Criminal Law Murder has been absent for some time and would seem to be due. Of course, anything is possible. But, since the last time murder was tested on the California Bar Exam essays was February 2008, it would be a good idea to be prepared for it. It is likely that if murder is tested, it will be a cross-over with Criminal Procedure. See the “Free Stuff” page on my blog for Criminal Procedure Bar Exam writing Templates to assist you with Criminal Procedure.
As a bar taker you undoubtedly 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.
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 murder question:
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 as you can), 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.
If you were to get a murder essay, I am thinking it could be in the context of Criminal Procedure (specifically in the context of the 8th Amendment and/or 6th Amendment). But, always keep in mind, that the most heavily tested area in Criminal Procedure tends to be the 4th Amendment. However, this area has been a frequent flyer in recent bar rounds.
To receive approaches to all the essay and MBE topics, enroll in our February 13th Bar Exam Cram Session. This is our last Bar Exam Cram Session before the February 2021 California bar exam. This session will sell out. To reserve your spot click here. Sign up before the price goes up!
Best of luck to you all!