Themis Bar Review Hangout - July 2014 Exam Forum

[ABB]

This may not be too helpful for the MBE portion, but in my NY specific material (NY Vol 2, Crim Law, p. 19) it says that:
"the underlying felony is not so much an element of the crime but instead functions as a replacement for the mens rea or intent necessary for common-law murder. Therefore, the underlying felony does not merge with the felony murder charge."

[Tanicius]

Yeah, I'm chalking this up to an unfortunate miswording in one of the Themis questions. I'm going to presume for the MBE that the underlying felony does NOT merge for purposes of conviction, but does merge for purposes of sentencing and Double Jeopardy.

[kapital98]

I can't believe it. I just went to do my second NY MC question set and the same bug exists. Just like in the first set, it won't let me answer "A" or "D" on almost any of the question.

At this point I'm guessing all of my NY MC Themis questions are worthless. THANKS THEMIS!

I had the same problem and I was simply zoomed in too far on my browser.

Thank you. I'm zoomed in at 110%. I'll try it next time.

[jigglypuffdreams]

Yeah, I'm chalking this up to an unfortunate miswording in one of the Themis questions. I'm going to presume for the MBE that the underlying felony does NOT merge for purposes of conviction, but does merge for purposes of sentencing and Double Jeopardy.

Yeah, I think you solved the mystery. I double-checked the question where the accidental felony murder merges into a robbery (question 2 in the multistate workbook) and sure enough, the call of the question is "which of the following crimes may the girlfriend properly be convicted and punished?" So uhh, we know the law, just watch out for the words "and punished."

[Bobo1]

This may not be too helpful for the MBE portion, but in my NY specific material (NY Vol 2, Crim Law, p. 19) it says that:
"the underlying felony is not so much an element of the crime but instead functions as a replacement for the mens rea or intent necessary for common-law murder. Therefore, the underlying felony does not merge with the felony murder charge."

I passed the NY bar exam in 2009. I used Barbri for that exam. In my notes from my barbri study, I have the following notes concerning limitations on felony murder:

1. D must be guilty of the underlying felony
2. the felony must be inherently dangerous
3. the felony must be separate from the killing itself (merger rule)
. an aggravated battery cannot be the basis of the felony murder

[Recent Grad]

I don't know about all of you, but I'm completely sick of the bar exam. I wish the test were today so I could get back to some semblance of a normal life.

I feel completely confident one minute and then come across some obscure issue on an essay that throws my head into a tizzy. I suspect half of the battle is dealing with the mental part of this exam.

Thursday is going to be the best day of my life.

[Bobo1]

This may not be too helpful for the MBE portion, but in my NY specific material (NY Vol 2, Crim Law, p. 19) it says that:
"the underlying felony is not so much an element of the crime but instead functions as a replacement for the mens rea or intent necessary for common-law murder. Therefore, the underlying felony does not merge with the felony murder charge."

I passed the NY bar exam in 2009. I used Barbri for that exam. In my notes from my barbri study, I have the following notes concerning limitations on felony murder:

1. D must be guilty of the underlying felony
2. the felony must be inherently dangerous
3. the felony must be separate from the killing itself (merger rule)
i. an aggravated battery cannot be the basis of the felony murder

try again...

1. D must be guilty of the underlying felony
2. the felony must be inherently dangerous
3. the felony must be separate from the killing itself (merger rule)
i. an aggravated battery cannot be the basis of the felony murder
ii. the felony must have a purpose other than injuring the victim.

Here is a question from adaptibar

Question 57 - Criminal Law - Homicide
You correctly answered B.

The question was:
Which of the following is LEAST likely to be the underlying felony in a prosecution for felony murder?

A. Arson
B. Manslaughter
C. Attempted rape
D. Burglary

The explanation for the answer is:
The correct answer is B. At common law, the underlying felony in a prosecution for felony murder must be sufficiently different from the facts and circumstances of the murder so as to not merge with the murder charge. Manslaughter is a lesser-included offense of murder, and has many, if not all, of the same elements as murder, and will merge into the murder offense if it is used as the underlying felony for felony murder. Thus, manslaughter will not be a proper underlying felony for a prosecution for felony murder.

Answers A, C, and D are incorrect because, at common law, arson, attempted rape, and burglary are all felonies, are all inherently dangerous enough for felony murder to apply, and will all not merge into the murder offense. Manslaughter is the least likely charge to be an underlying felony in a prosecution for felony murder.

[Bobo1]

This may not be too helpful for the MBE portion, but in my NY specific material (NY Vol 2, Crim Law, p. 19) it says that:
"the underlying felony is not so much an element of the crime but instead functions as a replacement for the mens rea or intent necessary for common-law murder. Therefore, the underlying felony does not merge with the felony murder charge."

I passed the NY bar exam in 2009. I used Barbri for that exam. In my notes from my barbri study, I have the following notes concerning limitations on felony murder:

1. D must be guilty of the underlying felony
2. the felony must be inherently dangerous
3. the felony must be separate from the killing itself (merger rule)
i. an aggravated battery cannot be the basis of the felony murder

try again...

1. D must be guilty of the underlying felony
2. the felony must be inherently dangerous
3. the felony must be separate from the killing itself (merger rule)
i. an aggravated battery cannot be the basis of the felony murder
ii. the felony must have a purpose other than injuring the victim.

Here is another adaptibar question on the topic and the explanation:
Question 91 - Criminal Law - Homicide Flag this questionWatch the video lectureDiscussion BoardErrorPremium Support
You answered B. The correct answer is A.

The question was:
At 11:00 p.m., a couple was accosted in the entrance to their apartment building by the defendant, who was armed as well as masked. The defendant ordered the couple to take him into their apartment. After they entered the apartment, the defendant forced the woman to bind and gag her husband and then to open a safe which contained a diamond necklace. The defendant then tied her up and fled with the necklace. He was apprehended by apartment building security guards. Before the guards could return to the apartment, but after the defendant was arrested, the husband, straining to free himself, suffered a massive heart attack and died.

The defendant is guilty of

A. burglary, robbery, and murder.
B. robbery and murder only.
C. burglary and robbery only.
D. robbery only.

The explanation for the answer is:
The correct answer is A. Robbery is defined at common law as the taking, by force or threat of force, of personal property of another with the intent to permanently deprive the owner of the property. Burglary is the breaking and entering into a dwelling with the intent to commit a felony or theft therein. Felony murder is the killing of a human being in the course of a violent felony. In this case, the defendant is guilty of burglary, robbery, and murder. The defendant forced, at weapon point, the couple to allow him to enter their dwelling, which is sufficient for breaking and entering. When this breaking and entering occurred, the defendant had the intent to commit a theft of their property, and he is guilty of burglary. In addition, the defendant used force by tying and binding the couple, and the threat of force by threatening them, to take the necklace from the couple, and he had the intent to permanently deprive them of the necklace. Therefore, the defendant is guilty of robbery. Finally, the husband died as a result of the commission of those two violent felonies, so the defendant is guilty of felony murder. During the commission of the robbery and burglary, the defendant had the husband bound and gagged. That the husband would die from these actions, and the stress of attempting to escape, is foreseeable from the commission of the crime, and the defendant is guilty of murder.

Answer B is incorrect because it ignores the forced entry with the intent to commit felony theft into the apartment. Answer C is incorrect because it ignores the defendant's guilt under felony murder. Answer D is incorrect because it ignores both the burglary and the murder.

[michfarr]

Not sure if this helps or not:

(Themis Question ID# 4249)
The defendant, his brother, and his best friend formed a plan to rob a bank. On the day of the crime, the defendant and his brother entered the bank carrying guns, while the best friend stayed in the car to act as a getaway driver. After the defendant received one bag of money from a bank teller, he saw a security guard pull out a gun. The defendant tried to shoot the security guard but instead shot his brother. The defendant panicked and ran out of the building toward the getaway car. The security guard chased the defendant and fired a shot toward him as he approached the car. The shot hit the best friend, who was in the driver’s seat of the car. Shortly thereafter, the police arrived and arrested the defendant. The brother and best friend later died as a result of their gunshot wounds.

For which of the following crimes is the defendant most likely to be convicted?
A. Robbery and two counts of felony murder for the death of the brother and best friend.B. Robbery and one count of felony murder for the death of the brother.C. Two counts of felony murder for the death of the brother and best friend.D. One count of felony murder for the death of the brother.

Correct: Answer choice D is correct. The defendant would be guilty of felony murder for the death of the brother. Felony murder is an unintended killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony, including a robbery. If one of two co-felons kills the other during the commission or attempted commission of a dangerous felony, this will also constitute felony murder. In this case, the defendant killed his brother in the commission of a burglary, and would thus be guilty of murder under the felony murder rule. Answer choice A is incorrect because an underlying felony will generally merge into the crime of felony murder. In this case, the robbery conviction would merge into the felony murder conviction. Answer choice B is incorrect because the defendant would only be liable for one count of felony murder, and the robbery charge would merge into the felony murder charge. Answer choice C is incorrect because, if a co-felon is killed by a victim or a police officer during the commission of an inherently dangerous felony, the defendant is generally not guilty of felony murder.

[Tanicius]

Not sure if this helps or not:

(Themis Question ID# 4249)
The defendant, his brother, and his best friend formed a plan to rob a bank. On the day of the crime, the defendant and his brother entered the bank carrying guns, while the best friend stayed in the car to act as a getaway driver. After the defendant received one bag of money from a bank teller, he saw a security guard pull out a gun. The defendant tried to shoot the security guard but instead shot his brother. The defendant panicked and ran out of the building toward the getaway car. The security guard chased the defendant and fired a shot toward him as he approached the car. The shot hit the best friend, who was in the driver’s seat of the car. Shortly thereafter, the police arrived and arrested the defendant. The brother and best friend later died as a result of their gunshot wounds.

For which of the following crimes is the defendant most likely to be convicted?
A. Robbery and two counts of felony murder for the death of the brother and best friend.B. Robbery and one count of felony murder for the death of the brother.C. Two counts of felony murder for the death of the brother and best friend.D. One count of felony murder for the death of the brother.

Correct: Answer choice D is correct. The defendant would be guilty of felony murder for the death of the brother. Felony murder is an unintended killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony, including a robbery. If one of two co-felons kills the other during the commission or attempted commission of a dangerous felony, this will also constitute felony murder. In this case, the defendant killed his brother in the commission of a burglary, and would thus be guilty of murder under the felony murder rule. Answer choice A is incorrect because an underlying felony will generally merge into the crime of felony murder. In this case, the robbery conviction would merge into the felony murder conviction. Answer choice B is incorrect because the defendant would only be liable for one count of felony murder, and the robbery charge would merge into the felony murder charge. Answer choice C is incorrect because, if a co-felon is killed by a victim or a police officer during the commission of an inherently dangerous felony, the defendant is generally not guilty of felony murder.

This question is the problem that got me riled up. It appears to be 100% wrong.

[Kiwi917]

Yeah, I'm chalking this up to an unfortunate miswording in one of the Themis questions. I'm going to presume for the MBE that the underlying felony does NOT merge for purposes of conviction, but does merge for purposes of sentencing and Double Jeopardy.

Yeah, I think you solved the mystery. I double-checked the question where the accidental felony murder merges into a robbery (question 2 in the multistate workbook) and sure enough, the call of the question is "which of the following crimes may the girlfriend properly be convicted and punished?" So uhh, we know the law, just watch out for the words "and punished."

This makes sense to me. I'm just going to stop thinking of the sentencing/DJ issue as "merger" since it seems like that term almost always refers to the assaultive (is that really a word?) underlying felony issue when it comes to FMR. I do think Themis should rewrite the second "note" box on page 14 of the outline since it seems misleading in light of this discussion. Has anyone submitted this to them already? If not, I can send them a message, or maybe they still have someone checking on these boards?

One part of the outline that is sort of helpful is page 59 of Crim Pro, where it talks about Double Jeopardy for "statutory offenses" -

At a single trial, a defendant may be convicted of two offenses, one of which is a lesser included offense of the other, if both offenses are statutory and the legislature has specifically authorized cumulative punishment.

I think this is what was going on in Whalen v. US, with felony murder + rape, and is why we might see different results depending on the FMR statute in a particular jurisdiction. A bunch of states make it clear that their FMR authorizes cumulative punishment for the underlying offense, but I would guess for MBE purposes we probably should assume that you can't have cumulative punishment for felony murder and a BARRK felony.

Now, if CA decides to do a homicide/FMR essay with Double Jeopardy tacked on for fun, I'll lose my mind...

[AIpwns]

Not sure if this helps or not:

(Themis Question ID# 4249)
The defendant, his brother, and his best friend formed a plan to rob a bank. On the day of the crime, the defendant and his brother entered the bank carrying guns, while the best friend stayed in the car to act as a getaway driver. After the defendant received one bag of money from a bank teller, he saw a security guard pull out a gun. The defendant tried to shoot the security guard but instead shot his brother. The defendant panicked and ran out of the building toward the getaway car. The security guard chased the defendant and fired a shot toward him as he approached the car. The shot hit the best friend, who was in the driver’s seat of the car. Shortly thereafter, the police arrived and arrested the defendant. The brother and best friend later died as a result of their gunshot wounds.

For which of the following crimes is the defendant most likely to be convicted?
A. Robbery and two counts of felony murder for the death of the brother and best friend.B. Robbery and one count of felony murder for the death of the brother.C. Two counts of felony murder for the death of the brother and best friend.D. One count of felony murder for the death of the brother.

Correct: Answer choice D is correct. The defendant would be guilty of felony murder for the death of the brother. Felony murder is an unintended killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony, including a robbery. If one of two co-felons kills the other during the commission or attempted commission of a dangerous felony, this will also constitute felony murder. In this case, the defendant killed his brother in the commission of a burglary, and would thus be guilty of murder under the felony murder rule. Answer choice A is incorrect because an underlying felony will generally merge into the crime of felony murder. In this case, the robbery conviction would merge into the felony murder conviction. Answer choice B is incorrect because the defendant would only be liable for one count of felony murder, and the robbery charge would merge into the felony murder charge. Answer choice C is incorrect because, if a co-felon is killed by a victim or a police officer during the commission of an inherently dangerous felony, the defendant is generally not guilty of felony murder.

This question is the problem that got me riled up. It appears to be 100% wrong.

I read through it three times and still didn't understand it so I moved on. Why would he be liable for only one count of felony murder? The robbery was the proximate cause of both and the problem doesn't say that the agency rule applies.

[michfarr]

Not sure if this helps or not:

(Themis Question ID# 4249)
The defendant, his brother, and his best friend formed a plan to rob a bank. On the day of the crime, the defendant and his brother entered the bank carrying guns, while the best friend stayed in the car to act as a getaway driver. After the defendant received one bag of money from a bank teller, he saw a security guard pull out a gun. The defendant tried to shoot the security guard but instead shot his brother. The defendant panicked and ran out of the building toward the getaway car. The security guard chased the defendant and fired a shot toward him as he approached the car. The shot hit the best friend, who was in the driver’s seat of the car. Shortly thereafter, the police arrived and arrested the defendant. The brother and best friend later died as a result of their gunshot wounds.

For which of the following crimes is the defendant most likely to be convicted?
A. Robbery and two counts of felony murder for the death of the brother and best friend.B. Robbery and one count of felony murder for the death of the brother.C. Two counts of felony murder for the death of the brother and best friend.D. One count of felony murder for the death of the brother.

Correct: Answer choice D is correct. The defendant would be guilty of felony murder for the death of the brother. Felony murder is an unintended killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony, including a robbery. If one of two co-felons kills the other during the commission or attempted commission of a dangerous felony, this will also constitute felony murder. In this case, the defendant killed his brother in the commission of a burglary, and would thus be guilty of murder under the felony murder rule. Answer choice A is incorrect because an underlying felony will generally merge into the crime of felony murder. In this case, the robbery conviction would merge into the felony murder conviction. Answer choice B is incorrect because the defendant would only be liable for one count of felony murder, and the robbery charge would merge into the felony murder charge. Answer choice C is incorrect because, if a co-felon is killed by a victim or a police officer during the commission of an inherently dangerous felony, the defendant is generally not guilty of felony murder.

This question is the problem that got me riled up. It appears to be 100% wrong.

I read through it three times and still didn't understand it so I moved on. Why would he be liable for only one count of felony murder? The robbery was the proximate cause of both and the problem doesn't say that the agency rule applies.

That's just because if your co-felon is killed by a resister or a police officer, then you're not guilty of felony murder. Extra wrinkle we've added on to make the law even more difficult.

[northwood]

I don't know about all of you, but I'm completely sick of the bar exam. I wish the test were today so I could get back to some semblance of a normal life.

I feel completely confident one minute and then come across some obscure issue on an essay that throws my head into a tizzy. I suspect half of the battle is dealing with the mental part of this exam.

Thursday is going to be the best day of my life.

I concur

[blue920]

Sometimes I'm just reading these questions, and it escalates like CRAZY.

The defendant, while eating in a restaurant, noticed that a departing customer at the next table had left a five-dollar bill as a tip for the waitress. The defendant reached over, picked up the five-dollar bill, and put it in his pocket. As he stood up to leave, another customer who had seen him take the money ran over to him and hit him in the face with her umbrella. Enraged, the defendant choked the customer to death.

Like what

Jeez, I took a break from this forum for a day and all of a sudden 3 pages on felony murder.

But this is hilarious. I have been laughing for the last 10 minutes. I think the stress is getting to me.

[numbertwo88]

Does anyone feel good about the essays? Beyond the MBE essay subjects.

I feel good about domestic relations - given that's the field I'll be entering - but the rest literally scare the shit out of me.

I'm with you on wanting to get this over with. I've never been so miserable in my entire life and I CANNOT go through this entire exam again.

[blue920]

Does anyone feel good about the essays? Beyond the MBE essay subjects.

I feel good about domestic relations - given that's the field I'll be entering - but the rest literally scare the shit out of me.

I'm with you on wanting to get this over with. I've never been so miserable in my entire life and I CANNOT go through this entire exam again.

I don't feel great about anything. Maybe wills, because I did a lot of that in law school and it's a field I'm interested in, and to a lesser extent family law because I just took it last semester. But other than that...NY has so many distinctions for the MBE topics.

I'm doing NY/NJ for this round and was planning to do CT next February, since I can transfer my MBE score and only do the essays. I've been reconsidering.

[jigglypuffdreams]

Does anyone feel good about the essays? Beyond the MBE essay subjects.

I feel good about domestic relations - given that's the field I'll be entering - but the rest literally scare the shit out of me.

I'm with you on wanting to get this over with. I've never been so miserable in my entire life and I CANNOT go through this entire exam again.

Uhh, I kind of feel okay about Professional Conduct thanks to taking professional responsibility and the MPRE. And I try to remember which essay topics I've learned about in law school to remind myself that not all of the essay topics are completely new. But yeah, I definitely feel better about the MBE subjects.

[northwood]

Does anyone feel good about the essays? Beyond the MBE essay subjects.

I feel good about domestic relations - given that's the field I'll be entering - but the rest literally scare the shit out of me.

I'm with you on wanting to get this over with. I've never been so miserable in my entire life and I CANNOT go through this entire exam again.

the only thing I feel great about is knowing how fantastic the first 6 jameson shots will be

[bkenney2]

I have an evidence question for someone:

A plaintiff sued a defendant for injuries received when she fell down a stairway in the defendant's apartment building. The plaintiff, a guest in the building, alleged that she caught the heel of her shoe in a tear in the stair carpet. The plaintiff calls a tenant to testify that another tenant had said to him a week before the plaintiff's fall, "When I paid my rent this morning, I told the manager he had better fix that torn carpet." The second tenant's statement, reported by the first tenant, is

Answers

A admissible, to prove that the carpet was defective.
B admissible, to prove that the defendant had notice of the defect.
C admissible, to prove both that the carpet was defective and that the defendant had notice of the defect.
D inadmissible, because it is hearsay not within any exception.

--

Themis says it's D, I said B.

The rational behind the Themis answer is double hearsay. For whatever reason (I'm usually pretty good at evidence) I don't see the double hearsay here. Maybe my brain is fried. Anyone want to explain it to me like I'm a 6 year old?

[VermiciousKnid]

Does anyone feel good about the essays? Beyond the MBE essay subjects.

I feel good about domestic relations - given that's the field I'll be entering - but the rest literally scare the shit out of me.

I'm with you on wanting to get this over with. I've never been so miserable in my entire life and I CANNOT go through this entire exam again.

I'm feeling good about the non-MBE portions of the essays. I work in family law, so I know that backwards and forwards. I'm strong in employment discrimination, know professional responsibility, wills and tax pretty well(to the extent that PA tests on tax), and have an oddly strong grasp on property. The rest...I'm screwed. I can't memorize rules to save my life even if I have a good understanding of the underlying law.

[Tanicius]

I have an evidence question for someone:

A plaintiff sued a defendant for injuries received when she fell down a stairway in the defendant's apartment building. The plaintiff, a guest in the building, alleged that she caught the heel of her shoe in a tear in the stair carpet. The plaintiff calls a tenant to testify that another tenant had said to him a week before the plaintiff's fall, "When I paid my rent this morning, I told the manager he had better fix that torn carpet." The second tenant's statement, reported by the first tenant, is

Answers

A admissible, to prove that the carpet was defective.
B admissible, to prove that the defendant had notice of the defect.
C admissible, to prove both that the carpet was defective and that the defendant had notice of the defect.
D inadmissible, because it is hearsay not within any exception.

--

Themis says it's D, I said B.

The rational behind the Themis answer is double hearsay. For whatever reason (I'm usually pretty good at evidence) I don't see the double hearsay here. Maybe my brain is fried. Anyone want to explain it to me like I'm a 6 year old?

Witness: I talked to a tenant who said that...

Tenant1: "I talked to another tenant who said that..."

Tenant 2: "I told the manager to fix that stair."


Tenant 2 is making the "notice" statement that counts as non-hearsay-not-offered-for-the-truth-but-for-notice-instead. Tenant 1, however, has no applicable hearsay exception or exemption. You have to offer Tenant 1's statement "I heard the other tenant say" for the truth of the matter asserted. If he didn't hear the other tenant say the words about notifying the manager, then there's no proof that the manager ever heard anything. Unfortunately, there is no exception for Tenant 1's statement.

[bkenney2]

I have an evidence question for someone:

A plaintiff sued a defendant for injuries received when she fell down a stairway in the defendant's apartment building. The plaintiff, a guest in the building, alleged that she caught the heel of her shoe in a tear in the stair carpet. The plaintiff calls a tenant to testify that another tenant had said to him a week before the plaintiff's fall, "When I paid my rent this morning, I told the manager he had better fix that torn carpet." The second tenant's statement, reported by the first tenant, is

Answers

A admissible, to prove that the carpet was defective.
B admissible, to prove that the defendant had notice of the defect.
C admissible, to prove both that the carpet was defective and that the defendant had notice of the defect.
D inadmissible, because it is hearsay not within any exception.

--

Themis says it's D, I said B.

The rational behind the Themis answer is double hearsay. For whatever reason (I'm usually pretty good at evidence) I don't see the double hearsay here. Maybe my brain is fried. Anyone want to explain it to me like I'm a 6 year old?

Witness: I talked to a tenant who said that...

Tenant1: "I talked to another tenant who said that..."

Tenant 2: "I told the manager to fix that stair."


Tenant 2 is making the "notice" statement that counts as non-hearsay-not-offered-for-the-truth-but-for-notice-instead. Tenant 1, however, has no applicable hearsay exception or exemption. You have to offer Tenant 1's statement "I heard the other tenant say" for the truth of the matter asserted. If he didn't hear the other tenant say the words about notifying the manager, then there's no proof that the manager ever heard anything. Unfortunately, there is no exception for Tenant 1's statement.

Thanks. I must have read it incorrectly. When the question relates to "him" I think I must have taken it as Tenant 1. I might be losing it.

[dtl]

I have an evidence question for someone:

A plaintiff sued a defendant for injuries received when she fell down a stairway in the defendant's apartment building. The plaintiff, a guest in the building, alleged that she caught the heel of her shoe in a tear in the stair carpet. The plaintiff calls a tenant to testify that another tenant had said to him a week before the plaintiff's fall, "When I paid my rent this morning, I told the manager he had better fix that torn carpet." The second tenant's statement, reported by the first tenant, is

Answers

A admissible, to prove that the carpet was defective.
B admissible, to prove that the defendant had notice of the defect.
C admissible, to prove both that the carpet was defective and that the defendant had notice of the defect.
D inadmissible, because it is hearsay not within any exception.

--

Themis says it's D, I said B.

The rational behind the Themis answer is double hearsay. For whatever reason (I'm usually pretty good at evidence) I don't see the double hearsay here. Maybe my brain is fried. Anyone want to explain it to me like I'm a 6 year old?

I had to reread this one too. "The plaintiff calls a tenant to testify that another tenant "

Tenant who is testifying is saying that he heard another tenant say X.

Tenant 1 "I heard Tenant 2 say XXX" -> Tenant 2 "XXX" -> Manager.

Edit: I was way too slow =/

[dtl]

Okay. My super smart barbri friend figured it out.

The controlling cases are Dixon and Foster (1993). These are the ones that reinstated Blockburger with the Harris exception.

You can not be punished for the felony murder and the underlying crime via DJ. You can be prosecuted for both at the same time, but only will be convicted of one. If you are convicted of FM in trial 1, a trial 2 is barred.

Someone please contradict this if it is wrong. I am pretty sure it is right but I am losing my shit.