Criminal Law Class Notes 12/9/03


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 reus elements of whatever crime we’re talking about; that’s the social harm of that particular crime.  For example, at common law, the social harm of burglary is “breaking and entering the dwelling house of another at night”.  In fact, you may break it into “breaking”, “entering”, dwelling house” and so on.  Use the definition of the crime that you’re working with.  This isn’t meant to be excessively philosophical.


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 reus and mens rea of being an accomplice.  Go over the evidence that would show that the defendant did, in fact, assist in the crime.  Then turn to the mens rea question and use § 2.06.  There is no causation requirement for accomplices.  Then there might be some defense related to the accomplice (insanity, for example).

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.


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