BarBri Thread: People taking Barbri for July 2013 exam Forum

[jawsthegreat]

I got 33/51 on the NY MC which is 65%

Is that good/bad/average?

[bgdddymtty]

I got 33/51 on the NY MC which is 65%

Is that good/bad/average?

According to this site, you need 56% (28/50) to be on track to pass.

[kaiser]

Any one did the MBE Drills for criminal law?
Q7
The defendant took the jewelery, which he believed to be stolen but actually already lost its "stolen" status (police got the owner's permission). The answer said it is an attempted receipt of stolen property.
But is this a legal impossibility as a defense? (Like the lecture example, you cannot steal your own property even you think it is others. no attempt crime)

That's strange, I always thought that you could theoretically commit attempted larceny even if the property turns out to be your own. Are you sure you're not thinking of honest (but not necessarily reasonable) mistake about ownership serving as a complete defense to larceny?

I think what they are getting at is, once the police recover stolen property you cannot be guilty of receipt of stolen property as a result of getting it from them (or their agent) in a sting. It has been recovered once its in their control and is no longer "stolen" as required for the offense.

So you can only be guilty of attempted receipt. Legal impossibility only applies when the offense attempted isn't actually a crime because the conduct isn't prohibited. Not that some element of the offense fails. E.g. you erroneously think walking on the sidewalk is illegal, but its not.

Yup, the answer explanation echoes this tricky distinction. Legal impossibility refers to the non-existence of a law proscribing certain conduct. So if you engage in that conduct, its legally impossible to be committing a crime since that conduct isn't illegal.

But, as the explanation states, the legal status of goods is an attendant circumstance that is treated like factual impossibility. So yes, legal impossibility IS a defense to attempt, but this wasn't a situation of legal impossibility. The status of the goods (whether or not they are deemed "stolen") is treated as a factual issue.

[kaiser]

Also, are these MBE drills (the 17 Q sets) worthwhile? I'm going through them and feel like they skew toward the easier side, so I'm not sure how useful they are. Did torts (13/17), K's (14/17), and evidence (14/17) so far and there doesn't seem to be many tricks.

[blong4133]

Also, are these MBE drills (the 17 Q sets) worthwhile? I'm going through them and feel like they skew toward the easier side, so I'm not sure how useful they are. Did torts (13/17), K's (14/17), and evidence (14/17) so far and there doesn't seem to be many tricks.

I'm noticing something similar with the mixed subject sets in the MPQ 2 book. I've consistently stuck around the 60-65 mark for most sets (with the exception of the 5 and 6th sets where I pulled a 48% on a torts set), and few where I just bombed. I've also was doing sets of 25 from the kaplan q bank and wasn't getting anything higher than 65%.

But I sit down and do two mixed subject sets from the MPQ 2 book and start pulling 85 - 90 percent. I don't know if this is because I'm learning the stuff, if the questions are easier (and hopefully more representative of the actual thing), or if I'm just getting extremely lucky.

[kaiser]

Also, are these MBE drills (the 17 Q sets) worthwhile? I'm going through them and feel like they skew toward the easier side, so I'm not sure how useful they are. Did torts (13/17), K's (14/17), and evidence (14/17) so far and there doesn't seem to be many tricks.

I'm noticing something similar with the mixed subject sets in the MPQ 2 book. I've consistently stuck around the 60-65 mark for most sets (with the exception of the 5 and 6th sets where I pulled a 48% on a torts set), and few where I just bombed. I've also was doing sets of 25 from the kaplan q bank and wasn't getting anything higher than 65%.

But I sit down and do two mixed subject sets from the MPQ 2 book and start pulling 85 - 90 percent. I don't know if this is because I'm learning the stuff, if the questions are easier (and hopefully more representative of the actual thing), or if I'm just getting extremely lucky.

I want to find out from BarBri which Q's are the real Q's. One would think that is important information to know. I could have sworn that it was MPQ2 that had some of the real Q's mixed in. I haven't touched that book yet though.

[blong4133]

Here's a Civ Pro issue that I'm not sure if I have right (or at least the reasoning). Can someone tell me if I'm on the right track here?

So a plaintiff has a claim in federal court against a defendant based on diversity jurisdiction. That plaintiff can then aggregate any claim against that defendant in order to satisfy the amount in controversy requirement if it was not already satisfied by the initial claim that got the case to federal court. And you can aggregate this claim because diversity has already been established between that plaintiff and defendant, so that plaintiff can bring in whatever claim he wants against that defendant and that will count toward the amount in controversy.

But, you cannot aggregate a claim by bringing in an additional plaintiff in order to satisfy the amount in controversy requirement. If you want to bring in the additional plaintiff, you must satisfy the diversity/amount in controversy requirement with your own claim(s), and then the additional plaintiff must establish that his claim meets either diversity requirements/FQ/Supplemental jurisdiction.

Here's the way I have it in my head:

P1 v. D1 in a diversity case. P1's initial claim is only worth 50,000 and he can bring in any claim he wants against that defendant, even if unrelated, and have it aggregated to satisfy the amount in controversy requirement.

But let's assume the same facts as above, but rather than aggregating his own claim, he wants to bring in P2 who has a claim against D1 worth 30,000 that arose from the same transaction or occurrence. This won't work because P1 doesn't meet the diversity requirement (doesn't meet amount in controversy requirement), and we don't let you aggregate claims from another plaintiff to satisfy diversity.

Conversely, lets say you have P1 v. D1 in a diversity case, and P1's claim is worth 80,000. You can then bring in an additional plaintiff who has a claim against D1, even if it does not satisfy diversity or FQ, as long as it arises from the same transaction or occurrence (supplemental jurisdiction). In other words, if you want to bring in an additional plaintiff against the defendant, and that person doesn't satisfy the amount in controversy requirement, your initial claim must satisfy the amount in controversy, otherwise there is no diversity jurisdiction in the federal court.
Is this right or am I missing something here? I didn't learn a damn thing in Civ Pro in law school. Been struggling to figure this stuff out.

[Joe Quincy]

Here's a Civ Pro issue that I'm not sure if I have right (or at least the reasoning). Can someone tell me if I'm on the right track here?

So a plaintiff has a claim in federal court against a defendant based on diversity jurisdiction. That plaintiff can then aggregate any claim against that defendant in order to satisfy the amount in controversy requirement if it was not already satisfied by the initial claim that got the case to federal court. And you can aggregate this claim because diversity has already been established between that plaintiff and defendant, so that plaintiff can bring in whatever claim he wants against that defendant and that will count toward the amount in controversy.

But, you cannot aggregate a claim by bringing in an additional plaintiff in order to satisfy the amount in controversy requirement. If you want to bring in the additional plaintiff, you must satisfy the diversity/amount in controversy requirement with your own claim(s), and then the additional plaintiff must establish that his claim meets either diversity requirements/FQ/Supplemental jurisdiction.

Is this right or am I missing something here? I didn't learn a damn thing in Civ Pro in law school. Been struggling to figure this stuff out.

Close. You're correct you can't bring in an additional plaintiff to satisfy the amount in controversy. However, P2 need not meet the amount in controversy requirement themselves so long as its sufficiently related to P1's claim for supplemental jurisdiction, which it would be for joinder to be proper. See, e.g. Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546 (2005).

[blong4133]

Here's a Civ Pro issue that I'm not sure if I have right (or at least the reasoning). Can someone tell me if I'm on the right track here?

So a plaintiff has a claim in federal court against a defendant based on diversity jurisdiction. That plaintiff can then aggregate any claim against that defendant in order to satisfy the amount in controversy requirement if it was not already satisfied by the initial claim that got the case to federal court. And you can aggregate this claim because diversity has already been established between that plaintiff and defendant, so that plaintiff can bring in whatever claim he wants against that defendant and that will count toward the amount in controversy.

But, you cannot aggregate a claim by bringing in an additional plaintiff in order to satisfy the amount in controversy requirement. If you want to bring in the additional plaintiff, you must satisfy the diversity/amount in controversy requirement with your own claim(s), and then the additional plaintiff must establish that his claim meets either diversity requirements/FQ/Supplemental jurisdiction.

Is this right or am I missing something here? I didn't learn a damn thing in Civ Pro in law school. Been struggling to figure this stuff out.

Close. You're correct you can't bring in an additional plaintiff to satisfy the amount in controversy. However, P2 need not meet the amount in controversy requirement themselves so long as its sufficiently related to P1's claim for supplemental jurisdiction, which it would be for joinder to be proper. See, e.g. Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546 (2005).

Thanks! I edited my above post to illustrate the way I have it in my head.

[AdamatUCF]

Speaking of NY Essay #R-5

Can anyone explain to me why the model answer, and their explanation video, didn't talk about whether or not Owl's testimony would be hearsay?

When I was going through this essay, I spent a fair bit of time talking about this being an out-of-court statement offered for the truth of the matter asserted. I talked about party admissions, or statements against (penal) interest, and ultimately concluded that this would be admissible under one of the exceptions.

But why the hell didn't the model answer or the Barbri explanation talk about it? Did I miss something?

(I also moved onto the character evidence, and the MIMIC exception, so it's not like I totally missed what the question was asking.)

[Matteliszt]

Speaking of NY Essay #R-5

Can anyone explain to me why the model answer, and their explanation video, didn't talk about whether or not Owl's testimony would be hearsay?

When I was going through this essay, I spent a fair bit of time talking about this being an out-of-court statement offered for the truth of the matter asserted. I talked about party admissions, or statements against (penal) interest, and ultimately concluded that this would be admissible under one of the exceptions.

But why the hell didn't the model answer or the Barbri explanation talk about it? Did I miss something?

(I also moved onto the character evidence, and the MIMIC exception, so it's not like I totally missed what the question was asking.)

There isn't an out of court statement offered for the truth of the matter asserted here. Owl is going to testify that Chef solicited him to burn down a building. For this statement to qualify as hearsay, it would require that the evidence was being used to show that Chef said something specific, and it was being offered as true. For example, "Chef told owl he had burned the building" and it was being used to SHOW that Owl had burned the building. It's kind of tricky with solicitation, but hopefully that helps.

[daphne]

I still have trouble in understanding "legal impossibility" as a defense for attempt. Criminal Law Set 3 Q 11, the person bought a "marijuana cigarette", which was in fact only an ordinary tobacco. The explanation says this is a factual impossibility. But how is this different from the example on the handout: the woman who stole her own umbrella (which is a legal impossibility)?

[de5igual]

I still have trouble in understanding "legal impossibility" as a defense for attempt. Criminal Law Set 3 Q 11, the person bought a "marijuana cigarette", which was in fact only an ordinary tobacco. The explanation says this is a factual impossibility. But how is this different from the example on the handout: the woman who stole her own umbrella (which is a legal impossibility)?

did she "steal" it knowing it was hers?

[goodolgil]

I still have trouble in understanding "legal impossibility" as a defense for attempt. Criminal Law Set 3 Q 11, the person bought a "marijuana cigarette", which was in fact only an ordinary tobacco. The explanation says this is a factual impossibility. But how is this different from the example on the handout: the woman who stole her own umbrella (which is a legal impossibility)?

It'd be a defense if he was charged with the crime, but in the q he was charged with attempt. For attempt crimes, you just need 1) specific intent; 2) take a substantial step.

[goodolgil]

Contracts Set 6 was a bitch. This was the first set 6 I did and I'm not sure if I'm gonna bother with the other ones. Mostly because of how long the questions are and the associated time waste.

[daphne]

I still have trouble in understanding "legal impossibility" as a defense for attempt. Criminal Law Set 3 Q 11, the person bought a "marijuana cigarette", which was in fact only an ordinary tobacco. The explanation says this is a factual impossibility. But how is this different from the example on the handout: the woman who stole her own umbrella (which is a legal impossibility)?

did she "steal" it knowing it was hers?

No. She thought it was other's umbrella and confessed to the police after the "stealing". And thus there is no attempt.
(The fact pattern is that she did not bring an umbrella and remembers seeing an umbrella behind the check-in desk and decided to steal it. When the attendant is distracted, she reaches over the desk, takes the umbrella and rushes out the door. After walking two blocks, she becomes seized by guilt and confess her "thievery" to a police officer)

[daphne]

Aslo Crim Set 3 Q 16
Why the police officer can open the backpack? I thought the search of the backpack is unlawful, so the timber found in the backpack as the foundation for the arrest is obtained unlawful. Thus the arrest itself is unlawful.

[daphne]

I still have trouble in understanding "legal impossibility" as a defense for attempt. Criminal Law Set 3 Q 11, the person bought a "marijuana cigarette", which was in fact only an ordinary tobacco. The explanation says this is a factual impossibility. But how is this different from the example on the handout: the woman who stole her own umbrella (which is a legal impossibility)?

It'd be a defense if he was charged with the crime, but in the q he was charged with attempt. For attempt crimes, you just need 1) specific intent; 2) take a substantial step.

Yes I understand the element of attempt, but legal impossibility is a DEFENSE for the attempt and I have trouble to understand it.....

[BCLS]

Aslo Crim Set 3 Q 16
Why the police officer can open the backpack? I thought the search of the backpack is unlawful, so the timber found in the backpack as the foundation for the arrest is obtained unlawful. Thus the arrest itself is unlawful.

I asked about this somewhere relating to an essay. Apparently even illegally seized evidence can be used for probable cause. The real issue is whether the evidence is admissible at subsequent trial.

[Joe Quincy]

I still have trouble in understanding "legal impossibility" as a defense for attempt. Criminal Law Set 3 Q 11, the person bought a "marijuana cigarette", which was in fact only an ordinary tobacco. The explanation says this is a factual impossibility. But how is this different from the example on the handout: the woman who stole her own umbrella (which is a legal impossibility)?

It'd be a defense if he was charged with the crime, but in the q he was charged with attempt. For attempt crimes, you just need 1) specific intent; 2) take a substantial step.

Yes I understand the element of attempt, but legal impossibility is a DEFENSE for the attempt and I have trouble to understand it.....

If the woman had taken the umbrella, that would not have been illegal because it was hers. If the guy had bought a marijuana cigarette, that'd be illegal. Hence one is legally impossible (umbrella) and one is factually impossible (not mj).

I understand your confusion because she thought she was stealing an umbrella. But it turns out, taking that specific umbrella wasn't a crime even though she thought it was because she owned it. Versus the guy with the marijuana who was attempting something actually illegal. I think you're viewing the offense too abstractly...she was attempting to steal that umbrella, not attempting to steal in general. If the mj guy had attempted to buy a regular cigarette because he believed it was illegal (but it wasn't), that would also be legal impossibility.

[AdamatUCF]

Speaking of NY Essay #R-5

Can anyone explain to me why the model answer, and their explanation video, didn't talk about whether or not Owl's testimony would be hearsay?

When I was going through this essay, I spent a fair bit of time talking about this being an out-of-court statement offered for the truth of the matter asserted. I talked about party admissions, or statements against (penal) interest, and ultimately concluded that this would be admissible under one of the exceptions.

But why the hell didn't the model answer or the Barbri explanation talk about it? Did I miss something?

(I also moved onto the character evidence, and the MIMIC exception, so it's not like I totally missed what the question was asking.)

There isn't an out of court statement offered for the truth of the matter asserted here. Owl is going to testify that Chef solicited him to burn down a building. For this statement to qualify as hearsay, it would require that the evidence was being used to show that Chef said something specific, and it was being offered as true. For example, "Chef told owl he had burned the building" and it was being used to SHOW that Owl had burned the building. It's kind of tricky with solicitation, but hopefully that helps.

Wouldn't the out of court statement presumably be "I'll give you $X,XXX to burn down my house?" or something like that? If owl is going to testify that Chef tried to hire him to burn down his house, presumably the actual content of that testimony is going to be relaying statements by Chef.

[Joe Quincy]

Speaking of NY Essay #R-5

Can anyone explain to me why the model answer, and their explanation video, didn't talk about whether or not Owl's testimony would be hearsay?

When I was going through this essay, I spent a fair bit of time talking about this being an out-of-court statement offered for the truth of the matter asserted. I talked about party admissions, or statements against (penal) interest, and ultimately concluded that this would be admissible under one of the exceptions.

But why the hell didn't the model answer or the Barbri explanation talk about it? Did I miss something?

(I also moved onto the character evidence, and the MIMIC exception, so it's not like I totally missed what the question was asking.)

There isn't an out of court statement offered for the truth of the matter asserted here. Owl is going to testify that Chef solicited him to burn down a building. For this statement to qualify as hearsay, it would require that the evidence was being used to show that Chef said something specific, and it was being offered as true. For example, "Chef told owl he had burned the building" and it was being used to SHOW that Owl had burned the building. It's kind of tricky with solicitation, but hopefully that helps.

Wouldn't the out of court statement presumably be "I'll give you $X,XXX to burn down my house?" or something like that? If owl is going to testify that Chef tried to hire him to burn down his house, presumably the actual content of that testimony is going to be relaying statements by Chef.

I don't have this essay but its all a matter of degree. He can testify he solicited him. If he attempts to say what he said, then hearsay. You can't assume too much. IRL, they'd testify he solicited him, ask if he gave him money, etc.

[kaiser]

I still have trouble in understanding "legal impossibility" as a defense for attempt. Criminal Law Set 3 Q 11, the person bought a "marijuana cigarette", which was in fact only an ordinary tobacco. The explanation says this is a factual impossibility. But how is this different from the example on the handout: the woman who stole her own umbrella (which is a legal impossibility)?

It'd be a defense if he was charged with the crime, but in the q he was charged with attempt. For attempt crimes, you just need 1) specific intent; 2) take a substantial step.

Yes I understand the element of attempt, but legal impossibility is a DEFENSE for the attempt and I have trouble to understand it.....

Legal impossibility is when the conduct at issue is not proscribed at all. If I think its a crime to swim in the lake, but it really isn't, that is legal impossibility. But when factual circumstances make it impossible, you have factual impossibility. The only wrinkle, according to the CMR/BarBri explanations is that a mistake on legal status is pretty much treated as factual impossibility. We earlier discussed the Q about the stolen jewelry which had lost its "stolen" status since it had been given to new owners after being seized by the police. The Q's explanation noted that this issue of legal status would be treated like factual impossibility. They noted that legal impossibility is isolated to situations when the conduct itself, as a broader category, is not proscribed. Legal impossibility doesn't turn on a matter of status, at least according to BarBri.

[daphne]

I still have trouble in understanding "legal impossibility" as a defense for attempt. Criminal Law Set 3 Q 11, the person bought a "marijuana cigarette", which was in fact only an ordinary tobacco. The explanation says this is a factual impossibility. But how is this different from the example on the handout: the woman who stole her own umbrella (which is a legal impossibility)?

It'd be a defense if he was charged with the crime, but in the q he was charged with attempt. For attempt crimes, you just need 1) specific intent; 2) take a substantial step.

Yes I understand the element of attempt, but legal impossibility is a DEFENSE for the attempt and I have trouble to understand it.....

If the woman had taken the umbrella, that would not have been illegal because it was hers. If the guy had bought a marijuana cigarette, that'd be illegal. Hence one is legally impossible (umbrella) and one is factually impossible (not mj).

I understand your confusion because she thought she was stealing an umbrella. But it turns out, taking that specific umbrella wasn't a crime even though she thought it was because she owned it. Versus the guy with the marijuana who was attempting something actually illegal. I think you're viewing the offense too abstractly...she was attempting to steal that umbrella, not attempting to steal in general. If the mj guy had attempted to buy a regular cigarette because he believed it was illegal (but it wasn't), that would also be legal impossibility.

Hmm.... Before reading your reply, I was trying to persuade myself in this way and your explanation makes it more clear. Thanks!

[bgdddymtty]

Aslo Crim Set 3 Q 16
Why the police officer can open the backpack? I thought the search of the backpack is unlawful, so the timber found in the backpack as the foundation for the arrest is obtained unlawful. Thus the arrest itself is unlawful.

I asked about this somewhere relating to an essay. Apparently even illegally seized evidence can be used for probable cause. The real issue is whether the evidence is admissible at subsequent trial.

There was nothing illegal about the search. She handed over the backpack.