Anytime that a question on the MBE portion of the Bar Exam asks you to determine whether or not a defendant is guilty of a particular crime, you must be able to recall all the elements of the particular crime.   Unfortunately, the only way to do this is to memorize the elements of all the major crimes.  Dominate The Bar Flash Cards are a great method to assist in your memorization of all the major crimes, testing and reinforcing your ability to quickly recall the elements of the crimes by asking both direct recall questions and using short fact patterns.

The Bar Examiners love to ask questions where it’s obvious that some crime has occurred, but where the specific crime they are asking about has not occurred.  You must remember to only focus on the crimes that are mentioned in the question.  The answer will often turn on the absence of one element. For instance, a recent Bar Exam posed the following question:

Defendant drinks a quart of vodka and then takes the bus.  While on the bus, the Defendant sees a passenger holding what he believes to be his briefcase and begins to struggle with that passenger in order to retrieve the briefcase.  Defendant wrestles the passenger to the floor, takes the briefcase and runs away at the next stop.  If Defendant is charged with robbery, Defendant should be:

(1)  Acquitted, because Defendant was intoxicated

(2)  Acquitted, because Defendant lacked the required specific intent

(3)  Convicted, because the intoxication was voluntary

(4)  Convicted, because mistake is no defense to robbery

The first thing that needs to come to your mind when you read a question like this are the elements of the crime being asked about.  Under common law, robbery consists of the following:  (1) a taking, (2) of the personal property of another, (3) from the other’s presence, (4) by force of immediate physical injury, (5) with the intent to permanently deprive that person of the property.  A quick application of the facts to the elements shows that the fifth element is not present – the specific intent to permanently deprive another of their property.  Answer number (2) is therefore the correct answer.  Although answers (3) and  (4) appear to make correct statements of law (voluntary intoxication and mistake are typically not valid defenses), if you have already concluded that one or more of the elements of the crime are not present you do not have to consider any answers that provide that the defendant is convicted.  Being able to confidently identify the right answer and avoid wasting time ruling out wrong answers is key to having enough time to finish all the questions on the Bar Exam.


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