Barbri Mbe Review Tips

Front 1

result of judicial notice and criminal case

Back 1

Prosecutor doesnt need to further prove the noted fact, but the jury doenst have to take it as a fact.

Front 2

what can be used to refresh a witness's recollection?

Back 2

Anything, but it can be admitted into evidence by the opposing party and the attorney using it cant object.

Front 3

P cant introduce evidence to show D had a propensity to do crime

Back 3

P cannot introduce any evidence of D's bad character if purpose of the evidence is to show he acted in conformity with the bad character and committed the crime

Front 4

D is allowed to present evidence of relevant good character traits to show she acted in conformity with her good character and didnt do it,

Back 4

limited to reputation or opinion evidence. specific acts to establish good character isnt allowe

Front 5

necessary and proper clause always needs to have another legitimate power in the answer

Back 5

first amendment is a stronger right then equal protection

Front 6

if fed is spending money likely to be related to spending power

Back 6

political question is usually wrong

Front 7

commerce clause rarely restricts authority and is almost always a winning pick for a constitutional justification

Back 7

job that has termination for cause is a property interest and can get pre termination hearing (at least for gov)

Front 8

4 rules on advisory opinions

Back 8

1. fed courts cant issue advisory opinions.
2. congress cannot authorize a fed. court to issue an advisory opinion.
3. some states might be able to issue advisory opinions.
4. if decision of fed court is subject to review by a different branch of gov. it is not a final decisions and is therefore an advisory opinion.

Front 9

always wrong answers

Back 9

1. congress may not delegate its power to an administrative agency.

Front 10

2. 98% wrong. The fed statute is unconstitutional because the subject matter is reserved to the state (under the10th amendment)

Back 10

3. Congress has the power to legislate for the general welfare. They can tax and SPEND for the general welfare but not legislate.

Front 11

4. Congress has power to act under their police power. No fed police power except for DC.

Back 11

5. The statute of action by the fed. government is unconstitutional under the 14th amendment (that applies to the states).

Front 12

6. Any pick that says Privileges and Immunity Clause of 14th Amendment.

Back 12

7. Wont prevail because has a privilege and not a right. (this terminology is too dated).

Front 13

8. ex post facto clause to a non-criminal statute.

Back 13

9. The state statute is unconstitutional because it places a burden on commerce. (too broad).

Front 14

if dont tell u theory it will likely be

Back 14

negligence, intentional tort, or strict liability for product defect

Front 15

if says not liable because someone else was negligent...caused harm etc.

Back 15

this is a wrong answer b/c u can have join and severity liability so just because one other person is guilty doesnt mean the D isnt guilty.

Front 16

if infliction of emotional distress isnt specified as to intentional or negligence....

Back 16

assume its intentional

Front 17

in torts a D's motion for directed verdict is usually

Back 17

granted

Front 18

know these 6 and their defenses

Back 18

battery assault false imprisonment trespass to chattels, conversion trespass to land and IIED

Front 19

special standards in negigence

Back 19

for professionals
for children
injury by conditition on land
common carriers
violaton via statutes

Front 20

each elements of strict liability of a product and defenses

Back 20

contibution
+

Front 21

comparative negligence

Back 21

joint and several liability

Front 22

solicitation merges with

Back 22

attempt, conspiracy and completed crime

Front 23

conspiracy merges with

Back 23

nothing

Front 24

attempt merges with

Back 24

completed crime

Front 25

5 rules of conspiracy
1. definition

Back 25

1. agreement between 2+ people to commit an unlawful act PLUS some overt act in furtherance of the agreement.

Front 26

5 rules of conspiracy
2.co-conspirators are liable fore conspiracy and

Back 26

2. all substantive offenses done in furtherance of the conspiracy.

Front 27

5 rules of conspiracy
3. a withdrawl from conspiracy will negate liability for all crimes after withdrawl but not

Back 27

the original conspiracy.

Front 28

5 rules of conspiracy
4. to have successful withdrawl the D must

Back 28

a. give it up and b. tell all conspirators in time for them to change their plans.

Front 29

5 rules of conspiracy
5. a D can be found guilty of conspiracy and

Back 29

substantive offense.

Front 30

You dont need to thwart the conspiracy or call the police for the COMMON LAW but for MPC

Back 30

you need to thwart or get police.
AND can get off the hook for the conspiracy.

Front 31

what merges into robbery?

Back 31

larceny, assault, battery

Front 32

prosecution must prove for specific intent

Back 32

1. actual intent
2. unreasonable mistake is defense of knocks out necessary intent
3. voluntary intoxication is a defense

Front 33

9 stages of drunkeness

be at 8 or 9 to negate specific intent

Back 33

1. you are the smartest SOB drinking that night (aprox 1/2 drink for lawyers)
2. witty or charming
3, you are the best looking person at table
4. clairvoyent
5. rich and powerful aka i can get u a dinner
6. fuck dinner
7. disco queen (dragging people to floor)
8. invisible
9. bulletproof

Front 34

1. embezzlement made it a crime if a person had

2. larceny can be if has CUSTODY

Back 34

1. possession of the property /in trusted with and converted it to his own use

Front 35

employee can be larceny or embezzlement BUT

Back 35

if dont say anything than assume low level is custody and thus larceny

Front 36

basic criminal law points
most common law crimes require which mindset?

Back 36

specific intent
malice
recklessness (general)

Front 37

search and seizure basics
8 rules:
1. a D has a right to be free from an unreasonable search in all areas the D has a reasonable expectation of privacy.

Back 37

D has reasonable expectation in: home, car, place of business and personal effects
Doesn't have reasonable expectation in someone else's car, home, business, or personal effecs, open field, garbabge or any area open to public.

Front 38

2. if D has no reasonable expectation of privacy ...

Back 38

he cant complain about the search no matter HOW unreasonable it is.

Front 39

3. Search is reasonable has search warrant based on

Back 39

probable cause or falls under exception.

Front 40

4. For MBE there are 6 exceptions that are tested often

Back 40

1. search incident to lawful arrest
2. consent on part of D
3. automobile exception
4. plainview
5.lesser intrusion on part of police not amounting to full search
6. true emergecny

Front 41

5. when police make valid arrest of car they can search the area...

Back 41

within control of driver as search incident to arrest and doesn't matter what arrest was for. (passenger side of car is within control but once driver under complete control of police they can only search for something they reasonably believe is related to the arrest.

Front 42

6. cant search trunk of car as search incident of arrest

Back 42

can under automobile or consent

Front 43

7. if police conducting legitimate search they can seize any illegal thing they encounter

Back 43

double check NY

Front 44

8. if search is unreasonable usual remedy is to

Back 44

suppress evidence BUT will not be supressed from
1. in good faith belief (not NY)
2. used in grandjury, prelim examination or sentencing
3. for impeachment against D

Front 45

confession starting point

Back 45

assume its admissible unless it fits an expectation
1.involuntary
2.no miranda
3. super lawyer rule after charge

Front 46

a court can put burden of proving a defense on

Back 46

the defendant by preponderance (even self defense),

Front 47

double jeapordy
exceptions even if attached are:

Back 47

1. first trial ended in hung jury
2. D was convicted and appeals w/ request for new trial
3. first trial ended in mistrial which did not result from Prosecutor's misconduct (manifest )
*if acquitted they can NEVER be re-tried

Front 48

1. different offenses
2. does same transaction matter?

Back 48

1. each has an element the other does not.
2. In NY but not MBE

Front 49

ask yourself for contract formation

Back 49

offer
acceptance
consideration
writing?
void or voidable due to illegality, misrep, mistake or lack of capacity?

Front 50

anything that says legal liability due to moral obligation it is wrong...

Back 50

95% time

Front 51

offer revocation in common law

Back 51

UCC changes common law because used to be you can withdrawn at any time prior to acceptance except if a. offeree gave consideration to keep open b. if offeree detrimentally relied

Front 52

firm offer under UCC

Back 52

offeror promise to keep offer open can be kept open for upto 3 months BUT MUST be written or signed by party making it

Front 53

if offeror says to keep open for 2 months its enforceable for?
for 5 months?

Back 53

2 months
3 months max

Front 54

not enforced because unconsciousable?

an acceptance can be implied by conduct when

Back 54

rarely correct answer

reasonable person would reach conclusion that conduct was acceptance

Front 55

counter offer gets rid of original offer

Back 55

..

Front 56

important rules for battle of forms

Back 56

if offeree accepts offer and makes material alteration there is a K under terms of original offer

Front 57

if acceptance and non material change it will become part of K unless offeror objects within reasonable period of time

Back 57

any change that substantilly affects economic risks or benefits or changes of usual remedy for K is a material change

Front 58

nonconforming goods and a note is a....

Back 58

counter offer not acceptance

Front 59

promises to pay the debt of another needs to be

Back 59

in writing unless main purpose of guarantee is to benefit the person guaranting than dont need writing

Front 60

promises to stop doing something illegal

Back 60

is not valid consideration, not that the subject matter is illegal

Front 61

SOF mneumonic
MY LEGS

Back 61

Marriage
Year
Land
Executor
Goods $500+
Surity (promise to answer for debt of other)

Front 62

mutual mistake - cancellation/modification

unitaleral mistake-

Back 62

wont cancel unless non mistaker knew or should have known

Front 63

3d party benficiary issues

Back 63

1. do u have an intended 3rd party beneficiary?
2. when can K be modified or cancelled by original parties without consent of3rd party?
3.if 3rd party can sue what defenses can be brought

Front 64

2. when can K be modified or cancelled by original parties without consent of3rd party?

Back 64

a K can be modified or cancelled without consent of 3rd party until their right vested. once it vested they must agree to modification.

Front 65

when does 3rd party vest?

Back 65

3 situations
1. 3rd party is asked to assent and does.
2. 3rd party learns of existence and detrimentally relies.
3. 3rd party brings a lawsuit to enforce.

Front 66

if dont know about the K

Back 66

you cant have a vesting

Front 67

5 rules of assignment

Back 67

1. valid assignment doesnt require consideration.
2. as a gen. mater an assign. doesnt need to be in writing.
3.an assign. can be revoked unless a. assignee collected from creditor or b. consideration was given for assignment or c. assignee detimentaly relied on the assignment.

Front 68

4. assignment is revoked if assignor and goes collect the money from the creditor.

Back 68

5. if creditor is obligor and doesnt know about the assignment he fulfills his obligation when he pays the original party

Front 69

if K not covered by UCC than any pick that says good faith

Back 69

it will always be wrong

Front 70

when has been an anticipatory breach than non breacher may

Back 70

file lawsuit immediatly BUT if nonbreacher party has done nothing in reliance than the breaching party MAY change mind

Front 71

reasonable delay in start is not material breachunless

Back 71

K says otherwise

Front 72

principle of damages

Back 72

take non breaching party and put him in the same position as if breach never happened.

Front 73

important K issues
1. fact pattern where D gets unrequested benefit from P and then P promises to pay and D doesnt keep promise and gets sued for breach of K.

Back 73

No K, b/c no consideration aka no bargained for exchange.

Front 74

requirement Ks under UCC

Back 74

enforceable under code

Front 75

firm offers under code

Back 75

fine if good faith

Front 76

situation where offer is accepted through conduct

Back 76

would reasonable person think it was acceptance?

Front 77

ill give u $500 to paint my house, no i will do for $600 later says okay i will do it for $500.

Back 77

counter offer ELIMINATES first offer and cant BE ACCEPTED later.

Front 78

battleof forms under code

Back 78

3 rules

Front 79

shipment of nonconforming goods

Back 79

acceptance and breach

Front 80

stop smoking for 10 months and ill give u $$

stop doing drugs for 10 months and ill give u $$

Back 80

valid consideration

no consideration

Front 81

modification of K

Back 81

UCC
Commo

Front 82

unilateral mistake

Back 82

no change in K unless other party knew/should have known that a mistake was being made

Front 83

elements of promissory estoppel

Back 83

...

Front 84

3rd party beneficiary in regards to modifcation

Back 84

w/o consent

Front 85

assignmentets consideration is

Back 85

not required.

Front 86

when can u revoke assignment?

Back 86

almost always

Front 87

anticipatory breach is doubt enough?

Back 87

no. it must be unequivocal breach

Front 88

anticipatory breach but non breaching party does nothing in reliance

Back 88

breacher can change mind and comply

Front 89

unique personal services K

Back 89

you are discharged if too sick