Bar Exam Tips and Practice Question: Criminal Law and Procedure

Bar Exam Tips and Practice Question: Criminal Law and Procedure

Criminal Law and Procedure Question

A plumber had a dispute with a homeowner about the amount owed on a plumbing job. The homeowner paid what the plumber demanded, but the plumber believed that the homeowner stole his drill as a way to get back at him.

One night, the plumber entered the homeowner’s house without permission to retrieve his drill. The plumber found a drill, but quickly realized that it was not his. The plumber then left without taking anything, locking the door behind him.

Is the plumber guilty of burglary?

(A) No, because the plumber did not take anything.

(B) No, because the plumber made a reasonable mistake of fact.

(C) Yes, because larceny is a felony.

(D) Yes, because he entered the dwelling of another without permission.

Take a minute to work the problem, then take a look at a few tips from a Kaplan Regional Manager for the Bar on how he memorized law. After that, check the explanation to the practice question.

 

Tips for Flashcard Memorization

Feeling overwhelmed by the task of memorizing the elements to a seemingly endless number of rules that you need to be able to recite verbatim on a moments notice? All with the added pressure of the task being during your bar exam? I know the feeling. Here is a technique that I used to help memorize oodles of information so that I could pull it out when I needed it on those state specific essays. As a disclaimer, I never used flashcards during law school exam studying, but when it came to the last few weeks of bar exam studying, I was worried about regurgitating all of the elements and factors for the essays.

I had recently heard one of the academic success folks at my alma mater say that moving around while attempting to memorize large amounts of info somehow helped in the memorizing process. Another faculty member suggested that he made maps in his head and would put certain facts around his apartment. For example, if he needed to remember three elements for a rule, he would imagine looking into a particular cabinet in his kitchen for that law, and on the top shelf he would put the first element, on the second shelf he would but the second element, and on the bottom shelf he’d place the third. To be perfectly honest, this did not sound helpful to me, but I decided to make a hybrid between the two. Trust me, when you are a few weeks away from the bar exam, you will try any technique for memorizing if it works for you.

I got out flashcards and started walking around my neighborhood. To incorporate the mapping technique, I decided I would walk one route for each essay subject. Domestic Relations, having the most factors to memorize in my bar exam jurisdiction, had the longest route. The Wills and Trusts route on the other hand was walking circles around a soccer field. I took a stack of cards in my hands, would walk out of my house, and quiz myself until I had gone through them a couple of times and felt better about them. I would make my way back home, get a drink of water, rest a few minutes, and head back out with a different stack or subject.

I did this quite a bit towards the end of the summer, and I think it really helped me put the information to memory. By the end of my trips, I could say the law cold with enough confidence about what was on the other side of the card, that I would not even flip the card over.

Several folks told me not to study the day before the bar exam, to sit back and relax, take it easy, and get some rest. Yeah, right! I did get to sleep early, but the day before the bar, guess what I used? I found a quiet park near my hotel, pulled out my cards, and started walking around talking to myself. Being able to recite the elements to those laws verbatim really put me at ease the day before starting the exam. 

My method may not work for everyone, but it may be worth a shot if it seems to work for you. If you find yourself in the same place I was, looking for an escape from my dark study cave, and needing to find a new method to cram facts into the space between my ears, you may give want to give it a try.

 

Explanation

The correct answer is: (B) No, because the plumber made a reasonable mistake of fact.

Burglary requires the breaking into and entering of the dwelling house of another with the intent to commit a felony therein. The plumber entered to retrieve what he thought was his drill. This negates the element of intent to commit a felony therein. The intent also needs to be present at the time of the entry. Here, there was a mistake of fact which negates the necessary mens rea. Therefore, there is neither larceny nor burglary, and this answer is correct.

(A) Incorrect. No, because the plumber did not take anything.

Burglary requires the breaking into and entering of the dwelling house of another with the intent to commit a felony therein. It does not require that the defendant take anything. This answer is incorrect as a matter of law.

(C) Incorrect. Yes, because larceny is a felony.

While it is true that larceny may be a felony, this fact does not make it such that the plumber is guilty of burglary. Indeed, the plumber is not guilty of burglary, because burglary requires the breaking into and entering of the dwelling house of another with the intent to commit a felony therein; here, the plumber entered to retrieve what he thought was his drill, which negates the element of intent to commit a felony therein. There was also a mistake of fact, which negates the necessary mens rea. Therefore, there is neither larceny nor burglary.

(D) Incorrect. Yes, because he entered the dwelling of another without permission.

While it is true that the plumber had no permission, this fact does not make it such that the plumber is guilty of burglary. Indeed, the plumber is not guilty of burglary, because burglary requires the breaking into and entering of the dwelling house of another with the intent to commit a felony therein; here, the plumber entered to retrieve what he thought was his drill, which negates the element of intent to commit a felony therein. There was also a mistake of fact, which negates the necessary mens rea. Therefore, there is neither larceny nor burglary.