Stephen Colbert Attempts to Answer Burglary Questions on WWDTM

Yesterday, I wrote how the movie trailer for Bill and Ted Face the Music helped clarify the elements of larceny—that a larceny cannot exist if the defendant intended to retrieve his own property. Today, I write to explain how a recent episode of “Wait Wait... Don't Tell Me!” illustrated an outdated, yet bar exam-testable, requirement of burglary.

If you don’t already know, WWDTM is NPR's weekly current events quiz hosted by Peter Sagal. In one of the show’s segment, “Not My Job,” famous people are quizzed on subjects about which they know absolutely nothing.

In a March 2020 episode, Stephen Colbert, host of the The Late Show with Stephen Colbert (and the doppelganger of BARBRI lecturer and University of Houston Law Center professor Douglas Moll), appeared on WWDTM as a late replacement for another guest scheduled to play “Not My Job.” Although Sagal did not reveal the individual who backed out of the original booking, he said the show was using the same questions drafted for the original guest.

The segment's topic? Sneakers of the house, that is, burglars. (You might be able to guess who the original guess might have been.)

“Answer three questions about some notable robberies, and you'll win our prize for one of our listeners—the voice of anyone they may choose on their voicemail,” Sagal told Colbert.

Here’s the first question, and it tests an outdated, yet bar exam-testable, requirement of burglary. (You can also listen to the question on the WWDTM podcast at the 05:25 mark of the audio link.)

PETER SAGAL, HOST: All right. First question. An Ohio man was arrested for trying to rob his own mother's house. But he explained to the police that he couldn't possibly be guilty of burglary. Why? A, because if stealing from your mom was illegal, every baby who breastfed would be a criminal; B, because he tried to rob the house in the daytime, and you can only commit burglary at night; or, C, because he had a note allowing him to take whatever he wanted, signed, my mom.

STEPHEN COLBERT: I'll go A.

SAGAL: You're gonna go with A. If stealing from your mom was illegal, every baby who breastfed would be a criminal. I'm afraid it was B. He said he was robbing a house in the daytime, and that can't be burglary.

Of course, Colbert was wrong, but who could blame him? Many of the common law elements examinees need to know for the Multistate Bar Exam make no sense today.

Specifically, for bar exam purposes in most jurisdictions, the law that examinees need to know is that burglary is the breaking and entering of the dwelling house of another at nighttime with the intent to commit a felony therein.

So, at least for bar exam purposes, one cannot commit a burglary during the day. One cannot commit a burglary of one’s own house. And one cannot commit a burglary of a commercial structure.