MBE Strategies Tip #2 – Criminal Law

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.