the imbroglio

Ed. note: This is another entry I wrote last week while I didn’t have an internet connection and am just now getting around to posting. . .

I heart Professor Charles Whitebread. He gave Thursday’s lecture on criminal law and left us with this short list of things we really have to know for sure:

1. Mental states for crime in general and especially the specific intent crimes and the additional defenses that apply to them (voluntary intoxication and any mistake of fact).
2. Transferred intent (appears on bar exams 2/3 of the time)
3. Accomplice liability—accomplices are liable for the crime itself and all other foreseeable crimes but this only applies to those actively involved; mere presence or even seeming to “go along with” the crime or failing to call police does not make you an accomplice.
4. Inchoate (incomplete) offenses: solicitation, conspiracy, and attempt. Know conspiracy especially.
5. Hot defenses:
   • Intoxication
   • Infancy (infancy answers are almost always wrong)
   • Mistake of fact
6. Law of common law crimes—esp. homicide crimes and the five defenses to felony murder
7. Be able to differentiate between the three common law property crimes: larceny, embezzlement, and false pretenses
8. Common law crimes of robbery, burglary, and arson (requires “a material wasting of the fiber of the building by fire” and the building must be a dwelling, not a business, barn, or other).

Whitebread was also refreshingly candid about the MBE, describing it as primarily a reading comprehension test (watch out for those tricky questions!) and admitting that every iteration of it includes about 10 questions about the common law of crimes (the state of criminal law as it was in England in about 1700) for one reason—because the common law of crimes does not apply in any state in the U.S. and therefore the examiners can be sure that no one will object and say “hey, that’s not the law in my state.” There’s another illustration of how the bar exam does not relate to the practice of law. It’s not about knowing or understanding the law that people will expect you to know and understand, it’s about memorization and regurgitation. We know this, of course, but it was refreshing to hear Whitebread admit it. ((In his defense, Whitebread suggested that, even though no state now uses the common law of crimes, it’s not useless for us to learn it b/c knowing it will enable us to predict what current law in most states is likely to be. This is probably somewhat true b/c most state criminal statutes are based on the common law and simply add to it to fill the holes in the common law. [tags]crimlaw, barbri, mbe[/tags]