judgment call questions

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perfunctory

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judgment call questions

Postby perfunctory » Thu Jul 04, 2019 1:58 pm

im studying for the bar and im having trouble with judgment call type questions. for example, a false imprisonment question would say someone was detained for an hour based on reasonable belief. i know that shopkeeper's privilege must be reasonable with respect to belief, manner, and time, so i thought that an hour would not be unreasonable. the hypo would have all sorts of details, like that the shopkeeper was not really doing much, etc., and the answer mentions this, but i thought those were distractions and do not speak to any of the elements. i get it if it was like "the suspect was detained for 2 hours, in a freezing dark room" but these judgment call type questions are killing me. i can imagine the examiner arguing the other way and i would have to accept it.

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Re: judgment call questions

Postby Bingo_Bongo » Thu Jul 04, 2019 8:19 pm

When judgement call questions appear on the MBE portion, they're usually pretty obvious with facts that could only lead to one reasonable conclusion if they expect you to conclude. If it's an essay, argue both ways.

In regards to your shopekeeper's privilege question, the detention must be based on probable cause that the customer stole, and it must be reasonable in time and manner. To determine if it's reasonable, look at whether or not the shopkeeper is taking prompt and reasonable steps to confirm or dispel suspicion.

If the shopkeeper thinks somebody stole, and locks them in a room for an hour without doing anything to actually investigate if they stole, that's unreasonable. I'd probably say anything more than a few minutes is unreasonable for the shopkeeper's privilege. Remember, the purpose of the shopkeeper's privilege is to investigate whether or not a theft occurred (asking for a receipt; getting a store employee who might have seen the theft to make a positive ID; having loss prevention go back and review tapes quickly; ect).

If the investigation determines that the customer stole, the privilege of arrest then allows the detention to be prolonged longer for the police to arrive to take custody. At that point you're beyond just the shopkeeper's privilege.

I'll also add on most questions that do require a judgement call, you can usually negate the three wrong answers that will lead you to only one good one. I don't know what your question looked like in this situation, but usually the answers contain some misstatement of the law, or something.

And sometimes when that doesn't even work, just remind yourself that nobody ever gets 100% on the MBE, take a guess, move on, and hope you get 66% or so of them right.

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Re: judgment call questions

Postby ipsares » Fri Jul 12, 2019 8:09 am

I've found in this mbe jurisdiction to never bet against depraved heart murder. Seems to always be the answer.

If there is a fact pattern where something unfair or unjust happened - I've found the answer 90% of the time is geared towards fairness or justice. Whenever I get one I ask, "what is fair?" and usually try to not even read the unfair answers if I find something that fits decent out of the fair ones.

Last observation. If you are deciding between two answers and they are both objectively right, its probably a third answer. See below. This one is kind of hard to catch when going through problems because it often is a struggle between two answers. But if you read the question below, answer a and b are both objectively an application of the elements for larceny. 75% of people chose a or b. answer is C only like 20% got it right. again, hard to catch, can be counter intuitive, but i've seen it enough to notice the pattern.




Question 180

A woman took her car to an unscrupulous auto mechanic’s garage for a tune-up. The woman’s car had a new and expensive set of tires that the mechanic coveted. The woman left her car at the garage overnight. Later that night, after the woman had left the premises, the mechanic took the tires off the woman’s car, put them into a back room of his garage, and replaced the tires with a cheap, old set. That same evening, the woman’s friend told her about the mechanic’s unscrupulous nature, and that he had a habit of stealing tires. The woman went back to the garage the next morning. Noticing that the tires on her vehicle were different, she demanded that the new, expensive tires be put back on the vehicle. The mechanic complied, and the woman left the premises.

The woman reported the mechanic to the police, and the mechanic is charged with larceny. Based on the foregoing facts, should he be convicted of the crime?

Answers:

a- Yes, because the mechanic moved the tires from the car to the back room.
b- Yes, because the mechanic had a present intent to permanently deprive the woman of the tires.
c- No, because the car was left with the mechanic by consent.
d- No, because the tires were returned to the woman before she was permanently deprived of them.
Rationale:

Answer choice C is correct. For a larceny, the initial taking and asportation of another’s property must be trespassory; that is, the defendant must not be legally entrusted with the property. Here, the woman entrusted the mechanic with her vehicle (and the tires on the vehicle). Thus, the initial taking of the tires was not trespassory, and the mechanic’s crime was embezzlement, not larceny. Answer choices A and B are incorrect because, while both correctly apply elements of larceny, they incorrectly state that the mechanic should be convicted. Because the mechanic had the intention of permanently depriving the woman of the tires at the time of the taking, answer choice D is incorrect. That he later returned them to the woman is of no matter.

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Re: judgment call questions

Postby sleeplessindc » Fri Jul 12, 2019 9:38 am

Bingo_Bongo wrote:When judgement call questions appear on the MBE portion, they're usually pretty obvious with facts that could only lead to one reasonable conclusion if they expect you to conclude.


Yep. What I concluded from doing all the available official recent NCBE questions (about 640) and fully reading the explanations is that for each question, there is 1 correct answer choice and 3 wrong answer choices -- not multiple answer choices that are all sort of correct but in gradations of correctness. The wrong answer choices are wrong because they misstate some fine-grained legal rule, misstate a reasoning behind the answer choice's conclusion, use a fact not in the question, etc. The approach I used on test day is pick the 1 correct answer choice, not the "best" answer choice. (I finished the MBE day feeling really good and did in fact pass. But YMMV.)

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Re: judgment call questions

Postby Bingo_Bongo » Fri Jul 12, 2019 10:28 pm

ipsares wrote:Question 180

A woman took her car to an unscrupulous auto mechanic’s garage for a tune-up. The woman’s car had a new and expensive set of tires that the mechanic coveted. The woman left her car at the garage overnight. Later that night, after the woman had left the premises, the mechanic took the tires off the woman’s car, put them into a back room of his garage, and replaced the tires with a cheap, old set. That same evening, the woman’s friend told her about the mechanic’s unscrupulous nature, and that he had a habit of stealing tires. The woman went back to the garage the next morning. Noticing that the tires on her vehicle were different, she demanded that the new, expensive tires be put back on the vehicle. The mechanic complied, and the woman left the premises.

The woman reported the mechanic to the police, and the mechanic is charged with larceny. Based on the foregoing facts, should he be convicted of the crime?

Answers:

a- Yes, because the mechanic moved the tires from the car to the back room.
b- Yes, because the mechanic had a present intent to permanently deprive the woman of the tires.
c- No, because the car was left with the mechanic by consent.
d- No, because the tires were returned to the woman before she was permanently deprived of them.
Rationale:

Answer choice C is correct. For a larceny, the initial taking and asportation of another’s property must be trespassory; that is, the defendant must not be legally entrusted with the property. Here, the woman entrusted the mechanic with her vehicle (and the tires on the vehicle). Thus, the initial taking of the tires was not trespassory, and the mechanic’s crime was embezzlement, not larceny. Answer choices A and B are incorrect because, while both correctly apply elements of larceny, they incorrectly state that the mechanic should be convicted. Because the mechanic had the intention of permanently depriving the woman of the tires at the time of the taking, answer choice D is incorrect. That he later returned them to the woman is of no matter.


That question is utterly dumb. The reason why so many people get it wrong is because the question is dumb. Not because it is hard. It's questions like these that makes me think the bar examiners just want to fail everyone.

Yes, the taking has to be trespassory, but that just means without consent. The woman left the vehicle for a "tune up"; not to have her tired jacked. Heck, nothing in these facts indicate that taking tires off the car was even a part of the routine tune up. It was totally without the woman's consent.

Embezzlement works here too, but so does larceny. Larceny is a lesser included offense of embezzlement, so you wouldn't be able to convict him of both, but if they wanted to prosecute him for larceny, based on these facts, they could totally do that. In fact, in real life, he would be charged with both. He would not be able to be convicted of both, but he could totally be guilty of larceny.

This question is stupid.

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Re: judgment call questions

Postby sleeplessindc » Sat Jul 13, 2019 7:57 am

ipsares wrote:Question 180

A woman took her car to an unscrupulous auto mechanic’s garage for a tune-up. The woman’s car had a new and expensive set of tires that the mechanic coveted. The woman left her car at the garage overnight.


What's the source of this question? I didn't find it among the official and recent/non-retired NCBE questions.

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Re: judgment call questions

Postby ipsares » Sat Jul 13, 2019 5:26 pm

sleeplessindc wrote:
ipsares wrote:Question 180

A woman took her car to an unscrupulous auto mechanic’s garage for a tune-up. The woman’s car had a new and expensive set of tires that the mechanic coveted. The woman left her car at the garage overnight.


What's the source of this question? I didn't find it among the official and recent/non-retired NCBE questions.


It was on the Themis practice test

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Re: judgment call questions

Postby sleeplessindc » Sun Jul 14, 2019 9:36 am

ipsares wrote:Last observation. If you are deciding between two answers and they are both objectively right, its probably a third answer. See below. This one is kind of hard to catch when going through problems because it often is a struggle between two answers. But if you read the question below, answer a and b are both objectively an application of the elements for larceny. 75% of people chose a or b. answer is C only like 20% got it right. again, hard to catch, can be counter intuitive, but i've seen it enough to notice the pattern.

Question 180

A woman took her car to an unscrupulous auto mechanic’s garage for a tune-up. The woman’s car had a new and expensive set of tires that the mechanic coveted. The woman left her car at the garage overnight. Later that night, after the woman had left the premises, the mechanic took the tires off the woman’s car, put them into a back room of his garage, and replaced the tires with a cheap, old set. That same evening, the woman’s friend told her about the mechanic’s unscrupulous nature, and that he had a habit of stealing tires. The woman went back to the garage the next morning. Noticing that the tires on her vehicle were different, she demanded that the new, expensive tires be put back on the vehicle. The mechanic complied, and the woman left the premises.

The woman reported the mechanic to the police, and the mechanic is charged with larceny. Based on the foregoing facts, should he be convicted of the crime?

Answers:

a- Yes, because the mechanic moved the tires from the car to the back room.
b- Yes, because the mechanic had a present intent to permanently deprive the woman of the tires.
c- No, because the car was left with the mechanic by consent.
d- No, because the tires were returned to the woman before she was permanently deprived of them.
Rationale:

Answer choice C is correct. For a larceny, the initial taking and asportation of another’s property must be trespassory; that is, the defendant must not be legally entrusted with the property. Here, the woman entrusted the mechanic with her vehicle (and the tires on the vehicle). Thus, the initial taking of the tires was not trespassory, and the mechanic’s crime was embezzlement, not larceny. Answer choices A and B are incorrect because, while both correctly apply elements of larceny, they incorrectly state that the mechanic should be convicted. Because the mechanic had the intention of permanently depriving the woman of the tires at the time of the taking, answer choice D is incorrect. That he later returned them to the woman is of no matter.


I don't think this is as a terribly-written Themis question as others say. It actually seems straightforward to me, although I can see why it feels tricky.

First of all, "Larceny is a lesser included offense of embezzlement" is not a correct rule statement. Larceny is distinguished from embezzlement because in larceny, the defendant misappropriates property not in his possession. In contrast, in embezzlement, the defendant misappropriates property while it is in his lawful possession.

The crime committed in the question above is embezzlement, not larceny, because the car (which includes the tires) was in the mechanic's legal possession.

Answer choice A is wrong because the offense committed wasn't larceny.
Answer choice B is wrong because the offense committed wasn't larceny.
Answer choice D is wrong because the crime was completed at the time of the conversion of the tires; that the mechanic later returned the tires doesn't matter.

That leaves answer choice C. As explained above, the mechanic did not commit larceny because he had rightful possession of the car at the time of the conversion of the tires. Legal possession is the key fact to focus on here, not the specific purposes for which the woman gave the mechanic that legal possession.

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Re: judgment call questions

Postby Bingo_Bongo » Sun Jul 14, 2019 2:55 pm

sleeplessindc wrote:
First of all, "Larceny is a lesser included offense of embezzlement" is not a correct rule statement.


100% false. Larceny is absolutely a lesser included offense of embezzlement. How do I know this? (A) It is impossible to commit embezzlement without also committing larceny, which is the definition of a lesser included offense (embezzlement just has the added element that at the time of the theft the defendant has lawful possession of the chattel). And (B) I have actually tried embezzlement cases and can assure you that larceny (called petty theft in California) was a lesser included offense the jury could have find the defendant guilty of if they didn't find that the defendant had lawful possession at the time of the conversion.

See Calcrim 1800 if you don't believe me and scroll to the bottom where the lesser included offenses are listed: https://www.justia.com/criminal/docs/calcrim/1800/1800/

Larceny is distinguished from embezzlement because in larceny, the defendant misappropriates property not in his possession. In contrast, in embezzlement, the defendant misappropriates property while it is in his lawful possession.


Right. Nobody's arguing that.

The crime committed in the question above is embezzlement, not larceny, because the car (which includes the tires) was in the mechanic's legal possession.


You're right. It could be embezzlement. But it could also be larceny. The facts say "the mechanic is charged with larceny." The mechanic could have been charged with embezzlement, but he wasn't. That doesn't mean the jury can't find him guilty of larceny also. It might have been a tactical decision to charge the easier to prove crime. I don't know.

Answer choice A is wrong because the offense committed wasn't larceny.
Answer choice B is wrong because the offense committed wasn't larceny.


But, it was larceny. Yeah,it was also embezzlement, too. But it was larceny, also. Again, he can't be convicted of both, but he can be convicted of either.

Legal possession is the key fact to focus on here, not the specific purposes for which the woman gave the mechanic that legal possession.


This question was attempting to test the difference between larceny and embezzlement. I get that. It failed miserably at that, though, for the simple fact that the defendant ALSO committed larceny and could properly be convicted of larceny.

If somebody runs up to you on the street and threatens you and demands your wallet, he can be convicted of both robbery and larceny. He can't be convicted of both, because larceny is a lesser included offense. If for some reason the prosecutor thought it would be too hard to prove that the threats were sufficient, he might just be charged with regular larceny. That doesn't mean he can't be convicted of it.

The problem with this question is that whoever wrote it was trying to the distinction between larceny and embezzlement without apparently understanding the law regarding lesser included offenses, resulting in a question with two correct answers, none of which are considered the correct answer. The fact that so many people get this question wrong, and an actual prosecutor is ranting about how stupid it is, should speak volumes to how bad this question is.

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Re: judgment call questions

Postby cavalier1138 » Sun Jul 14, 2019 3:29 pm

Bingo_Bongo wrote:100% false. Larceny is absolutely a lesser included offense of embezzlement. How do I know this? (A) It is impossible to commit embezzlement without also committing larceny, which is the definition of a lesser included offense (embezzlement just has the added element that at the time of the theft the defendant has lawful possession of the chattel). And (B) I have actually tried embezzlement cases and can assure you that larceny (called petty theft in California) was a lesser included offense the jury could have find the defendant guilty of if they didn't find that the defendant had lawful possession at the time of the conversion.


Maybe that's just a quirk of California law, because my understanding of the MBE definition of embezzlement is that it's distinct from larceny. The Themis outline actually goes out of its way to emphasize that.

Under the MBE definition, it's absolutely possible to commit embezzlement without committing larceny. In fact, you can't commit larceny if you committed embezzlement, because under the MBE definitions, the taking wasn't trespassory. I can understand how a prosecutor could charge both and let the jury sort out whether the defendant had lawful possession of the property or whether it was a trespassory taking. But it doesn't follow that larceny is then acting as a lesser included offense, as would be the case if we were talking larceny vs. robbery. The jury could find (under the MBE definitions of these crimes) that the defendant didn't have lawful possession of the property but that the taking wasn't trespassory or that the crime otherwise didn't fulfill all the elements of larceny.

Again, not saying this is the case in California. But the given question was a sample MBE question not based on California law.

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Re: judgment call questions

Postby sleeplessindc » Sun Jul 14, 2019 3:57 pm

Bingo_Bongo wrote:
sleeplessindc wrote:
First of all, "Larceny is a lesser included offense of embezzlement" is not a correct rule statement.


100% false. Larceny is absolutely a lesser included offense of embezzlement. How do I know this? (A) It is impossible to commit embezzlement without also committing larceny, which is the definition of a lesser included offense (embezzlement just has the added element that at the time of the theft the defendant has lawful possession of the chattel). And (B) I have actually tried embezzlement cases and can assure you that larceny (called petty theft in California) was a lesser included offense the jury could have find the defendant guilty of if they didn't find that the defendant had lawful possession at the time of the conversion.

See Calcrim 1800 if you don't believe me and scroll to the bottom where the lesser included offenses are listed: https://www.justia.com/criminal/docs/calcrim/1800/1800/

Larceny is distinguished from embezzlement because in larceny, the defendant misappropriates property not in his possession. In contrast, in embezzlement, the defendant misappropriates property while it is in his lawful possession.


Right. Nobody's arguing that.

The crime committed in the question above is embezzlement, not larceny, because the car (which includes the tires) was in the mechanic's legal possession.


You're right. It could be embezzlement. But it could also be larceny. The facts say "the mechanic is charged with larceny." The mechanic could have been charged with embezzlement, but he wasn't. That doesn't mean the jury can't find him guilty of larceny also. It might have been a tactical decision to charge the easier to prove crime. I don't know.

Answer choice A is wrong because the offense committed wasn't larceny.
Answer choice B is wrong because the offense committed wasn't larceny.


But, it was larceny. Yeah,it was also embezzlement, too. But it was larceny, also. Again, he can't be convicted of both, but he can be convicted of either.

Legal possession is the key fact to focus on here, not the specific purposes for which the woman gave the mechanic that legal possession.


This question was attempting to test the difference between larceny and embezzlement. I get that. It failed miserably at that, though, for the simple fact that the defendant ALSO committed larceny and could properly be convicted of larceny.

If somebody runs up to you on the street and threatens you and demands your wallet, he can be convicted of both robbery and larceny. He can't be convicted of both, because larceny is a lesser included offense. If for some reason the prosecutor thought it would be too hard to prove that the threats were sufficient, he might just be charged with regular larceny. That doesn't mean he can't be convicted of it.

The problem with this question is that whoever wrote it was trying to the distinction between larceny and embezzlement without apparently understanding the law regarding lesser included offenses, resulting in a question with two correct answers, none of which are considered the correct answer. The fact that so many people get this question wrong, and an actual prosecutor is ranting about how stupid it is, should speak volumes to how bad this question is.



Actually, according to the Judicial Council of California Criminal Jury Instructions (2017 edition) source that you cited, larceny is not a lesser included offense of embezzlement. Mind you, the MBE tests the generally accepted view, rather than specific individual state laws like the California criminal code, unless otherwise stated. But your source shows that larceny is not a lesser included offense of embezzlement even under California law.

Here's what the California Criminal Jury Instructions list as the lesser included offenses of Theft by Larceny: Petty Theft, Attempted Theft, Taking an Automobile Without Consent, Auto Tampering, Misdemeanor Joyriding. https://www.justia.com/criminal/docs/calcrim/1800/1800/. In fact, this very source that you cited distinguishes larceny and embezzlement: "If a different theory of theft is presented, see CALCRIM No. 1804, Theft by False Pretense, CALCRIM No. 1805, Theft by Trick, CALCRIM No. 1806, Theft by Embezzlement."

Here's what the California Criminal Jury Instructions list as the lesser included offenses of Theft by Embezzlement: Petty Theft, Attempted Theft. https://www.justia.com/criminal/docs/calcrim/1800/1806/

Even under California law, the crime in Question 180 wouldn't fit the definition of larceny as that requires that the defendant had taken the property without the owner's consent. The mechanic already had been entrusted with the car and therefore already had legal possession of the car's constituent parts, including the tires. I think Bingo is stuck on the fact that the mechanic converting the tires for his own use is something that the woman wouldn't have consented to (and indeed later protested) -- but again, the mechanic had already been given consent to have the tires within his possession, thereby making the mechanic's act conversion of property, not larceny.

OP, if in doubt, go with the definitions and ways of thinking outlined in the official NCBE materials. And the official NCBE materials clearly distinguish larceny and embezzlement as distinct crimes that turn on rightful possession. Question 62 in Practice Exam #4, for instance, goes out of its way to distinguish larceny and embezzlement: "Accordingly, and because the spectator never entrusted the man with the wallet, the man is guilty of larceny rather than embezzlement."

(fwiw, Barbri materials are clear about the distinctions, too: http://www.lexisnexis.com/documents/pdf ... _large.pdf)

OK I'm now going to enjoy the rest of my weekend :) Good luck studying to everybody!

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Re: judgment call questions

Postby Bingo_Bongo » Sun Jul 14, 2019 4:26 pm

cavalier1138 wrote:Maybe that's just a quirk of California law, because my understanding of the MBE definition of embezzlement is that it's distinct from larceny. The Themis outline actually goes out of its way to emphasize that.

Under the MBE definition, it's absolutely possible to commit embezzlement without committing larceny. In fact, you can't commit larceny if you committed embezzlement, because under the MBE definitions, the taking wasn't trespassory. I can understand how a prosecutor could charge both and let the jury sort out whether the defendant had lawful possession of the property or whether it was a trespassory taking. But it doesn't follow that larceny is then acting as a lesser included offense, as would be the case if we were talking larceny vs. robbery. The jury could find (under the MBE definitions of these crimes) that the defendant didn't have lawful possession of the property but that the taking wasn't trespassory or that the crime otherwise didn't fulfill all the elements of larceny.

Again, not saying this is the case in California. But the given question was a sample MBE question not based on California law.


Admittedly, I'm not a master of the "bar law" that the MBE tests. And California (like most states) has statutorily modified all crimes. In fact, "larceny" isn't a crime in California, it's called "theft".

Larceny is a lesser included offense of embezzlement in California. Sleepless, look at the original link the Calcrim I posted. Theft (PC 484) is 100% included as a lesser included offense to Embezzlement in that link. I promise you. I've dealt with my fair share of prosecutions involving employees stealing money from their employers and they get charged with both embezzlement and theft (but can only be convicted of one).

In terms of whether bar law larceny is a lesser included of bar law embezzlement depends on how a court would define trespassory. Arguably, when you exceed the consent given to you by whoever you entrusted you with the property, it becomes trespassory. It's just like regular trespassing. If you receive a ticket (license) to go into a baseball stadium, and then decide to jump the fence to go streaking on the field, you have exceeded your consent and your presence of the property has become trespassory. Same here. The woman gave the mechanic her car to "tune up." He exceeded that consent by taking the tires off. It became trespassory.

I get that the bar prep companies assert that they are distinct crimes, and maybe for "bar purposes" they are. But in real life, they ain't. I wish the MBE would move away from testing 18th century English crimes

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Re: judgment call questions

Postby cavalier1138 » Sun Jul 14, 2019 9:18 pm

Bingo_Bongo wrote:I get that the bar prep companies assert that they are distinct crimes, and maybe for "bar purposes" they are. But in real life, they ain't. I wish the MBE would move away from testing 18th century English crimes


No argument here. Literally everything we learn for MBE Crim is bullshit.

I also had a personal favorite crim pro question asking about an officer without a warrant taking a drug-sniffing dog onto someone's porch, and two answers were "The search was unlawful because the officer entered the curtilage" and "The search was unlawful because the officer used a drug-sniffing dog." The "correct" answer was the former, but the explanation was that it was illegal because he brought the fucking dog into the curtilage.

I really wish the bar exam was just a series of more difficult MPTs. It would at least test semi-useful skills.



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