BarBri Bar Review Hangout - July 2015 Exam Forum

[Ludacrispat26]

We get scrap paper for the essays, right? New York here.

[Good Guy Gaud]

Is there a difference between a judge instructing a jury that a defendant has to prove adequate provocation (murder) by a preponderance of the evidence OR that defendant must show by a fair preponderance of the evidence that the killing was committed in sudden provocation?

I thought if the burden was placed on the defendant it was violation of Due Process but Emanual has an answer choice where the latter is permitted. Is the latter distinguishable from the former in that it only requires producing evidence to rebut? Anyone have any ideas?

[kykiske]

Does anyone else feel like there are certain essay questions that they can bs easier?

For instance, take a torts question.

"Yeah, you know there's like this one negligent dude. And he was being all negligent when he hit this guy. Pretty sure his negligence caused the other guy's injuries (see Cardozo)."

[kyle010723]

Is there a difference between a judge instructing a jury that a defendant has to prove adequate provocation (murder) by a preponderance of the evidence OR that defendant must show by a fair preponderance of the evidence that the killing was committed in sudden provocation?

I thought if the burden was placed on the defendant it was violation of Due Process but Emanual has an answer choice where the latter is permitted. Is the latter distinguishable from the former in that it only requires producing evidence to rebut? Anyone have any ideas?

If it is an element of the offense, the burden CANNOT be on the defendant, i.e. reasonable doubt. If it is an affirmative defense, then Defendant must prove by a preponderance of evidence.

I.e. for Murder:
Defendant cannot be asked to prove he had no intent, that is the prosecutor's burden.
But Defendant must prove an affirmative defense such as Self-Defense by a preponderance of evidence

Edited to take out insanity, baddd example... and the bar is driving me insane.

[Good Guy Gaud]

Is there a difference between a judge instructing a jury that a defendant has to prove adequate provocation (murder) by a preponderance of the evidence OR that defendant must show by a fair preponderance of the evidence that the killing was committed in sudden provocation?

I thought if the burden was placed on the defendant it was violation of Due Process but Emanual has an answer choice where the latter is permitted. Is the latter distinguishable from the former in that it only requires producing evidence to rebut? Anyone have any ideas?

If it is an element of the offense, the burden CANNOT be on the defendant, i.e. reasonable doubt. If it is an affirmative defense, then Defendant must prove by a preponderance of evidence.

I.e. for Murder:
Defendant cannot be asked to prove he had no intent, that is the prosecutor's burden.
But Defendant MUST prove Self-Defense or Insanity by a preponderance of evidence

Gotcha. I thought insanity was clear and convincing?

[kyle010723]

Is there a difference between a judge instructing a jury that a defendant has to prove adequate provocation (murder) by a preponderance of the evidence OR that defendant must show by a fair preponderance of the evidence that the killing was committed in sudden provocation?

I thought if the burden was placed on the defendant it was violation of Due Process but Emanual has an answer choice where the latter is permitted. Is the latter distinguishable from the former in that it only requires producing evidence to rebut? Anyone have any ideas?

If it is an element of the offense, the burden CANNOT be on the defendant, i.e. reasonable doubt. If it is an affirmative defense, then Defendant must prove by a preponderance of evidence.

I.e. for Murder:
Defendant cannot be asked to prove he had no intent, that is the prosecutor's burden.
But Defendant MUST prove Self-Defense or Insanity by a preponderance of evidence

Gotcha. I thought insanity was clear and convincing?

Oh, maybe. I just know the difference is an element of offense vs. affirmative defense. Maybe insanity is different.

[Kage3212]

Is there a difference between a judge instructing a jury that a defendant has to prove adequate provocation (murder) by a preponderance of the evidence OR that defendant must show by a fair preponderance of the evidence that the killing was committed in sudden provocation?

I thought if the burden was placed on the defendant it was violation of Due Process but Emanual has an answer choice where the latter is permitted. Is the latter distinguishable from the former in that it only requires producing evidence to rebut? Anyone have any ideas?

If it is an element of the offense, the burden CANNOT be on the defendant, i.e. reasonable doubt. If it is an affirmative defense, then Defendant must prove by a preponderance of evidence.

I.e. for Murder:
Defendant cannot be asked to prove he had no intent, that is the prosecutor's burden.
But Defendant MUST prove Self-Defense or Insanity by a preponderance of evidence

The answer here is about the burden on D is correct. But the last party about the D "MUST" prove the defense is not entirely correct. This is because some jx may not even recognize insanity as a defense. So you cant really say that the D MUST prove that by a preponderance, or any other standard really. The court is allowed to (and the legislature is permitted) to allow that defense in the jx, but there is no obligation that they are absolutely required to do so.

[Good Guy Gaud]

Fuck it. What you've told me is enough.

I think I'm going to take tomorrow afternoon/evening off completely before I rage before the exam. This is getting taxing.

[kyle010723]

Is there a difference between a judge instructing a jury that a defendant has to prove adequate provocation (murder) by a preponderance of the evidence OR that defendant must show by a fair preponderance of the evidence that the killing was committed in sudden provocation?

I thought if the burden was placed on the defendant it was violation of Due Process but Emanual has an answer choice where the latter is permitted. Is the latter distinguishable from the former in that it only requires producing evidence to rebut? Anyone have any ideas?

If it is an element of the offense, the burden CANNOT be on the defendant, i.e. reasonable doubt. If it is an affirmative defense, then Defendant must prove by a preponderance of evidence.

I.e. for Murder:
Defendant cannot be asked to prove he had no intent, that is the prosecutor's burden.
But Defendant MUST prove Self-Defense or Insanity by a preponderance of evidence

The answer here is about the burden on D is correct. But the last party about the D "MUST" prove the defense is not entirely correct. This is because some jx may not even recognize insanity as a defense. So you cant really say that the D MUST prove that by a preponderance, or any other standard really. The court is allowed to (and the legislature is permitted) to allow that defense in the jx, but there is no obligation that they are absolutely required to do so.

Yea, insanity was a bad example. Sorry.

[kyle010723]

Fuck it. What you've told me is enough.

I think I'm going to take tomorrow afternoon/evening off completely before I rage before the exam. This is getting taxing.

Did a mixed set this morning. Trying to "learn" commercial paper/secured transaction right now but nothing is sticking

[kykiske]

Fuck it. What you've told me is enough.

I think I'm going to take tomorrow afternoon/evening off completely before I rage before the exam. This is getting taxing.

Did a mixed set this morning. Trying to "learn" commercial paper/secured transaction right now but nothing is sticking

PMSI's are kewl. Something about attachment. You should probs perfect your security interest. Thx.

[LSL]

Something that has kind of been confusing me: I know voluntary intoxication negates the specific intent element of SI crimes and for crimes like murder it takes muder down to involuntary manslaughter.

But...what does a crime down-grade to if it's some specific intent crime like robbery? I can't imagine someone gets to say, "LOL, sorry I robbed you. But I was drunk though, so it's all good and I'm off the hook." I am just blanking/not able to figure out what it would be instead (sorry, might be obvious). Does it become battery maybe?

[kyle010723]

Fuck it. What you've told me is enough.

I think I'm going to take tomorrow afternoon/evening off completely before I rage before the exam. This is getting taxing.

Did a mixed set this morning. Trying to "learn" commercial paper/secured transaction right now but nothing is sticking

PMSI's are kewl. Something about attachment. You should probs perfect your security interest. Thx.

Something about personal use v. commercial use and different ways to perfect or to attach or something...

Just ask me how to perfect the interest on a batmobile and we're fine...

[kyle010723]

Something that has kind of been confusing me: I know voluntary intoxication negates the specific intent element of SI crimes and for crimes like murder it takes muder down to involuntary manslaughter.

But...what does a crime down-grade to if it's some specific intent crime like robbery? I can't imagine someone gets to say, "LOL, sorry I robbed you. But I was drunk though, so it's all good and I'm off the hook." I am just blanking/not able to figure out what it would be instead (sorry, might be obvious). Does it become battery maybe?

If a defendant has no specific intent, then he is not guilty right? Murder and homicide are different because there are different levels of manslaughter and degrees.

[charlesxavier]

Something that has kind of been confusing me: I know voluntary intoxication negates the specific intent element of SI crimes and for crimes like murder it takes muder down to involuntary manslaughter.

But...what does a crime down-grade to if it's some specific intent crime like robbery? I can't imagine someone gets to say, "LOL, sorry I robbed you. But I was drunk though, so it's all good and I'm off the hook." I am just blanking/not able to figure out what it would be instead (sorry, might be obvious). Does it become battery maybe?

I'm guessing that it would involve your state's criminal code. For example, Ohio has assault, negligent assault, aggravated assault, felonious assault. I'm thinking with robbery it might knock down the degree of the felony.

[xChiTowNx]

I've hit the point that I stumbled upon some decent quizlet outlines. I may have done some Mr.Robot-level internet sleuthing to figure out if the user passed my state's bar (they did)

[errmsg]

For those of you who have done the MBE Sample Test Questions, can someone please explain the answers to Questions 1, 3 and 18? I don't want to spoil the questions for those of you that haven't tried them yet so I'll limit the details.

[+] Spoiler

These were the questions about the dad scared of the crackhead son, residency requirement for public education, and the K modification question.

Thanks.

[LSL]

Ahhh okay thanks both of you. Yeah, I think most of the questions I come across that test on it come in the form of, "If (drunk at time of the crime) D is tried for robbery, will they be convicted" and the answer is just "No, because they did not have the requisite intent for robbery." Unless the "liquid courage" thing applies. Which is cool enough, but yeah the various state code levels of negligence, other crimes etc. for crimes besides murder makes sense. Probably not tested on the MBE, but good to know just in case.

[rickgrimes69]

Something that has kind of been confusing me: I know voluntary intoxication negates the specific intent element of SI crimes and for crimes like murder it takes muder down to involuntary manslaughter.

But...what does a crime down-grade to if it's some specific intent crime like robbery? I can't imagine someone gets to say, "LOL, sorry I robbed you. But I was drunk though, so it's all good and I'm off the hook." I am just blanking/not able to figure out what it would be instead (sorry, might be obvious). Does it become battery maybe?

I think the problem is that practically speaking, it would be impossible to convince a jury you unintentionally robbed someone, whereas it's totally possible to unintentionally kill someone.

[LSL]

Maybe, but (unless I'm categorizing it) I can think of enough situations where someone could conceivably get drunk, want money, have a gun, and things get dumb pretty quick. Not to pick on the homeless, but maybe for example, a homeless guy with a alcohol abuse problem robs someone with a gun and wouldn't have sober? But yeah, I think this makes sense why murder is much more tested as it's cleaner to envision/seems more universal in law

[kyle010723]

For those of you who have done the MBE Sample Test Questions, can someone please explain the answers to Questions 1, 3 and 18? I don't want to spoil the questions for those of you that haven't tried them yet so I'll limit the details.

[+] Spoiler

These were the questions about the dad scared of the crackhead son, residency requirement for public education, and the K modification question.

Thanks.

[+] Spoiler

1. There was enough evidence to support a self-defense claim. See the fact in the question. I guess I didn't think any other option came close

3. Treated out of state and in-state differently, thus violated the equal protection clause. This was very similar to Refresher Q98

18. Because that is the view of the Second Restatement. See Mixed Set 3 Question 12

[kyle010723]

Something that has kind of been confusing me: I know voluntary intoxication negates the specific intent element of SI crimes and for crimes like murder it takes muder down to involuntary manslaughter.

But...what does a crime down-grade to if it's some specific intent crime like robbery? I can't imagine someone gets to say, "LOL, sorry I robbed you. But I was drunk though, so it's all good and I'm off the hook." I am just blanking/not able to figure out what it would be instead (sorry, might be obvious). Does it become battery maybe?

I think the problem is that practically speaking, it would be impossible to convince a jury you unintentionally robbed someone, whereas it's totally possible to unintentionally kill someone.

Just remember Guzman's Nine Stages of Drunkenness. Voluntary intoxication is a defense to negate specific intent, but you must be at stage 8 or 9 for that defense to be even viable...

[Tiago Splitter]

Maybe, but (unless I'm categorizing it) I can think of enough situations where someone could conceivably get drunk, want money, have a gun, and things get dumb pretty quick. Not to pick on the homeless, but maybe for example, a homeless guy with a alcohol abuse problem robs someone with a gun and wouldn't have sober? But yeah, I think this makes sense why murder is much more tested as it's cleaner to envision/seems more universal in law

yeah I think in most states they'll nail you with something, but I guess in 1600's England the robber might have gotten away with it so its important we understand how that works lol

[LSL]

Both good points to remember, thanks guys. And yeah re: 1600's England, I can't remember who said, "Just do burglary during the day, bro." But I laughed so hard at that.

[cdelgado]

Those sample civ pro questions from NCBE were tough.