MBE
Multistate Bar Examination, a 200-question multiple-choice test.
Getting Started: Understanding the MBE
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Bar Exam — MBE (Multistate Bar Exam) — key terms, tricks & tips
Everything from the course in one searchable place: 377 entries. Use it to review before a practice test or look up a word you forgot.
377 results · showing first 300, refine your search
NCBE
National Conference of Bar Examiners, develops the MBE.
Getting Started: Understanding the MBE
Raw Score
Number of questions answered correctly out of 175 scored questions.
Getting Started: Understanding the MBE
Scaled Score
Adjusted raw score to account for exam difficulty variations.
Getting Started: Understanding the MBE
Pretest Questions
Unscored questions used to evaluate future exam material.
Getting Started: Understanding the MBE
Jurisdiction
A state or territory that administers the bar exam.
Getting Started: Understanding the MBE
MBE Subjects
Seven core legal areas tested on the MBE.
Getting Started: Understanding the MBE
MBE Structure and Scoring Explained
Remember the MBE subjects with 'CRiminal CoConuts Evade Real ToRts': Criminal Law, Constitutional Law, Contracts, Evidence, Real Property, Torts.
Getting Started: Understanding the MBE
MBE Structure and Scoring Explained
California's bar exam includes the MBE, and a competitive scaled MBE score is crucial. While California's passing score varies, aiming for a scaled score significantly above 130 is generally advisable to ensure a strong overall performance.
Getting Started: Understanding the MBE
MBE Structure and Scoring Explained
Neglecting certain MBE subjects, assuming they are less important. All seven subjects are equally weighted in terms of question count.
Getting Started: Understanding the MBE
MBE Structure and Scoring Explained
Leaving questions blank due to uncertainty. Always guess, as there's no penalty for incorrect answers.
Getting Started: Understanding the MBE
MBE Structure and Scoring Explained
Not understanding the difference between raw and scaled scores, leading to misjudgment of performance.
Getting Started: Understanding the MBE
Active Recall
Retrieving information from memory without external cues.
Getting Started: Understanding the MBE
Spaced Repetition
Reviewing material at increasing intervals over time.
Getting Started: Understanding the MBE
Performance Analysis
Reviewing practice question results to identify strengths/weaknesses.
Getting Started: Understanding the MBE
Black Letter Law
Fundamental, well-established legal principles.
Getting Started: Understanding the MBE
MBE Subject Outlines
Summaries of legal rules tested on the Multistate Bar Exam.
Getting Started: Understanding the MBE
Official NCBE Questions
Practice questions developed by the exam's administrators.
Getting Started: Understanding the MBE
Effective Study Strategies for the MBE
To 'ACE' the MBE: **A**ctive Recall, **C**onsistent Practice, **E**ffective Schedule!
Getting Started: Understanding the MBE
Effective Study Strategies for the MBE
On the California Bar Exam, the MBE score is 50% of the overall score. Effective study strategies directly impact this significant portion, so master them. Pay attention to how the NCBE phrases questions and answer choices.
Getting Started: Understanding the MBE
Effective Study Strategies for the MBE
Passively rereading notes instead of actively testing knowledge.
Getting Started: Understanding the MBE
Effective Study Strategies for the MBE
Doing practice questions without thoroughly reviewing explanations for both correct and incorrect answers.
Getting Started: Understanding the MBE
Effective Study Strategies for the MBE
Creating an unrealistic study schedule that leads to burnout and exhaustion.
Getting Started: Understanding the MBE
Subject Matter Jurisdiction
Court's power to hear a type of case.
Civil Procedure Fundamentals
Personal Jurisdiction
Court's power over the parties.
Civil Procedure Fundamentals
Federal Question Jurisdiction
Claims arising under federal law.
Civil Procedure Fundamentals
Diversity Jurisdiction
Citizenship diversity + >$75k in controversy.
Civil Procedure Fundamentals
Domicile
Individual's true home, intent to remain.
Civil Procedure Fundamentals
Venue
Proper geographic district for a lawsuit.
Civil Procedure Fundamentals
Erie Doctrine
Federal courts apply state substantive law in diversity cases.
Civil Procedure Fundamentals
Supplemental Jurisdiction
Federal court hears related state law claims.
Civil Procedure Fundamentals
Jurisdiction, Venue, and Law Applied by Federal Courts
For 'SMJ' (Subject Matter Jurisdiction), think 'State vs. My Jurisdiction' – is it a state or federal issue? For 'PJ' (Personal Jurisdiction), think 'Party's Journey' – did the party travel to or have sufficient contacts with the state?
Civil Procedure Fundamentals
Jurisdiction, Venue, and Law Applied by Federal Courts
California's long-arm statute extends personal jurisdiction to the full extent permitted by the U.S. Constitution, which is a common approach among states. On the exam, always analyze both the constitutional 'minimum contacts' test and the statutory basis for PJ.
Civil Procedure Fundamentals
Jurisdiction, Venue, and Law Applied by Federal Courts
Confusing subject matter jurisdiction (power over the case type) with personal jurisdiction (power over the parties).
Civil Procedure Fundamentals
Jurisdiction, Venue, and Law Applied by Federal Courts
Forgetting the amount in controversy requirement for diversity jurisdiction.
Civil Procedure Fundamentals
Jurisdiction, Venue, and Law Applied by Federal Courts
Failing to analyze both constitutional and statutory bases for personal jurisdiction.
Civil Procedure Fundamentals
Pleading
Formal document filed with court stating claims or defenses.
Civil Procedure Fundamentals
Complaint
Document initiating a lawsuit, stating plaintiff's claims.
Civil Procedure Fundamentals
Answer
Defendant's response to a complaint, admitting/denying allegations.
Civil Procedure Fundamentals
Discovery
Process of obtaining information from parties/non-parties.
Civil Procedure Fundamentals
Interrogatories
Written questions to a party, answered under oath.
Civil Procedure Fundamentals
Deposition
Out-of-court, under-oath testimony of a witness.
Civil Procedure Fundamentals
Motion to Dismiss
Request to end case due to procedural or legal defects.
Civil Procedure Fundamentals
Summary Judgment
Judgment without trial when no genuine dispute of material fact.
Civil Procedure Fundamentals
Pretrial Procedures: Pleadings, Discovery, Motions
P.D.M. - Pleadings Define the issues, Discovery Uncovers the facts, Motions Resolve disputes.
Civil Procedure Fundamentals
Pretrial Procedures: Pleadings, Discovery, Motions
California's civil procedure rules (Code of Civil Procedure) have different pleading standards and discovery limits than the FRCP. For instance, California generally follows a 'fact pleading' standard, which is often considered more demanding than the federal 'notice pleading' with its Twombly/Iqbal gloss. Also, California has specific limits on the number of interrogatories and requests for admission.
Civil Procedure Fundamentals
Pretrial Procedures: Pleadings, Discovery, Motions
Failing to plead affirmative defenses in the answer, leading to waiver.
Civil Procedure Fundamentals
Pretrial Procedures: Pleadings, Discovery, Motions
Objecting to discovery requests without a valid legal basis (e.g., privilege, undue burden).
Civil Procedure Fundamentals
Pretrial Procedures: Pleadings, Discovery, Motions
Confusing the standard for a motion to dismiss (legal sufficiency) with summary judgment (no genuine factual dispute).
Civil Procedure Fundamentals
Jury Trial
A trial where a jury determines facts and applies law.
Civil Procedure Fundamentals
Renewed JMOL
Motion asking judge to overturn jury verdict for lack of evidence.
Civil Procedure Fundamentals
Motion for New Trial
Motion seeking a new trial due to significant trial errors.
Civil Procedure Fundamentals
Final Judgment Rule
Appeals generally require a final decision on all claims/parties.
Civil Procedure Fundamentals
Interlocutory Order
An order made during litigation, not a final judgment.
Civil Procedure Fundamentals
De Novo Review
Appellate court reviews legal questions without deference.
Civil Procedure Fundamentals
Clearly Erroneous
Standard for reviewing judge's factual findings; high deference.
Civil Procedure Fundamentals
Abuse of Discretion
Standard for reviewing judge's discretionary rulings.
Civil Procedure Fundamentals
Jury Trials, Post-Trial Motions, and Appeals
Jury's 'L.E.A.D.' - Legal remedies, Equitable remedies (No jury), Appellate review, Demand (14 days).
Civil Procedure Fundamentals
Jury Trials, Post-Trial Motions, and Appeals
California's state constitution also guarantees a right to jury trial in civil cases, but the specific procedures for demanding a jury and the timing for post-trial motions can differ from federal rules. Always check state-specific rules for California bar questions.
Civil Procedure Fundamentals
Jury Trials, Post-Trial Motions, and Appeals
Confusing the timing requirements for demanding a jury trial (14 days) with the timing for post-trial motions (28 days).
Civil Procedure Fundamentals
Jury Trials, Post-Trial Motions, and Appeals
Applying the wrong standard of review (e.g., de novo to factual findings) on appeal.
Civil Procedure Fundamentals
Jury Trials, Post-Trial Motions, and Appeals
Forgetting that a renewed JMOL requires a previous JMOL motion during trial.
Civil Procedure Fundamentals
Permissive Joinder
Allows parties with common claims/questions to join.
Civil Procedure Fundamentals
Compulsory Joinder
Requires 'necessary' parties to be joined if feasible.
Civil Procedure Fundamentals
Class Action
One lawsuit represents many individuals with similar claims.
Civil Procedure Fundamentals
Numerosity
Class is so large that individual joinder is impracticable.
Civil Procedure Fundamentals
Interpleader
Stakeholder forces claimants to litigate over property.
Civil Procedure Fundamentals
Intervention
Non-party joins an existing lawsuit to protect an interest.
Civil Procedure Fundamentals
MDL
Consolidates multi-district cases for pretrial proceedings.
Civil Procedure Fundamentals
Indispensable Party
Necessary party whose absence requires case dismissal.
Civil Procedure Fundamentals
Complex Litigation & Special Procedures
To remember Class Action prerequisites, think: 'N-C-T-A': Numerosity, Commonality, Typicality, Adequacy of representation.
Civil Procedure Fundamentals
Complex Litigation & Special Procedures
For class actions, California's Code of Civil Procedure § 382 is similar to Federal Rule 23 but often interpreted more liberally regarding commonality and superiority. Be aware of the specific requirements for notice and settlement approval in both federal and state contexts.
Civil Procedure Fundamentals
Complex Litigation & Special Procedures
Confusing the requirements for Rule 22 interpleader (diversity between stakeholder and claimants) with statutory interpleader (minimal diversity between any two claimants).
Civil Procedure Fundamentals
Complex Litigation & Special Procedures
Forgetting that after pretrial proceedings, MDL cases are typically remanded to their original districts for trial, not tried in the MDL court.
Civil Procedure Fundamentals
Complex Litigation & Special Procedures
Failing to analyze both the Rule 23(a) prerequisites AND one of the Rule 23(b) categories for class action certification.
Civil Procedure Fundamentals
Judicial Review
Court power to declare laws/actions unconstitutional.
Constitutional Law Essentials
Separation of Powers
Division of government into legislative, executive, judicial branches.
Constitutional Law Essentials
Checks and Balances
System preventing power concentration by inter-branch oversight.
Constitutional Law Essentials
Justiciability
Limits on federal court's ability to hear cases.
Constitutional Law Essentials
Standing
Plaintiff's concrete injury, causation, and redressability.
Constitutional Law Essentials
Political Question Doctrine
Issues inappropriate for judicial review, left to political branches.
Constitutional Law Essentials
Ripeness
Case is not yet fully developed for judicial review.
Constitutional Law Essentials
Mootness
Controversy has already been resolved, no live dispute.
Constitutional Law Essentials
Judicial Review and Separation of Powers
To remember Justiciability doctrines, think: 'S-R-M-P' – Standing, Ripeness, Mootness, Political Question. These are the gatekeepers to federal courts!
Constitutional Law Essentials
Judicial Review and Separation of Powers
California's state courts also exercise judicial review over state laws and executive actions, mirroring the federal system. Be aware of the distinction between federal and state court jurisdiction on the exam.
Constitutional Law Essentials
Judicial Review and Separation of Powers
Confusing judicial review (power to declare unconstitutional) with appellate review (reviewing lower court decisions).
Constitutional Law Essentials
Judicial Review and Separation of Powers
Forgetting that justiciability doctrines are about whether a court CAN hear a case, not whether it WILL win.
Constitutional Law Essentials
Judicial Review and Separation of Powers
Assuming separation of powers means no interaction between branches; it's about checks and balances, not absolute isolation.
Constitutional Law Essentials
Enumerated Powers
Specific powers granted to Congress in Article I, Section 8.
Constitutional Law Essentials
Implied Powers
Powers necessary and proper to carry out enumerated powers.
Constitutional Law Essentials
Commerce Clause
Grants Congress power to regulate interstate commerce.
Constitutional Law Essentials
Tenth Amendment
Reserves powers to states not delegated to federal government.
Constitutional Law Essentials
Police Powers
States' inherent power to regulate for health, safety, welfare.
Constitutional Law Essentials
Preemption
Federal law supersedes state law, either expressly or impliedly.
Constitutional Law Essentials
Dormant Commerce Clause
Limits states' power to burden or discriminate against interstate commerce.
Constitutional Law Essentials
Anti-Commandeering
Congress cannot compel states to enact or enforce federal laws.
Constitutional Law Essentials
Federalism: Powers of Congress and States
To remember the three categories of Commerce Clause power, think 'C.I.S.': Channels, Instrumentalities, Substantial effect.
Constitutional Law Essentials
Federalism: Powers of Congress and States
California often has unique regulations that can trigger Dormant Commerce Clause or preemption issues. Always look for facts indicating a state law that impacts out-of-state businesses or conflicts with a federal scheme.
Constitutional Law Essentials
Federalism: Powers of Congress and States
Confusing the scope of the Commerce Clause with its limits (Dormant Commerce Clause).
Constitutional Law Essentials
Federalism: Powers of Congress and States
Assuming the Tenth Amendment is a strong independent limit on Congress's enumerated powers.
Constitutional Law Essentials
Federalism: Powers of Congress and States
Forgetting to apply the Pike balancing test for non-discriminatory state laws under the Dormant Commerce Clause.
Constitutional Law Essentials
Due Process Clause
Constitutional guarantee of fair treatment by government.
Constitutional Law Essentials
Procedural Due Process
Requires fair procedures (notice, hearing) before deprivation of life, liberty, or property.
Constitutional Law Essentials
Substantive Due Process
Protects fundamental rights from arbitrary government interference.
Constitutional Law Essentials
Fundamental Rights
Unenumerated rights deeply rooted in tradition, protected by strict scrutiny.
Constitutional Law Essentials
Equal Protection Clause
Guarantees similarly situated individuals are treated alike by the government.
Constitutional Law Essentials
Strict Scrutiny
Highest level of judicial review; requires compelling interest, narrow tailoring.
Constitutional Law Essentials
Intermediate Scrutiny
Middle level of review; requires important interest, substantial relation.
Constitutional Law Essentials
Rational Basis Review
Lowest level of review; requires legitimate interest, rational relation.
Constitutional Law Essentials
Individual Rights: Due Process & Equal Protection
D.E.S.I.R.E. (Due Process, Equal Protection, Scrutiny, Interests, Rights, Equality) to remember the core concepts and their interplay.
Constitutional Law Essentials
Individual Rights: Due Process & Equal Protection
California's state constitution also contains its own due process and equal protection clauses, which are often interpreted to provide broader protections than their federal counterparts. On the California Bar Exam, be prepared for questions that might require applying both federal and state constitutional analyses, especially if the state law provides greater individual rights.
Constitutional Law Essentials
Individual Rights: Due Process & Equal Protection
Confusing procedural due process with substantive due process; remember one is about process, the other about the reason for government action.
Constitutional Law Essentials
Individual Rights: Due Process & Equal Protection
Incorrectly identifying the level of scrutiny for an Equal Protection claim (e.g., applying intermediate scrutiny to age discrimination).
Constitutional Law Essentials
Individual Rights: Due Process & Equal Protection
Forgetting that the Fifth Amendment's Due Process Clause applies to the federal government, while the Fourteenth Amendment's applies to states.
Constitutional Law Essentials
Rational Basis
Lowest level of review; rationally related to legitimate interest.
Constitutional Law Essentials
Content-Based Regulation
Restricts speech based on its message; usually strict scrutiny.
Constitutional Law Essentials
Content-Neutral Regulation
Restricts time, place, manner of speech; usually intermediate scrutiny.
Constitutional Law Essentials
Establishment Clause
Prohibits government from establishing or endorsing religion.
Constitutional Law Essentials
Free Exercise Clause
Protects individuals' right to practice their religion.
Constitutional Law Essentials
Obscenity
Unprotected speech lacking serious value, patently offensive.
Constitutional Law Essentials
First Amendment Freedoms and Other Rights
To remember the levels of scrutiny: 'Strict Scrutiny = Super Critical' (compelling interest, narrowly tailored). 'Intermediate = Important' (significant interest, narrowly tailored). 'Rational Basis = Really Easy' (legitimate interest, rationally related).
Constitutional Law Essentials
First Amendment Freedoms and Other Rights
California's free speech clause (Art. I, § 2) is often interpreted more expansively than the First Amendment, providing greater protection for speech, especially in public forums. Be aware that state constitutional provisions can offer broader rights.
Constitutional Law Essentials
First Amendment Freedoms and Other Rights
Confusing content-based with content-neutral regulations and applying the wrong level of scrutiny.
Constitutional Law Essentials
First Amendment Freedoms and Other Rights
Applying strict scrutiny to all burdens on religious practice, rather than distinguishing between generally applicable laws and targeted laws.
Constitutional Law Essentials
First Amendment Freedoms and Other Rights
Assuming all speech is protected; forgetting the categories of unprotected speech.
Constitutional Law Essentials
Offer
Manifestation of willingness to enter a bargain.
Contracts and Sales
Acceptance
Unequivocal assent to the terms of an offer.
Contracts and Sales
Consideration
Bargained-for exchange of legal value.
Contracts and Sales
Mirror Image Rule
Acceptance must exactly match the offer's terms.
Contracts and Sales
Counteroffer
Rejection of offer, proposing new terms.
Contracts and Sales
Mailbox Rule
Acceptance effective upon dispatch, not receipt.
Contracts and Sales
Promissory Estoppel
Enforcing promise due to foreseeable reliance.
Contracts and Sales
Past Consideration
Act done before promise; generally not valid.
Contracts and Sales
Contract Formation: Offer, Acceptance, Consideration
OAC: Offer, Acceptance, Consideration. Think of it as 'Oh, A Contract!' when all three are present.
Contracts and Sales
Contract Formation: Offer, Acceptance, Consideration
California's Civil Code § 1584 states that performance of the conditions of a proposal, or the acceptance of the consideration offered with a proposal, is an acceptance. This reinforces that acceptance can be by conduct.
Contracts and Sales
Contract Formation: Offer, Acceptance, Consideration
Confusing an invitation to negotiate (like most ads) with a true offer.
Contracts and Sales
Contract Formation: Offer, Acceptance, Consideration
Forgetting that a counteroffer terminates the original offer.
Contracts and Sales
Contract Formation: Offer, Acceptance, Consideration
Assuming adequacy of consideration is always scrutinized by courts.
Contracts and Sales
Parol Evidence Rule
Excludes prior/contemporaneous agreements contradicting integrated written contract.
Contracts and Sales
Condition Precedent
Event that must occur before performance is due.
Contracts and Sales
Substantial Performance
Minor breach, obligates other party to perform, but allows damages.
Contracts and Sales
Perfect Tender Rule
UCC rule: seller must deliver goods exactly conforming to contract.
Contracts and Sales
Material Breach
Significant failure, excuses non-breaching party's performance.
Contracts and Sales
Anticipatory Repudiation
Unequivocal statement of non-performance before due date.
Contracts and Sales
Novation
Agreement to substitute a new party for an old one in a contract.
Contracts and Sales
Frustration of Purpose
Unforeseen event destroys contract's central purpose.
Contracts and Sales
Contract Terms, Performance, Breach, and Discharge
P.A.I.D. for Discharge: Performance, Agreement, Impossibility/Impracticability/Frustration, Default (Breach).
Contracts and Sales
Contract Terms, Performance, Breach, and Discharge
California's parol evidence rule is generally more liberal than the common law rule, allowing extrinsic evidence to explain ambiguous terms even in a seemingly integrated contract, provided the evidence does not contradict the express terms. Also, California recognizes the implied covenant of good faith and fair dealing in every contract, which can impact performance and breach analysis.
Contracts and Sales
Contract Terms, Performance, Breach, and Discharge
Confusing the Parol Evidence Rule with the Statute of Frauds; they address different issues (admissibility of evidence vs. enforceability of certain contracts).
Contracts and Sales
Contract Terms, Performance, Breach, and Discharge
Applying the 'perfect tender rule' to common law service contracts instead of only UCC sales of goods.
Contracts and Sales
Contract Terms, Performance, Breach, and Discharge
Failing to distinguish between a material breach (excuses performance) and a minor breach (does not excuse performance).
Contracts and Sales
Expectation Damages
Damages to put party in position as if contract performed.
Contracts and Sales
Consequential Damages
Indirect, foreseeable losses from breach.
Contracts and Sales
Incidental Damages
Minor costs incurred due to breach.
Contracts and Sales
Mitigation of Damages
Duty to minimize losses after breach.
Contracts and Sales
Specific Performance
Court order to perform contractual duty.
Contracts and Sales
Injunction
Court order to do or not do an act.
Contracts and Sales
Rescission
Cancellation of a contract.
Contracts and Sales
Restitution
Prevent unjust enrichment; return benefits.
Contracts and Sales
Remedies for Breach of Contract
For remedies, think 'MESSRS': Monetary (Expectation, Special, Restitution), Specific Performance, Rescission.
Contracts and Sales
Remedies for Breach of Contract
On the California Bar Exam, pay close attention to the distinction between general and special damages, and when consequential damages are recoverable under the Hadley v. Baxendale rule. Also, remember that specific performance is rarely granted for personal service contracts.
Contracts and Sales
Remedies for Breach of Contract
Confusing expectation damages with reliance or restitution damages; focus on the 'benefit of the bargain'.
Contracts and Sales
Remedies for Breach of Contract
Forgetting the foreseeability requirement for consequential damages (Hadley v. Baxendale).
Contracts and Sales
Remedies for Breach of Contract
Assuming specific performance is always available; it's an extraordinary remedy for unique items or land.
Contracts and Sales
Third-Party Beneficiary
Non-party to a contract who benefits from its performance.
Contracts and Sales
Intended Beneficiary
Third party whom contracting parties intended to benefit.
Contracts and Sales
Incidental Beneficiary
Third party who coincidentally benefits, no enforcement rights.
Contracts and Sales
Assignment
Transfer of contractual rights from assignor to assignee.
Contracts and Sales
Delegation
Transfer of contractual duties from delegator to delegatee.
Contracts and Sales
Vesting of Rights
Point at which beneficiary's rights become enforceable.
Contracts and Sales
Third-Party Beneficiaries, Assignment, and Delegation
Remember 'AID' for the core concepts: Assignment, Intended Beneficiary, Delegation.
Contracts and Sales
Third-Party Beneficiaries, Assignment, and Delegation
On the California Bar Exam, pay close attention to contractual clauses prohibiting assignment or delegation. California courts tend to interpret general prohibitions against 'assignment of the contract' as only prohibiting the delegation of duties, not the assignment of rights, unless the language is very specific.
Contracts and Sales
Third-Party Beneficiaries, Assignment, and Delegation
Confusing intended beneficiaries with incidental beneficiaries; only intended beneficiaries have rights.
Contracts and Sales
Third-Party Beneficiaries, Assignment, and Delegation
Believing that a general 'no assignment' clause prohibits the assignment of rights, rather than just delegation of duties.
Contracts and Sales
Third-Party Beneficiaries, Assignment, and Delegation
Assuming a delegator is automatically released from liability after delegation without a novation.
Contracts and Sales
Malice Aforethought
Mental state for murder: intent to kill, harm, depraved heart, or felony murder.
Criminal Law and Procedure
Premeditation
Reflecting on a killing beforehand, even briefly.
Criminal Law and Procedure
Deliberation
Making a careful decision to kill.
Criminal Law and Procedure
Depraved Heart Murder
Reckless indifference to an unjustifiably high risk to human life.
Criminal Law and Procedure
Voluntary Manslaughter
Intentional killing in heat of passion with adequate provocation.
Criminal Law and Procedure
Involuntary Manslaughter
Killing due to criminal negligence or misdemeanor.
Criminal Law and Procedure
Battery
Unlawful application of force causing injury or offensive touching.
Criminal Law and Procedure
Assault
Attempted battery or creating apprehension of harm.
Criminal Law and Procedure
Homicide and Other Major Crimes
To remember the four types of malice aforethought, think: 'I Intend Seriously Damaging Felons.' (Intent to Kill, Intent to Inflict Serious Bodily Harm, Depraved Heart, Felony Murder).
Criminal Law and Procedure
Homicide and Other Major Crimes
For California, be aware of the felony-murder rule's limitations, particularly the 'merger doctrine' where assaultive felonies (like assault with a deadly weapon) cannot serve as the underlying felony for felony murder if the assault is an integral part of the homicide. Also, recognize the specific statutory definitions of sexual offenses, which have largely replaced common law rape.
Criminal Law and Procedure
Homicide and Other Major Crimes
Confusing intent to kill with premeditation and deliberation; the former is malice, the latter elevates to first-degree.
Criminal Law and Procedure
Homicide and Other Major Crimes
Applying the heat of passion defense when there's been a significant cooling-off period.
Criminal Law and Procedure
Homicide and Other Major Crimes
Forgetting that felony murder requires an inherently dangerous felony, and not all felonies qualify.
Criminal Law and Procedure
Inchoate Crimes
Incomplete crimes that punish preparatory acts.
Criminal Law and Procedure
Attempt
Specific intent + overt act towards crime.
Criminal Law and Procedure
Conspiracy
Agreement between two or more for unlawful act.
Criminal Law and Procedure
Solicitation
Inciting another to commit a crime.
Criminal Law and Procedure
Merger Doctrine
Prevents conviction for both inchoate and target crime.
Criminal Law and Procedure
Accomplice
Aids/abets principal with intent crime be committed.
Criminal Law and Procedure
Accessory After the Fact
Aids felon to escape, after crime committed.
Criminal Law and Procedure
Pinkerton Rule
Co-conspirators liable for foreseeable crimes.
Criminal Law and Procedure
Inchoate Crimes, Parties, and General Principles
A.C.S. - Always Commit Successfully! (Attempt, Conspiracy, Solicitation are the inchoate crimes).
Criminal Law and Procedure
Inchoate Crimes, Parties, and General Principles
California follows the 'substantial step' test for attempt. For conspiracy, California requires an overt act. Withdrawal from conspiracy in California requires communication to co-conspirators and an affirmative act to defeat the purpose of the conspiracy.
Criminal Law and Procedure
Inchoate Crimes, Parties, and General Principles
Confusing factual impossibility with legal impossibility for attempt; factual impossibility is not a defense.
Criminal Law and Procedure
Inchoate Crimes, Parties, and General Principles
Incorrectly applying the merger doctrine, especially for conspiracy which does not merge with the completed crime.
Criminal Law and Procedure
Inchoate Crimes, Parties, and General Principles
Failing to distinguish between accomplice liability (same crime as principal) and accessory after the fact (separate, lesser crime).
Criminal Law and Procedure
Probable Cause
Sufficient facts for a reasonable person to believe a crime occurred.
Criminal Law and Procedure
Reasonable Expectation of Privacy
A person's subjective expectation that society recognizes as reasonable.
Criminal Law and Procedure
Warrant Exception
Circumstances allowing a warrantless search or seizure.
Criminal Law and Procedure
Custodial Interrogation
Questioning by police when a person is not free to leave.
Criminal Law and Procedure
Miranda Warnings
Rights read to a suspect before custodial interrogation.
Criminal Law and Procedure
Exclusionary Rule
Illegally obtained evidence is inadmissible in court.
Criminal Law and Procedure
Testimonial Evidence
Statements or communications protected by Fifth Amendment.
Criminal Law and Procedure
Plain View Doctrine
Evidence visible from a lawful vantage point can be seized.
Criminal Law and Procedure
Fourth and Fifth Amendment Protections
Remember 'W-E-A-P-O-N' for Warrant Exceptions: Warrant, Exigent circumstances, Automobile, Plain view, Officer safety (Terry), kNowing consent.
Criminal Law and Procedure
Fourth and Fifth Amendment Protections
California's Proposition 8 (Victims' Bill of Rights) generally allows for the admission of relevant evidence in criminal proceedings, even if it was obtained in violation of the state constitution, unless its exclusion is required by the U.S. Constitution. Therefore, on the California Bar Exam, focus primarily on federal Fourth and Fifth Amendment standards for evidence exclusion.
Criminal Law and Procedure
Fourth and Fifth Amendment Protections
Confusing private actor searches with government searches; the Fourth Amendment only applies to government conduct.
Criminal Law and Procedure
Fourth and Fifth Amendment Protections
Forgetting that Miranda warnings are only required for *custodial* *interrogations* – both elements must be present.
Criminal Law and Procedure
Fourth and Fifth Amendment Protections
Assuming the Fifth Amendment protects against all compelled evidence, rather than just testimonial evidence.
Criminal Law and Procedure
Right to Counsel
Sixth Amendment guarantee to legal representation in criminal cases.
Criminal Law and Procedure
Offense-Specific
Right to counsel applies only to the specific crime charged.
Criminal Law and Procedure
Critical Stages
Phases of prosecution where right to counsel applies (e.g., trial, sentencing).
Criminal Law and Procedure
Speedy Trial
Sixth Amendment right to a timely resolution of criminal charges.
Criminal Law and Procedure
Confrontation Clause
Sixth Amendment right to confront adverse witnesses.
Criminal Law and Procedure
Cruel and Unusual Punishment
Eighth Amendment prohibition against excessive or inhumane penalties.
Criminal Law and Procedure
Excessive Bail
Bail set higher than reasonably necessary to ensure court appearance.
Criminal Law and Procedure
Grossly Disproportionate
Standard for judging cruel and unusual punishment in non-capital cases.
Criminal Law and Procedure
Sixth & Eighth Amendments: Right to Counsel, Trial, & Punishment
Think '6 C's' for the Sixth Amendment: Counsel, Confrontation, Compulsory process, Cross-examination, Custody (speedy trial), and Court (impartial jury).
Criminal Law and Procedure
Sixth & Eighth Amendments: Right to Counsel, Trial, & Punishment
On the California Bar Exam, pay close attention to the specific timing of the attachment of the Sixth Amendment right to counsel. Remember it's formal adversarial proceedings, not just arrest. Also, California follows the federal rule regarding the offense-specific nature of the right.
Criminal Law and Procedure
Sixth & Eighth Amendments: Right to Counsel, Trial, & Punishment
Confusing the Sixth Amendment right to counsel (offense-specific) with the Fifth Amendment right to counsel (custodial interrogation, not offense-specific).
Criminal Law and Procedure
Sixth & Eighth Amendments: Right to Counsel, Trial, & Punishment
Assuming the Sixth Amendment right to counsel automatically extends to all related, but uncharged, offenses.
Criminal Law and Procedure
Sixth & Eighth Amendments: Right to Counsel, Trial, & Punishment
Applying the 'grossly disproportionate' standard for cruel and unusual punishment too broadly to capital cases, where more specific categorical rules apply.
Criminal Law and Procedure
Relevant Evidence
Evidence that tends to prove/disprove a material fact.
Evidence Rules and Application
Direct Evidence
Evidence that directly proves a fact without inference.
Evidence Rules and Application
Circumstantial Evidence
Evidence that indirectly proves a fact, requiring inference.
Evidence Rules and Application
Laying Foundation
Presenting preliminary evidence to admit other evidence.
Evidence Rules and Application
Conditional Relevancy
Relevance depends on another fact's existence.
Evidence Rules and Application
Fact of Consequence
A material fact in dispute in the case.
Evidence Rules and Application
Presentation of Evidence and Relevancy
R-E-L-E-V-A-N-T: **R**eally **E**asy **L**ogical **E**vidence **V**erifies **A**ny **N**eeded **T**ruth.
Evidence Rules and Application
Presentation of Evidence and Relevancy
California Evidence Code (CEC) Section 350 and 351 generally align with FRE 401 and 402 regarding relevancy. However, California's Proposition 8 ('Right to Truth-in-Evidence') makes all relevant evidence admissible in criminal cases, even if it would otherwise be excluded under state law, unless excluded by federal law or specific state provisions (like hearsay, privilege, or character evidence).
Evidence Rules and Application
Presentation of Evidence and Relevancy
Confusing relevancy (any tendency to prove a material fact) with sufficiency (enough evidence to win).
Evidence Rules and Application
Presentation of Evidence and Relevancy
Forgetting that relevant evidence can still be excluded by other rules (e.g., hearsay, privilege).
Evidence Rules and Application
Presentation of Evidence and Relevancy
Failing to recognize that both direct and circumstantial evidence are generally admissible and valuable.
Evidence Rules and Application
FRE 403
Allows exclusion of relevant evidence if its probative value is substantially outweighed by certain dangers.
Evidence Rules and Application
Unfair Prejudice
Undue tendency to suggest decision on an improper basis, often emotional.
Evidence Rules and Application
Attorney-Client Privilege
Protects confidential communications for legal advice; belongs to the client.
Evidence Rules and Application
Crime-Fraud Exception
Privilege does not apply if legal advice was sought to commit a crime or fraud.
Evidence Rules and Application
Spousal Testimonial Privilege
Allows a spouse to refuse to testify against a current spouse in criminal cases; belongs to testifying spouse.
Evidence Rules and Application
Marital Communications Privilege
Protects confidential communications between spouses during marriage; held by both spouses.
Evidence Rules and Application
Psychotherapist-Patient Privilege
Protects confidential communications for mental health diagnosis/treatment.
Evidence Rules and Application
Waiver
Voluntary relinquishment of a known right, such as a privilege.
Evidence Rules and Application
Excluding Relevant Evidence & Privileges
P.C. M.A.P.S. for FRE 403 dangers: Prejudice, Confusion, Misleading, Undue delay, A - (no A), Wasting time, Cumulative. (Just remember the first letters of the key dangers!)
Evidence Rules and Application
Excluding Relevant Evidence & Privileges
California Evidence Code (CEC) generally recognizes similar privileges, but with some differences. For example, California's physician-patient privilege is broader than in federal courts. For the bar exam, pay close attention to whether the question specifies federal or state law, as privilege rules can vary significantly. Also, California has a 'sexual assault counselor-victim privilege' not found in the FRE.
Evidence Rules and Application
Excluding Relevant Evidence & Privileges
Confusing spousal testimonial privilege (who testifies) with marital communications privilege (what was said).
Evidence Rules and Application
Excluding Relevant Evidence & Privileges
Forgetting that privileges can be waived, or that they have exceptions like the crime-fraud exception.
Evidence Rules and Application
Excluding Relevant Evidence & Privileges
Applying state-specific privilege rules when the question requires federal rules, or vice-versa.
Evidence Rules and Application
Best Evidence Rule
Requires original writing, recording, or photograph to prove its content.
Evidence Rules and Application
Original (Document)
The writing itself or any counterpart intended to have the same effect.
Evidence Rules and Application
Duplicate
Accurate reproduction of an original by mechanical or electronic process.
Evidence Rules and Application
Authentication
Producing enough evidence to support a finding that an item is what it claims to be.
Evidence Rules and Application
Ancient Document
Document 20+ years old, unsuspicious condition, proper custody.
Evidence Rules and Application
Self-Authenticating
Documents that require no extrinsic evidence of authenticity to be admitted.
Evidence Rules and Application
Admissibility
Whether evidence can be presented in court.
Evidence Rules and Application
Content at Issue
When the specific words, terms, or images of a document are being proven.
Evidence Rules and Application
Writings, Recordings, Photographs & Authentication
O-L-D-U-N-F-A-I-R: Original Lost/Destroyed, Unobtainable, Not Closely Related to Issue, Failure to Produce by Opponent. These are the exceptions to the Best Evidence Rule!
Evidence Rules and Application
Writings, Recordings, Photographs & Authentication
California Evidence Code (CEC) has a 'Secondary Evidence Rule' rather than a 'Best Evidence Rule.' While similar, CEC generally allows duplicates without needing to account for the original, and allows other secondary evidence (like testimony about content) unless the court finds a genuine dispute as to the original's material terms or fairness issues. Also, for ancient documents, CEC requires 30 years, not 20.
Evidence Rules and Application
Writings, Recordings, Photographs & Authentication
Confusing the Best Evidence Rule with the general rule against hearsay; they are distinct rules.
Evidence Rules and Application
Writings, Recordings, Photographs & Authentication
Assuming *any* photocopy is always admissible without considering if the original's authenticity is genuinely questioned.
Evidence Rules and Application
Writings, Recordings, Photographs & Authentication
Failing to recognize that authentication is a preliminary question for the judge, who only needs to find sufficient evidence for a jury to believe the item is authentic, not that it *is* authentic.
Evidence Rules and Application
Hearsay
Out-of-court statement offered for its truth.
Evidence Rules and Application
Declarant
Person who made the out-of-court statement.
Evidence Rules and Application
Non-Hearsay
Statement not offered for its truth or excluded by rule.
Evidence Rules and Application
Excited Utterance
Statement related to a startling event, made under excitement.
Evidence Rules and Application
Present Sense Impression
Statement describing an event as it happens or immediately after.
Evidence Rules and Application
Business Records
Records of a regularly conducted business activity.
Evidence Rules and Application
Dying Declaration
Statement under belief of imminent death, re: cause of death.
Evidence Rules and Application
Statement Against Interest
Statement contrary to declarant's pecuniary, proprietary, or penal interest.
Evidence Rules and Application
Hearsay Rule and Its Exceptions
Imagine a 'HEAR-SAY' parrot. It just repeats what it HEARD someone SAY, but it doesn't know if it's TRUE. If you want to use the parrot's squawk in court to prove the truth of what it heard, it's hearsay! You need a special 'parrot-pass' (an exception) to let it speak.
Evidence Rules and Application
Hearsay Rule and Its Exceptions
California Evidence Code (CEC) has similar concepts but often different numbering and specific requirements. For instance, CEC 1200 defines hearsay. Pay close attention to specific California distinctions for exceptions like spontaneous statements (similar to excited utterance) and contemporaneous statements (similar to present sense impression), and the specific requirements for unavailability.
Evidence Rules and Application
Hearsay Rule and Its Exceptions
Confusing non-hearsay purposes with hearsay exceptions.
Evidence Rules and Application
Hearsay Rule and Its Exceptions
Forgetting to analyze all four elements of hearsay before jumping to exceptions.
Evidence Rules and Application
Hearsay Rule and Its Exceptions
Applying an exception that requires declarant unavailability when the declarant is, in fact, available.
Evidence Rules and Application
Fee Simple Absolute
Largest estate, full ownership, inheritable.
Real Property Law
Fee Simple Determinable
Estate that automatically ends upon a condition.
Real Property Law
Life Estate
Possession for the duration of a specific life.
Real Property Law
Reversion
Future interest retained by grantor after a lesser estate.
Real Property Law
Remainder
Future interest in a 3rd party, follows natural termination.
Real Property Law
Executory Interest
Future interest in a 3rd party, cuts short or follows gap.
Real Property Law
Rule Against Perpetuities
Limits how long interests can remain contingent.
Real Property Law
Estates and Future Interests in Land
RAP: 'R'emember 'A'll 'P'ossibilities. If there's ANY possibility it won't vest within 21 years of a life in being, it's void!
Real Property Law
Estates and Future Interests in Land
California has largely abolished the Rule Against Perpetuities for commercial transactions and uses a 'wait-and-see' approach for non-commercial interests, meaning an interest is not void unless it actually fails to vest within the perpetuities period, or 90 years. However, for the MBE, apply the common law RAP unless specified otherwise.
Real Property Law
Estates and Future Interests in Land
Confusing Fee Simple Determinable (automatic termination) with Fee Simple Subject to Condition Subsequent (grantor must act to terminate).
Real Property Law
Estates and Future Interests in Land
Misapplying the Rule Against Perpetuities to interests it doesn't apply to (e.g., vested remainders, grantor's retained interests).
Real Property Law
Estates and Future Interests in Land
Forgetting to identify the 'lives in being' correctly when applying RAP, or failing to consider all possibilities for vesting.
Real Property Law
Easement Appurtenant
Benefits a specific parcel of land (dominant estate).
Real Property Law
Easement in Gross
Benefits a person or entity, not a specific parcel.
Real Property Law
Servient Estate
The land burdened by an easement.
Real Property Law
Dominant Estate
The land that benefits from an easement appurtenant.
Real Property Law
Real Covenant
Promise about land use, enforceable at law for damages.
Real Property Law
Equitable Servitude
Promise about land use, enforceable in equity for injunction.
Real Property Law
Zoning Ordinance
Government regulation of land use and development.
Real Property Law
Nonconforming Use
Existing use lawful before zoning, but now violates it.
Real Property Law
Rights in Land: Easements, Covenants, Zoning
ICE-T for Covenants: I-Intent, C-Contact & Concern, E-Equitable Notice, T-Touch & Concern. For real covenants, add P-Privity (Horizontal & Vertical).
Real Property Law
Rights in Land: Easements, Covenants, Zoning
California law on covenants and equitable servitudes generally follows common law, but pay attention to specific statutory provisions regarding homeowners' associations (HOAs) and their enforcement powers, particularly the Davis-Stirling Common Interest Development Act.
Real Property Law
Rights in Land: Easements, Covenants, Zoning
Confusing the requirements for a real covenant to run with the land versus an equitable servitude.
Real Property Law