AdaptiBarBar ExamLegal Team

Five Substantive Concepts to Review before the MBE

We are one week out from the MBE, the second day of the bar exam consisting entirely of 200 multiple choice questions. Now is the time to review and refine your understanding of the concepts you’ve been studying for weeks. Make sure you are grabbing as many MBE points as possible by reviewing these five concepts that have been the most commonly asked questions by our users studying this session.

1. Common Law Arson

At common law, arson is the malicious burning of the dwelling of another. Most modern statutes have (1) omitted the “of another” requirement, which would then allow a defendant to be guilty of arson for burning his own house, and (2) extended arson to include buildings other than “dwellings.” Examiners will often focus in on one element of the crime, such as “malice,” so that these other two elements are not directly issue in the question. If the fact pattern gives you a statute, you should follow the rule provided rather than the common law.

2. Past Recollection Recorded v. Refreshing (Present) Recollection

Past recollection recorded is a hearsay exception that allows a witness to prove the contents of a writing, as long as the witness (1) made or adopted the record, (2) based on firsthand knowledge, (3) when the matter was fresh in the witness’s mind, (4) which accurately reflected the witness’s knowledge. The witness must be testifying, and their memory must be exhausted. The writing may be read into evidence but not admitted as an exhibit to the jury, unless offered by the adverse party.

Refreshing (present) recollection differs in that it is not a hearsay exception because the instrument used to refresh the witness is not the evidence, the witness’s own testimony is. This concept is often not referred to by name, so you should be familiar with the idea that anything may be used to refresh a witness regardless of the author, source, or truth of the document. The only requirement is that the witness’s memory must first be exhausted. The witness may review the instrument, then it must be taken away, and the witness must testify from memory. The instrument cannot be read or played into evidence and may not be shown to the jury.

3. Confidential Communications Privilege v. Spousal Immunity

Confidential communications made during marriage are protected. This privilege covers confidential communications made during the marriage, which are protected even after divorce and death. Because it belongs to both spouses, either spouse can prevent the other from testifying. It is applicable in both civil and criminal cases.

Under spousal immunity, a witness may refuse to testify against a spouse during the course of the marriage. This privilege covers events that predate the marriage but does not survive divorce. It belongs only to the witness-spouse and is only applicable in criminal cases.

4. Claim Preclusion v. Issue Preclusion

Claim preclusion (i.e., res judicata) prevents bringing new claims, that should have already been brought the first time the cause of action was raised, in a second case. New claims cannot be brought later that arose out of the same transaction or occurrence that has already been tired. Claim preclusion applies between the same claimants in the same configuration.

Issue preclusion (i.e., collateral estoppel) prevents parties from bringing the same issue that has already been litigated, for a second time, in a different case (same issue, different case). Issue preclusion may only be used against someone who was an original party to the first suit, with no exceptions. Non-mutual issue preclusion may sometimes be used by a nonparty defensively if it is considered fair to the nonparty. Offensive non-mutual issue preclusion is rarely allowed by a nonparty and will be only if it is fair and equitable.

5. Double Jeopardy

A defendant cannot be tried twice for the same offense once jeopardy attaches: at the empaneling and swearing in of the jury or at the swearing in of the first witness in a bench trial. Offenses are considered to be different if one offense has an additional element not included in the other offense. Exceptions that permit retrial are a hung jury, trial discontinued due to manifest necessity, breach of a plea bargain, a successful appeal, and trial by separate sovereigns.

The MBE is a marathon, not a sprint. Make sure you are reading the question and the call carefully, as many easy points are lost to reading comprehension. Pay attention to the configuration of the parties and the proper timing and deadlines for motions. Take facts that are given to you and run with them. And most of all, trust your instincts. Go with your first answer and move on!

Best of luck!

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