Multistate Bar Exam Practice Test 4 — Questions and Answers
Question 1: A defendant shoots at X intending to kill him, but misses and kills Y, who was standing nearby. Under the doctrine of transferred intent, is the defendant guilty of murdering Y?
- No, because the defendant did not intend to kill Y
- Yes, because intent to kill X transfers to the unintended victim Y (Correct answer)
- No, because transferred intent applies only to battery, not homicide
- Yes, but only if the defendant knew Y was in the vicinity
Correct answer: Yes, because intent to kill X transfers to the unintended victim Y
Under the transferred intent doctrine, when a defendant intends harm against one person but harms another, the intent transfers to the actual victim, making the defendant liable for the resulting crime.
Question 2: A creditor obtains a judgment against a debtor and levies on personal property in the debtor's possession that actually belongs to a third party. The third party claims the property. What is the proper remedy?
- The third party must file a motion to intervene in the original lawsuit
- The third party may bring a separate action in replevin or file a third-party claim challenging the levy (Correct answer)
- The third party has no remedy once the creditor obtains a judgment
- The third party must wait until the property is sold at execution sale to object
Correct answer: The third party may bring a separate action in replevin or file a third-party claim challenging the levy
A third party whose property is wrongfully levied upon may bring a replevin action or statutory claim to recover the property, since a judgment against a debtor cannot reach property belonging to others.
Question 3: A state enacts a law imposing a $500 annual fee on all out-of-state trucks operating on state highways but exempting in-state trucks. Does this law violate the Commerce Clause?
- No, because states may impose reasonable fees for road use
- Yes, because it facially discriminates against interstate commerce without sufficient justification (Correct answer)
- No, because highway regulation is a traditional state function
- Yes, but only if the fees are not proportional to actual road wear
Correct answer: Yes, because it facially discriminates against interstate commerce without sufficient justification
A state law that facially discriminates against interstate commerce by treating out-of-state trucks worse than in-state trucks is virtually per se invalid under the dormant Commerce Clause.
Question 4: A buyer contracts to purchase a home but discovers after closing that the seller knew of severe foundation defects and did not disclose them. The buyer sues for fraudulent misrepresentation. What must the buyer prove regarding the seller's knowledge?
- The seller suspected but was not certain of the defects
- The seller had actual knowledge of the defect and intentionally concealed it (Correct answer)
- The seller should have known about the defect through reasonable inspection
- The seller had constructive notice of the defect from prior inspection reports
Correct answer: The seller had actual knowledge of the defect and intentionally concealed it
Fraudulent misrepresentation requires proof that the defendant made a false statement of material fact with knowledge of its falsity (scienter) and intent to induce reliance.
Question 5: A plaintiff files a federal diversity action in the Southern District of Texas. The defendant moves to transfer venue to the Northern District of California for convenience. Under 28 U.S.C. § 1404(a), what standard governs the transfer?
- The transferee district must be the only proper venue for the case
- Transfer is available for the convenience of parties and witnesses and in the interest of justice, but only to a district where the case could have been brought (Correct answer)
- Transfer is available whenever the defendant requests it in good faith
- Transfer requires that the plaintiff's choice of venue be improper
Correct answer: Transfer is available for the convenience of parties and witnesses and in the interest of justice, but only to a district where the case could have been brought
Section 1404(a) authorizes transfer to any district where the action could have been brought originally, based on the convenience of parties and witnesses and the interest of justice.
Question 6: A defendant is on trial for robbery. The prosecution offers evidence that the defendant committed a robbery three years ago for which he was acquitted. Is this evidence admissible?
- No, because a prior acquittal bars any use of that conduct under double jeopardy
- Yes, if relevant to show identity, modus operandi, or other non-propensity purpose under FRE 404(b) (Correct answer)
- No, because prior acquittals are always excluded under FRE 404(a)
- Yes, because prior bad acts are automatically admissible in robbery cases
Correct answer: Yes, if relevant to show identity, modus operandi, or other non-propensity purpose under FRE 404(b)
Under FRE 404(b), evidence of prior crimes or acts may be admissible for non-propensity purposes such as identity, plan, or modus operandi, even if the defendant was acquitted, because the acquittal standard differs from the civil preponderance standard.
Question 7: A lessee has a five-year lease on commercial space. Two years into the lease, the lessee assigns all of her rights and duties to an assignee. The assignee fails to pay rent. Who is liable to the landlord?
- Only the assignee, because the assignment extinguished the lessee's obligations
- Only the lessee, because an assignment does not release the original tenant
- Both the lessee and the assignee, the lessee on privity of contract and the assignee on privity of estate (Correct answer)
- Neither, because the landlord must first look to the security deposit
Correct answer: Both the lessee and the assignee, the lessee on privity of contract and the assignee on privity of estate
After an assignment, the assignee is in privity of estate with the landlord and primarily liable for rent, while the original lessee remains secondarily liable on privity of contract unless the landlord releases her.
Multistate Bar Exam Practice Test 4
A defendant shoots at X intending to kill him, but misses and kills Y, who was standing nearby.
Under the doctrine of transferred intent, is the defendant guilty of murdering Y?