Thank you again for following the blog. We are almost at 700,00 site visits, so thank you!
I have not yet released my predictions publicly, but I will. Please understand that my enrolled students get access to the predictions first. Our last Bar Exam Cram Session on July 18th and 19th will be the last time we release predictions in our classroom setting. At that point all of our students will have my predictions. Once our students have had an opportunity to have the predictions, I will begin releasing these publicly on the site. It will likely be (as always) the week before the bar exam. For more information about our last Bar Exam Cram Session, click here, we still have some spots left.
In the meantime, however, I wanted to post an approach for Criminal Law Murder. I personally think that Criminal Law Murder is due. While Criminal Law has been tested several times in recent years (including showing up back to back on two consecutive bar rounds), the bar examiners have not tested Criminal Law Murder in several years. So, I think it is safe to say that it is coming soon.
First, a few words about my “predictions” . . .
I can not predict what will be on the bar exam. I have had a lot of luck in making the predictions that I make. I am glad of that. I spend a great deal of time reviewing several years of past exams and put in a lot of effort to come up with these predictions. However, no one can predict the bar exam. And, whatever you hear about predictions, you should NOT study based upon predictions. That being said, I think it is helpful to think about possible essay scenarios that might be a bit more likely to show up on the bar exam because these areas have not been tested in some time.
Also, understand – my theory and philosophy towards the bar exam is to be ready for anything – I firmly believe that is the best way to prepare. So, whether or not Criminal Law Murder shows up on the bar exam this July 2015, you want to walk into the bar exam prepared to write a Criminal Law Murder Essay. That is how you want to prepare for the bar exam.
The following is from an earlier post that I wrote covering the basic murder approach that we have seen traditionally embraced by the California bar examiners. You may have come across this post earlier if you have been searching through older posts. If so, this will be familiar to you – either way it is a good refresher.
Incidentally, if murder were to show up on the exam on day one or day three of the July 2015 bar exam, then I would not be surprised if it were crossed over with some of the lesser tested areas of Criminal Procedure. We have not seen any 8th Amendment issues in some time (see the “Free Stuff” page for a free download of an exam template for this area) and we also have not seen much testing of the 6th Amendment areas of void dire (peremptory challenges, right to an impartial jury, etc.). So these areas could easily be tested this bar round. Evidence is also an area that can repeat and sometimes we see it as a cross-over with Criminal Law, Criminal Procedure (and if you read my post from a few days ago – we have seen it tested with Wills and Community Property as a cross over with marital and spousal privileges).
It is this simple – as I have always maintained over the many years of writing this blog – the bar examiners can test anything on any bar exam round. I do not say this to send you into a panic. It is simply true. As a result, there will be topics that you are hoping for and there will probably be a few you hope not to get – that is the nature of the bar exam. But, you can do it, do NOT give up no matter what you see on the exam. And, remember, you have time to prepare adequately.
The bar exam is still weeks away. I know it does not seem like much time. But, if you use it effectively, then you can absolutely prepare in time. Our students in our last Bar Exam Cram Session generally come in without any approaches to the bar exam and yet, they are able to take the approaches we provide in class and memorize these and write the bar exam using these approaches. So, you have time now to start working on these things. I had to come up with my own approaches to the essays because the commercial bar prep companies at that time were not providing essay approaches. In fact, they still don’t. If I can come up with my own, you can too. Take control over your own bar studies and make certain you prepare from here on forward in such a way that you will know how to write any essay that you face. And, remember you should prepare for every topic, because any topic could come up.
YOU NEED TO HAVE AN APPROACH FOR EACH TOPIC
As a bar taker you will undoubtedly walk into the bar exam and have a very good grasp of the rules for Murder. However, it is very important that you are able to make your way through all of the necessary points efficiently and in a manner that the grader will recognize as a passing or above passing answer. This requires an essay approach. You should walk into the bar exam with approaches to every topic (each bar subject has either one approach or several. For example, Contracts really only has one approach – the approach for Contracts is essentially the same regardless of the Contracts essay, the only differences being whether you write on the Common Law of Contracts only or if you have a UCC exam. On the other hand, Torts has several approaches – a defamation approach, a products liability approach, a negligence approach a torts/remedies approach and a miscellaneous torts approach. I will do my best to write more on these topics as I have time).
DO YOU KNOW HOW TO START WRITING AN ESSAY
My point is that there is a lot you can do to effectively prepare for the bar exam now so that on exam day you know exactly what to do, what to write, how to start your essay, etc.. You should NOT be trying to figure this out on exam day. If you are in that position, you are likely to fail. So please take it upon yourself to prepare NOW for these situations. You know that you are going to have to write essays – so figure out ahead of time how you will start each topic.
Here is a quick, basic essay approach for murder. (Note that you should use a lot of headings and have a physical structure that evidences your approach – this will give the graders a sense that you actually know what you are talking about and it will make your essay far more appealing to read, it will appear organized and it will make it easier for you to write your answer because you have an approach).
APPROACH FOR HANDLING A CRIMINAL LAW MURDER QUESTION
First address: Common Law Murder – Common Law Murder is the unlawful killing of a human being with malice aforethought. Malice aforethought is proven four ways: 1) intent to kill, 2) intent to inflict great bodily injury, 3) depraved heart killings, and 4) felony murder.
(Address the above and then if you have a felony murder issue, prove up the underlying felony (BARRKS – Burglary, Arson, Robbery, Rape, Kidnapping or Sodomy – incidentally, if this area is tested, the examiners may not test one of the above common law inherently dangerous felonies – watch out for a dangerous felony like drug trafficking or another dangerous (but not enumerated as a FMR felony) felony – it forces you to reach a bit and explain that the prosecutor could charge the defendant for felony murder on the basis that it was an inherently dangerous felony, but not a common law enumerated (BARRKS) felony)
Then move onto:
Statutory Degrees of Murder
First Degree Murder: First degree murder is the intentional killing with malice aforethought, premeditation and deliberation. (here do not spend all day on defining or explaining premeditation or deliberation – it either was premeditated and deliberate (lying in wait, planned, thought out etc.) or it wasn’t – address the issue and conclude and move on).
Second Degree Murder (here is the quick way: “all murders that are not first degree are second degree unless mitigated down to some form of manslaughter”).
There are two types of manslaughter (Voluntary and Involuntary). If you know right away that the facts support a heat of passion killing, then address that first under Manslaughter as: Voluntary Manslaughter. (By the way, anytime there is a fight that results in a death – you should address heat of passion/voluntary manslaughter)
Voluntary Manslaughter: is a killing that would be murder but for the existence of adequate provocation and insufficient cooling time. (there are elements here that you could develop, but, the reality is that if you have a cross over exam and it involves a full murder discussion – from common law murder to manslaughter, then you simply do not have a lot of time. So spend your time focusing on whether what happened would arouse the passions of reasonable person to kill AND whether or not the person did not have time to cool).
Involuntary Manslaughter: A killing is involuntary manslaughter if it was committed with criminal negligence or during the commission of an unlawful act.
There is also the concept of Misdemeanor Manslaughter Rule – it is simply an accidental killing that occurs while the defendant is engaged in a non-dangerous felony or misdemeanor.
Obviously there are defenses like: Intoxication, Insanity (know the four tests as best you can – this has not been tested in years), self defense, defense of others etc. that can all work to either relieve the defendant of liability for common law murder and reduce the crime down to some form of manslaughter. Keep in mind the above is a basic approach. But, sometimes that is really the best thing to have in your head on the day of the exam. You should have a framework or basic approach and then allow yourself the freedom to write your answer based on the particular fact pattern you face.
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