Welcome to our MBE tips and tricks blog post series! Today, we will be covering Criminal Law — and specifically, a homicide question. Out of the 25 scored questions on Criminal Law on the MBE, 3-4 of them will be on homicide. So it is well worth it to know homicide very well!
We will be posting an MBE question once every couple days along with an answer. These are MBE questions that students commonly get wrong. If you can master these questions, it could increase your MBE score by that many points if you see any of these issues tested again (which, by the way, you will!). These posts of MBE tips and tricks will not only cover substantive law but also strategy. So each post will cover one highly-tested area of substantive law as well as an important MBE strategy. Today, we will review the substantive law of homicide and we also have a tip for improving through wrong answers.
Do your best to answer this question (before even looking at the answer choices and before looking at the answer below!) In order to get in the habit of answering question slowly and methodically, ask yourself the questions that are outlined below: What is the subject? What is the legal issue? What is the rule and analysis? What is the conclusion? Try to answer these beginning questions before even reading the answer choices.
Then you can uncover the Criminal Law answer as well as read more about our MBE strategy of the day — to write down why you answer a question incorrectly when you answer it incorrectly.
Criminal Law MBE Question:
A nurse was walking to his car one night after leaving his shift at work. As he neared his car, a man with a ski mask and a knife approached the nurse and threatened to kill the nurse if the nurse did not hand over his wallet. The nurse kicked the man and punched the man several times and the man fell to the ground, unable to get up. The nurse, angry that he got attacked, grabbed the knife then stabbed the man in the chest. The man died instantly.
What crime should the nurse be charged with?
(A) First-degree murder.
(B) Second-degree murder.
(C) Voluntary manslaughter.
(D) No crime.
Legal Rule and Analysis: (If you need to look at your outline to find the legal rule, feel free to use it when you have not yet memorized the subject. Using your outline will help you actively learn and memorize your outline!)
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.
Answer to Criminal Law MBE Question:
Common mistake: Students struggle with degrees of murder and manslaughter (which is highly-tested on the MBE!)
Subject: Criminal Law
Legal Issue: What homicide crime, if any, is the nurse guilty of?
Legal Rule and Analysis: First-degree murder requires premeditation and deliberation (e.g., poisoning someone). There is no such premeditation presented by these facts as the event happened very quickly and the nurse did not have time to premeditate and deliberate.
Second-degree murder requires causing the death of another with malice aforethought. Malice aforethought is present for second-degree murder when there is (1) extreme recklessness (e.g., firing a gun into a crowded room but not intending to kill); (2) intentional infliction of great bodily harm and death results (e.g., wanting to seriously injure someone and they end up dying); (3) the defendant acts with the intent to kill but is not guilty of first-degree murder (e.g., the defendant is angry when he kills someone and does not have time to premeditate or deliberate yet the defendant’s killing also does not constitute voluntary manslaughter). None of these three mindsets appear to be present.
Voluntary manslaughter is present when one commits a killing in the heat of passion as a result of adequate provocation. Here the “adequate provocation” is the attack. He was still in the “heat of passion” without time to cool off since he was just attacked. (The fact pattern indicates that he was “angry” which demonstrates he was acting in the heat of passion.)
Thus, voluntary manslaughter is an appropriate charge unless the nurse has a defense.
Bar Exam Tip: If you have trouble with the term “malice aforethought” remember that malice aforethought is a legal term of art. It is required to prove murder (first or second degree). Malice for first-degree murder is proved by showing premeditation and deliberation. Malice for second-degree murder is proven by showing: (1) extreme recklessness; (2) intentional infliction of great bodily harm and death results; (3) the defendant acts with the intent to kill but is not guilty of first-degree murder. None of these three mindsets appear to be present.
Conclusion: The nurse should be charged with voluntary manslaughter.
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect: (C) recognizes that voluntary manslaughter is the appropriate charge. (A) and (B) are incorrect for reasons stated above. (D) is incorrect because a defense (like self-defense) will not be successful. Ordinarily, self-defense may apply when one is attacked. However, in this case, the nurse was “angry” when he killed the man (not fearful). Further, the nurse was not in danger, as the facts tell us that the man fell to the ground and was unable to get up. Thus, a self-defense claim will not be successful. Bar Exam Tip: Pay careful attention to the facts! And do not “think outside of the fact pattern.”
Tip: When you answer a question, incorrectly, write it down! If you answer a question incorrectly (or answer it correctly but for the wrong reasons!), we recommend you write down why you answered the question incorrectly on a legal pad. If you didn’t know the law, write down the law you didn’t know. If you answered a question incorrectly because you read the fact pattern too quickly, write it down. Constantly review this legal pad. Eventually, the law that you knew the least will become the law you know the best! Further, you will see patterns in the areas of law you don’t know. This can be helpful because if you notice you constantly answer questions on murder incorrectly, you can review this area of law more carefully in your outline. Further, if you notice patterns in other reasons you answer a question incorrectly (e.g., you read the fact pattern too quickly, circle the wrong bubble, etc.) you can also make a note of this and work on changing it.
Key Takeaways for the day:
Takeaway for the Law: Memorize the homicide chart for criminal law. Homicide is 3-4 questions on the MBE (and is heavily-tested on most state essay exams) so it is crucial to know the different degrees of murder.
Takeaway for Practicing: When you answer a question incorrectly, write down the law you didn’t know (or the reason for answering it incorrectly) on a legal pad. Constantly review this legal pad. This will make you more well-versed in the law that you do not know, and it will help you identify patterns in areas of law that you do not know as well as other reasons for answering questions incorrectly.
If you would like to see “MBE tip of the day” posts from prior days, please click on the links below:
- MBE Strategies: Day 1 – Torts (negligence)–and how to approach MBE questions.
- MBE Strategies: Day 2 – Criminal Law (homicide) — and learning through “wrong” answers.
- MBE Strategies: Day 3 — Evidence (hearsay) –and memorizing the details!
- MBE Strategies: Day 4 – Contracts and Sales – and spending time on the subjects that are difficult for you.
- MBE Strategies: Day 5 – Real Property (future interests) – and spending time on the highly-tested areas of law.
- MBE Strategies: Day 6 – Civil Procedure (summary judgment) – and eliminating incorrect answers.
- MBE Strategies: Day 7: Constitutional Law (political question, standing) – and how to answer a question correctly when you are in between two choices.
- MBE Strategies: Day 8: Evidence (hearsay, best evidence rule) – and why it is good to fine-tune your knowledge of the “red herring” areas of the law.
- MBE Strategies: Day 9: Torts (conversion) – and where to get actual released MBE questions!
- MBE Strategies: Day 10: Criminal Procedure (5th Amendment) – and how to pick between two answer choices.
- MBE Strategies: Day 11: Contracts (contract formation) – and what to do if you “overthink” questions.
- MBE Strategies: Day 12: Real Property (deed delivery) – and jotting out the fact pattern.
- MBE Strategies: Day 13: Civil Procedure (jurisdiction) – and “bringing it all together”.
- MBE Strategies: Day 14: Constitutional Law (taxing and spending) – and why to answer more Constitutional Law and Civil Procedure questions.
- MBE Strategies: Day 15: Constitutional Law (powers of congress) – and how to get better at Constitutional law questions.
- MBE Strategies: Day 16: Criminal Procedure (exclusionary rule) – and paying attention to the call of the question.
- MBE Strategies: Day 17: Evidence (character evidence) – and how to tell a civil case from a criminal case (and why it matters!).
- MBE Strategies: Day 18: Real Property (joint tenancy) – and how to get more Real Property questions right!
- MBE Strategies: Day 19: Civil Procedure (JAAMOL) – and how to learn Civil Procedure.
- MBE Strategies: Day 20: Torts (joint and several liability) – and tips on MBE default rules.
- MBE Strategies: Day 21: Evidence (hearsay) – and the importance of memorizing the law!
- MBE Strategies: Day 22: Contracts (formation) – and why you should not ignore the written portion of the bar exam!
- MBE Strategies: Day 23: Criminal Law and Procedure (and the importance of mens rea).
- MBE Strategies: Day 24: Constitutional Law (equal protection) – and the importance of writing incorrect answers down!
- MBE Strategies: Day 25: Civil Procedure (impleader) – and free released NCBE questions!
- MBE Strategies: Day 26: Real Property (future interests) – and learning the highly tested MBE topics.
- MBE Strategies: Day 27: Torts (intentional torts) – and the importance of learning rule statements.
- MBE Strategies: Day 28: Evidence (impeachment) – and how to keep impeachment, character evidence, etc. straight!
- MBE Strategies: Day 29: Criminal Procedure (line-ups) – and how charts can help you keep the 5th, 6th, and 14th Amendment straight!
- MBE Strategies: Day 30: Contracts (revocation of acceptance of goods) – and how finding patterns in your answer sheet can improve your score.
- MBE Strategies: Day 31: Constitutional Law (public v. private forum) – and last-minute MBE tips.
- MBE Strategies: Day 32: Torts (premises liability) – and eliminating incorrect statements of law.
- MBE Strategies: Day 33: Criminal Law (robbery) – and knowing your state vs. MBE distinctions.
- MBE Strategies: Day 34: Real Property (priority and recording acts) – and writing answers to the questions.
- MBE Strategies: Day 35: Torts (comparative negligence, joint and several liability) – and learning the theories behind the laws.
- MBE Strategies: Day 36: Contracts and Sales (recovering the purchase price) – and creating a timeline of events when answering MBE questions.
- MBE Strategies: Day 37: Constitutional Law (1st Amendment) – and making a diagram as you study.
- MBE Strategies: Day 38: Evidence (extrinsic evidence) – and learning the definitions of basic legal terms.
- MBE Strategies: Day 39: Civil Procedure (motion to dismiss) – and creating a timeline of the judicial process while studying.
- MBE Strategies: Day 40: Real Property (present and future interests) – and the importance of grammar.
- MBE Strategies: Day 41: Torts (battery) – and paying close attention to the call of the question.
- MBE Strategies: Day 42: Criminal Procedure (4th Amendment) – and why you shouldn’t skip straight to the narrow rules.
- MBE Strategies: Day 43: Criminal Law (burglary) – and why you need to know the elements of crimes!
- MBE Strategies: Day 44: Contracts and Sales (damages) – and answering the question in your head first.
- MBE Strategies: Day 45: Constitutional Law (interstate commerce and equal protection) – and paying attention to which entity is attempting to act.
- MBE Strategies: Day 46: Evidence (impeachment) — and how to identify the applicable evidentiary rule.
- MBE Strategies: Day 47: Civil Procedure (full faith and credit clause and preclusion) – and newly released NCBE civil procedure questions.
- MBE Strategies: Day 48: Civil Procedure (removal) – and understanding the policies behind the rules.
- MBE Strategies: Day 49: Real Property (eviction) – and the importance of paying attention to details!
- MBE Strategies: Day 50: Torts (trespass) – and the importance of memorizing the elements and categories of torts.
- MBE Strategies: Day 51: Evidence (lay witness testimony) – and avoiding distractions.
- MBE Strategies: Day 52: Civil Procedure (automatic disclosures) – and eliminating answer choices.
- MBE Strategies: Day 53: Torts (duty of a premises possessor) – and to not feel too sorry for vulnerable plaintiffs!
- MBE Strategies: Day 54: Real Property (equitable servitudes) – and finding differences in concepts.
- MBE Strategies: Day 55: Civil Procedure a bonus FIVE MBE tips!
- MBE Strategies Day 56: Constitutional Law (equal protection) – and memorizing the standards of review.
- MBE Strategies Day 57: Contracts (installment contracts) – and learning the nuances of the law.
- MBE Strategies Day 58: Criminal Procedure (5th Amendment) – and understanding the scope of constitutional rights.
- MBE Strategies Day 59: Civil Procedure (exception to final judgment rule) – and understanding the rules and their exceptions.
- MBE Strategies Day 60: Evidence (which law applies to privileges in federal court) – and the importance of knowing the law.
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