Criminal
Law Class Notes
Make
sure to ask questions about the exam now. Don’t wait until after so everyone can hear it and get the same answer. You could also ask on TWEN Virtual Office
Hours.
The
theory is that the more you know about an exam, the better off you are.
What Dressler looks for on tests
1. Depth and breadth of
knowledge of the law – after the exam, we should say to ourselves that “this
exam seems to be reasonably related to what we studied.” Therefore, if you have knowledge across the
whole field will do better than someone who has gaps. Dressler tries to test the whole semester in
some proportion to what we’ve been covering.
He also wants to test our depth
of knowledge. We should be able to do
more than just recite back the rules of law.
2. The ability to think and
analyze like a lawyer – spotting the real issues and developing the arguments
(pro and con) to deal with the issues.
You need to separate the wheat from the chaff in terms of relevant
versus irrelevant issues. Once you’ve
spotted the issues, you need to make arguments regarding those issues. It’s not just figuring out what your
arguments are, but also what the other side would say in response to you and
then how you would respond to that response.
Dressler tries to write his exams to be “real-worldish”. Dressler wants to know that we know what real lawyers would really argue.
3. Organization of thoughts –
two students can have an equal amount of knowledge of law but one is more
organized than the other. Imagine you’re
writing a brief for a judge. You must
put the pieces together for the judge in an organized way. Usually, when you have a disorganized answer,
your mind is also disorganized.
4. English language skills – if
you write well, it will make a difference in your grade. Lawyers are all about language.
Never put an argument into
the mouth of a lawyer that would be laughed out of court. Sometimes there’s only one good argument on a
particular issue. Not everything is
debatable. Don’t make stupid
arguments. You don’t always do the pro and con when there’s
no real con to the pro.
An
essay exam only tests certain skills you’ll need as a lawyer. Also, you can’t do it all. Don’t try to get everything on the exam. Part of it is strategizing: how do I best use
the 3 hours I have? That’s part of what
lawyers do.
The
expectations aren’t the same on an essay exam as they are if we were writing a
brief that we had weeks to work on.
The exam instructions
The
exam is entirely open book. You just can’t use the computer as your
outside material. But study for the exam as if it were closed book. Don’t bring in too much stuff; just bring in
what you need.
Bring
your own #2 pencil!
The exam itself
There
are 30 multiple choice questions and you have an hour. Some students finish these in less than 60
minutes. Anything that was in our
reading assignment, even if it wasn’t discussed in class, or anything that we
discussed in class (including on TWEN) is fair game.
The
multiple choice portion will be much more heavily common law than the
essays. It will also be general
principles about legality, retribution, all that stuff. If we’ve learned any constitutional law, that’s
fair game. We’ll also be tested on statutory
work: reading, interpreting, and working with a statute. There will be two types of questions: some
questions will have a short set of facts and then four possible answers based
on the facts. You have a “little mini factual
pattern” and then a couple of answer.
Some questions will be rule-oriented. For example, “Which of the following
statements about insanity is incorrect?”
Or, “Which of the following crimes is a general intent crime at common
law?” These kinds of questions you can
usually do in 30 seconds…you either know the answer or you don’t. You’ll spend longer on the “mini fact
patterns”.
At
least twice on the multiple choice, you’ll have “Facts
for Questions X-Y”. Sometimes, you’ll
also have to apply a statue from the casebook.
But you won’t act like you’re in state X, you’ll
act like you’re in an imaginary state that just
happens to have the same statute as state X. So in these questions, use the facts of the
case and the statute. It won’t be the
same state each time.
Part
Two is entirely a Model Penal Code question.
It’s a homicide question. In Part
A, there will be certain facts, but then in Part B, certain facts will be
added. This question will cover accomplice
liability too. It will apply basic §
2.06 complicity law.
There
is a footnote that says you won’t get any points saying what the Model Penal
Code says verbatim. That doesn’t prove
anything! However, you need to cite to
the Model Penal Code all the time.
Sometimes, you will want to quote from the Model Penal Code when it’s at
the core of the discussion. Cutting and
pasting from the casebook doesn’t get you any points, though. Using crucial language will get you points.
You
don’t have to tell Dressler what you didn’t use; just tell him what you’re
using.
Part
Three is only 30 minutes. You’ll get a
rape/sexual assault statute. You have to
give your opinion on it in terms of policy.
This statute is one that has actually been out there in the real
world. This is our chance to demonstrate
that we’ve thought about rape law and therefore, given the chance to see a statute
that could become the law we can spot the strengths and weaknesses of it. We won’t compare this statute to what the
real statute is, but we pretty much know where the law is and where it’s going.
Dressler
urges us to skip pages in Bluebooks, if we write. If you don’t do that and you realize there’s
something you should have said closer to the front, then you can use the blank
pages.
Exam taking do’s and don’t’s
1. Organizing your exam is very
important. It has a lot to do with your
grade.
2. Budget your time
properly. You have three hours. You’ll never have time to say everything you
want to say, so you have to live with that reality. It’s a zero sum game. It won’t do you good to use more time on one
exam and get more points there as opposed to using less time on another bit and
losing points there.
3. Outline before you start
writing your actual answer to an essay question. Before you write word #1, prepare a little
outline (really little) of what you think you’re going to be doing. Dressler won’t see it. It’s my own work product.
4. Work with the facts, don’t
just spout law—avoid the “Dressler CJS syndrome” – At UCLA, there were no
midterms. All of your exams were in
June. You went the whole year without any
sense of how you were doing. One of the
professors gave a practice exam in Civil Procedure. He got a “D”, and the professor wrote the
comment: “If I wanted Corpus Juris Secundum I would have
said so.” Don’t just write stuff that
you could have written even if you hadn’t seen the exam. Use the facts!
5. Don’t create issues where
there aren’t issues! Sometimes there
really aren’t two sides to an
argument. Sometimes you’re wasting time
by saying “on the other hand” when there is no “other hand”. For example, in criminal law, 97% of the time
there isn’t a voluntary act issue.
People don’t usually kill as the result of a reflex action or while
sleepwalking or while hypnotized or any of that stuff. So don’t create problems that aren’t really
there. For example: “Voluntary act: At common
law, a person is not convicted of a crime unless his conduct includes a
voluntary act. At common law, a
voluntary act is defined as a ‘willed muscular contraction’. In this case, A pulled the trigger of the gun
and there is no evidence that this is anything other than a willed muscular
contraction.” Don’t write this: “If the
victim had been a fetus…” Bad, bad,
bad! You get zero points for addressing
something that isn’t an issue.
6. Avoid conclusory
answers: always ask yourself “why?”
Never say “it is clear that…”
Even if something is clear, make it clear to Dressler! Point to the facts that allow you to reach
that conclusion! It’s fair to say that
on a law school exam question 90% of the exam has no right answer. For most of
the exam, there are debatable issues. Your
conclusion isn’t so important as how you got to it. Show
your work. Sometimes the conclusion
is: “This is a jury question.” In some
cases, there doesn’t have to be a conclusion.
7. Follow the call of the
question, but also discuss competing arguments.
On this exam, the call of the question says “Discuss A’s criminal liability for B’s death.” Even if you’re on one side or the other, a
lawyer inevitably not only puts forward their own view but also anticipates the
arguments of the other side.
Outlining on the exam
What
Dressler used to do is read through the question quickly, focus on the “call of
the question”, then go back and read the facts over a second time with much
more care knowing what he was looking for.
Be careful about the “call of the question”: sometimes it will be
narrower than what the facts suggest. If
you write an answer based on what you think
you were being asked, that’s painful, because you can’t score points answering
a question your professor didn’t ask.
Then you start outlining.
Voluntary
act -----
Social
harm -----
Mens
rea ----- ------
----- ------
----- ------
Actual
cause -----
Proximate
cause -----
Self-defense ----- ------
----- ------
----- ------
The
dashes stand for certain words. If you’ve
figured out the case correctly, you might think that mens rea and self-defense
are the really big issues. If you’re
right about that, we can assume that Dressler has allocated more points to mens
rea and self-defense than some of the other issues. The jigsaw approach would say that you should
tackle the meatiest issues first. But
that’s not the organized way to do it.
It would be perfect if the big issues happened to be the things right on
top. But by organizing in preparation,
you say to yourself: “I’ve got to get to mens rea, but I also have to get to self-defense.” It forces you to think about and strategize
about what you’re going to do when. Keep
in mind that you can’t say everything you want to say. People are able to distinguish themselves by
what they do say.
What
if you’re running out of time? You might
want to skip down to the heavier issues.
Or maybe you should go over the less weighty issues faster.
How
much time should you spend outlining before you start writing? Maybe it depends on how fast you type. When Dressler was a student, there was
enormous pressure to keep up with the Joneses.
A length answer may also be a disorganized answer.
Don’t
talk about the exam after the exam!!!
Once you turn it in, forget about it!
Writing an essay question
When
someone grades your answer, they’re not going to spend nearly as much time
reading it as you do writing it. But
here’s a piece of advice: making it easier for the grader to keep his eyes on
what you want him to see will help. So, underline
the key words that you want the grader to see.
It helps, psychologically to underline or bold key words. Also,
construct your essay answer a little bit like an outline.
For
example:
State v. Jones ([crime][criminal
homicide])
1.
Voluntary act
2.
Social harm
3.
Mens rea
4.
Actual causation
5.
Proximate causation
This
not only makes it easier on the grader, but it makes it easier on you.
If you’re in the “voluntary act” section and you start talking about
mens rea, it helps you get back in the swing of things. This organizational structure helps the
grader know where I am and helps me
know where I am.
This
is the organization that we should use.
The organization is self-evident.
Some
of the above issues may be big, and others may be small.
Let’s
go back to social harm for a minute. In
this context, Dressler is not asking
us to give us the definition of social harm.
What he’s asking us to do is to talk about the actus
We
already know that this exam deals with criminal homicide under the Model Penal
Code. We already know the social harm of
criminal homicide: it’s the killing of a human being by another human being.
After
we’ve covered the basic five elements, you go to:
6.
Defenses
a.
Justification defenses
b.
Excuse defenses
Recall
that you have nothing to excuse if
your conduct was justifiable.
Unlike
the elements of a crime, you should only bring up those defenses that would
realistically be raised by the attorneys in that case in the real world. You don’t need to take a laundry list of all
the justification defenses and show why none of them apply. Raise the defenses that you think a real
lawyer would raise and discuss them.
What
about murder versus manslaughter (versus negligent homicide)? The question is a Model Penal Code jurisdiction
question, where we’re supposed to discuss the criminal liability of A for
killing B. We know by now that the only
thing that separates different homicides is mens rea. The voluntary act will be the same no matter
what the crime. The social harm will be
the dead person. What matters will be in
the mens rea discussion. At that point,
you can discuss any relevant mens rea issue.
You should always start at the top, that is, with the highest mens rea
that can plausibly be argued by a prosecutor.
If the facts plausibly support the mens rea of purpose, then that’s where you start and you work your way
down. It may be obvious that the killing was done purposely. If so, fine, and you don’t have to go
down. It may be that the killing is
clearly an accident, and the only issue is whether the killing is reckless or negligent. But start at the highest mens rea and work
your way down. Cite your Model Penal
Code sections.
Failure-of-proof
defenses versus justification and excuse: a failure-of-proof defense isn’t
really a “defense”: for example, mistake of fact. A mistake of fact defense isn’t really an
affirmative defense. It’s a denial that
you had the required mens rea for the crime.
Mistake “defenses” shouldn’t be talked about as justifications or
excuses. It should be talked about under
the element it supposedly negates.
Multi-party cases
We’ll
have one in question II-B.
1. Deal with the alleged
perpetrator first, then the alleged accomplice.
This is because of the derivative liability issues. Before you can discover the existence of an accomplice,
you must find a primary crime from which to “derive” liability.
2. In accomplice cases, you
only need to deal with the actus
3. When you have an innocent
instrumentality case, deal with the instrumentality first, that is, show they
are innocent; then turn to the “principal in the first degree”. The principal in the first degree must have
caused an innocent third person to do the crime and must have had the required mens
rea for the crime.
Multi-crime cases
We’ve
only been asked about homicide. But if
the facts of the homicide question include a felony in which someone died, and
it is suggested that the prosecutor will try to make that argument, then cover the felony first because it will resolve the felony-murder
issue later.
Say,
for example, that A raped B and then the victim
died. That would seem to create felony-murder. Then, start out with:
State v. A (rape)
Then
later…State v. A (criminal homicide)
Remember
that the Model Penal Code doesn’t have the felony-murder rule as such. If you look carefully at the definition of
murder under the Model Penal Code, you’ll find that under the “extreme
indifference” provision, that mens rea will be presumed if death occurs during the commission of certain
enumerated felonies. The Model Penal
Code drafters hated the felony-murder. They made a compromise. Committing a certain felony creates a rebuttable presumption of extreme recklessness. If you can prove otherwise, the felony drops
out.