Where I Went Wrong on the CA Bar - Question 4
On Question 4 of the bar exam, I (a lawyer at Neon Law), received a 52.5 on my essay for a pretty bad essay. This blog post will examine where I went wrong compared to the model answer so I don't repeat those mistakes.
Analyzing the Question
This question is about a conspiracy, an actual burglary/robbery, and the subsequent rights of the accused in a photo lineup.
Mistake #1, not separating the charges from the defenses
The question asked was:
- With what crime or crimes, if any, may Al reasonably be charged; what defenses, if any may he reasonably assert; and what is the likely outcome? Discuss.
Here, the bar examiners clearly layed out a format I should have used. First, talk about the crimes, then the defenses, then examine the likelihood that the defendants would be charged. On my essay, I sporadically included both crimes and defenses and did not clearly signpost as is expected by the bar examiners.
Mistake #2, not detailing criminal conspiracy
Clearly, I did not have a strong understanding of crimes, especially the crime of conspiracy, which was a big chunk of the points on this test. To effectively argue for conspiracy, I should have:
- Started with the common law definition of a "meeting of the minds"; then
- Moved on to the MPC definition which includes an "overt act"; then
- Included the Pinkerton rule which has a four-prong test about assessing whether a co-conspirator is liable for foreseeable substantive crimes; then
- Assessed whether a co-conspirator withdrew from the conspiracy
In the model answers, each step above is mentioned with facts from the question to support claims that a conspiracy had taken place. I know I missed the ball completely when I did not mention an "overt act" which here could have been twofold, both driving to the house at midnight and the actual breaking and entering of the victim's house.
Mistake #3, not detailing larceny, robbery, and burglary
These three crimes are distinct, yet intermingled when it comes to answering a crimes question. It is most likely that if asked about one, I'd be asked about all three and should plan accordingly.
- Larceny is the taking and moving of another person's property without their consent with the intent to deprive them of it permanently
- Robbery is larceny from another person's presence or person through threat or intimidation.
- Burglary is the breaking and entering into a dwelling with the intent to commit a felony inside. While common law required the breaking and entering to have happened at nighttime, the MPC does not.
Had I known these three crimes like I should have, I could have gone through each and proved caused for larceny, no cause for robbery (there was no threat), and cause for burglary because there was the intent to commit larceny.
Mistake #4, not analyzing a withdrawal from a conspiracy and withdrawal as accomplice
As discussed above, there is a formulaic way to answer conspiracy questions. When it comes to withrdawal, I should have mentioned whether an "overt act" to withdraw had taken place and the fact that it was too late for Al in this question to have withdrawn from the conspiracy the moment he stepped foot into the victim's house.
Mistake #5, not answering just the question
The second question of the bar only asked whether or not the lineup identification could be suppressed. I included stuff that did not answer that, which is confusing to the grader and shows a clear understanding that I did not know the question I was being asked.
Mistake #6, not beginning a constitutional law question with "State Action"
When speaking about constitutional law questions, I should always begin with State Action. This frames any constitutional law discussion appropriately. For a 5th Amendment question I could have started with:
The 5th and 14th Amendment of the US Constitution protects people against state action. In this case, there is clear state action because the issue here involves the police who are state actors.
Mistake #7, not knowing the rule for lineups.
The rule for lineups is "police cannot use lineups that are impermissibly suggestive that have a substantial likelihood of resulting in misidentification." If the lineup is still reliable, it can be used irrespective of any impermissive suggestions. There are three points I should have addressed.
Here, the key terms I missed the standard completely, and had I signposted both impermissively suggestive and substantial likelihood of resulting in misidentification, I would have clearly shown the graders I knew the rule and applied the facts appropriately.
For Next Time
Aside from a better understanding of the law, I could have done a much better job at simple reading comprehension. These are mistakes I will work at to not make again.