Is there any topic that is on your wish list for the essays? What could be due to show up?
Criminal law was tested recently. However, the California Bar Examiners are known to repeat subjects back to back from one bar round to the next. Frequent flyers for two and three consecutive appearances on the California Bar Exam are Community Property, Torts, Contracts and Remedies (Remedies appears on almost every bar exam). Of course, Professional Responsibility shows up on every written portion of the bar exam, most often on the essays. But, sometimes Professional Responsibility is skipped on the essays and appears only on the Performance Test.
The point is – do not not take recently tested subjects for granted, do not assume these topics will not show up again on the very next bar exam. Anything can repeat back to back.
If Criminal Law were to show up on the February 2021 bar exam, there is a good chance that it would include murder/homicide. The last time murder was tested on the California Bar Exam was on the February 2008 bar exam. It was crossed with Criminal Procedure and had a fairly tricky 5th Amendment right to counsel issue. If you would like to receive a copy of this tricky essay and the answers, please sign up here
APPROACH TO CRIMINAL LAW MURDER/HOMICIDE ESSAYS
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. Using the right headings 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. In addition, your essay 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:
First of all, should you begin with homicide or common law murder? Well, that depends upon the fact pattern and the call of the question. If the fact pattern poses the cause of death as an issue (for example, defendant shoots Victim in the arm. Victim was not expected to die from her gun shot wound. However, while being treated in the hospital, Victim gets an infection, goes into a coma and is later determined to be “brain dead”). Under these facts you will now have a causation issue (albeit, an easy one to deal with and prove that defendant is the cause of the Victim’s death). In this situation, you should address homicide. However, if your fact pattern does not pose causation as an issue, then you may want to start with Common Law Murder. But, always pay attention to the call or calls of the question to help you decide whether you start with homicide or common law murder. If there is no causation issue on the fact pattern, then starting with common law murder is generally fine.
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. This 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. Instead, address premeditation and deliberation briefly and then move onto Second Degree Murder.
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 other 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 ANDwhether 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), self defense, defense of others etc. that can all word 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 Criminal Law alone (which would mean discussions of issues like conspiracy and perhaps other inchoate crimes and would likely be heavier on the defenses when it is not a cross-over essay. However, it could easily be tested in the context of Criminal Procedure (possibly in the long overdue context of the 8th Amendment and/or 6th Amendment).
Good luck with your studies!
Lisa Duncanson Bar Exam Guru Founder/Program Director Bar None Review & Bar Exam Cram Session