Thank you again for following the blog. I mentioned earlier that murder might be on the exam. It has been absent for some time and would seem to be due. Of course, anything is possible. And, if you were studying for the bar at any time in the past couple of years, then you will know that many have been predicting a murder exam for some time.
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.
If you haven’t already, be sure to join our July 2016 Bar Exam Tips List!
Incidentally, if murder were to show up on the exam on day one or day three of the July 2016 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 – write your heart out tomorrow.
Did you know that many topics show up back to back (from one bar round to the next) sometimes even three times in a row? Therefore, all bets are simply off on presuming something is not likely to come up.
My main focus in writing during the bar exam days is to simply provide you with something to hang onto, some peace of mind and hopefully even a little bit of sanity.
I know how demanding and draining and how seemingly impossible taking this exam can sometimes feel like to examinees. But, it doesn’t have to be that way – sometimes a few words of encouragement – or a quick review of an approach – like the approach below – can be all a person needs to make that little bit of difference between passing and failing. That is why I write here. I tell you this as a source of encouragement: it is completely normal to be a little bit freaked out about tomorrow (assuming you are awake – like most, and are thinking about the exam). This is normal. It is also normal to feel somewhat calm – we are all different. There is no one size fits all approach to this exam. Ideally you would get a good nights sleep before the bar exam. Some do. I never did – and yet I passed. So wherever you are at (asleep early or awake still and reading this post) you can do it!
OKAY – WHAT TO DO IF YOU WERE TO GET A CRIMINAL LAW MURDER ESSAY TOMORROW (OR THURSDAY)?
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. (Note: if you have a slightly different definition for malice aforethought, that is okay, there are variations of this language. Go with what you know and have memorized – as long as it is correct).
(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). Another note about malice aforethought – years ago, I would advise my students to only prove up one of the four ways to show malice aforethought and then move on. But, in more recent years, the examiners have embraced answers that address more than one of the ways to prove up malice aforethought. So, that is what I would recommend you do – write on two or three ways to prove it up – if the facts lend to a discussion of more than one way to prove up malice aforethought.
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”). Note: Most exam answers embraced by the California bar examiners handle second degree murder this way. However, if the call of the question asks you specifically about second degree murder, then you should use the definition of second degree murder instead and discuss it.
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 four 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), 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, utilizing the facts as much as possible.
If you were to get a murder essay, I am thinking it could be in the context of Criminal Procedure (possible in the context of the 8th Amendment and/or 6th Amendment). If, however, you are tested on Criminal Law murder alone, then you will likely have issues with either the inchoate crimes (Solicitation, Attempt and Conspiracy) and/or accomplice liability. The reason for this is that it makes for a better one hour essay to include additional areas outside of the Criminal Law murder approach.
Focus on the call(s) of the question:
Finally, one of the things that can be challenging with any essay exam is simply understanding the call of the question. For murder exams, the California bar examiners often state the call as follows: “Can D be convicted of murder or any lessor included offense?” If this is your call, then you will follow the approach I have addressed above, with little variance.
However, sometimes, the examiners ask you multiple calls on a murder exam. For example, call number one might be: “What defenses can D assert?” Call number two might be: “Can D be convicted of voluntary manslaughter?” And, then you may have a third and fourth call that are from Criminal Procedure.
If you end up with an essay that is broken out into these separate calls, you need to do your best to address the calls in the order asked and to respond to the calls. This means that you will need to address the defenses to murder (most likely, it will be defenses to murder) in the first call without even having discussed murder yet. This might feel uncomfortable to you – to write on the defenses before writing on the crime that the defenses are for, but it is something you just have to do.
Next, under the second call, typically you would need to address common law murder, first degree murder and second degree murder before you could determine whether the killing should be mitigated down from some type of murder to voluntary manslaughter. Many will focus simply on the heat of passion killing without getting credit for going through common law murder, malice aforethought, first degree and second degree. But, you will want to show your breadth of knowledge and show the examiners that you have a good grasp on the approach.
This is just an example of how the material can be tested and how it may require you to go a bit out of order. Just do it. Don’t let it bother you, just focus on the task at hand and answer what has been asked of you. Always focus on the call or calls of the question.
Okay, that is it for now. I wish everyone who is taking the bar exam tomorrow, the very best of luck!
Remember, if you have a chance to email me with your thoughts on what was tested on day one of the essays, that will help me in my reworking of the predictions for Thursday’s essays. You can email me at: email@example.com
Stay tuned, as I will post here during the days of the bar exam.
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