BarBri - NY Exam - July 2014 Forum

[Sogui]

I'm using Themis but figured this was the most applicable thread for me.

I've been cramming my bar prep and as a result I've spent the last 2 weeks almost completely on taking MBE lectures+practice questions.

Only occasionally do I get diverted into a NY practice question. While MBE's can usually "trigger" my knowledge on the subject since the explanations are included in most answers, I'm extremely nervous about going into the essay questions on Tuesday. In my practice essays I routinely forget the name of the rule and usually 1-2 of the non-essential elements. Worse still, I haven't come back to many of those NY-specific subjects in 2-3 weeks (like Family Law) since I've been cramming the MBE subjects.

Long story short I feel like I can only fully recall a handful of important NY laws/distinctions and my only strategy going in is "IRAC".
I have 24hrs to rectify that. How can I get the most bang for my buck preparing for the NY essays?

Read the handouts on Wills/Corp/Domestic relations/NY Practice

None of those are from MBE stuff and all will be on essays most likely. You need to be familiar with those topics at least broadly

The other others like Prof Respo and Fed Jurisdiction you can guess if you not familiar

And among those I think the priority is Wills and Corporations. Its hard to guess some of the intestacy rules or elective share stuff. Same with corporations. Domestic relations since its all so wishy-washy "best interest of the child" I think is a bit simpler. And frequently there is an entire essay on just wills or just corporations.

With NY practice, glance over the statutes of limitations, but you can always guess what the limitation is. Also, the questions tend to hind at it, by the dates they give you. Like if the SoL is 3 years, the dates will either be 2 years 11 months or 3 years 1 month. I think NY practice comes up a lot in the MC, and frequently in the essays but is usually a minor point. Then, as mentioned earlier in the thread, review the requirements for preliminary injunctions. I think those two things are the most tested NY practice topics.

Thanks for the SoL tip, I hadn't really considered that since my current approach to most SoL issues is "panic".

I'll start with those handouts first, I'm a little freaked out that stuff I studied for hours on end is now barely recall-able less than a month later.

What is everyone's opinion on prep'ing for Crim Law/Procedure. It's probably my weakest MBE topic because I keep interchanging NY distinctions and I'm sure I'll have the same problem on an essay question.

[thetashster]

Now I'm really tempted to see if I can buy a NY edition. I need to just reassure myself that we all studied really hard and we're all okay. Just IRAC! Be confident!

yeah it's 17 dollars for kindle on amazon. i'm considering getting that one too haha

[turquoiseturtle]

I'm using Themis but figured this was the most applicable thread for me.

I've been cramming my bar prep and as a result I've spent the last 2 weeks almost completely on taking MBE lectures+practice questions.

Only occasionally do I get diverted into a NY practice question. While MBE's can usually "trigger" my knowledge on the subject since the explanations are included in most answers, I'm extremely nervous about going into the essay questions on Tuesday. In my practice essays I routinely forget the name of the rule and usually 1-2 of the non-essential elements. Worse still, I haven't come back to many of those NY-specific subjects in 2-3 weeks (like Family Law) since I've been cramming the MBE subjects.

Long story short I feel like I can only fully recall a handful of important NY laws/distinctions and my only strategy going in is "IRAC".
I have 24hrs to rectify that. How can I get the most bang for my buck preparing for the NY essays?

Read the handouts on Wills/Corp/Domestic relations/NY Practice

None of those are from MBE stuff and all will be on essays most likely. You need to be familiar with those topics at least broadly

The other others like Prof Respo and Fed Jurisdiction you can guess if you not familiar

And among those I think the priority is Wills and Corporations. Its hard to guess some of the intestacy rules or elective share stuff. Same with corporations. Domestic relations since its all so wishy-washy "best interest of the child" I think is a bit simpler. And frequently there is an entire essay on just wills or just corporations.

With NY practice, glance over the statutes of limitations, but you can always guess what the limitation is. Also, the questions tend to hind at it, by the dates they give you. Like if the SoL is 3 years, the dates will either be 2 years 11 months or 3 years 1 month. I think NY practice comes up a lot in the MC, and frequently in the essays but is usually a minor point. Then, as mentioned earlier in the thread, review the requirements for preliminary injunctions. I think those two things are the most tested NY practice topics.

Thanks for the SoL tip, I hadn't really considered that since my current approach to most SoL issues is "panic".

I'll start with those handouts first, I'm a little freaked out that stuff I studied for hours on end is now barely recall-able less than a month later.

What is everyone's opinion on prep'ing for Crim Law/Procedure. It's probably my weakest MBE topic because I keep interchanging NY distinctions and I'm sure I'll have the same problem on an essay question.

I don't have a great suggestion for Crim Law. Despite our incredibly long discussion earlier on homicide, there aren't too many Crim Law distinctions I think. Basically remember that 1. for accomplice/conspiracy liability, you can't be convicted just on a co-party's testimony, 2. there's no pinkerton liability for conspirators, and 3. that four part defense to felony murder. I think those are the three most commonly tested distinctions I've seen, but other people can jump in!

My suggestion for Crim Procedure is to just add a tiny bit more protection for your rights than on the MBE. Like, with search incident to arrest, generally you get a search. In NY, only get a search if the cop reasonably fears you are armed. On the MBE you get a lawyer if you actually request one, in NY if they know you have a lawyer, they can't question you and you can't waive representation outside their presence.

[middlemarch]

Does anyone know if mechanical pencils are allowed on the NY portion of the bar exam? I know they say No. 2 pencils, pens (black and blue ink) are allowed, but the security policy is ambiguous.

[thetashster]

Does anyone know if mechanical pencils are allowed on the NY portion of the bar exam? I know they say No. 2 pencils, pens (black and blue ink) are allowed, but the security policy is ambiguous.

there's some question as to this.

i'd say err on the side of caution and just use regular pencils. you can try bringing one in the first day, and if they say it's cool just use them exclusively for the MBE. but i've read they're not allowed. and they definitely weren't for the MPRE.

[TrustMeI'mAnActress]

I need to give a shout out to Tash for being the nicest, most helpful person ever! The sheer amount you've helped people while I've frequented this forum over the past few days is unbelievable. Good karma deserves to come your way, girl!

[encore1101]

I don't have a great suggestion for Crim Law. Despite our incredibly long discussion earlier on homicide, there aren't too many Crim Law distinctions I think. Basically remember that 1. for accomplice/conspiracy liability, you can't be convicted just on a co-party's testimony, 2. there's no pinkerton liability for conspirators, and 3. that four part defense to felony murder. I think those are the three most commonly tested distinctions I've seen, but other people can jump in!

My suggestion for Crim Procedure is to just add a tiny bit more protection for your rights than on the MBE. Like, with search incident to arrest, generally you get a search. In NY, only get a search if the cop reasonably fears you are armed. On the MBE you get a lawyer if you actually request one, in NY if they know you have a lawyer, they can't question you and you can't waive representation outside their presence.

1. Duress is a defense to homicide in NY.
2. In NY, if a family member calls the police precinct on the defendant's behalf and informs them that the defendant is represented, questioning must cease, as the defendant's "indelible right to counsel" has attached. Under the federal standard, police are not required to cease questioning unless the defendant himself invokes his right to remain silent/to an attorney.

[TrustMeI'mAnActress]

These NY distinctions are super helpful! Maybe we can start throwing out our favorite MBE/NY distinctions (or just ones that stick out...haha)

[Guchster]

I don't have a great suggestion for Crim Law. Despite our incredibly long discussion earlier on homicide, there aren't too many Crim Law distinctions I think. Basically remember that 1. for accomplice/conspiracy liability, you can't be convicted just on a co-party's testimony, 2. there's no pinkerton liability for conspirators, and 3. that four part defense to felony murder. I think those are the three most commonly tested distinctions I've seen, but other people can jump in!

My suggestion for Crim Procedure is to just add a tiny bit more protection for your rights than on the MBE. Like, with search incident to arrest, generally you get a search. In NY, only get a search if the cop reasonably fears you are armed. On the MBE you get a lawyer if you actually request one, in NY if they know you have a lawyer, they can't question you and you can't waive representation outside their presence.

1. Duress is a defense to homicide in NY.
2. In NY, if a family member calls the police precinct on the defendant's behalf and informs them that the defendant is represented, questioning must cease, as the defendant's "indelible right to counsel" has attached. Under the federal standard, police are not required to cease questioning unless the defendant himself invokes his right to remain silent/to an attorney.

Q on indelible right to counsel. You can only invoke though if you're in custody and overwhelmed (in addition to the post-arraignment, indictment situations), right?

[encore1101]

Q on indelible right to counsel. You can only invoke though if you're in custody and overwhelmed (in addition to the post-arraignment, indictment situations), right?

The right to counsel attaches when (1) you're in custody for a criminal matter and request the presence of an attorney or a lawyer enters the case; or (2) criminal proceedings have been initiated against the Defendant (filing of accusatory instrument). I'm not sure what you mean by "overwhelmed," but custody+invocation is enough to trigger the right to counsel. From a practical standpoint, you might not get one because there's not one available, but for purposes of CrimPro, that means that they can't question you until they provide one.

[Guchster]

Q on indelible right to counsel. You can only invoke though if you're in custody and overwhelmed (in addition to the post-arraignment, indictment situations), right?

The right to counsel attaches when (1) you're in custody for a criminal matter and request the presence of an attorney or a lawyer enters the case; or (2) criminal proceedings have been initiated against the Defendant (filing of accusatory instrument). I'm not sure what you mean by "overwhelmed," but custody+invocation is enough to trigger the right to counsel. From a practical standpoint, you might not get one because there's not one available, but for purposes of CrimPro, that means that they can't question you until they provide one.

No, my question is specifically on indelible right to counsel (see page 5 of the crimpro distinctions)--also check your lecture handout notes, which requires the defendant to be overwhelmed. In what situations would you invoke it instead of the Fifth Amendment right to counsel then?

You're right on 5th Amendment grounds of right to counsel though.

[PennBull]

Keep in mind there are two separate rights to counsel, fifth amendment and sixth amendment

Fifth amendment just concerns the procedure for when/how to invoke the right

Sixth is simply when they need to respect your right to have one, period, and this is where NY has the higher "indelible right" standard

[Guchster]

Keep in mind there are two separate rights to counsel, fifth amendment and sixth amendment

Fifth amendment just concerns the procedure for when/how to invoke the right

Sixth is simply when they need to respect your right to have one, period, and this is where NY has the higher "indelible right" standard

Be very careful not to mix indelible right to counsel though with the Sixth Amendment right to counsel and Fifth Amendment right to counsel.

New York’s indelible right to counsel is based not on the fifth or sixth amendment of the federal constitution, but on New York State Constitution Article 1 Section 6.

[Guchster]

check out july 2005, question 26, issue 3.

[PennBull]

"Overwhelming" is just a weird gray area where it's not explicitly neat into a "custody" definition

Don't worry about it; just mention it in a rule statement to cop that half point and talk instead about whether the perp has the right

The bar exam is not going to ask you a question where the perp would have the right to counsel in NY but not for 6th amendment

[PennBull]

Keep in mind there are two separate rights to counsel, fifth amendment and sixth amendment

Fifth amendment just concerns the procedure for when/how to invoke the right

Sixth is simply when they need to respect your right to have one, period, and this is where NY has the higher "indelible right" standard

Be very careful not to mix indelible right to counsel though with the Sixth Amendment right to counsel and Fifth Amendment right to counsel.

New York’s indelible right to counsel is based not on the fifth or sixth amendment of the federal constitution, but on New York State Constitution Article 1 Section 6.

Haha oh well

[turquoiseturtle]

I don't have a great suggestion for Crim Law. Despite our incredibly long discussion earlier on homicide, there aren't too many Crim Law distinctions I think. Basically remember that 1. for accomplice/conspiracy liability, you can't be convicted just on a co-party's testimony, 2. there's no pinkerton liability for conspirators, and 3. that four part defense to felony murder. I think those are the three most commonly tested distinctions I've seen, but other people can jump in!

My suggestion for Crim Procedure is to just add a tiny bit more protection for your rights than on the MBE. Like, with search incident to arrest, generally you get a search. In NY, only get a search if the cop reasonably fears you are armed. On the MBE you get a lawyer if you actually request one, in NY if they know you have a lawyer, they can't question you and you can't waive representation outside their presence.

1. Duress is a defense to homicide in NY.
2. In NY, if a family member calls the police precinct on the defendant's behalf and informs them that the defendant is represented, questioning must cease, as the defendant's "indelible right to counsel" has attached. Under the federal standard, police are not required to cease questioning unless the defendant himself invokes his right to remain silent/to an attorney.

Q on indelible right to counsel. You can only invoke though if you're in custody and overwhelmed (in addition to the post-arraignment, indictment situations), right?

I'm most unclear about whether it applies when you're arrested for A and they know you're represented for A, can they question you about B? I swear I've seen totally conflicting information about this. A quick google also did not help me, I saw different information on different websites.

[Guchster]

"Overwhelming" is just a weird gray area where it's not explicitly neat into a "custody" definition

Don't worry about it; just mention it in a rule statement to cop that half point and talk instead about whether the perp has the right

The bar exam is not going to ask you a question where the perp would have the right to counsel in NY but not for 6th amendment

Perfect. I think that makes sense. It looks like they like to test indelible right to counsel to see if you know whether or not it matters if the D is in custody to begin with (and not so much the 'overwhelming' circumstances).

[thetashster]

I need to give a shout out to Tash for being the nicest, most helpful person ever! The sheer amount you've helped people while I've frequented this forum over the past few days is unbelievable. Good karma deserves to come your way, girl!

wow. thank you so much! this totally just made my week! i'm glad i could be of some help... and you all have been great company throughout this less-than-savory existence.

[turquoiseturtle]

Keep in mind there are two separate rights to counsel, fifth amendment and sixth amendment

Fifth amendment just concerns the procedure for when/how to invoke the right

Sixth is simply when they need to respect your right to have one, period, and this is where NY has the higher "indelible right" standard

Be very careful not to mix indelible right to counsel though with the Sixth Amendment right to counsel and Fifth Amendment right to counsel.

New York’s indelible right to counsel is based not on the fifth or sixth amendment of the federal constitution, but on New York State Constitution Article 1 Section 6.

Haha oh well

I wouldn't worry too terribly much about this distinction though. 5th/6th Amendment questions and NY's indelible right always come up together in the essays. Pretty much the distinction that they test on is almost always that in NY you cannot waive the right to an attorney outside the presence of your attorney once you have one. This is not true on the MBE. So thats usually what they test.

[encore1101]

Q on indelible right to counsel. You can only invoke though if you're in custody and overwhelmed (in addition to the post-arraignment, indictment situations), right?

The right to counsel attaches when (1) you're in custody for a criminal matter and request the presence of an attorney or a lawyer enters the case; or (2) criminal proceedings have been initiated against the Defendant (filing of accusatory instrument). I'm not sure what you mean by "overwhelmed," but custody+invocation is enough to trigger the right to counsel. From a practical standpoint, you might not get one because there's not one available, but for purposes of CrimPro, that means that they can't question you until they provide one.

No, my question is specifically on indelible right to counsel (see page 5 of the crimpro distinctions)--also check your lecture handout notes, which requires the defendant to be overwhelmed. In what situations would you invoke it instead of the Fifth Amendment right to counsel then?

You're right on 5th Amendment grounds of right to counsel though.

I see the outline, but I'm reading a few cases from the 2nd Dept (aww yiis, Queens) and from the Court of Appeals, but none of them mention that the Sixth Amendment right to counsel (or its NY counterpart) can attach before the initiation of criminal proceedings..

[thetashster]

Q on indelible right to counsel. You can only invoke though if you're in custody and overwhelmed (in addition to the post-arraignment, indictment situations), right?

The right to counsel attaches when (1) you're in custody for a criminal matter and request the presence of an attorney or a lawyer enters the case; or (2) criminal proceedings have been initiated against the Defendant (filing of accusatory instrument). I'm not sure what you mean by "overwhelmed," but custody+invocation is enough to trigger the right to counsel. From a practical standpoint, you might not get one because there's not one available, but for purposes of CrimPro, that means that they can't question you until they provide one.

No, my question is specifically on indelible right to counsel (see page 5 of the crimpro distinctions)--also check your lecture handout notes, which requires the defendant to be overwhelmed. In what situations would you invoke it instead of the Fifth Amendment right to counsel then?

You're right on 5th Amendment grounds of right to counsel though.

I see the outline, but I'm reading a few cases from the 2nd Dept (aww yiis, Queens) and from the Court of Appeal, but none of them mention that the Sixth Amendment right to counsel (or its NY counterpart) can attach before the initiation of criminal proceedings..

5th amendment: attaches when you're miranda-d (feel like you're being interrogated, ie don't feel free to leave and police think they can elicit a criminalizing statement)
6th amendment: attaches when you've been CHARGED and is OFFENSE SPECIFIC
indelible right to counsel: whenever significant judicial activity AND
i. If ∆ in custody and police aware he is represented by counsel on that charge, may NOT question him about that charge OR any other matter without attorney present
ii. If ∆ is represented by counsel, waiver of indelible right to counsel must take place in presence of the attorney

[Guchster]

Didn't meant to start a indelible counsel fight.

Based on a quick scan of the essays and answers of past bar exams, it looks like these are the important points:

1. It only attaches when D is in custody/arraigned/or involved in situations where the Sixth Amendment right to counsel would also attach.
2. Unlike Federal rights, once the above happens, the D himself doesn't have to ask for it--someone else can on his behalf (parent or legal guardian for a child, police have it in their records he has an attorney, attorney shows up before he's questioned but after he's brought in)
3. D can only waive it, if the police knows he's represented, IN THE PRESENCE of the attorney.
*4. The most tested point. Once D is released and later re-arrested for an unrelated charge (passes Blockburger), waiver can be made without the presence of counsel.

[turquoiseturtle]

Didn't meant to start a indelible counsel fight.

Based on a quick scan of the essays and answers of past bar exams, it looks like these are the important points:

1. It only attaches when D is in custody/arraigned/or involved in situations where the Sixth Amendment right to counsel would also attach.
2. Unlike Federal rights, once the above happens, the D himself doesn't have to ask for it--someone else can on his behalf (parent or legal guardian for a child, police have it in their records he has an attorney, attorney shows up before he's questioned but after he's brought in)
3. D can only waive it, if the police knows he's represented, IN THE PRESENCE of the attorney.
*4. The most tested point. Once D is released and later re-arrested for an unrelated charge (passes Blockburger), waiver can be made without the presence of counsel.

Thanks, 4 is what I was most confused on. Do you know any essays that tested this point specifically?

[Guchster]

Didn't meant to start a indelible counsel fight.

Based on a quick scan of the essays and answers of past bar exams, it looks like these are the important points:

1. It only attaches when D is in custody/arraigned/or involved in situations where the Sixth Amendment right to counsel would also attach.
2. Unlike Federal rights, once the above happens, the D himself doesn't have to ask for it--someone else can on his behalf (parent or legal guardian for a child, police have it in their records he has an attorney, attorney shows up before he's questioned but after he's brought in)
3. D can only waive it, if the police knows he's represented, IN THE PRESENCE of the attorney.
*4. The most tested point. Once D is released and later re-arrested for an unrelated charge (passes Blockburger), waiver can be made without the presence of counsel.

Thanks, 4 is what I was most confused on. Do you know any essays that tested this point specifically?

Question 26 of Barbri (or Question 2 of July 2005 http://www.nybarexam.org/ExamQuestions/JUL2005QA.pdf)

Issue Number 3