2022 Bar exams with multiple-choice essay options

The 2020/2021 Bar examinations have been postponed. According to Bar Bulletin No. 28, s. 2021, the Supreme Court considered the national COVID-19 situation and the situation in all the testing sites, as well as advice from various experts, in deciding to reset the schedule of the Bar Examinations from November 2021 to January 16, 23, 30, and February 6. According to said Bulletin, the Court did this out of an abundance of caution and to assure the highest level of safety for all the bar applicants and personnel. However, there are those who hypothesize that the problem is not really the COVID-19 situation but problems with the BAR PLUS and the first-time use of ExamSoft in the conduct of the Bar examinations in the Philippines.It would not be surprising to experience problems with a system during its first implementation, such as the first implementation of BAR PLUS. Even the biggest technology companies like Facebook and Google experience glitches and bugs from time to time.

On the other hand, although ExamSoft has already been used in other parts of the world for the conduct of Bar examinations in different jurisdictions, it is the Philippines' first time. People's worries are not pacified by the fact that, in the Philippines, lawyers get their license to practice law by successfully answering essay-type questions, not questions with multiple choices (although this was experimented on before and later on cancelled).

It would be very easy if Bar examination questions are purely multiple-choice types. Unfortunately, this is not the case in the Philippines because the Supreme Court's intention is not only to gauge an examinee's knowledge and understanding of the law but also his/her ability to express himself/herself understandably and accurately in the English language, the language in which almost all Philippine laws are written.

If the 2020/2021/2022 Bar examinations were held with multiple-choice questions only, the fear is that the test would focus more on knowledge-based, memory-based questions. On the other hand, if the focus were purely on essay-type questions, the apprehension is that there are many who have problems with their typing skills, examiners may experience problems in checking answers or in using the ExamSoft application, and examiners' bias would still prevail.

As to examiners' bias, one clear advantage of using the ExamSoft application is that handwriting would no longer be a factor, thus a fairer -- if not entirely fair -- checking and grading process.

There is, however, a middle ground between essay-type questions and multiple-choice questions in the Bar examinations. It is humbly proposed that the ExamSoft's multiple-choice feature be used for more accuracy in checking, less examiner's bias and faster announcement of results. However, rather than sticking to typical multiple-choice questions that test knowledge and memory more than understanding, five (5) essay options. In short, the questions will be essay-type but the choices are essays which must all be (at least, prima facie) believable and convincing answers.

For example:
QUESTION #1: AAA took the pencil of BBB without the latter's knowledge or consent. A little later, AAA felt guilty and secretly returned the stolen pencil. Is AAA liable for theft?
OPTION A. Yes, AAA is liable for theft because theft is a crime under the Revised Penal Code, committed when a person takes the personal property of another without the latter's consent, with intent to gain but without force upon things or violence or intimidation against persons. Here, AAA took the pencil and committed theft at the moment of taking.

OPTION B. No, AAA is not liable for theft because the fact that AAA returned the pencil negates the existence of intent to gain. One of the elements of theft is intent to gain; this is inconsistent with the return of the thing supposedly stolen, especially if the return is within a very short period of time.

OPTION C. Yes, AAA is liable for theft when s/he took BBB's pencil without the latter's knowledge or consent. Return of the stolen pencil is merely a mitigating circumstance analogous to voluntary surrender but it is neither a justifying nor an exempting circumstances.

OPTION D. No, AAA is not liable for theft because, although the pencil was stolen, the law does not concern itself with trifles. De minimis non curat lex. The act of AAA, although actionable, cannot be said to be amounting to a crime which is an outrage against the sovereignty of the State. To say that AAA is liable for the crime of theft of a pencil would not do justice to the State, nor to BBB, nor to AAA. At best, AAA should be made civilly liable.

OPTION E. Yes, AAA is liable for theft when s/he took BBB's pencil because there was no consent and his feeling of guilt confirms that s/he actually had intent to gain. AAA's return of the stolen pencil should be taken against him because, if s/he informed BBB of the return of the stolen pencil, it would have been a mitigating circumstances.

All options above -- OPTIONS A to E -- are convincing and believable. One who has not put a lot of time and attention into studying concepts behind the question will likely have a hard time choosing one option over the other. On the other hand, one who is familiar with basic principles of criminal law and jurisprudence on theft, especially those with higher levels of issue-spotting skills, will identify the best answer easily.

This proposal uses the term "best answer" because each question/item should weigh five (5) points. However, it may be decided that the best answer will only get three (3) points or four (4) points while the other two good answers will get one (1) point each; or the second best answer will get one (1) point only. Other options will get zero (0) points.

In the example above, OPTION C may be given three (3) or four (4) points because it spots the issue and addresses it squarely: the effect of return of the stolen thing.

OPTION A fails to spot the issue and merely explains the elements of the crime of theft while, in fact, the question itself recognizes that the pencil was "stolen." Therefore, the examiner here no longer considers it an issue whether theft was committed. Hence, OPTION A may get zero (0) points.

OPTION B is a good defense argument but it has no legal basis; hence, it may get zero (0) points. The negation of intent to gain by mere return of the stolen item has no foundation in jurisprudence which, in truth, contradicts such argument. According to the Supreme Court, return of the stolen thing is a mitigating circumstance analogous to voluntary surrender.

OPTION D uses a legal principle as a basis. Obviously, the examinee here does not know or does not remember that there there is a such thing as a mitigating circumstance of return of stolen property. It may also be true that the examinee failed to spot the issue. However, doing his/her best, s/he was able to come up with an argument that may or may not be given some credit or weight by the courts. Hence, OPTION D may get one (1) point.

OPTION E is, again, a good argument but it makes a fatal mistake of saying that BBB's knowledge of the return of the stolen pencil is a requisite for it to be considered a mitigating circumstance. This is obviously wrong and so OPTION E may be given zero (0) points.

Although it has been a long-standing tradition, and an important one at that, that Bar examinations employ essay-type questions and require essay-type answers to test the examinees' "law, language and logic," it may be time to move on from outdated methods of testing and embrace new ways that will not only promote fairness but also ease and convenience. While it is important to maintain certain essential and useful traditions in the field of the practice of law, the Supreme Court should not hesitate whenever it is possible to use advanced tools in choosing new battalions of competent, knowledgeable and ethical lawyers.

Multiple-choice questions with essay options are difficult and time-consuming to craft but, while that much is true, such exam format is the optimal use of the ExamSoft software.