MBE Tip of the Day: Criminal Law
Welcome to our MBE tip of the day series. This “MBE tip of the day” post focuses on a Criminal Law MBE question.
You will see 25 scored Criminal Law and Procedure MBE questions on the Multistate Bar Exam. About half will focus on Criminal Law and half on Criminal Procedure. In this post, we will review a Criminal Law question together. Note that we have posted several MBE tips (which you can find links to at the bottom of this post) that focus on a specific multiple-choice question that many students answer incorrectly. 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 “MBE tip of the day” post covers one highly-tested area of substantive law as well as an important MBE strategy. You can sign up to receive these posts directly to your inbox for the upcoming administration at the bottom of this page.
MBE Tip of the Day Instructions:
Do your best to answer this Criminal Law MBE question (before even looking at the answer choices and before looking at the answer below!) Ask yourself: 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, uncover the answer as well as read more about our MBE tip of the day.
Criminal Law MBE Question
A man got divorced from his wife. The judgment of divorce granted their marital home to the man’s ex-wife. The man rented an apartment nearby. The man was upset that his ex-wife had kept their dog. The man believed that the dog belonged to him as he had paid for the dog and it was his before the man and the ex-wife were married. The ex-wife refused to give the dog to the man.
One night, the man was looking at pictures of his dog and got very upset that his ex-wife would not return the dog to him. The man drove to his ex-wife’s house and knocked on the door. Nobody answered the door. The man could hear the dog barking. He decided to take the dog back to his house. To his surprise, the door was unlocked. He opened the door and the dog greeted him. At that moment, he felt bad for his ex-wife and decided to leave without taking the dog. The man was later charged with burglary.
What is the best argument that the man did not commit burglary?
(A) He didn’t have the requisite intent to commit burglary.
(B) He was not armed with a dangerous weapon.
(C) He did not break into the dwelling.
(D) He abandoned the crime.
Subject:
Legal Issue:
Legal Rule and Analysis:
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:
Answer to the Criminal Law MBE Question
Subject: Criminal Law
Legal Issue: What is the best argument that the man should not be charged with burglary?
Legal Rule and Analysis: A burglary is breaking and entering the dwelling of another at night with the intent to commit a felony or larceny therein. Here, the man did “break” (pushing open an unlocked door constitutes a breaking) and enter the dwelling of his ex-wife at night. However, he did not intend to commit a crime. He was trying to retrieve a dog that he believed belonged to him. (Note: This is not larceny, as larceny is the trespassory taking and carrying away of personal property of another with the intent to permanently deprive them thereof. Larceny is a specific intent crime and requires the defendant to specifically intend to deprive another of their property. In this case, it is the defendant believed that the dog belonged to him. Thus, he did not have the specific intent for larceny. Therefore, he did not have the intent required for burglary either.
Conclusion: The man’s best argument is that he did not have the requisite mens rea.
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.
(A) is correct. (B) is incorrect because there is nothing in the elements of burglary that require him to be armed with a dangerous weapon. (C) is incorrect as opening an unlocked door still constitutes a breaking. (D) is incorrect as it is not what happens inside the dwelling that matters. It is the breaking and entering the dwelling with the “bad” intent that matters. Thus, the mindset that matters is the mindset that the defendant has when he breaks and enters. Here, he did not abandon the crime anyway, as the crime was never committed since he did not have the requisite mens rea.
MBE Tip: Make sure to memorize the elements of crimes! Many criminal law questions that center on crimes expect you to simply know the rules and apply them. Thus, they are straightforward if you memorize the law. If flashcards help you, it may not be a bad idea to make flashcards of each crime and flip through them until you know the elements of the crime.
Key Takeaways and MBE Tips From Prior Posts
Takeaway for the Law: A burglary is breaking and entering the dwelling of another at night with the intent to commit a felony or larceny therein.
MBE Tip: Make sure to memorize the elements of crimes! Many criminal law questions that center on crimes expect you to simply know the rules and apply them. Thus, they are straightforward if you memorize the law. If flashcards help you, it may not be a bad idea to make flashcards of each crime and flip through them until you know the elements of the crime.
Want to See Past MBE Tip of the Day Posts?
If you would like to see “MBE tip of the day” posts from prior days, please check out all of our past MBE tip of the day archives here! We have several of them and we list them by subject!
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