Barbri Last 100 MBE Practice 100% Correct Answers Verified Latest 2024 Version
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THE AUTHENTIC
Institution
THE AUTHENTIC
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 ma...
Barbri Last 100 MBE Practice | 100% Correct
Answers | Verified | Latest 2024 Version
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 atta - ✔✔(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.
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 constitution - ✔✔(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.
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 invok - ✔✔(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.
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 eyewit - ✔✔(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.
Two days before his home was to be sold at a foreclosure sale, a homeowner obtained a temporary
restraining order (TRO) in federal court that prevented his lender from proceeding with the sale for 14
days or until a preliminary injunction hearing could take place, whichever was sooner. When a
preliminary injunction hearing could not be scheduled within the original 14-day period, the court
extended the TRO for another 30 days.
The lender appealed the court's order extending the TRO. The homeowner has moved to dismiss the
appeal.
Is the appellate court likely to dismiss the appeal?
Press Enter or Space to submit the answerANo, because a TRO is immediately appealable.BNo, because
the 30-day extension makes the TRO equivalent to a preliminary injunction and therefore
appealable.CYes, because a TRO is not appealable under the interlocutory appeals statute.DYes, because
there is no final judgment from which an appeal may - ✔✔(B) is correct. Ordinarily, the granting or
denying of a temporary restraining order is not immediately appealable because, as the name implies, a
temporary restraining orderis not an injunction that is appealable under 28 U.S.C. section 1292(a)(1). A
TRO is valid for 14 days, unless the TRO is extended for good cause for a like period. If an extension goes
beyond the "like period," courts have held that the TRO is effectively converted into a preliminary
injunction and thus becomes immediately appealable under the statute. (A) is incorrect because, as
stated, a TRO is not immediately appealable. (C) is incorrect. The label placed on the order/injunction is
of less importance than its effect. If a party is restrained beyond the applicable time periods for a TRO,
the order is a preliminary injunction regardless of what label is used. (D) is incorrect. Interlocutory
injunctions are appealable under the statute despite the fact that the order is not final.
, At trial in a criminal prosecution for theft, the defendant calls a witness to testify that he formerly knew
the defendant as an army supply sergeant and that the defendant had turned down many opportunities
for black marketeering.
Is the witness's testimony admissible?
Press Enter or Space to submit the answerANo, because it is irrelevant to the present charge.BNo,
because the defendant may not prove his good character by specific instances of good conduct.CYes,
because a criminal defendant may prove his good character as a basis for inferring conduct.DYes,
because, by accusing the defendant of being a thief, the prosecution has put his character in issue. -
✔✔B) is correct. A criminal defendant may introduce evidence of his own good character for a pertinent
trait to show that he did not commit the alleged crime. However, such evidence may be presented in the
form of reputation and opinion testimony only; specific acts are not allowed. Thus, the defendant here
may not introduce his specific acts of turning down opportunities for black marketeering to prove his
good character for truthfulness. (A) is incorrect. Evidence is relevant if it has any tendency to make a fact
of consequence to the determination of the action more probable or less probable than it would be
without the evidence. Character evidence often meets this low bar for relevance, but is subject to
various restrictions because of the danger for undue prejudice, waste of time, etc. Here, the fact that the
defendant turned down opportunities for black marketeering shows his honesty and unwillingness to
steal, so it is certainly relevant to the current theft charge. However, it is inadmissible because it is in the
wrong form. (C) is incorrect. It is true that a defendant may introduce evidence of his own good
character to show that he acted in conformity with that character during the events of the current case.
However, the defendant may only introduce this type of evidence via reputation and opinion testimony.
The character witness may not testify as to specific acts by the defendant. (D) is incorrect. When proof of
a person's character, as a matter of substantive law, is an essential element of a claim or defense in a civil
action, it is said that character is "directly in issue." When character is in issue in a case, all forms of
character evidence (reputation, opinion, and specific acts) are allowed. However, character is only truly
in issue in a few types of civil cases (e.g., defamation, negligent hiring an
A pedestrian domiciled in State A was crossing a street in State B when he was hit by a car driven by a
citizen of a foreign country. Both the pedestrian and the driver suffered injuries.
The pedestrian filed a negligence action against the driver in a federal district court in State B, seeking
$100,000 in damages. The driver believes that the pedestrian was crossing the street illegally and is
therefore responsible for the accident. The driver seeks an attorney's advice on how best to respond to
the action. Assume that State B is a contributory negligence state.
How should the attorney advise the driver to respond?
Press Enter or Space to submit the answerAFile an answer raising the affirmative defense of contributory
negligence and asserting a counterclaim for negligence, seeking damages for the driver's injuries.BFile an
answer raising the affirmative defense of contributory negligence and move for judgment on the -
✔✔(A) is correct. Contributory negligence is an affirmative defense that must be raised in the driver's
answer. Furthermore, if the pedestrian was the true cause of the action, he would be liable for the
driver's damages, and thus a counterclaim would be necessary (and required, since it would be a
compulsory counterclaim given that the counterclaim arose from the same transaction or occurrence as
the pedestrian's complaint). (B) is incorrect because a motion for judgment on the pleadings would not
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