Multistate Bar (MBE) OPE 1 Practice Exam

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In a criminal homicide case, the jury may convict of murder or manslaughter based on whether the third shot was fired in heat of passion provoked by prior acts. Which statement is correct?

The defendant may be convicted of either murder or manslaughter depending on the facts.

Only murder is possible.

Only manslaughter is possible.

Neither murder nor manslaughter is possible.

The key idea is that heat of passion provoked by adequate prior acts can reduce a homicide from murder to voluntary manslaughter. If the defendant acted under the influence of provocation that would cause a reasonable person to lose self-control, and there was no time to cool off, the homicide may be charged as voluntary manslaughter. If the provocation is insufficient, or there was time to cool off, or there was malice aforethought independent of provocation, murder could be the proper verdict.

In the scenario, if the third shot was fired in heat of passion provoked by prior acts, the jury could convict of voluntary manslaughter, provided the provocation was adequate and the cooling-off requirement wasn’t met. Conversely, if those conditions aren’t met—provocation is inadequate, cooling off occurred, or malice is established—murder could be the appropriate verdict. Therefore, either murder or voluntary manslaughter can be a possible conviction depending on the facts; saying that neither is possible isn’t consistent with how heat-of-passion law works.