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Topic 9: How is Criminal Law tested on the baby bar exam (FYLSE)?

You can expect to see Criminal Law tested on the baby bar exam. You will see one or two essay questions on it virtually every exam.

Here are some key points to keep in mind about how Criminal Law is tested on the baby bar exam.

How is Criminal Law tested on the baby bar exam (FYLSE)?

If murder is tested, define homicide and be thorough in your discussion of the different levels of murder. Note that most FYLSE essays also explicitly discuss causation. 

Homicide should be defined (“the killing of a human being by another human being”) before discussing murder. Most FYLSE essays discuss all levels of murder (besides felony murder, unless it is an issue).

It is important to memorize the rules for all levels of murder and know them like the back of your hand:

  • First-degree murder
  • Second-degree murder
  • Voluntary manslaughter
  • Involuntary or misdemeanor manslaughter

Felony murder should also be discussed if it is an issue.

Memorize the elements of the most commonly tested crimes! 

The most commonly tested are assault, battery, larceny, and burglary. However, make sure you memorize the rules for all of the tested crimes as well as defenses. Oftentimes, Criminal Law requires a straightforward application of the law to the facts so memorizing the elements can go a long way.

  • Assault is (i) an attempted battery or (ii) intentional infliction of apprehension due to an act of the defendant. Note: an assault becomes “assault with a deadly weapon” if a deadly weapon, such as a gun, is used.
  • Battery: the defendant acts with the intent to cause harmful or offensive contact to another and harm results.
  • Larceny: the trespassory taking and carrying away of personal property of another with the intent to permanently deprive him thereof.
  • Burglary:
    • Common law: the breaking and entering the dwelling of another at night with the intent to commit a felony or larceny therein.
    • Modern law: Burglary does not have such strict requirements (e.g., in many states, the burglary can be of any building—not a dwelling, does not have to take place at night, etc.) Tip: It is worth briefly noting the modern law on an essay testing this issue. Most FYLSE answers do! 

Be aware of inchoate crimes!

The inchoate crimes, especially conspiracy, are highly tested on the baby bar exam. Make sure to closely review these crimes.

Conspiracy is an agreement by two or more people to commit a crime + (in some states) an overt act in furtherance of the crime + (in all states) the specific intent to enter into the agreement and accomplish its objectives. The defendant is liable for conspiracy to commit the crime, and all other crimes committed by his coconspirators so long as the crimes were foreseeable and in furtherance of the conspiracy (unless the defendant withdrew before they were committed) (Pinkerton rule). If a defendant withdraws from a conspiracy, he is liable for the conspiracy but not liable for the crimes committed in furtherance of the conspiracy occurring after the withdrawal.

Practice makes perfect! 

The key to scoring high on a Criminal Law baby bar exam essay question is to practice! When you are done writing a draft answer to a question, closely compare your answer to the sample answers offered by The State Bar of California. This will give you insight as to what is highly tested and the best way to connect all of the dots for the grader, to show that you know what you are talking about.

Wondering which essays to start with? These essays provide a good example of how Criminal Law is tested on the baby bar exam. (Note: do not limit your practice to just these questions!)

  • October 2019 (theft crimes, homicide, defenses)
  • October 2019, second question (inchoate crimes, accomplice liability, homicide, defenses)
  • June 2019 (accomplice liability, inchoate crimes, theft crimes)
  • October 2018 (inchoate crimes, crimes against the person, murder)

For a more detailed overview of The State Bar of California’s favorite ways to test Criminal Law, check out our Baby Bar Exam One-Sheets here.

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