The general consensus in regards to the February 2016 edition of the Florida bar exam was that the exam was challenging, particularly the MBE. As I've stated before, the MBE is always going to rattle the confidence of examinees.
Now that the exam is over, it is a good time to review the essays. Over the next three days, we will review the essays one-by-one to issue spot and discuss strategies. You can find the essay questions here. Let's begin with the first essay shall we?
The first thing that should pop in your head when doing a precursory read of essay #1 is that this is a criminal law/procedure essay with the obligatory ethics element. As sure as death and taxes, you can anticipate having to discuss whether a lawyer violated rules of ethics/professional responsibility on every exam.
1. What crimes did Alex and Charlie commit and what elements must be proved to convict them?
A passing exam answer for this question should have addressed the following crimes in relation to the facts provided:
The first paragraph of this essay begs you to write about conspiracy. Discuss the standard elements of conspiracy AND the Florida distinctions (no overt act required, bilateral theory). You want to argue for and against the crime of conspiracy. The book Getting to Maybe is an excellent resource for training you to argue both sides of a question.
The second paragraph begs for an analysis of the distinctions between common law burglary and the Florida rules (i.e. no breaking, entry, nighttime, or dwelling is required). Page 62 of the 2016 Florida Bar Exam Review outlines these distinctions for you. The facts state that Bill attempts to steal copper wire stored in the carport area. Your analysis should address whether removing copper from this area would constitute burglary under Florida law.
You also want to demonstrate your knowledge of the fact that Florida has merged the stealing offenses (i.e. larceny, embezzlement, robbery etc.) into the crime of "theft." If you have time, as a bonus, you may want to discuss the degrees of theft and provide some analysis as to which degree Alex and Bill's theft falls under.
You definitely did not want to omit a discussion of solicitation and attempt in your essay. You should have discussed Charlie's solicitation of Alex and Bill to steal copper from Harry's home. Additionally, you wanted to write about Alex and Bill's failed attempt to remove copper from Harry's property. As always, you want to recite the elements of each crime. Never forget to mention that solicitation and attempt merge into the substantive offense.
Lastly, your essay answer should have addressed the felony murder rule. To show the grader that you know the law, you should first discuss that in most jurisdictions, the killing of a co-felon by a victim such as Harry is not felony murder. However, in Florida, a person can be charged for 2nd degree felony murder where a non co-felon committed the killing.
The first question in this essay required the examinee to address a myriad of Florida distinctions in criminal law. A solid passing answer will address most if not all of these.
2. How will the court rule on Alex's motion to suppress the line-up and prevent Harry from in-court identification of Alex?
The second question in essay #1 requires the examinee to shift gears and discuss criminal procedure and a little bit of evidence. The facts in paragraphs 5, 6, & 7 recount Alex's arrest and subsequent line-up identification by Harry.
There are two substantive bases to attack the pre-trial identification of a suspect:
(1) Denial of right to counsel - a suspect has a right to an attorney at any post-charge lineup or showup. Although the facts state that Alex was arrested and Mirandized, you would want to discuss whether the line-up that is quickly arranged constitutes a post-charge lineup. For extra points, you might mention that there is no right to counsel during a photo identification although that is not what Alex was subject to.
(2) Denial of due process - A pre-trial identification can be attacked when the identification is unnecessarily suggestive and there is a substantial likelihood of misidentification. Here is where you want to bring out your analytic skills to impress the bar grader. Use the facts. Harry admits that he didn't get a good look at Alex's face. The line-up consists of three males of various ages and builds. Argue both sides of whether this line-up is suggestive or increases the likelihood of misidentification.
You may want to bring in some discussion of evidence to your answer by discussing prior statements of identification made by a witness and Florida's stance that the mere description of an assailant to a third party is not an identification of a person after perceiving him and will not be admissible at trial by a third person as a non-hearsay prior statement of identification unless it falls under a hearsay exception. There are too many evidence items to properly discuss within an hour so I would advise against going down the primrose path of spending more than 5 minutes mentioning evidence.
I would conclude the answer to this question by discussing the rarely granted remedy of exclusion of an in-court identification. The court will permit in-court identification if there is an independent source for the court identification or the witness had ample opportunity to observe the suspect at the time of the crime. Here, once again, you would use the facts to argue both sides of this issue. Harry stated that he didn't see Alex's face "because it all happened so fast."
Arguing both sides is crucial on bar exams. In a Florida essay fact pattern, there are generally no insignificant facts. The bar examiners do not want to send you down a rabbit hole chasing red herrings. They want you to show the grader that you can write like a lawyer. You need to believe that every paragraph contains important facts to address in your answer.
3. What are Luke's ethical issues and how should he proceed?
Every Florida bar exam will have an essay requiring you to discuss an attorney's ethical issues. Here, you would definitely want to address a lawyer's duty of competence. Luke is a business attorney and nothing in the fact pattern suggests he is competent to represent Charlie in a criminal case.
There is also the issue of Charlie's request that Luke finish a contract between Charlie's company and a copper recycling company. By completing this contract, is Luke assisting Charlie perpetrate a crime? You should use the facts to argue for and against Luke's participation.
Discuss the duty of confidentiality that a lawyer owes a client and analyze whether Luke's representation of Charlie assists or furthers Charlie's criminal enterprises. Likewise, I would mention the facts do not clearly state how Charlie obtains the copper he intends to supply to the recycling company in the contact. If Luke is aware that the copper is stolen, should he withdraw as counsel or complete the contract?
There is so much to write about in this essay and the one hour time limit severely restricts how much you can address each issue. The analysis above is merely intended as a starting point for your own discussion of how to write a passing answer for this essay.