Themis Bar Review Hangout - July 2014 Exam Forum

[iLoveFruits&Veggies]

Did anyone's attorney advisor - in MA or elsewhere - tell you to skip everything in directed study, for now, and to focus on completing the MBE subjects? I'm about 10% behind presently, around 34%. Didn't begin bar prep until June 1st as I wanted to take a week off after graduation.

I'm aiming to finish the major lectures this weekend and then push forward as scheduled in the directed study schedule.

Somebody from IL (don't remember if it was the director or my atty advisor) told me to damn the torpedoes and just focus on getting the MBE subjects at this point. I'm waaaay behind so I haven't used directed study at all though.

I've been bouncing back and forth between directed study and flex study and I'm a bit behind... My advisor said to cut back on the videos and outlines and focus on the practice exams and switch gears from passive learning to active learning. So I'm trying to watch as many videos in the next 48 hours (just watched all of crim law and currently watching crim pro) - just so I've heard everything at least once, and then I'm really going to focus on reviewing old bar exam essays (ones actually on past exams), doing lots of MBEs (on Themis and Adaptibar) and will try to do at least 1 performance exam each weekend. I'd love to skip the videos altogether since they take so long (I do 1X or 1.5X - can't do 2X) - but I really think the videos help me. The little examples and stories they give stick in my head... so I'm just going to push through them as fast as I can - and then switch to Active Learning from Sunday forward - focusing on the MBE subjects and PR... and probably Wills/Trusts. Fed Civ Pro and CA Civ Pro will be last on the list... if I get to them

[Tanicius]

Would the practice evidence MBE problems PLEASE stop testing on the stupid best evidence rule?

I mean Jesus Christ, I'm actually relieved when the issue is finally a legitimate hearsay question not a best evidence question wearing hearsay clothes.

[WonkyPanda]

If you're convicted of Burglary and the felony committed is rape, can you be convicted for both?

[Tanicius]

If you're convicted of Burglary and the felony committed is rape, can you be convicted for both?

Absolutely. Breaking and entering into a dwelling at night for the purposes of committing a rape is absolutely a burglary.

[WonkyPanda]

If you're convicted of Burglary and the felony committed is rape, can you be convicted for both?

Absolutely. Breaking and entering into a dwelling at night for the purposes of committing a rape is absolutely a burglary.

Ya, I mean, the rape won't merge into the burglary, right?

[Tanicius]

If you're convicted of Burglary and the felony committed is rape, can you be convicted for both?

Absolutely. Breaking and entering into a dwelling at night for the purposes of committing a rape is absolutely a burglary.

Ya, I mean, the rape won't merge into the burglary, right?

No, just as felony murder does not cause the underlying felony to merge into the murder.

Merging only occurs when:

1.) one of the offenses is inchoate (except not for conspiracy) and the other offense is the completed crime; or

2.) one of the offenses is a greater offense of the same kind (has all the same elements as the other offense, plus more elements that make it a greater-included)

[WonkyPanda]

If you're convicted of Burglary and the felony committed is rape, can you be convicted for both?

Absolutely. Breaking and entering into a dwelling at night for the purposes of committing a rape is absolutely a burglary.

Ya, I mean, the rape won't merge into the burglary, right?

No, just as felony murder does not cause the underlying felony to merge into the murder.

Merging only occurs when:

1.) one of the offenses is inchoate (except not for conspiracy) and the other offense is the completed crime; or

2.) one of the offenses is a greater offense of the same kind (has all the same elements as the other offense, plus more elements that make it a greater-included)

See, that confuses me because I got this wrong:

The woman could be found guilty of arson because she intentionally burned down her husband's house. Or, she could be convicted of her husband's murder, because the husband's death occurred during the commission of the arson, an inherently dangerous felony. However, because arson will merge with felony murder, she can only be convicted of one or the other

[puttycake]

Yeah, I think the inherently dangerous felony in some of the examples DOES merge into the felony murder. I think that was in the handout, but it's weird.

[Tanicius]

See, that confuses me because I got this wrong:

The woman could be found guilty of arson because she intentionally burned down her husband's house. Or, she could be convicted of her husband's murder, because the husband's death occurred during the commission of the arson, an inherently dangerous felony. However, because arson will merge with felony murder, she can only be convicted of one or the other

Hm. That is correct now that you mention it. It just seems really weird. Just talked to my dad, a public defender in a jurisdiction where this rule controls. He says the way it works, practically speaking, is that you're charged with all of the different crimes, and you're often convicted of both the underlying felony and the murder, but you're only sentenced for the felony murder. The convictions themselves merge.

His reasoning is that the felony murder includes, as its elements, all of the elements of the underlying felony. So being convicted of felony bank robbery murder means that, even without a conviction of bank robbery, you are also guilty of bank robbery in order to be guilty of the felony murder in that case, so you're only sentenced for the more serious one where you're convicted.

[WonkyPanda]

Hm. So, for the MBE, just consider the underlying felony to merge with the felony murder?

[Tanicius]

Hm. So, for the MBE, just consider the underlying felony to merge with the felony murder?

I guess so. Hopefully this will come up in another practice question and we can experiment with the brightline rule by selecting it for the answer, and seeing if we get it wrong.

[Prime]

Best evidence is never the right answer!

So far, it's the right answer every time it pops up as an available choice.

[Tanicius]

Best evidence is never the right answer!

So far, it's the right answer every time it pops up as an available choice.

I've literally had one question out of 20+ where it was not the correct answer.

Every fucking time the hypo deals with a photo, or a contract, or a video, or some kind of document, they always include the stupid noun before the evidence: "copy." Mofo's in Bar Examistan need to learn to bring the originals to court, cause this is getting old.

[iLoveFruits&Veggies]

Absolutely. Breaking and entering into a dwelling at night for the purposes of committing a rape is absolutely a burglary.[/quote]

Ya, I mean, the rape won't merge into the burglary, right?[/quote]

No, just as felony murder does not cause the underlying felony to merge into the murder.

Merging only occurs when:

1.) one of the offenses is inchoate (except not for conspiracy) and the other offense is the completed crime; or

2.) one of the offenses is a greater offense of the same kind (has all the same elements as the other offense, plus more elements that make it a greater-included)[/quote]


See, that confuses me because I got this wrong:

The woman could be found guilty of arson because she intentionally burned down her husband's house. Or, she could be convicted of her husband's murder, because the husband's death occurred during the commission of the arson, an inherently dangerous felony. However, because arson will merge with felony murder, she can only be convicted of one or the other

[/quote]

Your question is driving me crazy. Wish someone from Themis would pop on here and clarify - or I guess I could shoot them a message. "Because arson will merge with felony murder, she can only be convicted of one or the other." ??? I haven't read the fact pattern, so maybe I'm missing something, but really can't understand how arson merges with felony murder. Maybe I'll understand it better when I see the question...

[Genuine4ps]

Shit, so now when we see the best evidence rule on the Bar, should we assume that it's likely the wrong answer like the professor suggests.? Hope these practice questions didn't just coincidentally give us questions where it was the right answer.

[Tanicius]

Guys! I just came across my second Best Evidence question where the correct answer was to not apply the BE rule! There is hope still!

[Gotti]

Your question is driving me crazy. Wish someone from Themis would pop on here and clarify - or I guess I could shoot them a message. "Because arson will merge with felony murder, she can only be convicted of one or the other." ??? I haven't read the fact pattern, so maybe I'm missing something, but really can't understand how arson merges with felony murder. Maybe I'll understand it better when I see the question...

Doesn't it just mean that you can't be tried with arson + felony murder if the underlying felony IN the felony-murder conviction is arson? It wouldn't make sense if you could be convicted with arson AND felony murder -- that would essentially mean you'd be convicted twice for arson because the reason you're being convicted of murder is because you committed the crime of arson in the first place (which then happened to kill someone).

[Tanicius]

Your question is driving me crazy. Wish someone from Themis would pop on here and clarify - or I guess I could shoot them a message. "Because arson will merge with felony murder, she can only be convicted of one or the other." ??? I haven't read the fact pattern, so maybe I'm missing something, but really can't understand how arson merges with felony murder. Maybe I'll understand it better when I see the question...

Doesn't it just mean that you can't be tried with arson + felony murder if the underlying felony IN the felony-murder conviction is arson? It wouldn't make sense if you could be convicted with arson AND felony murder -- that would essentially mean you'd be convicted twice for arson because the reason you're being convicted of murder is because you committed the crime of arson in the first place (which then happened to kill someone).

You can be TRIED for both, but only a conviction for one of them would logically stand. Arson is basically considered the lesser-included offense of an arson-related felony murder.

[Kiwi917]

Guys! I just came across my second Best Evidence question where the correct answer was to not apply the BE rule! There is hope still!

I found one too! Of course, I got it wrong because I couldn't resist applying the rule after all those PQs...

[WonkyPanda]

this was the question:

A woman’s husband told her that he was divorcing her, leaving the woman distraught. The woman and her sister decided to burn down the husband’s new house while the husband was at work. The next day, the woman and her sister purchased the necessary supplies and drove to the husband’s house. The sister waited in the car while the woman started the fire. They then drove off to avoid being noticed. Although the woman and her sister believed the husband was at work, in fact he had stayed home sick, and he was killed in the fire. The woman and her sister were both arrested and charged with both arson and homicide.

[iLoveFruits&Veggies]

Your question is driving me crazy. Wish someone from Themis would pop on here and clarify - or I guess I could shoot them a message. "Because arson will merge with felony murder, she can only be convicted of one or the other." ??? I haven't read the fact pattern, so maybe I'm missing something, but really can't understand how arson merges with felony murder. Maybe I'll understand it better when I see the question...

Doesn't it just mean that you can't be tried with arson + felony murder if the underlying felony IN the felony-murder conviction is arson? It wouldn't make sense if you could be convicted with arson AND felony murder -- that would essentially mean you'd be convicted twice for arson because the reason you're being convicted of murder is because you committed the crime of arson in the first place (which then happened to kill someone).

You can be TRIED for both, but only a conviction for one of them would logically stand. Arson is basically considered the lesser-included offense of an arson-related felony murder.

So you're saying you can't be convicted of ANY underlying crime of felony murder if you're convicted of felony murder? That make sense... and now that I think about it, sounds familiar - thanks!! I guess I was just thrown off by the rules for mergers. I know the question from someone else was posted from just one MBE question, but this is something that could screw up an entire essay question if we got it wrong so I appreciate the clarification!

[iLoveFruits&Veggies]

this was the question:

A woman’s husband told her that he was divorcing her, leaving the woman distraught. The woman and her sister decided to burn down the husband’s new house while the husband was at work. The next day, the woman and her sister purchased the necessary supplies and drove to the husband’s house. The sister waited in the car while the woman started the fire. They then drove off to avoid being noticed. Although the woman and her sister believed the husband was at work, in fact he had stayed home sick, and he was killed in the fire. The woman and her sister were both arrested and charged with both arson and homicide.

Thanks!! This is helpful because I think if the wife and sister had INTENDED to commit murder and arson, then they could be convicted of BOTH Arson and First Degree Murder without a merger. Gaaaah, I hope I'm getting this right lol!

[Prime]

Guys! I just came across my second Best Evidence question where the correct answer was to not apply the BE rule! There is hope still!

I found one too! Of course, I got it wrong because I couldn't resist applying the rule after all those PQs...

This is infuriating. For a rule that is "usually the wrong answer" and is "rarely" tested on, I'm not sure why I've gotten more questions where it was the best answer than I have for hearsay/impeachment

[Tanicius]

loooooooooooooooool

[j1987]

Are any of you actually spending 11 - 15 hours studying on weekends..?