Themis Bar Review Hangout - July 2016 Forum

[xfer999]

This is the one where the defendant robs a husband & wife and one dies. Did someone already answer your question?

[+] Spoiler

At 11:00 p.m., a husband and a wife were 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 wife 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.

Answer choice A is correct. Common-law burglary is the breaking and entering of the dwelling house of another at nighttime with the specific intent to commit a felony therein. The defendant is guilty of burglary because he used force to gain entry into the apartment (breaking and entering the dwelling of another) at night with the intent to commit a theft crime. Robbery is larceny from the person by force or intimidation. Here, the facts actually state that the defendant forced the wife to open the safe, and the defendant clearly had the intent to steal the necklace. The necklace is considered to be taken from the wife's person even though it was not on her body because it was within her control. Because the husband's death was caused as a result of the defendant's commission of an inherently dangerous felony (robbery or burglary), he is also guilty of murder under the felony murder rule. Accordingly, answer choices B, C, and D are incorrect because they are incomplete.

[+] Spoiler

Maybe I don't understand merger, but shouldn't one of the felonies merge with felony murder? I thought the underlying felony always merged for felony murder. I picked B, even though the elements were met for all three because one of the felonies has to merge. Should I assume if it say "guilty of" then not to merge crimes, but if it says "convicted of" to merge them.

[+] Spoiler

I think this question came up in the thread earlier. If I remember, people realized that it's not a merger if you treat the husband & wife as separate victims. (THIS IS THE TRAP.) So, burglary generally (never merges w underlying intended felony or attempt), robbery as to the wife, murder as to the husband. Does that sound right?

[+] Spoiler

I guess my issue would be that I really only see one count of robbery here, not two. I think he only committed robbery against the wife because he took the necklace through force/threat from her. Additionally, there's only the one item taken, so only one larceny, unless that one larceny can be used as a lesser included offense to two robberies, which I think might cause some double jeopardy problems. Also, if you look at multiple counts of robbery like this, would a bank hold up where the robber takes money from multiple tellers lead to multiple counts of robbery?

[+] Spoiler

Oh, I see, you're trying to find the separate predicate offense for the husband's felony murder, right? Maybe the Themis explanation missed the kidnapping (K in BARRK)? That crime doesn't seem to come up on their PQs a lot. The defendant did move the couple (forced them inside) and confined both of them against their will by tying them up.

[jchiles]

This is a dumb question and its only to satisfy my curiosity but where do they have the pass rates for over 75% completion on the website (like pass rates for 100% completion)?

[rambleon65]

This is a dumb question and its only to satisfy my curiosity but where do they have the pass rates for over 75% completion on the website (like pass rates for 100% completion)?

https://www.themisbar.com/pass-rates

I don't see it for 100% completions though.

[1down1togo]

This is a dumb question and its only to satisfy my curiosity but where do they have the pass rates for over 75% completion on the website (like pass rates for 100% completion)?

For me, very early on, in one of the introductory videos, they said- for your state, if you do x, you have x percentage of passing, y, y percentage of passing etc.

Can't remember which video exactly. It was like one of the things from the first day.

[Vantwins]

I'm basically calling it. I've hit that point. Taking MA bar. Themis says upon 75% completion, there is a 96% passage rate. Currently at 83%. I've done close to 2000 MBE PQs + Simulated/Milestone Qs, overall 68% accuracy. Will look over FROs lightly / daily and maybe do a few more 50-set qs, but I'm at the VERY EXCITED TO BE DONE phase.


Somebody tell me Im good to go, because, let's face it, that's all I'm looking for here.

You are totally good to go!

[luxxe]

Anyone know the passage rate for 100% completion for UBE states? I don't remember seeing it in my lectures. 89% passage for 75% completion, want to feel a little validated it wasn't a waste of time to do more.

[1down1togo]

Anyone know the passage rate for 100% completion for UBE states? I don't remember seeing it in my lectures. 89% passage for 75% completion, want to feel a little validated it wasn't a waste of time to do more.

It's not a waste of time. You'll feel validated when you pass

[pheerful22]

Right on! I'll probably be making a test run on Monday to get a feel for the place

yeah i definitely need to scope out the parking situation, entrance, etc. If you see someone wearing ohio state shirts or UVa shirts thats me (on test days) hahah

I'll be the guy with the grungy neck-beard, wooly pants and pullover. If we find each other and determine neither of us are rapers, we should grab a drink thursday evening at brick house.

haha ok sounds good!!

[alicen]

Anyone taking California do the last Property essay PQ today? The failure to tell us exactly which topics (remedies? con law? civ pro?) they want us to delve into is pretty brutal.

[ndp1234]

Anybody else got fooled on that easement merger question that didn't extinguish the easement because

[+] Spoiler

it was the difference between a life estate and fee simple.“Because the son owned a fee simple in Blackacre and a life estate in Whiteacre, he did not own the two estates equally at any one time, and thus they did not merge (making answer choice A is incorrect)”

SMDH.

[BigZuck]

I think there might be some potential causation/correlation mix ups on the 100% completion thing. 100% might mean your chances improve greatly, or it might mean that try hards who would have passed at 60% trudge on to 100% because they can't help themselves.

Study hard, work on your weaknesses, keep up your strengths, and do your best on game day. I look forward to passing the bar along with each and every person ITT.

[Hmasterflex]

Do you think the essay graders give positive feedback on the last essay regardless of actual quality? maybe to fluff up our junk?

[Fivedham]

This is a dumb question and its only to satisfy my curiosity but where do they have the pass rates for over 75% completion on the website (like pass rates for 100% completion)?

For me, very early on, in one of the introductory videos, they said- for your state, if you do x, you have x percentage of passing, y, y percentage of passing etc.

Can't remember which video exactly. It was like one of the things from the first day.

In one of the introductory videos, the Themis guy says that they found that 75% is the tipping point, where the pass rates shoot up. He then says that it gets incrementally higher along with your completion rate, but the tipping point is 75%.

[NoLongerALurker]

Do you think the essay graders give positive feedback on the last essay regardless of actual quality? maybe to fluff up our junk?

My first essay was legitimately solid and hit all the points. I mean it was mostly like sample essay, basically -- I wrote it open book. 50/100. "Good start, you'll improve" comments. My last essay was a piece of shit where I misremebered the law, made shit up, totally missed all the points, and analyzed poorly. I just wanted to get it over with -- did it in 10 minutes and said fuck it. Also 50/100. Only positive comments.

So I think they arbitrarily give you lower marks on your first one, and higher and your last one.

[Hmasterflex]

Do you think the essay graders give positive feedback on the last essay regardless of actual quality? maybe to fluff up our junk?

My first essay was legitimately solid and hit all the points. I mean it was mostly like sample essay, basically -- I wrote it open book. 50/100. "Good start, you'll improve" comments. My last essay was a piece of shit where I misremebered the law, made shit up, totally missed all the points, and analyzed poorly. I just wanted to get it over with -- did it in 10 minutes and said fuck it. Also 50/100. Only positive comments.

So I think they arbitrarily give you lower marks on your first one, and higher and your last one.

On my first one, i probably got a 50 and the grader said nice start. I had a few in the middle that were not so good, and the grader did not hold back. The last few though, my grader has been singing praises. I felt like I didn't get everything right but I apparently am addressing the problems correctly. Maybe TX gives points for identification and analysis

I should point out that I did them all closed book. I would study before I wrote it, but no notes during.

[Rahviveh]

Someone explain to me the distinction between all the different trusts when creditors want to reach the assets. Seems to me it doesn't matter what kind of trust it is, the creditors cannot touch the assets until the beneficiary gets a payment (subject to those exceptions like alimony and judicial liens).

Is the rule different for mandatory trusts since the beneficiary can demand payments?

[Hmasterflex]

I just made a #LOLTexas realization

you can't serve on a jury (grand or petit) in TX if related w/in the 3rd degree of consanguinity, but you can marry them as long as they're not within the 2nd degree. LOL

[Hmasterflex]

Someone explain to me the distinction between all the different trusts when creditors want to reach the assets. Seems to me it doesn't matter what kind of trust it is, the creditors cannot touch the assets until the beneficiary gets a payment (subject to those exceptions like alimony and judicial liens).

Is the rule different for mandatory trusts since the beneficiary can demand payments?

When a beneficiary is not also the settlor, creditors generally cannot go after the trust corpus. They can put a lien on the interest. If there is a valid spendthrift provision (transfer restriction), they cannot put a lien on the distribution interest. However, they can make a demand to the trustee for payments, and the trustee (if it's a discretionary trust) will have the discretion to compensate.

There is an exception (at least in TX) for child/spousal support payments, state and federal tax liens, and payments for necessities. These payments can be demanded upon the trust and levied against a distribution interest despite a valid spendthrift provision.

[KD35]

Anyone taking California do the last Property essay PQ today? The failure to tell us exactly which topics (remedies? con law? civ pro?) they want us to delve into is pretty brutal.

I did. Positive is that this will likely not be tested since there was an entire essay on takings last summer. My view of the CA bar after going through this process is that there is always one essay that they write to make people go "ah shit..." I think this was one because it was so ambiguous.

[blach0987]

The issue of felony and whether it merges/not merge and whether its an attempt, etc. has really tripped me up on a few questions. Just to be clear...the felonies in BarExam land is only the BARRK and larceny right...???

[Fivedham]

So I'm just curious, does Themis do anything if you hit 100%? Like do lights go off, balloons drop? Or is it just nothing? Asking because I'm at like 95% and I don't wanna do any more performance tests, so I won't hit 100.

[ndp1234]

The issue of felony and whether it merges/not merge and whether its an attempt, etc. has really tripped me up on a few questions. Just to be clear...the felonies in BarExam land is only the BARRK and larceny right...???

felony murder applies when the murder happened during the commission of an "inherently dangerous felony." Barrk crimes are just examples of what is commonly tested. Also keep in mind that the call of the question could alter what triggers felony murder.

[Robb]

Did y'alls schedules get ridiculously busy in the past few days? I kept up all the way through early this week, but at this point the workload is impossible to keep up with. Maybe I take too long on the review assignments, usually spend around 4-5 hours on them.

[Robb]

Also question I'd appreciate help on if anyone knows

[+] Spoiler

Why is this an affirmative defense? Doesn't it negate an element of the crime? Either because of what the man argued-that he had the owner's consent, in which case it's not trespassory-or because of what the court said in the instruction, that he believed he had the owner's consent, in which case it negates specific intent? (I selected C)

A man is charged with common law larceny. At trial, a witness testifies that the man had told her that he really loved his co-worker’s wedding ring and planned to take it. The witness further testified that she had seen him take the ring. The defendant testified that he had the owner’s consent to take the ring.
When the defense rested, the judge instructed the jury that, to find the man guilty of larceny, it must find beyond a reasonable doubt that he intended to take the ring without the owner's consent. The court further instructed the jury that it should find the man not guilty of larceny if it found that the man believed that the co-worker had consented, but that the man bore the burden of persuasion on that issue. After his conviction on the larceny charge, the man appealed, asserting that both jury instructions were unconstitutional.
Should the appeals court find a constitutional violation as to either instruction?

A. Yes, as to the instructions on both issues.
B. Yes, as to the first instruction, but not as to the defendant's burden of persuasion.
C. Yes, as to the defendant's burden of persuasion, but not as to the first instruction.
D. No, as to the instruction on either issue.


Answer choice D 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 man intended to steal the ring is an element of larceny, which the prosecution carries the burden of proving beyond reasonable doubt. Therefore, answer choices A and B are incorrect. Additionally, a state is not forbidden from placing the burden of proving an affirmative defense on the defendant. Reasonable belief of consent is an affirmative defense to the crime of larceny. Therefore, there was no violation of the defendant's rights in the court's instruction regarding that issue, making answer choices A and C incorrect.

[minimumcontacts]

Has anyone done the NCBE sample test questions on the website? I just did it and I'm curious if those were incredibly easy or what, I scored significantly over my usual score (obviously 21 questions is a small sample size).

I saw someone say they'd purchased the practice test and it was a great confidence boost, but its lack of civ pro (and my weakness w/it), so I wasn't sure about forking over the $50 when I still have plenty of questions through PMBR and I've already spent all my money on coffee.