Themis Bar Review Hangout - July 2014 Exam Forum

[Gotti]

Is this answer unfair, or is it just me:

The defendant was tried for robbery. The victim and her friend were the only witnesses called to testify. The victim testified that the defendant threatened her with a knife, grabbed her purse, and ran off with it. The friend testified that he saw the defendant grab the victim's purse and run away with it, but that he neither saw a knife nor heard any threats.

On this evidence the jury could properly return a verdict of guilty of:
A. robbery only. B. larceny only. C. either robbery or larceny. D. both robbery and larceny.

I put in robbery only, because I thought that the "defendant grabbing the victim's purse" was enough for the force/intimidation component for robbery. However, Themis saw it differently, and said that it should be either robbery or larceny, basically because the defendant's "grabbing the purse" was merely a "tresppasory" taking.

Is there some fine detail I missed? Thanks.

I don't think this is a merger question. Robbery = larceny + force/threat/intimidation so yes larceny would merge into a robbery, so that's why D is wrong (it's a distractor).

But the main purpose of this question is the difference between larceny and robbery. The "force" in robbery has to be more force than what it takes to commit the crime of larceny. Just TAKING the bag from her person wouldn't be enough--the robber has to like push her or something while taking the purse.

The jury can choose what to believe. If the jury believes the victim, the threat means that it was robbery. If the jury believes the friend, there was no threat or force, so they can only convict on larceny.

[Gotti]

I don't like this question:

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:

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

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.

I understand that consent is a defense to rape, but if the statute lists "without consent" as an element, doesn't the pros have to prove she didn't consent BRD? Am I being dumb

[Tanicius]

I don't like this question:

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:

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

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.

I understand that consent is a defense to rape, but if the statute lists "without consent" as an element, doesn't the pros have to prove she didn't consent BRD? Am I being dumb

Here's the difference:

Elements of prosecution's burden:

1. intercourse
2. victim not his wife
3. without her consent

Elements of defendant's affirmative defense:

1. he BELIEVED there was consent, even if there wasn't.


It is completely proper to place a mistake of fact defense onto the defendant, because the statute does not require the prosecution to prove that defendant KNEW there was a lack of consent.

[bport hopeful]

Is this answer unfair, or is it just me:

The defendant was tried for robbery. The victim and her friend were the only witnesses called to testify. The victim testified that the defendant threatened her with a knife, grabbed her purse, and ran off with it. The friend testified that he saw the defendant grab the victim's purse and run away with it, but that he neither saw a knife nor heard any threats.

On this evidence the jury could properly return a verdict of guilty of:
A. robbery only. B. larceny only. C. either robbery or larceny. D. both robbery and larceny.

I put in robbery only, because I thought that the "defendant grabbing the victim's purse" was enough for the force/intimidation component for robbery. However, Themis saw it differently, and said that it should be either robbery or larceny, basically because the defendant's "grabbing the purse" was merely a "tresppasory" taking.

Is there some fine detail I missed? Thanks.

I don't think this is a merger question. Robbery = larceny + force/threat/intimidation so yes larceny would merge into a robbery, so that's why D is wrong (it's a distractor).

But the main purpose of this question is the difference between larceny and robbery. The "force" in robbery has to be more force than what it takes to commit the crime of larceny. Just TAKING the bag from her person wouldn't be enough--the robber has to like push her or something while taking the purse.

The jury can choose what to believe. If the jury believes the victim, the threat means that it was robbery. If the jury believes the friend, there was no threat or force, so they can only convict on larceny.

Its definitely a merger question, at least in part. You can tell by the inclusion of answer D. The big test here is knowing that its Robbery or Larceny, not Robbery and Larceny.

[Tanicius]

Its definitely a merger question, at least in part. You can tell by the inclusion of answer D. The big test here is knowing that its Robbery or Larceny, not Robbery and Larceny.

I think it's just as much testing your knowledge of the criminal process: Just because two witnesses testify to different crimes doesn't mean you can't be convicted of either one of them.

[lawyerwannabe]

Did anyone do worse on the Simulated MBE than on their mixed sets?

I have been consistently between 78 and 82% on all mixed sets but got 70% on the simulated.

[Gotti]

Its definitely a merger question, at least in part. You can tell by the inclusion of answer D. The big test here is knowing that its Robbery or Larceny, not Robbery and Larceny.

I think it's just as much testing your knowledge of the criminal process: Just because two witnesses testify to different crimes doesn't mean you can't be convicted of either one of them.

Yeah I think the main point of the Q wasn't to test whether you know about merger (maybe indirectly because of the inclusion of D), but about whether you know the difference between robbery and larceny, and the fact that a jury can choose what to believe in light of 2 different witnesses' testimony.

Also, thanks Tanicius for the explanation re: consent being a defense.

[Gotti]

I'm not really liking that in a 100 Q mixed set, there are 7 subjects since they divide up crim and crim pro. On the test, there aren't gonna be 30 crim/crim pro questions in each set of 100. I also find that, in any given mixed set, themis will give us questions with on the EXACT SAME TOPIC as 2-3 of the questions in the set...or sometimes even the same set of facts with a different call of the question. For example, I just did a 100 Q set and there were 3 questions about whether or not a diary is admissible at trial. And the same set had 3 questions about a defendant lacking the requisite mens rea because he didn't knowingly violate a specific intent statute.

The fact that there are twice as many crim questions as normal and the fact that they include very similar questions in the set kinda makes me not put too much stake in my scores.

[bport hopeful]

Its definitely a merger question, at least in part. You can tell by the inclusion of answer D. The big test here is knowing that its Robbery or Larceny, not Robbery and Larceny.

I think it's just as much testing your knowledge of the criminal process: Just because two witnesses testify to different crimes doesn't mean you can't be convicted of either one of them.

Yeah I think the main point of the Q wasn't to test whether you know about merger (maybe indirectly because of the inclusion of D), but about whether you know the difference between robbery and larceny, and the fact that a jury can choose what to believe in light of 2 different witnesses' testimony.

Also, thanks Tanicius for the explanation re: consent being a defense.

I agree completely. Its definitely a multipart question. I just think the most basic part of it is whether you know the elements of robbery and larceny. It also tests sufficiency of evidence. But when the question is what can he be charged for, and then gives you possible answers made of entirely of two crimes that can merge, its LARGELY a merger question. Guess its a moot point, but the answer to the original question was that its a merger issue.

[bport hopeful]

That sounds snarky, and thats unintentional. Sorry, friends.

[Gotti]

Sorry for the excessive posting lol but I have another question:

On November 1, the following notice was posted in a privately-operated university: "The faculty, seeking to encourage creative writing, offers to any student at this school who wins the current National Poetry Competition the additional prize of $500. All competing papers must be submitted to the Dean's office before May 1." The National Competition is conducted by an outside agency, unconnected with any university. A student read this notice on November 2, and thereupon intensified his effort to make his poetry submission, which he started in October, a winner. The student also left on a counter in the Dean's office a signed note saying, "I accept the faculty's $500 Poetry Competition offer." This note was inadvertently placed in the student's file and never reached the Dean or any faculty member personally. On the following April 1, the above notice was removed and the following substituted therefore: "The faculty regrets that our offer regarding the National Poetry Competition must be withdrawn." The student's poetry submission was submitted through the Dean's office on April 15. On May 1, it was announced that the student had won the National Poetry Competition and the prize. The faculty refused to pay anything. The promise of the faculty on November 1 was

Answers
A. enforceable on principles of promissory estoppel.
B. enforceable by the student's personal representative even if the student had been killed in an accident on April 16.
C. not enforceable on policy grounds because it produced a noncommercial agreement between a student and his teachers, analogous to intramural family agreement and informal social commitments.
D. not enforceable, because the student, after entering the National Competition in October, was already under a duty to perform to the best of his ability.

Rationale:
Answer choice B is correct. The November 1 offer for a unilateral contract (an offer requiring action to accept) was considered accepted when the student performed and produced a winning paper. The offer was irrevocable because of the student's detrimental reliance. His completion entitled him, or his heirs, to the benefit of the bargain. Answer choice A is incorrect because there was a contract in place, and thus it is unnecessary to rely on a theory of promissory estoppel.

I picked A. I thought promissory estoppel is an applicable doctrine whenever there's detrimental reliance? Can you ONLY invoke promissory estoppel when there is no valid contract formed and you basically want to prevent unjust enrichment?

[Tanicius]

Sorry for the excessive posting lol but I have another question:

On November 1, the following notice was posted in a privately-operated university: "The faculty, seeking to encourage creative writing, offers to any student at this school who wins the current National Poetry Competition the additional prize of $500. All competing papers must be submitted to the Dean's office before May 1." The National Competition is conducted by an outside agency, unconnected with any university. A student read this notice on November 2, and thereupon intensified his effort to make his poetry submission, which he started in October, a winner. The student also left on a counter in the Dean's office a signed note saying, "I accept the faculty's $500 Poetry Competition offer." This note was inadvertently placed in the student's file and never reached the Dean or any faculty member personally. On the following April 1, the above notice was removed and the following substituted therefore: "The faculty regrets that our offer regarding the National Poetry Competition must be withdrawn." The student's poetry submission was submitted through the Dean's office on April 15. On May 1, it was announced that the student had won the National Poetry Competition and the prize. The faculty refused to pay anything. The promise of the faculty on November 1 was

Answers
A. enforceable on principles of promissory estoppel.
B. enforceable by the student's personal representative even if the student had been killed in an accident on April 16.
C. not enforceable on policy grounds because it produced a noncommercial agreement between a student and his teachers, analogous to intramural family agreement and informal social commitments.
D. not enforceable, because the student, after entering the National Competition in October, was already under a duty to perform to the best of his ability.

Rationale:
Answer choice B is correct. The November 1 offer for a unilateral contract (an offer requiring action to accept) was considered accepted when the student performed and produced a winning paper. The offer was irrevocable because of the student's detrimental reliance. His completion entitled him, or his heirs, to the benefit of the bargain. Answer choice A is incorrect because there was a contract in place, and thus it is unnecessary to rely on a theory of promissory estoppel.

I picked A. I thought promissory estoppel is an applicable doctrine whenever there's detrimental reliance? Can you ONLY invoke promissory estoppel when there is no valid contract formed and you basically want to prevent unjust enrichment?

You an only invoke promissory estoppel when it was reasonable to rely on a promise, you suffered detriment from the promise, and you're only seeking the damages of your actual detriment. For black letter law purposes, you are correct that you typically can't invoke it if it's an enforceable contract already.

I got this question and its varying forms right and wrong a few times before I realized it's a UNILATERAL contract. They made an offer and he began performance, which entitles him to complete performance.

[Gotti]

yeah I knew it was enforceable K because he began performance, but I just didn't know that promissory estoppel is only used when there isn't an enforceable K. Thanks!

[lawyerwannabe]

Question: How good is an average essay in NY? Like, perfectly state the rule is average or what? My brain cannot memorize all these rules verbatim and it's killing me.

[j1987]

Got my hands on a few released MBE exams. I'm working on the first one, and so far every question I've gotten has been on Themis in some form, so I think we have confirmation that Themis does in fact use old MBE questions, and theirs are similar to what we will see on the actual exam next week.

[j1987]

Question: How good is an average essay in NY? Like, perfectly state the rule is average or what? My brain cannot memorize all these rules verbatim and it's killing me.

I think it's important to remember that the model answers we are given are "above average" meaning that we are not expected to have the language down perfectly or to have it look as "perfect" as the model answer. They're considered models for a reason.

That being said, I don't know what an average essay looks like, but that's because I feel as though they only release the above average ones as examples to scare us :p

[lawyerwannabe]

Question: How good is an average essay in NY? Like, perfectly state the rule is average or what? My brain cannot memorize all these rules verbatim and it's killing me.

I think it's important to remember that the model answers we are given are "above average" meaning that we are not expected to have the language down perfectly or to have it look as "perfect" as the model answer. They're considered models for a reason.

That being said, I don't know what an average essay looks like, but that's because I feel as though they only release the above average ones as examples to scare us :p

I am pretty much memorizing all the big things from each of the big topics and then just going by feeling on everything else. Nervous as all helllll

[Gotti]

Got my hands on a few released MBE exams. I'm working on the first one, and so far every question I've gotten has been on Themis in some form, so I think we have confirmation that Themis does in fact use old MBE questions, and theirs are similar to what we will see on the actual exam next week.

So Fordham gave us a 200 Q full Kaplan MBE and then organized the head of Kaplan to come to campus for 2 days and go through the answer choices with us, and he actually said that NCBE has released so few actual questions (i think it's like 1000 over the past 30 years or something ridiculously low), and the only reason they release them is because those questions either gave them problems or gave the students problems in some way...they were too easy, or too hard, or too ambiguously worded, etc. Basically that there is a reason NCBE released the questions it released.

Idk how helpful that is, but I just wanted to put that out there

[NYSprague]

Question: How good is an average essay in NY? Like, perfectly state the rule is average or what? My brain cannot memorize all these rules verbatim and it's killing me.

I can't believe that is average. I passed and I know on a couple of essays I just couldn't remember all the elements of something. I just wrote what I remembered. I definitely didn't learn rules verbatim. Bar exam essays are nowhere near as detailed as school exams. You don't have to know everything to pass.

[iLoveFruits&Veggies]

Can't help but feel like I wasted at least 4 weeks watching videos

All of the bar prep courses need to tweak that because it's insane how much time gets sucked into lectures. I get how they're helpful but they take up so much time!

I actually really enjoyed some of the lectures and think some of the professors are top notch... i'm just not sure it's the most efficient way to use our time to study for the Bar. Would love to have videos there as a back-up, but not so sure they should be a mandatory part of the process for bar prep. I would have much rather started the study review I've been doing for the past 2 weeks 2 months ago.

[bport hopeful]

Question: How good is an average essay in NY? Like, perfectly state the rule is average or what? My brain cannot memorize all these rules verbatim and it's killing me.

Within the last five pages, someone posted a link from the NY Bar site. It gave example essays to last several years worth of actual tests. Those examples were considered to be well above average I believe. I know that doesnt exactly answer your question, but its a place to start.

[iLoveFruits&Veggies]

Got my hands on a few released MBE exams. I'm working on the first one, and so far every question I've gotten has been on Themis in some form, so I think we have confirmation that Themis does in fact use old MBE questions, and theirs are similar to what we will see on the actual exam next week.

So Fordham gave us a 200 Q full Kaplan MBE and then organized the head of Kaplan to come to campus for 2 days and go through the answer choices with us, and he actually said that NCBE has released so few actual questions (i think it's like 1000 over the past 30 years or something ridiculously low), and the only reason they release them is because those questions either gave them problems or gave the students problems in some way...they were too easy, or too hard, or too ambiguously worded, etc. Basically that there is a reason NCBE released the questions it released.

Idk how helpful that is, but I just wanted to put that out there

75% of Themis MBE questions are NCBE released questions. 25% are written by Themis.

[kapital98]

I just took a 100 question practice exam from the 2011 MBE exam (on adaptibar) and scored 71%!!! It was my first practice exam and I thought I tanked it. F*CK YEAH!

That's always an awesome feeling. Congrats!

I just went to check what score I got on the 2011 MBE on Adaptibar and I got a 71% too!! Exactly the same!!! (my score slipped a bit though for the 2008 and 2013 exams) The questions seem shorter than the ones on Themis - makes me happy! I was on cloud 9 until I got back to these essays. UGH. Stupid essays!

That's really cool. Also, thanks for talking about Adaptibar in your prior posts. I can't tell if it's improving my score more than Themis but I can say it is significantly increasing my confidence. I love the program and am really happy I purchased it. Multiple choice questions are the bane of my existence and Adaptibar has really helped me through bar prep.

[kapital98]

I just took a 100 question practice exam from the 2011 MBE exam (on adaptibar) and scored 71%!!! It was my first practice exam and I thought I tanked it. F*CK YEAH!

How does your Adaptibar score compare to your Themis average? My BarBri friends have said that their Adaptibar scores are much higher.

I stopped doing the Themis question pretty quickly. Shortly after the first milestone exam. I'd say that real MBE questions (Adaptibar) are easier than the artificial ones from Themis. The Themis created ones seemed needlessly long and complex.

I don't there is any way to know if harder questions equal a higher score. I sincerely doubt it. I think the opposite is probably true. I can say with extreme confidence that using Adaptibar has greatly increased my personal confidence going into the test because I have only been using real questions. The real questions are pretty straightforward and rarely try to trip people up.

[mizunoami]

I don't like this question:

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:

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

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.

I understand that consent is a defense to rape, but if the statute lists "without consent" as an element, doesn't the pros have to prove she didn't consent BRD? Am I being dumb

Here's the difference:

Elements of prosecution's burden:

1. intercourse
2. victim not his wife
3. without her consent

Elements of defendant's affirmative defense:

1. he BELIEVED there was consent, even if there wasn't.


It is completely proper to place a mistake of fact defense onto the defendant, because the statute does not require the prosecution to prove that defendant KNEW there was a lack of consent.

Tanicus to the rescue.