5. Which of the following, if found by the jury, would be of the most help to the bartender?

When an MBE question provides a statute, a stringent application of the statute is necessary over common law. Here, this question provides a statute and asks which of the following, if found by the jury, would be of the most help to the bartender. The bartender is charged with «knowingly violating» a regulation prohibiting the sale of alcoholic beverages to any person under the age of 18 and prohibiting the sale of any alcoholic beverage to a person over the age of 17 and under the age of 22 without the presentation of such person's driver's license or other identification. The key to successfully answering this question is the word «knowingly.» When a crime requires that the defendant act knowingly, he must have been aware that his conduct was of a particular nature, or at least know that his conduct will necessarily or very likely cause a particular result.

D is correct. This answer provides the bartender's best argument because the statute requires «knowledge,» and if the jury finds that the bartender mistakenly believed the purchaser to be 24 years-old, then he did not «knowingly» violate the regulation. Believing the purchaser was 24 would negate the possibility that he knowingly sold an alcoholic beverage to a person under the age of 18 or that he knowingly sold an alcoholic beverage between 17 and 22 without the presentation of identification.

A is incorrect. As discussed above, the bartender's best argument is to show he did not knowingly violate the regulation. This answer choice does not provide the bartender with a good argument because the fact that the purchaser had a driver's license that falsely showed his age to be 21 does not excuse the bartender from failing to ask for it. The regulation includes the prohibition of the «sale of any alcoholic beverage to a person over the age of 17 and under the age of 22 without the presentation of such person's driver's license.» (emphasis added). Because this answer does not provide the bartender with a helpful argument, it is incorrect.

B is incorrect. Mere ignorance of the regulation does not excuse the bartender. Even if the jury believes the bartender that he was not told he has to check identification, this does not affect the mens rea required for the conviction of the crime. This does not provide the bartender with a good argument because even if he did not know he was required to check IDs, he'd still be guilty of knowingly selling to a minor. When a crime requires that the defendant act knowingly, he must have been aware that his conduct was of a particular nature or at least, conduct that would necessarily or very likely cause a particular result. This answer choice states that he was ignorant of the law and this argument would not help because it does not excuse that he was aware of the fact that he was selling to a minor, or to someone between the ages of 17 and 22.

C is incorrect. Not knowing that the regulations classified beer as an alcoholic beverage does not excuse the bartender from violating the regulation. If the jury were to believe that the bartender did not know beer was classified as alcohol, the bartender would still be convicted because the only possible argument to be made is that he did not knowingly sell to minors and he did not knowingly fail to ask for ID from 17 to 22-year-olds. The bartender's only hope is if the jury finds that the bartender mistakenly believed the purchaser to be 24 years-old, and so, the bartender could argue that he relied on the statute's requirement of identification from 17 to 22-year-olds. Thus, he could argue that he did not meet the mens rea requirement of the regulation.