How to Format a Bench Memo on the MPT
A law clerk will generally write a bench memorandum to assist appellate judges in clarifying issues prior to oral argument or to advise a trial judge on particular issues prior to a motions hearing. It is not a common MPT task. However, the UBE tested this task twice in the last five years – in July 2012 (State of Franklin v. Soper) and on the February 2017 exam. Here are some tips on how to approach this MPT task if you encounter it on exam day. We use State of Franklin v. Soper as an example (a bench memo on the defendant’s pretrial motion to exclude evidence).
How to Format a Bench Memo on the MPT
Generally, you will start your bench memorandum with a caption. See below for an example:
To: Judge Leonard Sand
Date: March 6, 2017
Re: State of Franklin v. Soper, Case No. 2012-CR-3798
Statement of Issues Section
Because the bench memo is an uncommon task, you will generally find formatting instructions for this task. These instructions should be on the page after the task memo in the file. To begin, write the statement of issues section. The statement of issues should be “brief, single-sentence statements of the questions to be presented at the trial or hearing.” Read the task memo so you have a good idea of the issues. You can then fill in any gaps as you read the library. Include the relevant facts in your statement of issues to provide context for your analysis. Generally, it is best to address only one issue in each sentence.
Example of the Statement of Issues:
1. Whether the statements made by Vincent Pike in a 911 call on March 27, 2012 are admissible under the excited utterance or dying declaration hearsay exception.
2. Whether the statements made by Vincent Pike in response to questioning by Officer Holden on March 27, 2012 are admissible under the excited utterance or dying declaration hearsay exception.
3. Whether any of the aforementioned statements are barred from being admitted into evidence under the Sixth Amendment Confrontation Clause even if they qualify as an excited utterance or dying declaration.
Do not include a statement of facts unless the task memo or formatting memo instructs you to do so. If asked to include a statement of facts, that should be your next section. The statement of facts should be no longer than six or seven sentences. Often you can find many of the salient facts in the task memo.
Next, write the analysis section of the bench memo. This will require you to provide “an assessment of each issue in light of the facts and applicable law.” Your tone should be objective rather than persuasive. Why? With bench memos, you are reviewing the law with respect to both sides of the case. Instead of focusing primarily on one party’s arguments and only briefly discussing counterarguments, the bench memo should thoroughly examine the arguments of both parties, noting both strengths and weaknesses.
Using the example above, we must discuss whether the statements made during the 911 call fall into the dying declaration or excited utterance hearsay exception. Then we must determine whether the statements made to the police officer are admissible under the dying declaration or excited utterance hearsay exception. Lastly, we must evaluate whether there are any Confrontation Clause issues with respect to each of the statements.
To make your answer easier to read, always use headings. However, because this is an objective task, your headings should not favor either side.
Examples of Headings:
Was Pike under the stress of excitement caused by the shooting when he spoke to the operator during the 911 call?
Was Pike under the stress of excitement caused by shooting when he spoke to the Officer at the hospital more than two hours after the shooting?
Did Pike make a statement relating to the cause of his impending death when he spoke to the operator during the 911 call?
Did Pike make statements to Officer Holden at the hospital while believing that his death was imminent?
If Pike’s statements to the 911 dispatcher or to the officer at the hospital constitute dying declarations, are they barred from being admitted into evidence under the Confrontation Clause?
If Pike’s statements to the 911 dispatcher or to the officer at the hospital qualify as excited utterances, are they barred from being admitted into evidence under the Confrontation Clause?
Under the main heading (e.g., dying declaration, excited utterance, Confrontation Clause), state the relevant rule of law that you extracted from the library. Under the subheadings, apply the facts from the file to those rules. Even though there are a number of issues to analyze, you will not analyze each issue in the same amount of detail. Let the cases and facts help you determine how detailed your discussion should be.
The last section of the bench memorandum is the recommendation. The recommendation should provide a resolution of each issue that you discussed in your statement of issues. Essentially, these are rulings that the court can make.
Examples of recommendations:
1. Pike’s statements to the 911 dispatcher will likely satisfy the requirements of an excited utterance. These statements were made with the primary purpose of helping to meet an ongoing emergency. Therefore, they will not be excluded under the Confrontation Clause. These statements are less likely to meet the parameters of the dying declaration hearsay exception.
2. Pike’s statements to the police officer in the hospital are most likely dying declarations and possibly excited utterances. If they are dying declarations, they will probably not be excluded under the Confrontation Clause according to Friedman. However, if they are only classified as excited utterances, these statements will likely be excluded under the Confrontation Clause because they were made primarily to provide evidence for use at trial according to Bryant.
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