Multistate Bar Exam Practice Test 5 — Questions and Answers
Question 1: A statute makes it a crime to 'knowingly possess a firearm with an obliterated serial number.' The defendant claims he did not know the serial number was obliterated. What mental state must the prosecution prove?
- The prosecution need not prove any mental state because possession is a strict liability offense
- The prosecution must prove the defendant knew the firearm had an obliterated serial number (Correct answer)
- The prosecution must prove the defendant knew he possessed a firearm, but not necessarily that the serial number was obliterated
- The prosecution must prove the defendant intentionally obliterated the serial number
Correct answer: The prosecution must prove the defendant knew the firearm had an obliterated serial number
When a statute uses 'knowingly,' the MPC and most courts require the prosecution to prove the defendant was aware of each material element, including the obliteration of the serial number.
Question 2: A homeowner hires a contractor to build a deck. The contractor negligently constructs a defective railing. A guest of the homeowner falls through the railing and is injured. Under respondeat superior, is the homeowner liable?
- Yes, because the homeowner hired the contractor
- No, because the contractor is an independent contractor, not an employee (Correct answer)
- Yes, because the homeowner had a non-delegable duty to maintain safe premises
- No, because the guest assumed the risk by using the deck
Correct answer: No, because the contractor is an independent contractor, not an employee
Respondeat superior does not extend to independent contractors; an employer is generally not liable for the torts of an independent contractor unless an exception such as non-delegable duty applies.
Question 3: Congress passes a law prohibiting states from enacting any regulations governing the disposal of nuclear waste. A state thereafter enacts such regulations. Are the state regulations valid?
- Yes, because states have inherent police power over public health and safety
- No, because Congress has expressly preempted the field of nuclear waste regulation (Correct answer)
- Yes, because nuclear waste regulation is a concurrent power
- No, because the Commerce Clause gives Congress exclusive control over all environmental matters
Correct answer: No, because Congress has expressly preempted the field of nuclear waste regulation
Under the Supremacy Clause, when Congress expressly preempts a field, state laws in that field are void regardless of the state's police power interest.
Question 4: An adverse possessor has openly, continuously, and exclusively used a neighbor's land for 9 years in a jurisdiction with a 10-year statute. The original owner conveys the land to a bona fide purchaser. Does the clock reset?
- Yes, because a bona fide purchaser takes free of the adverse possessor's claim
- No, because adverse possession runs against successive owners and the statute does not reset on transfer (Correct answer)
- Yes, because the adverse possessor's claim is extinguished by the recording act
- No, but the adverse possessor must re-file a claim within one year of the transfer
Correct answer: No, because adverse possession runs against successive owners and the statute does not reset on transfer
Adverse possession runs against the land and not just the person; transferring the land to a new owner does not restart the statute of limitations, and the adverse possessor's period of possession tacks against all successive owners.
Question 5: A plaintiff's attorney wants to call the defendant as a witness in the plaintiff's case-in-chief. Under the Federal Rules of Evidence, can the plaintiff's attorney use leading questions when examining the defendant?
- No, because leading questions are only permitted on cross-examination
- Yes, because the defendant is a hostile witness or adverse party, permitting leading questions (Correct answer)
- No, unless the court finds the defendant is uncooperative
- Yes, but only if the defendant is designated as an expert witness
Correct answer: Yes, because the defendant is a hostile witness or adverse party, permitting leading questions
Under FRE 611(c), a party may use leading questions when examining a witness who is an adverse party or identified with an adverse party, without needing to establish hostility.
Question 6: A debtor files for Chapter 7 bankruptcy. A creditor holds a security interest in the debtor's car that was perfected 80 days before the bankruptcy filing. The trustee seeks to avoid the lien as a preference. Is the lien avoidable?
- Yes, because the lien was perfected within 90 days before filing (Correct answer)
- No, because perfection outside of 90 days before filing is not a preference
- Yes, but only if the debtor was insolvent when the lien was perfected
- No, because secured creditors are exempt from preference avoidance
Correct answer: Yes, because the lien was perfected within 90 days before filing
Under 11 U.S.C. § 547, a trustee may avoid a transfer (including perfection of a security interest) made within 90 days before the bankruptcy petition while the debtor was insolvent, as a preferential transfer.
Question 7: A city ordinance prohibits all door-to-door solicitation without a permit. A religious group challenges the ordinance as a violation of the First Amendment. What is the most likely outcome?
- The ordinance is valid because door-to-door solicitation is not protected speech
- The ordinance is unconstitutional if it gives officials unbridled discretion to deny permits (Correct answer)
- The ordinance is valid because the city has a compelling interest in residential privacy
- The ordinance is unconstitutional only as applied to religious speech, not commercial speech
Correct answer: The ordinance is unconstitutional if it gives officials unbridled discretion to deny permits
The Supreme Court in Watchtower Bible & Tract Society v. Village of Stratton held that permit requirements for door-to-door solicitation are unconstitutional when they vest officials with discretion to deny permits without clear standards.
Multistate Bar Exam Practice Test 5
A statute makes it a crime to 'knowingly possess a firearm with an obliterated serial number.' The defendant claims he did not know the serial number was obliterated.
What mental state must the prosecution prove?