Last week, thousands of aspiring lawyers took the bar exam. In New York, Criminal Law and Criminal Procedure are tested on both the Multistate Bar Exam and state portions of the bar exam. Including these subjects on the "New York day" makes perfect sense to me.
The MBE is a different matter altogether. The MBE is a six hour, 200 multiple choice question exam that is administered in most states. Both questions and their answers are developed by the National Conference of Bar Examiners. "The questions on the examination are designed to be answered by applying fundamental legal principles rather than local case or statutory law," says the NCBE. What are the fundamental legal principles that apply to Criminal Law? Most bar takers are taught to look to the common law, Model Penal Code, and modern statutory developments to ascertain these principles.
But this is unrealistic and unworkable. Putting aside Criminal Procedure, which does have a core set of U.S. Supreme Court decisions that make up its framework, there is no such thing as "fundamental legal principles" in Criminal Law. Very few states still have a common law approach to the subject. Nearly every state's Criminal Law is governed by the "local case or statutory law" that the MBE rejects. Common law, MPC, and modern statutory developments often conflict with one another.
There are some things that states' "local case or statutory law" have in common—mens rea, actus reus, causation, and other general principles. But even with these broad categories, the details are so numerous and varied that it is difficult just to ascertain which rules most states follow. The NCBE "subject matter outline" for Criminal Law is not much help. It is a half page long. Students, bar prep companies, and others are left guessing which rules are applicable and which ones are not majority rules.
In my view, Criminal Law should be tested solely on the state portion of the bar exam. (LC)
Is mere presence at a crime scene itself a crime?
As every first year law student knows, mere presence at the scene of a crime is not sufficient to impose criminal liability on a defendant. The actus reus requirement mandates that a person do something (or fail to comply with a duty imposed by law) or affirmatively aid and abet someone else in the commission of a crime.
As we blogged about last week, new increased penalties have taken effect for Knowing Presence at an Animal Fight, N.Y. Agriculture and Markets Law § 355(5). What was previously a violation is now a Class B misdemeanor. It criminalizes: "[t]he knowing presence as a spectator at any place where an exhibition of animal fighting is being conducted." It is, to my knowledge, the only crime on the books in New York that runs counter to the rule that mere presence is not a crime. (The only other offense I can think of is Trespass, but even that statute requires an affirmative act of entering or remaining unlawfully.)
That is not to say that the statute is unconstitutional. The "mere presence" rule comes from case law interpreting the actus reus and accomplice liability statutes. The Legislature is free, I suppose, to make mere presence a crime under circumstances as it sees fit. Here, punishing and, thus, deterring the audience to animal fighting is an important part of shutting down animal fighting rings. Without an audience betting on and cheering on the fight, promoters of the fight will have little to gain. (LC)
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Posted in Commentaries, New Legislation