Themis Bar Review Hangout - July 2014 Exam Forum

[bport hopeful]

Its starting to look like I'm gonna clear 75%. Good news. Last week, that seemed like a pipe dream.

[jigglypuffdreams]

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 national averages haven't changed once throughout the course so I wouldn't worry too much. But I am exactly average for criminal law, maybe 6-8% below average for everything else. Plus as long as you learn from your mistakes and keep doing better that's all that counts right????? Idk, I feel like it's punishing me for all those times I did MBE questions right after the lecture set like I was supposed to. I got a looooot of questions wrong in the beginning so that's always going to affect my score.

[Genuine4ps]

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.

Thanks. I think I got it. Now, if the arrest is invalid, what does that mean? The D isn't off Scot-free, so what happens?

[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.

Thanks. I think I got it. Now, if the arrest is invalid, what does that mean? The D isn't off Scot-free, so what happens?

Presumably he can sue. That's pretty much it. It's like if the police damaged his door during an arrest.

[Lilly76]

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 above on all of them except crim and crim pro where I'm 1% under. It's crazy to me that I'm doing above average in Ks and property but struggling with crim which is supposed to be one of the easiest subjects.

[puttycake]

Back to feeling pretty good. At 80% complete. Have done all Wills, Trusts, Torts, and Partnership essays.

My brain is fried, though.

[mmmnnn]

Compare these two questions, and please explain to me how the second one isn't wrong:

A state statute provides as follows: "In all criminal cases, whenever the Constitution permits, the burden of proof as to a defense claimed by the defendant shall rest on the defendant, and the magnitude of the burden shall be as great as the Constitution permits." The same state defines the crime of forcible rape as follows: "Forcible rape consists of sexual penetration inflicted on an unconsenting person by means of force or violence. Consent of the victim is a complete defense to a charge of rape." At a defendant's trial for forcible rape, he testified that the alleged victim had consented to having sexual intercourse with him. How should the trial judge instruct the jury regarding the issue of consent?

Answers

The burden of proving that the victim consented, by a preponderance of the evidence, rests on the defendant.
The burden of proving that the victim consented, by clear and convincing evidence, rests on the defendant.
The burden of proving that the victim consented, by proof beyond a reasonable doubt, rests on the defendant.
The burden of proving that the victim did not consent, by proof beyond a reasonable doubt, rests on the prosecution.


Answer choice D is correct. It presents the best answer because the state statute includes lack of consent as an element of the offense. Due process "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged." Patterson v. New York, 432 U.S. 197 (1977); see also Mullaney v. Wilbur, 421 U.S. 684 (1975). Accordingly, the statute cannot shift the burden of proving this element to the defense, by a preponderance of the evidence or any other standard. Answer choice A is incorrect because it places the burden of proof of an element of the crime on the defendant. Answer choice B is incorrect because the state statute includes lack of consent as an element of the offense. Accordingly, the statute cannot shift the burden of proving this element to the defense, by clear and convincing evidence or any other standard. Answer choice C is incorrect based on the reasoning stated in correct answer choice D.

A statute provides: A person commits the crime of rape if he has sexual intercourse with a female, not his wife, without her consent. The defendant is charged with the rape of a woman. At trial, the woman testifies to facts sufficient for a jury to find that the defendant had sexual intercourse with her, that she did not consent, and that the two were not married. The defendant testifies in his own defense that he believed that the woman had consented to sexual intercourse and that she was his common-law wife. At the conclusion of the case, the court instructed the jury that in order to find the defendant guilty of rape, it must find beyond a reasonable doubt that he had sexual intercourse with the woman without her consent. The court also instructed the jury that it should find the defendant not guilty if it found either that the woman was the defendant's wife or that the defendant reasonably believed that the woman had consented to the sexual intercourse, but that the burden of persuasion as to these issues was on the defendant. The jury found the defendant guilty, and the defendant appealed, contending that the court's instructions on the issues of whether the woman was his wife and whether he reasonably believed she had consented violated his constitutional rights. The defendant's constitutional rights were:

Answers

violated by the instructions as to both issues.
violated by the instruction as to whether the woman was his wife, but not violated by the instruction on belief as to consent.
violated by the instruction on belief as to consent, but not violated by the instruction as to whether the woman was his wife.
not violated by either part of the instructions.

Rationale:

Answer choice B is correct. The due process requirement of a fair criminal trial requires that the prosecution prove all the elements of the case beyond a reasonable doubt. The issue of whether the woman was the defendant's wife was an element of the case, which the prosecution carries the burden of proving. The court did violate the defendant's rights, therefore, by instructing the jury that the defendant bore the burden of proving that element. The state is not forbidden, however, from placing the burden of proving an affirmative defense on the defendant. Consent is an affirmative defense to rape, which the defense may be burdened with proving. Therefore, there was no violation of the defendant's rights in the court's instruction regarding consent, making answer choice A incorrect. Answer choice C is incorrect because, as explained above, the instruction as to whether the woman was the defendant's wife is an element of the case which must be proven by the prosecution, while consent is an affirmative defense, which the defendant may have the burden of proving. Answer choice D is incorrect because the instruction as to whether the woman was the defendant's wife did violate the defendant's rights.

[northwood]

Its starting to look like I'm gonna clear 75%. Good news. Last week, that seemed like a pipe dream.

on themis or MBE? if its the latter-that bloody fckukin awesome man

[jumpingjack]

Back to feeling pretty good. At 80% complete. Have done all Wills, Trusts, Torts, and Partnership essays.

My brain is fried, though.

Oh God, I haven't done any Wills or Trusts essays.

[puttycake]

Back to feeling pretty good. At 80% complete. Have done all Wills, Trusts, Torts, and Partnership essays.

My brain is fried, though.

Oh God, I haven't done any Wills or Trusts essays.

There's a lot of info to get through on both of them, and figuring out the "who gets what" part can be tricky. Try to leave actually figuring out what the result is until you are at the end and they aren't too bad. It's less black letter law for each than for about any other topic.

[bport hopeful]

Its starting to look like I'm gonna clear 75%. Good news. Last week, that seemed like a pipe dream.

on themis or MBE? if its the latter-that bloody fckukin awesome man

Haha yeah right.

[Tanicius]

Compare these two questions, and please explain to me how the second one isn't wrong:

In both cases, the state has the burden of proving the objective factual element that consent did not exist. Answer D in Question 1 "The burden of proving that the victim did not consent ... rests on the prosecution," is therefore correct.

That answer is also correct in Question 2. But the question isn't asking about that rule. Instead, the question in Question 2 is asking whether the law may allow the defense to be required a completely different element, the subjective belief that there was consent, even if objectively speaking there was not consent.

Understand the distinction? In both cases, the prosecution is required to prove that there was no consent. In the second case, the defendant is arguing something different: That he reasonably believed there was consent.

The Constitution allows states to place affirmative defenses, such as reasonable belief in consent, on the defendant. An instruction requiring the defendant to prove his belief's reasonableness and sincerity is therefore proper. But in no jurisdiction can the defendant be forced to disprove actual elements of the prosecution's case. One of the elements, in this question, concerns the status of marriage. Since that is an element of the offense, just like the objective existence of consent, the prosecution must prove that issue, and the instruction requiring the defendant to prove the victim was his common law wife is therefore improper.

[Shane]

How is everyone memorizing the information?

Reading handouts?
Making flashcards?
Acronyms?

Can you guys tell me what you are doing and how it is working. I am really interested.

[puttycake]

How is everyone memorizing the information?

Reading handouts?
Making flashcards?
Acronyms?

Can you guys tell me what you are doing and how it is working. I am really interested.

I've made flashcards for black letter law and also for headers for essays. So I can just rattle off a ton of headers to make sure I'm not missing anything.

[bport hopeful]

I could do this on my own, but it would take time.. If anyone can quickly tell me when prior bad acts are admissible, Id appreciate it.

[Genuine4ps]

How is everyone memorizing the information?

Reading handouts?
Making flashcards?
Acronyms?

Can you guys tell me what you are doing and how it is working. I am really interested.

Pretty much making outlines. I'm transcribing a lot of the shit from the handouts, but it's helpful review, and I it's nice to condense everything into about 4-5 pages. The only problem is it takes forever.

[mmmnnn]

Compare these two questions, and please explain to me how the second one isn't wrong:

In both cases, the state has the burden of proving the objective factual element that consent did not exist. Answer D in Question 1 "The burden of proving that the victim did not consent ... rests on the prosecution," is therefore correct.

That answer is also correct in Question 2. But the question isn't asking about that rule. Instead, the question in Question 2 is asking whether the law may allow the defense to be required a completely different element, the subjective belief that there was consent, even if objectively speaking there was not consent.

Understand the distinction? In both cases, the prosecution is required to prove that there was no consent. In the second case, the defendant is arguing something different: That he reasonably believed there was consent.

The Constitution allows states to place affirmative defenses, such as reasonable belief in consent, on the defendant. An instruction requiring the defendant to prove his belief's reasonableness and sincerity is therefore proper. But in no jurisdiction can the defendant be forced to disprove actual elements of the prosecution's case. One of the elements, in this question, concerns the status of marriage. Since that is an element of the offense, just like the objective existence of consent, the prosecution must prove that issue, and the instruction requiring the defendant to prove the victim was his common law wife is therefore improper.

I see. That makes perfect sense. I kept missing the reasonable belief part of the question. And I was confused, because the answer explanation merely says, "Consent is an affirmative defense to rape, which the defense may be burdened with proving."

[ave083]

Does anyone else think that this Evidence question is really subjective?? These questions annoy the hell out of me - I hate that ridiculous scenarios like this are between me and being admitted to practice! Or maybe I'm missing something, is this based on a prior case by any chance?

2. (Question ID#4327)
While walking down the street, an intoxicated, homeless woman addressed a jogger and said, “I know you killed your husband.” The jogger stared at the woman for a second, as did a group of onlookers, but said nothing and kept jogging. As the jogger turned a corner, she began to panic; she really had just killed her husband, but had no idea how the homeless woman could have known that. When she reached the end of the block, she turned around, jogged back, and yelled to the woman “No, I didn’t!”
Did the jogger adopt the homeless woman’s statement when she remained silent?
A. Yes, because she did not respond to the woman right away.
B. Yes, because she had just killed her husband.
C. No, because she eventually responded to the woman’s comment.
D. No, because a reasonable person would not have denied the statement.

Incorrect: Answer choice D is correct. An adoptive admission is a statement of another person that a party expressly or impliedly adopts as his own. Silence in response to a statement is considered an adoptive admission if: (i) The person was present and heard and understood the statement; (ii) the person had the ability and opportunity to deny the statement; and (iii) a reasonable person similarly situated would have denied the statement. Here, the jogger was present and had the opportunity to deny the statement; a similarly situated reasonable person, however, would not have felt compelled to answer the woman. Answer choice A is incorrect because a reasonable person would not have felt the need to respond to an intoxicated, homeless woman on the street. Answer choice B is incorrect because whether the statement was true or not is irrelevant to whether it was adopted. The statement would still not be an adoptive admission if a reasonable person would not have felt compelled to respond. Answer choice C is incorrect because the jogger’s later denial did not affect whether she had made an adoptive admission at the time the statement was made.

[lawyerwannabe]

Does anyone else think that this Evidence question is really subjective?? These questions annoy the hell out of me - I hate that ridiculous scenarios like this are between me and being admitted to practice! Or maybe I'm missing something, is this based on a prior case by any chance?

2. (Question ID#4327)
While walking down the street, an intoxicated, homeless woman addressed a jogger and said, “I know you killed your husband.” The jogger stared at the woman for a second, as did a group of onlookers, but said nothing and kept jogging. As the jogger turned a corner, she began to panic; she really had just killed her husband, but had no idea how the homeless woman could have known that. When she reached the end of the block, she turned around, jogged back, and yelled to the woman “No, I didn’t!”
Did the jogger adopt the homeless woman’s statement when she remained silent?
A. Yes, because she did not respond to the woman right away.
B. Yes, because she had just killed her husband.
C. No, because she eventually responded to the woman’s comment.
D. No, because a reasonable person would not have denied the statement.

Incorrect: Answer choice D is correct. An adoptive admission is a statement of another person that a party expressly or impliedly adopts as his own. Silence in response to a statement is considered an adoptive admission if: (i) The person was present and heard and understood the statement; (ii) the person had the ability and opportunity to deny the statement; and (iii) a reasonable person similarly situated would have denied the statement. Here, the jogger was present and had the opportunity to deny the statement; a similarly situated reasonable person, however, would not have felt compelled to answer the woman. Answer choice A is incorrect because a reasonable person would not have felt the need to respond to an intoxicated, homeless woman on the street. Answer choice B is incorrect because whether the statement was true or not is irrelevant to whether it was adopted. The statement would still not be an adoptive admission if a reasonable person would not have felt compelled to respond. Answer choice C is incorrect because the jogger’s later denial did not affect whether she had made an adoptive admission at the time the statement was made.

Had that question. I asked myself if I would have responded. I consider myself a fairly reasonable person and decided I would not have responded, thus I would not be charged with adopting the homeless person's statement.

They are a little subjective but this one is not nearly as much as some other ones you will likely come across.

[jigglypuffdreams]

Does anyone else think that this Evidence question is really subjective?? These questions annoy the hell out of me - I hate that ridiculous scenarios like this are between me and being admitted to practice! Or maybe I'm missing something, is this based on a prior case by any chance?

2. (Question ID#4327)
While walking down the street, an intoxicated, homeless woman addressed a jogger and said, “I know you killed your husband.” The jogger stared at the woman for a second, as did a group of onlookers, but said nothing and kept jogging. As the jogger turned a corner, she began to panic; she really had just killed her husband, but had no idea how the homeless woman could have known that. When she reached the end of the block, she turned around, jogged back, and yelled to the woman “No, I didn’t!”
Did the jogger adopt the homeless woman’s statement when she remained silent?
A. Yes, because she did not respond to the woman right away.
B. Yes, because she had just killed her husband.
C. No, because she eventually responded to the woman’s comment.
D. No, because a reasonable person would not have denied the statement.

Incorrect: Answer choice D is correct. An adoptive admission is a statement of another person that a party expressly or impliedly adopts as his own. Silence in response to a statement is considered an adoptive admission if: (i) The person was present and heard and understood the statement; (ii) the person had the ability and opportunity to deny the statement; and (iii) a reasonable person similarly situated would have denied the statement. Here, the jogger was present and had the opportunity to deny the statement; a similarly situated reasonable person, however, would not have felt compelled to answer the woman. Answer choice A is incorrect because a reasonable person would not have felt the need to respond to an intoxicated, homeless woman on the street. Answer choice B is incorrect because whether the statement was true or not is irrelevant to whether it was adopted. The statement would still not be an adoptive admission if a reasonable person would not have felt compelled to respond. Answer choice C is incorrect because the jogger’s later denial did not affect whether she had made an adoptive admission at the time the statement was made.

Yeah, I wondered about it, then realized you don't usually have a duty to respond to homeless people or any weird people who shout strange things on the street. Like, if you get catcalled and someone insinuates something and you don't respond, it's not an adoptive admission that you want to have sex with them. And there's another MBE question where two criminals are together in the police station, one friend is dumb and blurts out a confession that they were both guilty right after the Miranda rights, but just because your friend is stupid and you're remaining silent doesn't mean there's an adoptive admission. So idk, I think it's a high standard for something to be a statement you HAVE to respond to.

[Genuine4ps]

Well, I just came across a Secured Transaction essay that dealt with consignments. Completely messed that up. I don't even think it's in the handout.

[ave083]

Does anyone else think that this Evidence question is really subjective?? These questions annoy the hell out of me - I hate that ridiculous scenarios like this are between me and being admitted to practice! Or maybe I'm missing something, is this based on a prior case by any chance?

2. (Question ID#4327)
While walking down the street, an intoxicated, homeless woman addressed a jogger and said, “I know you killed your husband.” The jogger stared at the woman for a second, as did a group of onlookers, but said nothing and kept jogging. As the jogger turned a corner, she began to panic; she really had just killed her husband, but had no idea how the homeless woman could have known that. When she reached the end of the block, she turned around, jogged back, and yelled to the woman “No, I didn’t!”
Did the jogger adopt the homeless woman’s statement when she remained silent?
A. Yes, because she did not respond to the woman right away.
B. Yes, because she had just killed her husband.
C. No, because she eventually responded to the woman’s comment.
D. No, because a reasonable person would not have denied the statement.

Incorrect: Answer choice D is correct. An adoptive admission is a statement of another person that a party expressly or impliedly adopts as his own. Silence in response to a statement is considered an adoptive admission if: (i) The person was present and heard and understood the statement; (ii) the person had the ability and opportunity to deny the statement; and (iii) a reasonable person similarly situated would have denied the statement. Here, the jogger was present and had the opportunity to deny the statement; a similarly situated reasonable person, however, would not have felt compelled to answer the woman. Answer choice A is incorrect because a reasonable person would not have felt the need to respond to an intoxicated, homeless woman on the street. Answer choice B is incorrect because whether the statement was true or not is irrelevant to whether it was adopted. The statement would still not be an adoptive admission if a reasonable person would not have felt compelled to respond. Answer choice C is incorrect because the jogger’s later denial did not affect whether she had made an adoptive admission at the time the statement was made.

Had that question. I asked myself if I would have responded. I consider myself a fairly reasonable person and decided I would not have responded, thus I would not be charged with adopting the homeless person's statement.

They are a little subjective but this one is not nearly as much as some other ones you will likely come across.

True, I should think like a reasonable person. Sometimes I just don't know when I'm supposed to think like a reasonable person and when I'm supposed to apply the law hard and cold. I guess evidence has more reasonability to it than other areas.

[northwood]

I could do this on my own, but it would take time.. If anyone can quickly tell me when prior bad acts are admissible, Id appreciate it.

to impeach for untruthfulness ( can use any prior vicious, immortal or criminal conduct that has to do with untruthfulness- i.e fraud or decit),if raised by opposing party ( prosecution on cross- you have to take their statement as it is, and cannot bring in extrinsic evidence) can also bring in bad acts to establish a motus operandi- but such acts must be very similar and essential to act at issue.. i.e wear the SCREAM killer mask with lumberjack overalls and a single glove on your right hand- and drop one rose on your way out of robbing a bank- when you robbed a bank in Sandusky ohio 8 years ago( of which you were sent to Shawshank Penitentary- and were housed in the Saeqwahtonao wing), and there is tape recording of a bank robber who fits this description to a T.


maybe ther is more, but that's all I got off the top of my head.

[northwood]

simple question, but a stumper for me:

the standard to use for a doctor is a reasonable doctor, correct... do not have to go to any higher standard ( i.e. surgeons get compared to surgeons, generalist to a generalist) on the national level ( or is it based on best practices in the community?)

[puttycake]

simple question, but a stumper for me:

the standard to use for a doctor is a reasonable doctor, correct... do not have to go to any higher standard ( i.e. surgeons get compared to surgeons, generalist to a generalist) on the national level ( or is it based on best practices in the community?)

I think originally it was at the community level, but now it's considered to be at the national level.

I think.