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This may sound elementary, but the most important thing you will do at the Bar Exam is read each question.  It does not matter whether you know the law or not – if you skim questions, or don’t pay attention to what the question is asking, you will not score well on the Bar Exam.   Take the following example:

In a released question from the MBE, the following fact scenario was presented.  A woman and her sister were tried on the charge of conspiracy to import cocaine.  The jury was presented with evidence that the woman and her sister were found to possess liquid cocaine by U.S. customs officials, and evidence that the woman said to custom officials that “I told my sister there were too many officers at this airport.”  At the end of the trial the woman’s attorney moves for a judgment of acquittal on the grounds of insufficient evidence, and the question asks whether the judge should grant the motion.

The possible answers were:

A)  No, because the evidence shows that both the woman and her sister possessed cocaine.

B)  No, because the evidence shows that both the woman and her sister agreed to import cocaine.

C)  Yes, because the evidence shows only that the woman and her sister committed separate crimes of cocaine possession.

D)  Yes, because the evidence shows that the woman effectively withdrew from the conspiracy when she cooperated by giving a statement.

The first thing to do is to list the elements of the crimes that the woman was charged with.  This question has only one crime, without a lot of elements, so you can probably do this in your head.  The elements of a conspiracy are:  (1) An agreement between two or more persons to carry out an unlawful act; (2) With the intent to carry out that unlawful act.  (N.B. some jurisdictions might require an overt act, here there is possession of cocaine, so in any event there would be sufficient evidence for that element were it present).

Having determined the elements of the crime that must be proved for a conviction, the next step is to determine whether the evidence is sufficient for a jury to make a finding that the elements of the crime are present.   A question on the sufficiency of the evidence is a very different question than those that ask you to determine what crime has been committed.  The facts of this question do not show with certainty that the woman either entered into an agreement to import cocaine or had the intent to do so.  However, the standard applied to a motion for judgment on the grounds of insufficient evidence is whether the evidence is sufficient to allow a rational jury to reach a guilty verdict.  Although the facts do not necessarily prove a conspiracy beyond a reasonable doubt, a rational jury could certainly conclude based on the woman’s possession of cocaine and her expressed concern she and her sister would be caught at the airport that she had entered into an agreement with her sister to import cocaine and had intended to do so.  Therefore the answer is that the judge should deny the motion because the evidence shows that the woman and her sister agreed to import cocaine.

Answer A  is incorrect because the proof of possession alone is not sufficient for a jury to find that the woman and her sister had entered an agreement.

Answer C is wrong because although the evidence shows that the woman and her sister were guilty of two separate crimes of possession of cocaine, the additional evidence of the woman’s confession adds enough evidence that a jury rational jury could conclude that the elements of a conspiracy were present.

Answer D is wrong because there is no withdrawal from a conspiracy.  Furthermore, cooperation with authorities is not an effective withdrawal from when it occurs after having been caught.

A final bit of advice – don’t over think the questions.  By the time you take the Bar Exam you will have a million bits of information floating around in your head.  Reading the fact pattern in the question above, one can’t help but think about the Miranda warning issues.  But by the end of the fact pattern, it’s clear that the question doesn’t touch on Miranda issues.  Whether or not the confession was defective, it got into evidence, and the question is simply whether the motion for judgment of acquittal should be granted.

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