Bar Exam — MBE Practice Questions, Part 2 flashcards
6 of 60 questions free to study here · 14 topics · the whole deck is built into Willys
Multiple-choice practice questions, one best answer each, on homicide, theft, inchoate crimes, defenses, search and seizure, Miranda, impeachment, character, privileges and hearsay.
Practice deck · part of Bar exam (MBE subjects) · written against: NCBE MBE subject matter outline, edition dated 11/16/20; Supreme Court decisions through the October 2024 Term. Updated 2026-10-10.
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To frighten drivers, D drops a heavy concrete block from a highway overpass onto busy traffic below. It smashes through a windshield and kills a driver. D says he never meant to hit anyone. Of what homicide is D most likely guilty at common law?
A) No homicide, because he did not aim at any person
B) Involuntary manslaughter, because the death was unintended
C) Voluntary manslaughter, because he had no intent to kill
D) Murder, based on extreme indifference to human lifeD) Murder, based on extreme indifference to human lifeHomicide
Conduct showing a conscious disregard of a very high risk to human life is depraved-heart malice, so the killing is murder without any intent to kill. Involuntary manslaughter covers lesser criminal negligence or recklessness, not risk this extreme and obvious. -
D agrees to stand on the corner and whistle if police approach while his friend breaks into a house at night to steal. D keeps watch until the friend comes out with a television. D never enters the house. Of what is D guilty?
A) Only conspiracy, since he never entered
B) Burglary, as an accomplice who aided it
C) Only as an accessory after the fact
D) Nothing, because he was merely presentB) Burglary, as an accomplice who aided itParties
Acting as a lookout with intent that the crime succeed is aiding, so D is an accomplice and guilty of the burglary itself even though he never entered. This is far more than mere presence, and his help came before and during the crime, not after it. -
Acting on an unverified tip and without a warrant, officers walk a drug-sniffing dog up to the front porch of D's house. The dog alerts at the front door, and officers use the alert to obtain a search warrant. Was the use of the dog on the porch a Fourth Amendment search?
A) No, because visitors may freely approach a front door
B) No, because a dog sniff reveals only contraband
C) No, because the officers had reasonable suspicion
D) Yes, because it intruded on the home's curtilageD) Yes, because it intruded on the home's curtilageFourth Amendment
The front porch is curtilage, and bringing a drug dog onto it to investigate exceeds the implied license that lets visitors approach and knock, so it is a search under the property-based test (Florida v. Jardines). The rule that a dog sniff is not a search applies to places like a lawfully stopped car, not a home's curtilage. -
In a hit-and-run suit, the plaintiff's eyewitness cannot recall the fleeing car's license number. Counsel shows her a note written by a different bystander, after which she remembers it and testifies from memory. The defense objects that the note is hearsay and not her own writing. Ruling?
A) Sustained, because only her own writing may be used
B) Overruled, but only if the note is read to the jury
C) Sustained, because the note is inadmissible hearsay
D) Overruled, because any item may refresh her memoryD) Overruled, because any item may refresh her memoryPresentation
Any item may be used to refresh a witness's present recollection; the item is not evidence, and the witness testifies from revived memory, so hearsay rules do not apply to it. Reading the note to the jury would be recorded recollection, which requires a record the witness made or adopted while the matter was fresh and a memory that still fails. -
In a civil suit after a car crash, the plaintiff is asked at her deposition whether she had been drinking before the crash. She refuses, saying she discussed the drinking with her lawyer, and invokes the attorney-client privilege. Must she answer?
A) No, because she disclosed the fact to her lawyer
B) Yes, because the facts are not privileged
C) No, because her lawyer holds the privilege
D) Yes, because the privilege applies only at trialB) Yes, because the facts are not privilegedPrivileges
The attorney-client privilege protects confidential communications made to obtain legal advice, not the underlying facts, which a client cannot shield by telling them to a lawyer. The privilege belongs to the client, and it applies at depositions as well as trial. -
A shopper who slipped on spilled cooking oil sues the grocery store. She calls a cashier to testify that an hour before the fall, another customer told the store manager, 'There's oil spilled in aisle five.' The store objects on hearsay grounds. Ruling?
A) Overruled, because it is offered to show notice
B) Overruled, as a present sense impression only
C) Sustained, because the customer is not testifying
D) Sustained, unless the customer is unavailableA) Overruled, because it is offered to show noticeHearsay
Offered to show the manager was put on notice of the spill, the statement matters for its effect on the listener, not for its truth, so it is not hearsay. If offered to prove oil was actually spilled, it would need an exception.
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Review status: Second-reader reviewed, with corrections applied.
Checked against:
- Criminal law and procedure checked against the Model Penal Code (reference only; no wording reproduced), the U.S. Constitution and U.S. Supreme Court holdings (public domain).
- Evidence checked against the Federal Rules of Evidence and Advisory Committee Notes (U.S. government works, public domain) and U.S. Supreme Court opinions (public domain); rules paraphrased.
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