Themis Bar Review Hangout - July 2014 Exam Forum

[bport hopeful]

Does each state scale its own MBE for its own test-takers? This is a thing I should know, but don't.

There are many things I should know but don't.

I believe the answer to your question is yes.

[Prime]

My Texas grade has been on a 25 point scale.

Family - 14
Consumer - 18
Wills/Administration of Estates - 20
TX Real Property/Oil & Gas - 17
Corporations - 24

I'm annoyed at the Family law essay. I didn't know it went straight into 'test' mode. Thought there would be a 'buffer' screen like the practice tests. Needless to say, I wasn't prepared for the question!

Don't let that corporations grade fool you either. The question that was posed was suuuuuuuper easy. If they start throwing in BS about stockholders? Yikes.

[jumpingjack]

This is twice now that, during the evidence analysis lectures, Pushaw has claimed there is no duty under the FRE to give the witness an opportunity to explain or deny impeaching statements. I'm getting very confused by this, because it flatly contradicts what we learned in the lecture series on Evidence.

I believe that what you are talking about is a state-specific rule, as opposed to the FRE.

[Tanicius]

This is twice now that, during the evidence analysis lectures, Pushaw has claimed there is no duty under the FRE to give the witness an opportunity to explain or deny impeaching statements. I'm getting very confused by this, because it flatly contradicts what we learned in the lecture series on Evidence.

I believe that what you are talking about is a state-specific rule, as opposed to the FRE.

I'm in a UBE jurisdiction, so we don't have any state distinctions. The only evidence material we're taught is MBE rules.

[BarExamAvoider]

For the question about the tires its not larceny because it isn't a trespassory taking. The mechanic is in legal possession of the car therefore it's embezzlement. Taking the tires off and moving them would count as a taking for larceny but it doesn't in this case because its not trespassory as he is in legal possession of the car. The question is testing the difference between larceny and embezzlement in a confusing way.

I got the question wrong on the test too. I feel like i'll never know all the nitpicky details for the MBE.

[Rirruto]

This is twice now that, during the evidence analysis lectures, Pushaw has claimed there is no duty under the FRE to give the witness an opportunity to explain or deny impeaching statements. I'm getting very confused by this, because it flatly contradicts what we learned in the lecture series on Evidence.

I believe that what you are talking about is a state-specific rule, as opposed to the FRE.

I'm in a UBE jurisdiction, so we don't have any state distinctions. The only evidence material we're taught is MBE rules.

I was really confused about this as well, so I did some pretty intense (for me) research. I think what people mean when they say "no duty" is that you don't have to give them a chance to explain or deny right then. Under the old rules, you did. You had to confront them with the statements before they could be admitted.

Under the current rule, they just have to have the ability to explain or deny during the trial. Which means it's as simple as re-calling them. So while rule 613(b) says that you have to give them the chance to explain or deny, it's almost never going to be the right answer. And in real life, it essentially never comes up.

I think it's just a case of people speaking imprecisely and something that was stressed in the video that probably shouldn't have been.

[Tanicius]

I was really confused about this as well, so I did some pretty intense (for me) research. I think what people mean when they say "no duty" is that you don't have to give them a chance to explain or deny right then. Under the old rules, you did. You had to confront them with the statements before they could be admitted.

Under the current rule, they just have to have the ability to explain or deny during the trial. Which means it's as simple as re-calling them. So while rule 613(b) says that you have to give them the chance to explain or deny, it's almost never going to be the right answer. And in real life, it essentially never comes up.

I think it's just a case of people speaking imprecisely and something that was stressed in the video that probably shouldn't have been.

Beautiful, makes perfect sense and jogs my memory about the lectures.

[SisyphusHappy]

I was really confused about this as well, so I did some pretty intense (for me) research. I think what people mean when they say "no duty" is that you don't have to give them a chance to explain or deny right then. Under the old rules, you did. You had to confront them with the statements before they could be admitted.

Under the current rule, they just have to have the ability to explain or deny during the trial. Which means it's as simple as re-calling them. So while rule 613(b) says that you have to give them the chance to explain or deny, it's almost never going to be the right answer. And in real life, it essentially never comes up.

I think it's just a case of people speaking imprecisely and something that was stressed in the video that probably shouldn't have been.

Beautiful, makes perfect sense and jogs my memory about the lectures.

I had the same confusion you did, and the written explanation covered it pretty well. Seems like the consensus here is that the videos are a waste of time (if not an actually negative learning experience).

[Kiwi917]

I was really confused about this as well, so I did some pretty intense (for me) research. I think what people mean when they say "no duty" is that you don't have to give them a chance to explain or deny right then. Under the old rules, you did. You had to confront them with the statements before they could be admitted.

Under the current rule, they just have to have the ability to explain or deny during the trial. Which means it's as simple as re-calling them. So while rule 613(b) says that you have to give them the chance to explain or deny, it's almost never going to be the right answer. And in real life, it essentially never comes up.

I think it's just a case of people speaking imprecisely and something that was stressed in the video that probably shouldn't have been.

Beautiful, makes perfect sense and jogs my memory about the lectures.

Just spent a few minutes drafting a post, basically saying what Rirruto did (but not as clearly)... I don't remember for sure, but Pushaw might also have been talking about the two exceptions when you don't have to give the person an opportunity to explain or deny: impeaching a hearsay declarant, or impeaching by using an opposing party's statement. Anyway, the useful pages in the long outline are 20-22.

[Kiwi917]

I just got these two explanations in back-to-back questions and am irrationally angry about it...

c. The neighbor is guilty of trespass and the friend is guilty of larceny.

Answer choice C is also incorrect because the neighbor had permission to enter the property. Note that under the common law, trespass to land was considered a tort but not a crime.

The most serious crime for which the homeless woman could properly be convicted is:

a. aggravated assault.
b. burglary.
c. assault.
d. trespass.

Answer choice D is correct. The homeless woman did enter the hotel property without permission, and is thus guilty of trespass.

Of course, I got the second one wrong, thinking trespass was a trick answer (even though it was the only one that made any sense). I see now that they say trespass "was a tort but not a crime," which I suppose implies that it is a crime now, or that it's a statutory offense rather than common law, but this sort of stuff drives me nuts. Especially since I don't remember seeing the crime of trespass anywhere in our criminal law materials, unless the element of larceny counts.

[blue920]

NY is ridiculous with its evidence distinctions. 10 lectures and a million exceptions for each rule. For example - "In NY, you can't impeach your own witness, but here are the 5 exceptions to that rule."

[TooManyLoans]

Does each state scale its own MBE for its own test-takers? This is a thing I should know, but don't.

There are many things I should know but don't.

I believe the answer to your question is yes.

The MBE is nationally scaled. Your raw score will be converted to a scaled score based on a national standard. However, each state will take that scaled score and weight it according to their rules.

[swan87]

What has been everybody's average essay scores? A good score for me has been like a 70 (NY). Most of my classmates have been getting consistent 15-18 (PA, Barbri). This seems high or mine seems super low.

I'm taking Themis for PA and this is concerning. The average graded essay (according to the graph) for Themis thus far did not go above a 13 (I still haven't received #7 back yet). The only graded essay where the average is higher than 13 was the graded PT. I'm just going to stay optimistic and think that Themis grades them harder.

[Genuine4ps]

Ok, I just came across a Themis question that invalidated an arrest based on failure to knock and announce.

The police were issued a valid arrest warrant, went to D's house, found the door ajar, entered and arrested D. The correct answer invalidated the arrest, because the officer did not knock and announce.

The Themis handout specifically states that failure to knock and announce will not invalidate an otherwise valid arrest. What gives?

[drs36]

Swan:

I've heard from many people that Themis grades the essays pretty tough for PA. They REALLY push the TRAC method. I heard from a friend that he got a 10-12 on one with a substantial portion of the law being correct. His TRAC was off, and the scorer reflected that in the score.

It seems like they want the organization. If the substance is there, and you've organized it well, the score starts to inflate dramatically.

[numbertwo88]

What has been everybody's average essay scores? A good score for me has been like a 70 (NY). Most of my classmates have been getting consistent 15-18 (PA, Barbri). This seems high or mine seems super low.

I'm taking Themis for PA and this is concerning. The average graded essay (according to the graph) for Themis thus far did not go above a 13 (I still haven't received #7 back yet). The only graded essay where the average is higher than 13 was the graded PT. I'm just going to stay optimistic and think that Themis grades them harder.

Testing in MA where essays are graded out of 7 and we're supposed to aim for 4s to be safe.

My first 2 essays were 2's. Constitutional law fucking sucks. And the domestic relations essay was about IVF eggs which literally was not covered in the Themis materials.

Thereafter I've gotten 4's and 5's but I'll be damned if my remaining essays aren't 6's and 7's.

I definitely think my grader is hard which forces me to work harder when I write. What I don't care for are the model answers. I'd like to know what grade the model answers get, who wrote the model answers (Themis or are they examples from previous essays written for the exam), and on what foreign planet is my essay supposed to mimic the model answer because hell will sooner freeze over. I can spot issues but I cannot regurgitate the law like it's my abc's. Apply it, sure. Write out the entire statute/law I'm referring to? Not so much.

& MA doesn't use IRAC or TRAC. They just want to know you can weave it all together and make it happen. And that annoys me ... so I've been using a modified slimmed down IRAC essentially and using tons of "because" and short sentences.

[Tanicius]

Ok, I just came across a Themis question that invalidated an arrest based on failure to knock and announce.

The police were issued a valid arrest warrant, went to D's house, found the door ajar, entered and arrested D. The correct answer invalidated the arrest, because the officer did not knock and announce.

The Themis handout specifically states that failure to knock and announce will not invalidate an otherwise valid arrest. What gives?

My guess is there was something slimy about the particular question asked or the facts involved.

Was there a state statute provided that said knock-and-announce is always required? Alternatively, was the question simply asking "Is the arrest proper?" Because not knocking and announcing does make the arrest improper -- SCOTUS just doesn't find it to be material in whether you suppress fruits of that arrest.

[bport hopeful]

Swan:

I've heard from many people that Themis grades the essays pretty tough for PA. They REALLY push the TRAC method. I heard from a friend that he got a 10-12 on one with a substantial portion of the law being correct. His TRAC was off, and the scorer reflected that in the score.

It seems like they want the organization. If the substance is there, and you've organized it well, the score starts to inflate dramatically.

I can say that Ive gotten banged on for structure, though not PA.

[mmmnnn]

Ok, I just came across a Themis question that invalidated an arrest based on failure to knock and announce.

The police were issued a valid arrest warrant, went to D's house, found the door ajar, entered and arrested D. The correct answer invalidated the arrest, because the officer did not knock and announce.

The Themis handout specifically states that failure to knock and announce will not invalidate an otherwise valid arrest. What gives?

My guess is there was something slimy about the particular question asked or the facts involved.

Was there a state statute provided that said knock-and-announce is always required? Alternatively, was the question simply asking "Is the arrest proper?" Because not knocking and announcing does make the arrest improper -- SCOTUS just doesn't find it to be material in whether you suppress fruits of that arrest.

Right. No knock and announce invalidates an arrest. It does not prevent admission of evidence seized pursuant to an otherwise valid search warrant. I assume this means evidence seized pursuant to an otherwise valid search incident to arrest is admissible, but I haven't encountered that exact scenario. Anyone know how Hudson v. Michigan gets applied in that case?

[Prime]

For the question about the tires its not larceny because it isn't a trespassory taking. The mechanic is in legal possession of the car therefore it's embezzlement. Taking the tires off and moving them would count as a taking for larceny but it doesn't in this case because its not trespassory as he is in legal possession of the car. The question is testing the difference between larceny and embezzlement in a confusing way.

I got the question wrong on the test too. I feel like i'll never know all the nitpicky details for the MBE.

Hrm...

[Genuine4ps]

Ok, I just came across a Themis question that invalidated an arrest based on failure to knock and announce.

The police were issued a valid arrest warrant, went to D's house, found the door ajar, entered and arrested D. The correct answer invalidated the arrest, because the officer did not knock and announce.

The Themis handout specifically states that failure to knock and announce will not invalidate an otherwise valid arrest. What gives?

My guess is there was something slimy about the particular question asked or the facts involved.

Was there a state statute provided that said knock-and-announce is always required? Alternatively, was the question simply asking "Is the arrest proper?" Because not knocking and announcing does make the arrest improper -- SCOTUS just doesn't find it to be material in whether you suppress fruits of that arrest.

Right. No knock and announce invalidates an arrest. It does not prevent admission of evidence seized pursuant to an otherwise valid search warrant. I assume this means evidence seized pursuant to an otherwise valid search incident to arrest is admissible, but I haven't encountered that exact scenario. Anyone know how Hudson v. Michigan gets applied in that case?

Here it is:

A police officer had probable cause to believe that a defendant was involved in a robbery. The officer obtained a valid arrest warrant and went to the defendant's apartment to execute it. The officer decided to go to the defendant's apartment right when he believed the defendant would be home from work, so he could search the defendant's apartment before he had a chance to hide the stolen goods. When the officer arrived at the defendant's apartment, the door was ajar, but nothing else seemed out of the ordinary. The officer slowly opened the door and entered the apartment. He walked toward the back of the apartment, and when he heard the defendant in a bedroom, pushed open the door, loudly told the defendant to freeze, and arrested him. Was the officer's arrest of the defendant valid?

Correct Answer: No, because the officer failed to "knock and announce" before he entered the defendant's apartment.

[Tanicius]

Here it is:

A police officer had probable cause to believe that a defendant was involved in a robbery. The officer obtained a valid arrest warrant and went to the defendant's apartment to execute it. The officer decided to go to the defendant's apartment right when he believed the defendant would be home from work, so he could search the defendant's apartment before he had a chance to hide the stolen goods. When the officer arrived at the defendant's apartment, the door was ajar, but nothing else seemed out of the ordinary. The officer slowly opened the door and entered the apartment. He walked toward the back of the apartment, and when he heard the defendant in a bedroom, pushed open the door, loudly told the defendant to freeze, and arrested him. Was the officer's arrest of the defendant valid?

Correct Answer: No, because the officer failed to "knock and announce" before he entered the defendant's apartment.

Yep, that's because the arrest is not valid. However, all evidence found pursuant to that arrest will be upheld in court, because SCOTUS has not found that technical violations such as failure to knock and announce are sufficient to poison the fruits.

[numbertwo88]

Is anyone at the National Average for MBE multiple choice questions?

I'm trying not to have a mental breakdown since I'm not there for all of the subjects. I don't know how alarmed I need to be feeling.

[Prime]

Is anyone at the National Average for MBE multiple choice questions?

I'm trying not to have a mental breakdown since I'm not there for all of the subjects. I don't know how alarmed I need to be feeling.

The MBE 'averages' haven't changed since I started so I'm not exactly sure of their accuracy.

Edit: I'm below them. However, once I got used to the 'questions' and the legal concepts, I've started to hit/surpass some of them.

[mizunoami]

Is anyone at the National Average for MBE multiple choice questions?

I'm trying not to have a mental breakdown since I'm not there for all of the subjects. I don't know how alarmed I need to be feeling.

I'm somewhere between 2-10% higher than the national average for each subject. But my score in torts and crim pro have gotten worse as time goes on. ...and I'm still freaking out that I don't have enough of a cushion in my score to feel comfortable.