Themis Bar Review Hangout - July 2017 Forum

[Law4lyf]

Can anyone explain the difference between larceny by false pretenses and larceny by trick when the defendant has received cash for something? Is it always larceny by false pretenses since you're considered to have "title" to cash?

That's tricky to answer without a factual scenario. However, suppose that Person A tricks Person B into giving him money in exchange for some sort of contractual performance that Person A never intends to carry out. In that case, Person A has possession of but not title to the money since he hasn't fulfilled his side of the bargain. It seems he could be convicted of larceny by trick but not false pretenses.

False pretenses is when someone takes Title by misrepresenting a material fact. Larceny by Trick is taking possession by misleading the person. For example larceny by Trick would be me borrowing something but never intending to return it. There I'm only taking possession of an item without the intent to return and depriving that person of the property. False pretenses would be selling a piece of counterfeit art and stating that it was a real Van Gogh. Here I'm taking title to the other person's money through the Miss representation of a fact.

[Love With The Coco]

Is there a way to know what the average Themis test taker scored on one of the practice MBQ Problem sets? I just took the 100 question set and got several points below the 70% goal.

The worst part of Themis is the lack of comparison to other users.

Similar for your total PQ % in general. I'm nearing 1000 PQs and at ~68%. I have no idea if that's bad or good.

[Samarcan]

Can anyone explain the difference between larceny by false pretenses and larceny by trick when the defendant has received cash for something? Is it always larceny by false pretenses since you're considered to have "title" to cash?

That's tricky to answer without a factual scenario. However, suppose that Person A tricks Person B into giving him money in exchange for some sort of contractual performance that Person A never intends to carry out. In that case, Person A has possession of but not title to the money since he hasn't fulfilled his side of the bargain. It seems he could be convicted of larceny by trick but not false pretenses.

In larceny by trick you do not acquire title, only possession. In false pretense, you acquire title (not mere possession).

[bmmccb223]

Is there a way to know what the average Themis test taker scored on one of the practice MBQ Problem sets? I just took the 100 question set and got several points below the 70% goal.

The worst part of Themis is the lack of comparison to other users.

Similar for your total PQ % in general. I'm nearing 1000 PQs and at ~68%. I have no idea if that's bad or good.

I'm at around 1,700 questions and am also at 68%. I'm just concerned because the problems don't seem to be getting that much easier because they keep adding more nuances.

[Love With The Coco]

Is there a way to know what the average Themis test taker scored on one of the practice MBQ Problem sets? I just took the 100 question set and got several points below the 70% goal.

The worst part of Themis is the lack of comparison to other users.

Similar for your total PQ % in general. I'm nearing 1000 PQs and at ~68%. I have no idea if that's bad or good.

I'm at around 1,700 questions and am also at 68%. I'm just concerned because the problems don't seem to be getting that much easier because they keep adding more nuances.

Same. My % has been pretty flat throughout.

[Samarcan]

Is there a way to know what the average Themis test taker scored on one of the practice MBQ Problem sets? I just took the 100 question set and got several points below the 70% goal.

The worst part of Themis is the lack of comparison to other users.

Similar for your total PQ % in general. I'm nearing 1000 PQs and at ~68%. I have no idea if that's bad or good.

I'm at around 1,700 questions and am also at 68%. I'm just concerned because the problems don't seem to be getting that much easier because they keep adding more nuances.

Same. My % has been pretty flat throughout.

if your percentage has been the same throughout, but the questions keep getting harder because they keep adding more nuances, that's not all that bad

[helpappreciated]

Finally reached 50%! Keep on truckin'

[whats an updog]

Finally reached 50%! Keep on truckin'

Congratulations! Keep on truckin for sure

Can anyone explain the difference between larceny by false pretenses and larceny by trick when the defendant has received cash for something? Is it always larceny by false pretenses since you're considered to have "title" to cash?

That's tricky to answer without a factual scenario. However, suppose that Person A tricks Person B into giving him money in exchange for some sort of contractual performance that Person A never intends to carry out. In that case, Person A has possession of but not title to the money since he hasn't fulfilled his side of the bargain. It seems he could be convicted of larceny by trick but not false pretenses.

False pretenses is when someone takes Title by misrepresenting a material fact. Larceny by Trick is taking possession by misleading the person. For example larceny by Trick would be me borrowing something but never intending to return it. There I'm only taking possession of an item without the intent to return and depriving that person of the property. False pretenses would be selling a piece of counterfeit art and stating that it was a real Van Gogh. Here I'm taking title to the other person's money through the Miss representation of a fact.

Thanks guys

[star fox]

Can anyone explain the difference between larceny by false pretenses and larceny by trick when the defendant has received cash for something? Is it always larceny by false pretenses since you're considered to have "title" to cash?

That's tricky to answer without a factual scenario. However, suppose that Person A tricks Person B into giving him money in exchange for some sort of contractual performance that Person A never intends to carry out. In that case, Person A has possession of but not title to the money since he hasn't fulfilled his side of the bargain. It seems he could be convicted of larceny by trick but not false pretenses.

I don't think you can ever have money and it not be considered "title." If for some reason you did, I think they'd clearly tell us that.

[Samarcan]

Can someone please explain the difference between something being "read into evidence" or "offered into evidence" and being "offered as an exhibit"? I get that, as Themis says, if a witness can't remember something that s/he made a record of right after it happened, that record can be used to refresh her recollection, and that only the adverse party can enter it.

I guess I don't have a good grasp of the difference of "entering" things v. having them read at trial or as 'exhibits'. If the jury hears it and is not told to disregard it, that's all that really matters right?

[lavarman84]

In my state, it's a possibility (but very unlikely).

TIL. did not know other states had multiple choice questions other than the mbe. not sure whether to be jealous or not tho lol

Don't be jealous. They make the multiple choice questions really hard and still give us state-specific essays.

What state is this? I think I'd consider moving!

Florida. You'd have to deal with a lot of dangerous animals, crazy people, loony governments, and extreme heat. On the plus side, there's no state income tax.

[lavarman84]

Can someone please explain the difference between something being "read into evidence" or "offered into evidence" and being "offered as an exhibit"? I get that, as Themis says, if a witness can't remember something that s/he made a record of right after it happened, that record can be used to refresh her recollection, and that only the adverse party can enter it.

I guess I don't have a good grasp of the difference of "entering" things v. having them read at trial or as 'exhibits'. If the jury hears it and is not told to disregard it, that's all that really matters right?

The difference between a statement being read into evidence and the document itself being offered into evidence isn't that significant. If it's read into evidence, somebody reads the statement for the jury into the record, but the document itself does not go to the jury. The jury just hears the statement. If the document is offered and accepted into evidence (this would make it an exhibit), the jury could actually read over the document again after hearing the statement during trial.

Frankly, it's probably not that meaningful of a difference (although, I could see situations where it might be), but you just have to remember it for the sake of the questions.

[ernie]

Man some of these Themis questions are bad. No spoilers, but Themis's reading of Kyllo is tortured.

[Slytherpuff]

For the UBE people out there, what did you think of the graded MPT- "Franklin Resale Royalties Legislation"

I didn't do too well on it, but I'm not quite sure what they were expecting. The prompt said use bullet points, but my grader said bullet points weren't persuasive enough?

All in all I've been unimpressed with the grading on the essays.

I ended up with a really great grader, or at least a really generous grader who gives very solid feedback. I just got my MPT score back and thought I had bombed it, but walked away with a better score than I anticipated. I think my writing was persuasive but not very substantive (I didn't hit on many of the issues) and I guess that's fine. Maybe focus on doing a good job on a little bit of stuff so that they give you points for your formatting/arguments?

If nothing else, maybe I'm just a solid essay person - that would be great since I am not exactly excelling at the MBE Qs right now.

[IronCobra]

Man some of these Themis questions are bad. No spoilers, but Themis's reading of Kyllo is tortured.

I've been working on the 100 question mixed-subject MBE set tonight and I'm reaching my boiling point on some of their bullshit questions. Particularly any con law questions having to do with whether the government met their burden on the government interest prong. Had a takings clause question earlier where the government clearly met the standard, but Themis said nope. Then I just had another one dealing with Congress's power to regulate commercial speech where the Congressional act clearly did not meet the substantial government interest prong of the commercial speech test, but Themis said the government was in the clear. And whenever I send a message to the Themis people, they're never helpful.

[bmmccb223]

Man some of these Themis questions are bad. No spoilers, but Themis's reading of Kyllo is tortured.

I've been working on the 100 question mixed-subject MBE set tonight and I'm reaching my boiling point on some of their bullshit questions. Particularly any con law questions having to do with whether the government met their burden on the government interest prong. Had a takings clause question earlier where the government clearly met the standard, but Themis said nope. Then I just had another one dealing with Congress's power to regulate commercial speech where the Congressional act clearly did not meet the substantial government interest prong of the commercial speech test, but Themis said the government was in the clear. And whenever I send a message to the Themis people, they're never helpful.

If you are talking about the military yet/crops question, you're right: Themis' answer makes absolutely no sense since there was clearly a physical occupation of land/destruction of property. Commercial speech one was less crazy but it would still be unlikely to appear on the exam because it is factually sensitive.

[Samarcan]

Anyone else get the sense, and I know it's a little weird, that the MBE questions on Themis's "Quiz Builder" are easier than the ones they ask in their PQ sessions? Is it just me? Doesn't make sense why that would happen...but I regularly get only around 55% correct on PQ sessions where the target goal is 60%, which is depressing...

Also, I wish there was a way to know if Themis really does make their questions harder than the actual exam questions will be, or if that's just something we're telling ourselves in a desperate attempt to stay positive. What exactly does them saying that the "target" for a given PQ session is 60% mean, in terms of bar prep?

[Love With The Coco]

Anyone else get the sense, and I know it's a little weird, that the MBE questions on Themis's "Quiz Builder" are easier than the ones they ask in their PQ sessions? Is it just me? Doesn't make sense why that would happen...but I regularly get only around 55% correct on PQ sessions where the target goal is 60%, which is depressing...

Also, I wish there was a way to know if Themis really does make their questions harder than the actual exam questions will be, or if that's just something we're telling ourselves in a desperate attempt to stay positive. What exactly does them saying that the "target" for a given PQ session is 60% mean, in terms of bar prep?

Mentioned this a few pages ago and I agree with the Quiz Builder being easier than PQ sessions. Seems to me they are just trying to scare us in the PQ sessions and are throwing the kitchen sink at us in terms of obscure rules.

The target %, much like the essay scoring, appears utterly worthless and arbitrary.

[IronCobra]

Man some of these Themis questions are bad. No spoilers, but Themis's reading of Kyllo is tortured.

I've been working on the 100 question mixed-subject MBE set tonight and I'm reaching my boiling point on some of their bullshit questions. Particularly any con law questions having to do with whether the government met their burden on the government interest prong. Had a takings clause question earlier where the government clearly met the standard, but Themis said nope. Then I just had another one dealing with Congress's power to regulate commercial speech where the Congressional act clearly did not meet the substantial government interest prong of the commercial speech test, but Themis said the government was in the clear. And whenever I send a message to the Themis people, they're never helpful.

If you are talking about the military yet/crops question, you're right: Themis' answer makes absolutely no sense since there was clearly a physical occupation of land/destruction of property. Commercial speech one was less crazy but it would still be unlikely to appear on the exam because it is factually sensitive.

I was actually thinking about the question with the parcel of land adjoining the railroad track and the farmer's cooperative (looks like only 21% of people chose the correct answer on that one), but yeah, the military jet question was a doozy too.

[michelle3908]

Anyone else get the sense, and I know it's a little weird, that the MBE questions on Themis's "Quiz Builder" are easier than the ones they ask in their PQ sessions? Is it just me? Doesn't make sense why that would happen...but I regularly get only around 55% correct on PQ sessions where the target goal is 60%, which is depressing...

Also, I wish there was a way to know if Themis really does make their questions harder than the actual exam questions will be, or if that's just something we're telling ourselves in a desperate attempt to stay positive. What exactly does them saying that the "target" for a given PQ session is 60% mean, in terms of bar prep?

Mentioned this a few pages ago and I agree with the Quiz Builder being easier than PQ sessions. Seems to me they are just trying to scare us in the PQ sessions and are throwing the kitchen sink at us in terms of obscure rules.

The target %, much like the essay scoring, appears utterly worthless and arbitrary.

I thought I'd reach out to my Themis Rep, she seems overly cheerful, and ask her about why the lectures focus on the main concepts, all the lecturers are telling you to get the main concepts down, yet we're getting these questions in the MBE PQs that are nuanced and you only find the answers after digging through outlines, looking at other sources, etc. This is the response I got: As you get deeper into your MBE practice with Themis, you'll be seeing some more difficult questions testing these finer nuances. Since the MBE itself is comprised of only 200 questions, know that not all 200 will be like this. Many might seem simpler than much of the practice you've done, and some will be on par with these nuances and some will be right in the middle. Be sure that you have a good grasp on the big concepts (particularly what's discussed in the MBE workshop lectures) and aware that you will see some harder, more nuanced rules tested. However, those will likely not be the bulk of the exam!

[Bass]

1st question on criminal procedure, Criminal Procedure Practice Essay (ID 3574):

[+] Spoiler

Text:

If, after consideration of all the evidence presented by the prosecution and defense, you find beyond a reasonable doubt that the defendant entered the dwelling without the owners’ consent, you may presume that the defendant entered with the intent to commit a felony therein.

Question:

Did the trial court err in its instruction to the jury on the burglary charge? Explain.

Answer:

The Due Process Clause requires that the prosecution prove all of the elements of the case beyond a reasonable doubt. A mandatory presumption regarding an element of an offense violates the due-process requirement. This could include either a conclusive presumption that cannot be rebutted (which would relieve the prosecution of having to prove an element of their case) or a rebuttable mandatory presumption (which shifts the burden of proof regarding the element of the offense). In this case, the crime of burglary requires that the defendant entered another’s dwelling “with the intent to commit a felony therein.” Because this is an element of the burglary offense, the burden is on the prosecution to prove the defendant’s intent beyond a reasonable doubt. The court’s jury instruction contains a mandatory presumption that the defendant intended to commit a felony while inside the house. This instruction violates the Due Process Clause because it relieves the prosecution from proving this element. Therefore, the instruction violated the Due Process Clause.

How could this be a form of mandatory presumption when the instructions to jury states "you may presume"??

2nd question: Are rebuttable presumptions completed prohibited in criminal statutes? Themis Criminal Procedure outline on page 51 states:

[+] Spoiler

A mandatory presumption regarding an element of an offense violates the due-process requirement. Sandstrom v. Montana, 442 U.S. 510, 522 (1979) (jury instruction that a person intends the ordinary consequences of his voluntary acts constituted a mandatory presumption when the crime—deliberate homicide—required proof of intent). This could include either a conclusive presumption that cannot be rebutted (which would relieve the prosecution of having to prove an element of their case), or a rebuttable mandatory presumption (which shifts the burden of proof regarding the element of the offense). To the extent that these presumptions require the trier of fact to accept a fact as proving an element of the crime and disallow the trier of fact from rejecting it, or shift the burden of an element to the defense, they are unconstitutional. County Court, 442 U.S. at 159; Sandstrom, 442 U.S. at 524.

But rebuttable presumptions shift the burden to the defense to disprove it. or does it not?

Help very much appreciated

[bmmccb223]

1st question on criminal procedure, Criminal Procedure Practice Essay (ID 3574):

[+] Spoiler

Text:

If, after consideration of all the evidence presented by the prosecution and defense, you find beyond a reasonable doubt that the defendant entered the dwelling without the owners’ consent, you may presume that the defendant entered with the intent to commit a felony therein.

Question:

Did the trial court err in its instruction to the jury on the burglary charge? Explain.

Answer:

The Due Process Clause requires that the prosecution prove all of the elements of the case beyond a reasonable doubt. A mandatory presumption regarding an element of an offense violates the due-process requirement. This could include either a conclusive presumption that cannot be rebutted (which would relieve the prosecution of having to prove an element of their case) or a rebuttable mandatory presumption (which shifts the burden of proof regarding the element of the offense). In this case, the crime of burglary requires that the defendant entered another’s dwelling “with the intent to commit a felony therein.” Because this is an element of the burglary offense, the burden is on the prosecution to prove the defendant’s intent beyond a reasonable doubt. The court’s jury instruction contains a mandatory presumption that the defendant intended to commit a felony while inside the house. This instruction violates the Due Process Clause because it relieves the prosecution from proving this element. Therefore, the instruction violated the Due Process Clause.

How could this be a form of mandatory presumption when the instructions to jury states "you may presume"??

2nd question: Are rebuttable presumptions completed prohibited in criminal statutes? Themis Criminal Procedure outline on page 51 states:

[+] Spoiler

A mandatory presumption regarding an element of an offense violates the due-process requirement. Sandstrom v. Montana, 442 U.S. 510, 522 (1979) (jury instruction that a person intends the ordinary consequences of his voluntary acts constituted a mandatory presumption when the crime—deliberate homicide—required proof of intent). This could include either a conclusive presumption that cannot be rebutted (which would relieve the prosecution of having to prove an element of their case), or a rebuttable mandatory presumption (which shifts the burden of proof regarding the element of the offense). To the extent that these presumptions require the trier of fact to accept a fact as proving an element of the crime and disallow the trier of fact from rejecting it, or shift the burden of an element to the defense, they are unconstitutional. County Court, 442 U.S. at 159; Sandstrom, 442 U.S. at 524.

But rebuttable presumptions shift the burden to the defense to disprove it. or does it not?

Help very much appreciated

As a rule of thumb, a presumption with respect to a material element of a criminal offense is almost always invalid. The only time such a presumption is permitted is when a judge instructs the jury: "you may BUT ARE NOT REQUIRED to find that (Presumption)." The "you are not required to" language is critical; otherwise, the jury might interpret the judge to mean that the presumption is mandatory, which would violate Due Process.

[cdemps3]

Is anyone taking North Carolina? I'm from out-of-state and I don't know anyone taking it. PM me if you want to swap questions.

[almaz]

Also, I wish there was a way to know if Themis really does make their questions harder than the actual exam questions will be

I bought the Emmanuel book with ~600 real MBE questions. They are definitely easier. My scores have been better than my Themis average in every subject. The nuances are tested but not nearly as frequently as the Themis PQ sets.

[robin600]

Mixed MBE set #3 just kicked my a$$. 56%