Saturday, December 25, 2010

Bar Exam and Real World Experience

Okay, so I'm studying for the Florida Bar Exam. I am encountering one problem repeatedly. I think I'll get past it, but it's a little funny so I'll share ...

Here's a sample question from the review course:
Bob is showing off his new gun to Ted. Thinking there are no bullets in the gun, Bob reenacts a scene from his favorite movie – points the gun at Ted and pulls the trigger, hitting and killing Ted. With what crimes can Ted Bob be convicted? Please evaluate fully, including any and all defenses that may apply.

The sample partial answer deals with First Degree Murder, and concludes that Bob cannot be convicted because he did not intend to kill him (because he thought there were no bullets in the gun).

Okay, maybe in the fantasy land of law school and/or bar exams that might be the case. But in the real world of criminal lawyers, the key word here is "can," not "should":

1. Simple - The jury can infer intent from the facts. Bob pointed the gun at Ted. He pulled the trigger. There was a bullet in the gun and it hit and killed Ted.

Yes in the abstract we know Bob thought there were no bullets in the gun. But how does the jury know that? Because Bob says so? Right. How many defendants would be acquitted if that was persuasive to a jury?

2. Detailed - Police came to the trailer park and took Bob down to the police station. Strangely they didn't believe Bob thought there were no bullets in the gun. After 7 hours of interrogation without an attorney (Bob didn't think he needed one because it was just an accident), Bob said he was sorry and admitted that he was mad because Ted ate the last french fry and he wanted to get back at him. Also, Bob's jail roommate gets extra good time credit by testifying at trial that Bob admitted he did it on purpose.

In other words, Bob can be convicted of First Degree Murder because the criminal justice system is not always about justice.

I'll do my best to stick to the fantasy answer, but maybe I'll slip in the real world answer at the end ("It should be noted that in the real world ...").
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