California Bar Exam: Model Answer Criminal Law/First Amendment Essay

November 18, 2007

Here is a model answer for Question 4 from the July 2007 bar exam.

Please note, the following exam answer is published by Bar None Review. You may not re-publish this model answer without written permission from Bar None Review.

1. May Dan be found guilty of the crime of murder or any lesser-included offense?

A homicide is an unlawful killing of another. Here, Dan’s actions (setting a copy of the Declaration of Independence on fire) caused the death of a pedestrian. Therefore, Dan committed a homicide.

Under the Common Law, a murder is the unlawful killing of another with malice aforethought. Malice aforethought is prove in the following ways:

1. Intent to kill;
2. Intent to inflict serious bodily injury;
3. Wantonness or reckless disregard for human life; or
4. FMR (when a killing occurs during the commission of an inherently dangerous felony)

Here, Dan did not intend to kill anyone. Instead, he intended to burn a copy of the U.S. Constitution. The facts state that Dan “involuntarily” let the burning document go when the flames began to burn his hand. This does not evidence any intent on Dan’s part to kill.

However, the government might argue that Dan acted with a reckless disregard for human life since he was burning parchment in a public place where pedestrians are likely to be. The State may further argue that Dan was reckless in burning paper near a construction site. Construction sites are known to have scrap pieces of wood and other items that could be highly flammable. In this case, the construction site had an open drum of flammable liquid. While it may seem unlikely that a construction company would leave flammable liquids in an open drum, it is certainly likely that a construction site could have flammable items on site. Therefore, the State might succeed on this argument.

The State could try to prove that Dan is guilty of felony murder. A felony murder is a killing that occurs during the commission of an inherently dangerous felony. The inherently dangerous felonies include: burglary, arson, robbery, rape, kidnapping and sodomy. Here, the only viable basis for felony murder would be that Dan somehow committed arson. Under the Common Law, arson is the malicious burning of the dwelling house of another. Modernly, however, any structure (four walls and a ceiling) will suffice. The problem here is that the facts make no mention of any structure. While there is a drum – it is an “open drum” and therefore could not be construed as a structure under the modern definition of arson.

Therefore the only way that Dan could be found guilty of murder is if the State can prove that Dan’s conduct of burning the document in a public place, near a construction site and pedestrians, amounts to a reckless disregard for hum life. If so, then Dan will be guilty of murder.


First-degree murder is any murder that is committed with premeditation and deliberation. Most jurisdictions classify felony murder as a first-degree offense. However, here Dan did not premeditate or deliberate. He “involuntarily” dropped the burning document. In addition, unless the killing was committed during the commission of an inherently dangerous felony, Dan will not be convicted of first-degree murder.

All murders that are not first degree, are second-degree murder unless mitigated down to some form of manslaughter.

There are two types of manslaughter – voluntary and involuntary. If the death results from criminal negligence then the killing is considered involuntary manslaughter. Here, the State may successfully argue that it was criminally negligent to light a document on fire on a windy day near a construction site and where pedestrians are likely to be nearby. If the State meets its burden, then Dan could be found guilty of involuntary manslaughter.

State may also successfully argue that since the killing occurred during the commission of a misdemeanor, that Dan is guilty of misdemeanor manslaughter.

CRIME OF ATTEMPT (attempt to burn copy of U.S. Constitution)
Here, Dan thought that he was burning a copy of the U.S. Constitution. Instead he actually burned a copy of the Declaration of Independence. Dan will argue mistake of fact. However, a mistake of fact will only work as a defense to criminal guilt if the mistake of fact negates the state of mind required for the crime. Attempt crimes required specific intent (in this case, the specific intent to burn a copy of the U.S. Constitution). The state of mind required is the intent to burn a copy of the U.S. Constitution. Here, Dan “believed” that he was burning a copy of the U.S. Constitution. Even though he did not actually burn a copy of the U.S. Constitution, the fact that he was mistaken, does not negate the state of mind that is required. Therefore, Dan may be convicted (subject to the constitutionality of the regulation – discussed infra.) of an attempted misdemeanor (attempted burning of a copy of the U.S. Constitution).

2. How should the court rule on each ground of Dan’s motion to dismiss?

2a. MISTAKE OF FACT – Here, Dan will argue that he cannot be found guilty of attempt to burn the U.S. Constitution because the document he actually burned was a copy of the Declaration of Independence. However, Dan “believed” that the document he was burning was a copy of the Declaration of Independence. Mistake of fact will be a defense only when the mistake of fact negates the state of mind required for the crime. Here, Dan intended to burn a copy of the U.S. Constitution. The fact that he did not actually burn a copy of the U.S. Constitution will not relieve him of criminal liability for the attempt crime because the mistake of fact does not negate the required state of mind.

Therefore, the court should deny the first ground for Dan’s motion to dismiss.

2b. FIRST AMENDMENT VIOLATION – Here, Dan will argue that the statute violates his First Amendment Right of speech and of assembly.

The First Amendment states in part, “that Congress shall make no law . . . abridging the freedom of speech.” This right is incorporated to the states via the Fourteenth Amendment.

The government may regulate conduct but not beliefs. Symbolic speech – like burning a flag in political protest – is First Amendment protected speech. (Texas v. Johnson) Here, Dan will argue that he burned the document as an expression of political protest and that the act of burning what he believed to be a copy of the U.S. Constitution is symbolic speech. Dan set fire to what he believed was a copy of the U.S. Constitution while saying: “ . . . they can take your constitutional rights away just as fast as I can destroy this copy of the U.S. Constitution.” Dan did not simply intend to burn a piece of paper. Instead, Dan intended to burn the U.S. Constitution as an expression of an idea. This symbolic speech is protected under the First Amendment.

CONTENT-BASED RESTRICTION – Dan will argue that the regulation constitutes a content-based restriction on his speech and is therefore presumptively invalid. Content-based restrictions are subject to strict scrutiny. Under the strict scrutiny standard, the government bears the burden to prove that the regulation is necessary to achieve a compelling governmental interest. Here, the government is regulating based upon content (by criminalizing the burning of copies of the U.S. Constitution) and as such must meet the strict scrutiny standard. There is no compelling governmental interest in preventing citizens from burning “copies of the U.S. Constitution”. Therefore, Dan will likely succeed in his First Amendment claim.

The state will argue that the regulation neutral as to content and is simply a regulation of conduct (burning) that is intended to protect the public from the dangers of fire. Assuming the State can overcome Dan’s argument that this is a content-based regulation (which is doubtful given that the regulation specifically criminalizes burning copies of the U.S. Constitution) then the state would then need to prove that the regulation is narrowly tailored to a significant government interest and that the regulation leaves open ample alternative channels of communication.

The significant government interest at stake would be public safety. In addition, the government has a significant interest in being able to carry out important government business at a state capitol building. Burning of documents in front of the state capitol while persons are attempting to enter the building could interrupt this important business and could put citizens in danger.

Here the regulation does not leave open ample alternative channels for this kind of communication because it makes burning a copy of the U.S. Constitution illegal anywhere. Therefore, the State will likely lose.

There appear to be no issues with respect to vagueness and over breadth.

A prior restraint exists where the government must approve of the speech before it occurs. Prior restraints are presumptively invalid due to their chilling effects on speech. In order to stand, prior restraints must pass strict scrutiny. Here, by criminalizing conduct that amounts to symbolic speech, the regulation is a prior restraint on speech. As discussed above, there is no compelling governmental issue at stake. Therefore, the regulation is unconstitutional.

Here, Dan may try to argue that the regulation violates his First Amendment right of assembly. The First Amendment protects not only the basic rights to communicate, but it also protects the right to join with others in exercising these rights. This protection is incorporated to the states via the Fourteenth Amendment. Here, Dan was speaking to “half a dozen people entering the front doors” of the capitol. His argument here is weak because the regulation does not prevent him from assembling with others, but merely prevents him from burning the U.S. Constitution.

Copyright 2007 Bar None Review. All rights reserved.


  1. Homicide is the “unlawful” killing of another?

    Merriam Webster, Black’s, and I beg to differ.

    Homicide is merely the killing of a human being by another human being. It is not necessarily unlawful.

  2. Hello bpedigo,

    First, sorry it took so long to reply to your post. But, we are in the midst of preparing our students for the February 2008 bar exam and as a result, we are pretty busy and our enrolled students’ needs always have to come first. However, I did want to get back you.

    First, Merriam’s or any other non-legal dictionary would not be a source that I would recommend going to in order to get sound legal definitions. However, it can certainly provide valuable information and should not be discounted entirely.

    Second, my version of Black’s Law Dictionary actually contains 14 definitions of homicide. Your definition (quoted from Black’s law dictionary) fails to include the next part of the definition which goes as follows: “A person is guilty of homicide if he purposely, knowingly, recklessly, or negligently causes the death of another human being.” There is still more to the definition. However, certainly, this second sentence (which you left off in your definition) does refer to a fault or ‘wrongful” aspect. Furthermore, since homicide is a killing that is against the law, it is necessarily “unlawful”.

    Of most importance is that the definition used in our model answer is one that is embraced by the California Bar Examiners. You could certainly include the entire three sentence definition that is contained in Black’s law dictionary on your bar exam essay answer. However, it is nearly a paragraph in length and will get you very little distance with the graders. In fact, it would likely cause you to lose points since in most murder exams homicide is only a very, very small part of the overall discussion.

    Compare the entire Black’s definition of homicide which I have quoted below:

    Black’s Law Dictionary Definition of HOMICIDE:

    “Homicide is the killing of one human being by the act, procurement, or omission of another. A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes the death o another human being. Criminal homicide within criminal codes includes murder, manslaughter or negligent homicide.”

    California Bar Exam Accepted Definition of HOMICIDE:

    Homicide is the unlawful killing of one human being by another.

    OR, an even shorter form that would be acceptable:

    Homicide is the unlawful killing of another.

    (With the latter definition, you would just need to be careful of situation where causation was put at issue by the fact pattern).

    Here is why you should use the shorter definition: you will garner no points for using a longer definition and using a longer definition will waste valuable time. Furthermore, since the bar examiners in California have embraced the shorter definition (including the “unlawful” aspect), it is the one that we recommend. It would still be okay to state the rule as simply the killing of a human being by another. But, we use the definitions that we see the most often in the California bar exam released answers. This is the best source for what the bar examiners in California are really looking for.

    All of this being said, the fact that you have made a point out of this suggests to me that you might have some difficulties seeing the forest through the trees. Obviously, I do not know you and I do not know if you are currently taking the California bar exam. However, a successful examinee will recognize that one or two word differences in definitions does not a failing or passing exam answer make. Instead, it is your ability to identify the relevant legal issues presented by each fact pattern and to resolve all legal issues with sound legal arguments. The points come from your analysis. Your ability to analyze and to apply the law is the key to passing essays in California.

    I have worked with thousands of bar examinees over the years and probably the most common problem students of the bar have is that they fail to recognize it has far less to do with memorization of rules than it does with their ability to APPLY the law to the facts, to IDENTIFY and RESOLVE legal issues. This is the key.

    The bar exam is not asking you to regurgitate a bunch of rules. Instead, examinees must show their ability to apply legal principles to fact patterns such that the grader can read your exam and have confidence that if you are released to be an attorney that you will be able to think like a lawyer. Anyone can memorize definitions. But, to show the graders that you can identify the issues and to resolve those issues, that is how you pass.

    So, my advice to you – – assuming you are studying for the bar exam here in California – – is to work on the big picture. Move away from the minutia (that is for the MBEs – not the essays). Once a student is able to see the forest for the trees, there is usually great improvement.

    Good luck to you and all the best!

    Bar Exam Guru