizenship may be
established by (i) physical presence in a new place; and (ii) the intention to remain
there permanently. In this question, the plaintiff was originally from State A, but
then moved permanently to State B before suit was filed. After suit was filed, the
defendant also moved to State B from State A. Because the plaintiff's move to
State B was before he filed suit, he is considered to be a citizen of State B for
purposes of diversity jurisdiction, whereas the defendant is considered to be a
citizen of State A because his move did not occur until after suit was filed. Thus,
complete diversity exists. Choices (A), (C), and (D) are incorrect for the reasons
stated above.
The defendant was charged with forging the signature of her employer on several
checks made payable to her best friend, a co-worker. After discovering that the
checks had been forged, the employer called the defendant into his office and told
her that he regretted trusting her with the task of paying his bills and could not
believe that his two most trusted employees devised a scheme to defraud him.
The defendant did not respond to the statement and walked out of the room. At
trial, the prosecution wants to offer the defendant's silence as evidence of her
guilt. How should the court rule? (A) Admissible under an exception to the
hearsay rule for implied statements against interest. (B) Admissible nonhearsay.
(C) Inadmissible, because failure to reply to an accusation in a criminal case
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cannot be used as an implied admission of a criminal act. (D) Inadmissible as
violating the defendant's right against self-incriminat
Ans: (B) The silence is admissible nonhearsay as a statement by a party-
opponent (commonly called an admission). Under the Federal Rules of Evidence,
silence in response to an accusatory statement can be considered an implied
admission if the party heard and understood the statement, was capable of
denying the statement, and a reasonable person would have denied the accusation
under the same circumstances. Here, there is nothing to indicate that the
defendant did not hear or understand the statement or that she was incapable of
denying it, and a reasonable person who was innocent would have in fact denied
such an accusation. Thus, the defendant's silence is admissible as an admission,
which is nonhearsay under the Federal Rules. (A) is incorrect because an implied
admission by silence is not considered hearsay at all, and therefore is not an
exception to the hearsay rule. (C) is incorrect because the rule against
admissibility applies only if the accusation or statement is made by the police;
here, the accusation was made by the employer. (D) is incorrect because the Fifth
Amendment right against self-incrimination, which provides that a defendant
cannot be compelled to testify against herself, applies only after the initiation of a
criminal proceeding. Here, the statement was made prior to the institution of
criminal proceedings against the defendant.
The defendant was on trial for shooting and killing a man at a restaurant after a
violent argument. The prosecution calls a witness to testify that she was standing
in the parking lot, and, as the defendant was leaving the restaurant, he dropped a
gun into a nearby garbage can. Is the witness's testimony regarding the defendant's
conduct admissible? (A) Yes, as hearsay falling within the state-ofmind exception.
(B) Yes, because nonassertive conduct is not hearsay, and it is otherwise
admissible. (C) No, because nothing was said. (D) No, because the defendant's
acts constitute assertive conduct.
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Ans: (B) The witness's testimony regarding the defendant's conduct would be
admissible. The defendant's acts constitute nonassertive conduct. Alternatively,
this could be considered an admission by conduct. Therefore, the testimony is
direct, relevant, nonhearsay evidence. Because it is not hearsay, (A) is incorrect.
(C) is incorrect because evidence is not limited to testimony regarding spoken
words; a witness may testify as to what she saw. (D) is incorrect because the
defendant did not intend his conduct to be a substitute for words.
During the nighttime, a woman broke into the house of the victim with the
intention of stealing his diamond ring. When she could not find the diamond ring,
she became angry, lit a match to a newspaper and threw it on the victim's bed,
setting the mattress on fire. The flames destroyed the bed and a portion of the
floor under the bed. In a common law jurisdiction, of which crime or crimes is the
woman guilty? (A) Burglary only. (B) Arson only. (C) Burglary and attempted
arson. (D) Burglary and arson.
Ans: (D) The woman is guilty of arson and burglary. She is guilty of arson
because she deliberately set a fire that, in addition to burning the mattress, also
burned part of the dwelling house of another, namely the floor. She is also guilty
of burglary because she broke and entered into the dwelling house of another
during the nighttime to commit a felony. The fact that she was not successful in
committing the crime she intended or that she in fact committed another felony is
irrelevant to her guilt for burglary; it is the intent to commit a felony at the time
of the breaking and entering which is critical. (A) is incorrect. This choice
correctly states that the woman is guilty of burglary, but she is also guilty of
arson; she deliberately set a fire that, in addition to burning the mattress, also
burned part of the dwelling house of another, namely the floor. Therefore, (B)
and (C) are incorrect.
A consumer purchased an air compressor, designed for powering tools and
inflating tires, to use in a remodeling project. The consumer discovered that the
reservoir and nozzle for a paint compressor gun he owned fit the threads on the
nozzle of his air compressor. He decided to use the manufacturer's compressor
rather than buying the compressor that went with the spray gun because he
needed to paint a fence. After painting for a few minutes, the paint reservoir on
the spray gun exploded, causing severe injuries to the consumer. The consumer
© 2025/ 2026 | ® All rights reserved
BarBri MBE Preview Diagnostic Questions and
Correct Answers/ Latest Update / Already Graded
A "wind farm" was constructed on the open land next to a gas station where a
mechanic is employed. The huge windmills generated electrical power and
oscillated at low speeds, resulting in very low-frequency but high-amplitude sound
waves that caused extreme discomfort in a substantial minority of people. The
mechanic is one of the people adversely affected by such sound waves; the
vibrations from the windmills give him severe headaches and upset his immune
system. If the mechanic brings an action for nuisance against the owners of the
wind farm and loses, what is the most likely explanation? (A) Sound waves are not
the kind of physical phenomenon on which liability for nuisance can be based. (B)
The owners of the wind farm cannot generate power without producing the
offending sound waves, despite their best efforts to find an alternative technology.
(C) At least six out of 10 people are not affected by low-frequency
Ans: (D) If the mechanic loses, it will be because he does not own or rent the
affected property. A private nuisance is a substantial and unreasonable
interference with the use and enjoyment of real property. Because the mechanic
does not own or rent the property where he works, he may not pursue a claim
based on interference with that real property's use and enjoyment. (A public
nuisance is an interference with the rights of the community at large—a situation
not presented by the fact pattern.) (A) is wrong because sound waves may be a
basis for a nuisance action. (C) is wrong because, if 40% of the people are
bothered by the sound waves, they probably are a nuisance. It is not necessary for
a majority of the population to be affected for there to be a nuisance, but more
than one must be affected. The choice between (B) and (D) is a difficult one.
Nuisance requires an unreasonable interference with the property, and if the facts
in (B) were true, the defendants could arguably be acting reasonably. However,
(D) is more clearly a basis for the mechanic to lose than (B).
The plaintiff and defendant in a lawsuit were in an accident in which the plaintiff
was injured. As a result of the accident, the plaintiff incurred medical expenses of
$100,000. At the time of the accident, the plaintiff and defendant both lived in
State A. Before the action was filed, the plaintiff moved permanently to State B.
© 2025/ 2026 | ® All rights reserved
, 2 | Page
The plaintiff then filed a negligence action against the defendant in federal district
court, with subject matter jurisdiction being based on diversity of citizenship.
After the action was filed but before the defendant was served with process, the
defendant was transferred by his employer and moved permanently to State B.
For purposes of evaluating the court's diversity of citizenship jurisdiction, what
are the citizenships of the two parties? (A) Both are citizens of State A. (B) The
plaintiff is a citizen of State B and the defendant is a citizen of State A. (C) The
plaintiff is a citizen
Ans: (B) The plaintiff is a citizen of State B and the defendant is a citizen of State
A. In addition to an amount in controversy that exceeds $75,000, diversity of
citizenship jurisdiction requires complete diversity, meaning that each plaintiff
must be a citizen of a different state from every defendant. Whether complete
diversity exists is determined when the suit is filed, not when the cause of action
arose or when the defendant is served with process. The citizenship of a natural
person is the state in which he is domiciled. A new state citizenship may be
established by (i) physical presence in a new place; and (ii) the intention to remain
there permanently. In this question, the plaintiff was originally from State A, but
then moved permanently to State B before suit was filed. After suit was filed, the
defendant also moved to State B from State A. Because the plaintiff's move to
State B was before he filed suit, he is considered to be a citizen of State B for
purposes of diversity jurisdiction, whereas the defendant is considered to be a
citizen of State A because his move did not occur until after suit was filed. Thus,
complete diversity exists. Choices (A), (C), and (D) are incorrect for the reasons
stated above.
The defendant was charged with forging the signature of her employer on several
checks made payable to her best friend, a co-worker. After discovering that the
checks had been forged, the employer called the defendant into his office and told
her that he regretted trusting her with the task of paying his bills and could not
believe that his two most trusted employees devised a scheme to defraud him.
The defendant did not respond to the statement and walked out of the room. At
trial, the prosecution wants to offer the defendant's silence as evidence of her
guilt. How should the court rule? (A) Admissible under an exception to the
hearsay rule for implied statements against interest. (B) Admissible nonhearsay.
(C) Inadmissible, because failure to reply to an accusation in a criminal case
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cannot be used as an implied admission of a criminal act. (D) Inadmissible as
violating the defendant's right against self-incriminat
Ans: (B) The silence is admissible nonhearsay as a statement by a party-
opponent (commonly called an admission). Under the Federal Rules of Evidence,
silence in response to an accusatory statement can be considered an implied
admission if the party heard and understood the statement, was capable of
denying the statement, and a reasonable person would have denied the accusation
under the same circumstances. Here, there is nothing to indicate that the
defendant did not hear or understand the statement or that she was incapable of
denying it, and a reasonable person who was innocent would have in fact denied
such an accusation. Thus, the defendant's silence is admissible as an admission,
which is nonhearsay under the Federal Rules. (A) is incorrect because an implied
admission by silence is not considered hearsay at all, and therefore is not an
exception to the hearsay rule. (C) is incorrect because the rule against
admissibility applies only if the accusation or statement is made by the police;
here, the accusation was made by the employer. (D) is incorrect because the Fifth
Amendment right against self-incrimination, which provides that a defendant
cannot be compelled to testify against herself, applies only after the initiation of a
criminal proceeding. Here, the statement was made prior to the institution of
criminal proceedings against the defendant.
The defendant was on trial for shooting and killing a man at a restaurant after a
violent argument. The prosecution calls a witness to testify that she was standing
in the parking lot, and, as the defendant was leaving the restaurant, he dropped a
gun into a nearby garbage can. Is the witness's testimony regarding the defendant's
conduct admissible? (A) Yes, as hearsay falling within the state-ofmind exception.
(B) Yes, because nonassertive conduct is not hearsay, and it is otherwise
admissible. (C) No, because nothing was said. (D) No, because the defendant's
acts constitute assertive conduct.
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Ans: (B) The witness's testimony regarding the defendant's conduct would be
admissible. The defendant's acts constitute nonassertive conduct. Alternatively,
this could be considered an admission by conduct. Therefore, the testimony is
direct, relevant, nonhearsay evidence. Because it is not hearsay, (A) is incorrect.
(C) is incorrect because evidence is not limited to testimony regarding spoken
words; a witness may testify as to what she saw. (D) is incorrect because the
defendant did not intend his conduct to be a substitute for words.
During the nighttime, a woman broke into the house of the victim with the
intention of stealing his diamond ring. When she could not find the diamond ring,
she became angry, lit a match to a newspaper and threw it on the victim's bed,
setting the mattress on fire. The flames destroyed the bed and a portion of the
floor under the bed. In a common law jurisdiction, of which crime or crimes is the
woman guilty? (A) Burglary only. (B) Arson only. (C) Burglary and attempted
arson. (D) Burglary and arson.
Ans: (D) The woman is guilty of arson and burglary. She is guilty of arson
because she deliberately set a fire that, in addition to burning the mattress, also
burned part of the dwelling house of another, namely the floor. She is also guilty
of burglary because she broke and entered into the dwelling house of another
during the nighttime to commit a felony. The fact that she was not successful in
committing the crime she intended or that she in fact committed another felony is
irrelevant to her guilt for burglary; it is the intent to commit a felony at the time
of the breaking and entering which is critical. (A) is incorrect. This choice
correctly states that the woman is guilty of burglary, but she is also guilty of
arson; she deliberately set a fire that, in addition to burning the mattress, also
burned part of the dwelling house of another, namely the floor. Therefore, (B)
and (C) are incorrect.
A consumer purchased an air compressor, designed for powering tools and
inflating tires, to use in a remodeling project. The consumer discovered that the
reservoir and nozzle for a paint compressor gun he owned fit the threads on the
nozzle of his air compressor. He decided to use the manufacturer's compressor
rather than buying the compressor that went with the spray gun because he
needed to paint a fence. After painting for a few minutes, the paint reservoir on
the spray gun exploded, causing severe injuries to the consumer. The consumer
© 2025/ 2026 | ® All rights reserved
