July 2015 California Bar Exam Forum

[hopefulIPgirl]

Is consent considered an element of a rape crime or a defense? Themis says consent is a defense even when the statute says "without consent."

This is the 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."

[Raiden]

I am more worried about Remedies, Trusts, wills, community property...the lack of exposure to them on MBE makes the topics seem so foreign. Need to memorize these rules asap.

[robinhoodOO]

Is consent considered an element of a rape crime or a defense? Themis says consent is a defense even when the statute says "without consent."

This is the 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."

Lack of consent is an element of the prosecutor's case in chief; thus, Prosecutor must prove lack of consent (or Victim unable to provide consent because she/he was sleeping or intoxicated) beyond a reasonable doubt.

Further, if there is a defense (i.e. ED), the burden of proving the defense is on the defendant, usually by preponderance standard.

[hopefulIPgirl]

Is consent considered an element of a rape crime or a defense? Themis says consent is a defense even when the statute says "without consent."

This is the 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."

Lack of consent is an element of the prosecutor's case in chief; thus, Prosecutor must prove lack of consent (or Victim unable to provide consent because she/he was sleeping or intoxicated) beyond a reasonable doubt.

Further, if there is a defense (i.e. ED), the burden of proving the defense is on the defendant, usually by preponderance standard.

That's what I thought, but the Themis answer to this MBE was that the court's instruction that the burden of persuasion re. the the woman being his wife was a violation of the constitutional rights because that was an element of the crime, but the court's instruction re. the consent was constitutional since the burden is on the defendant since he was raising the defense. Maybe this is one of those burden of proof/burden of persuasion distinctions that I usually gloss over.

[SpAcEmAn SpLiFF]

Anyone remember what the predicted essay topics were? I think they were posted somewhere on this forum, but I can't find them now.

[BuenAbogado]

Anyone remember what the predicted essay topics were? I think they were posted somewhere on this forum, but I can't find them now.

Remedies
Contracts
Partnerships
Torts
California Civ Pro
And then probably another Remedies question

[Tiago Splitter]

Anyone remember what the predicted essay topics were? I think they were posted somewhere on this forum, but I can't find them now.

For those curious, the actual predictions according to Prof. Heilman are:
(1) Professional Responsibility
(2) Criminal Law & Procedure
(3) Community Property
(4) Constitutional Law
(5) Evidence
(6) Torts

"Possible" topics are:
(a) Real Property
(b) Business Associations
(c) Civil Procedure

"Unlikely" topics are:
(a) Contracts
(b) Wills & Trusts
(c) Remedies

Hmm... interesting.. Pretty sure that other dude with the YouTube predictions predicted Wills/Trusts to be on it.

Ya, Youtube guy was predicting a CP/Wills or Trusts crossover.

I also read someone saying they've been testing remedies so hard, he wouldn't be surprised to see another heavy remedies essay or 2

This is from One-Timers on their Facebook page:


"One-Timers Personal Bar Review Course
July 14 at 7:11pm · Edited ·
One-Timers Predictions for the July 2015 California Bar Exam

CA Civil Procedure (Pleadings, Erie, Diversity, Choice of Law)
Criminal Law (Murder, Voluntary Manslaughter, Self-Defense, Accomplice)
Real Property (Easements, Landlord-Tenant, Notice, Recording Statute)
CA Evidence (Standard Evidence issues)
Con Law (Presidential Powers, Congressional Powers, Dormant Commerce Clause)
P.R. (Fees, Conflicting of Interest, Sex with a Client, Duty to Communicate)

The examiners will not test on Trusts, Remedies, or Contracts. You can take that to the bank$"

CA evidence and CA civ pro is just not cool on the same exam.

I feel like we've got it pretty well nailed down.

[sopranorleone]

I would give my first born not to have an essay on CA civ pro

[brotherdarkness]

I would give my first born not to have an essay on CA civ pro

On the other hand, no one is prepared for this essay -- no one thinks we'll be tested on it. So if we do get tested on it, I imagine the scaling would benefit us much more than it would on an essay that most people besides you were prepared for (such as professional responsibility).

[Tiago Splitter]

I would give my first born not to have an essay on CA civ pro

On the other hand, no one is prepared for this essay -- no one thinks we'll be tested on it. So if we do get tested on it, I imagine the scaling would benefit us much more than it would on an essay that most people besides you were prepared for (such as professional responsibility).

Tell me more about this scaling

[brotherdarkness]

I would give my first born not to have an essay on CA civ pro

On the other hand, no one is prepared for this essay -- no one thinks we'll be tested on it. So if we do get tested on it, I imagine the scaling would benefit us much more than it would on an essay that most people besides you were prepared for (such as professional responsibility).

Tell me more about this scaling

I have no idea. All I know is that the Barbri book talks about "scaled" essay scores, so I assume essays are scaled. I assume that the scaling is on a curve, rather than some completely arbitrary metric. I'm just drawing what seems to be the logical conclusion: no one is prepared for CA Civ Pro, if we get tested on CA Civ Pro it will be a complete shitshow, and thus it makes sense that a more "generous" curve would be applied.

But these are all assumptions, and I know as little as anyone else. This is just what I tell myself when I spend another day ignoring CA Civ Pro.

[Tiago Splitter]

I feel the same way about CA Civ Pro. Like maybe if we just answer using only Fed Civ Pro stuff we'll be able to pretend like we just didn't happen to see the "California" part of the question at the end.

I've heard about the scaling but other posters who haven't passed have posted their scores and they just get the regular number you'd expect like 55 or 60 or whatever. So obviously the raw score stays there but maybe there's some kind of bump when they add it all up. Wasn't sure if anyone knows how that works.

[sopranorleone]

I would give my first born not to have an essay on CA civ pro

On the other hand, no one is prepared for this essay -- no one thinks we'll be tested on it. So if we do get tested on it, I imagine the scaling would benefit us much more than it would on an essay that most people besides you were prepared for (such as professional responsibility).

Tell me more about this scaling

I have no idea. All I know is that the Barbri book talks about "scaled" essay scores, so I assume essays are scaled. I assume that the scaling is on a curve, rather than some completely arbitrary metric. I'm just drawing what seems to be the logical conclusion: no one is prepared for CA Civ Pro, if we get tested on CA Civ Pro it will be a complete shitshow, and thus it makes sense that a more "generous" curve would be applied.

But these are all assumptions, and I know as little as anyone else. This is just what I tell myself when I spend another day ignoring CA Civ Pro.

I hear you, and that all makes sense, just...a CA civ pro essay would suck so much. At least I find some other topics somewhat interesting

[sopranorleone]

I feel the same way about CA Civ Pro. Like maybe if we just answer using only Fed Civ Pro stuff we'll be able to pretend like we just didn't happen to see the "California" part of the question at the end.

I've heard about the scaling but other posters who haven't passed have posted their scores and they just get the regular number you'd expect like 55 or 60 or whatever. So obviously the raw score stays there but maybe there's some kind of bump when they add it all up. Wasn't sure if anyone knows how that works.

This actually might be my strategy: write only about Fed civ pro, and then write at the very end, "Just noticed this question called for CA civ pro. There are several differences between CA and federal civil procedure, such as..." and then list the like 2 things I know are different.

[brotherdarkness]

I'm as in the dark as anyone else. Idk what a passing essay looks like and idk what a failing essay looks like. I hope mine fall in the former category, but there's no way to tell. Barbri's sample answers aren't representative. The ones on the CA Bar website seem reasonable (like, I think I could do something similar), but they don't tell us what scores those received (are they examples of 65s, or 90s?). A failing essay could be something just shy of those, or something far worse.

[TitoSantana]

Listen, I passed NY 8 years ago and just passed February's exam and the advice I can give you all is to put the books away and take a nap. It's not worth it. This exam is for the birds. But if you feel the need to study on, I predict a second amendment question and one on maritime law. And don't forget to cover commercial paper.

[Tiago Splitter]

Was a huge Tito Santana fan growing up. Thanks for the reality check dude.

[redblueyellow]

I feel the same way about CA Civ Pro. Like maybe if we just answer using only Fed Civ Pro stuff we'll be able to pretend like we just didn't happen to see the "California" part of the question at the end.

I've heard about the scaling but other posters who haven't passed have posted their scores and they just get the regular number you'd expect like 55 or 60 or whatever. So obviously the raw score stays there but maybe there's some kind of bump when they add it all up. Wasn't sure if anyone knows how that works.

This actually might be my strategy: write only about Fed civ pro, and then write at the very end, "Just noticed this question called for CA civ pro. There are several differences between CA and federal civil procedure, such as..." and then list the like 2 things I know are different.

Fact pleading and primary rights.

Also, some of the deadlines are different.

Also, CA has demurrers.

Lolz, I got 4 things.

[redblueyellow]

According to FRCP 48(b) - "Verdict. Unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least 6 members."

Is a unanimous jury in Fed Courts in criminal and civil cases required?

I know state courts can be all over the place for civil and crim as long as it's a majority.

[Tiago Splitter]

According to FRCP 48(b) - "Verdict. Unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least 6 members."

Is a unanimous jury in Fed Courts in criminal and civil cases required?

I know state courts can be all over the place for civil and crim as long as it's a majority.

yeah fed requires unanimous but it's not a constitutional thing

[brotherdarkness]

According to FRCP 48(b) - "Verdict. Unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least 6 members."

Is a unanimous jury in Fed Courts in criminal and civil cases required?

I know state courts can be all over the place for civil and crim as long as it's a majority.

FRCP requires unanimity in all civil.

Criminal law requires unanimity if 6 jurors and majority if 12. No idea what happens if there are 7, 8, 9, 10, or 11 jurors tho...

[Tiago Splitter]

According to FRCP 48(b) - "Verdict. Unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least 6 members."

Is a unanimous jury in Fed Courts in criminal and civil cases required?

I know state courts can be all over the place for civil and crim as long as it's a majority.

FRCP requires unanimity in all civil.

Criminal law requires unanimity if 6 jurors and majority if 12. No idea what happens if there are 7, 8, 9, 10, or 11 jurors tho...

The constitution doesn't require that it be unanimous even in criminal cases. Just has to be unanimous if six. I think the only weird ones SCOTUS has upheld are 9-3 and 10-2

[redblueyellow]

Ya'll two want to make up your minds? Lol.

Can't be both!

EDIT: Alright discussions are likely abound.

[brotherdarkness]

According to FRCP 48(b) - "Verdict. Unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least 6 members."

Is a unanimous jury in Fed Courts in criminal and civil cases required?

I know state courts can be all over the place for civil and crim as long as it's a majority.

FRCP requires unanimity in all civil.

Criminal law requires unanimity if 6 jurors and majority if 12. No idea what happens if there are 7, 8, 9, 10, or 11 jurors tho...

The constitution doesn't require that it be unanimous even in criminal cases. Just has to be unanimous if six. I think the only weird ones SCOTUS has upheld are 9-3 and 10-2

Ok so unanimous in all civil, and unanimous in criminal only if 6 jurors?

[Tiago Splitter]

Ok so unanimous in all civil, and unanimous in criminal only if 6 jurors?

No it always has to be unanimous in the federal courts (both civil and criminal). That's a rule, not a constitutional requirement. But if it's in state court the Seventh amendment just requires 6 votes.