Denno Crim Law Exams Part 3

HANDBOOK ON
CRIMINAL LAW EXAMS

Fall 2009
Deborah W. Denno
Arthur A. McGivney Professor of Law
Fordham University School of Law
140 West 62nd Street
New York, NY 10023
Phone: 212.636.6868
Email: ddenno@law.fordham.edu
PART THREE:
CRIMINAL LAW EXAMINATIONS, DISCUSSIONS,
AND SAMPLE STUDENT ANSWERS
Fall 1995 - Fall 2002
TABLE OF CONTENTS
Fall 1995 Criminal Law Exam ............................................................................................ 1
Student Answer to Fall 1995 Criminal Law Exam ............................................................. 6
Spring 1997 Criminal Law Exam ...................................................................................... 16
Student Answer to Spring 1997 Criminal Law Exam ....................................................... 20
Fall 1998 Criminal Law Exam .......................................................................................... 26
Student Answer to Fall 1998 Criminal Law Exam ........................................................... 32
Fall 2002 Criminal Law Exam.......................................................................................................92
Student Answer to Fall 2002 Criminal Law Exam ........................................................................97
FALL 1995 CRIMINAL LAW EXAM
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FORDHAM UNIVERSITY SCHOOL OF LAW

Examination in Criminal Law
December 13, 1995
Professor Denno
PLEASE NOTE:
1. This is a three-hour, four-question, four-page, closed-book, examination. No materials may
be used. A time (of twenty minutes) is suggested for Question 4 only.
2. Write your identification number, class section, and my name on each bluebook.
3. Write legibly and use every other line.
4. If you think it is necessary, state assumptions or additional assumptions of fact not contained
in the questions or facts but which you think are appropriate to answer the questions more fully.
5. Take special note that for each offense mentioned, I ask that you discuss the possible
outcomes under both the common law and the Model Penal Code. As a summary of your
analysis, note how the results would be similar or different depending on whether you were
applying the common law or the Model Penal Code.
Good luck!
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QUESTION 1
Butch, age 21, was pleased because Tabatha, age 20, had agreed to go out on a first date
with him and he didn't think she liked him. Unknown to Tabatha, however, Butch intended to
rape her on their date as part of a gang initiation rite. The gang had selected Tabatha because she
appeared unlikely to be someone to consent to intercourse on the first date. Unknown to Butch
or the gang, however, Tabatha was attracted to Butch and knew that he would expect intercourse
on the first date.
After dinner, Butch and Tabatha went to view a lake in the country in Butch's car.
Tabatha found the location very romantic. Unknown to Tabatha, two gang members were hiding
in the bushes so that they could verify that Butch accomplished his initiation. After a few
minutes, Butch turned to Tabatha, and shoved her down on the car seat. Tabatha found this
behavior very appealing. Unknown to Butch, however, some of Tabatha's hair had become
caught in his watch band. Each time he moved his arm, he pulled her hair so hard that Tabatha
cried out, "No, you're hurting me." Butch and the gang interpreted these cries as Tabatha's
resistance to Butch's attempts to have intercourse when in fact Tabatha thought that Butch knew
he was pulling her hair and she simply wanted him to stop that rather than stop the attempt to
have intercourse.
In attempting to maneuver Tabatha in the car to squelch her cries, Butch inadvertently
shoved his elbow into her side. This caused Tabatha pain and because of it she yelled, "Get off,
get off." Again, Butch and the gang interpreted Tabatha's yells as resistance to Butch's advances
when, in fact, Tabatha thought that Butch knew he had his elbow in her side and that he knew
her yells were a request that he temporarily get off of her so that he could move his elbow before
proceeding to have intercourse. Butch, however, did not move his elbow and penetrated
Tabatha's vagina with his penis.
Minutes later, the two gang members hiding in the bushes congratulated Butch him on his
"successful" initiation. Tabatha, on the other hand, looked puzzled.
What crimes and/or defenses that we studied, if any, are possible under this scenario
under the common law and the Model Penal Code?
QUESTION 2
Franny and Zooey had a stormy marriage in which Zooey beat Franny regularly. One
night, Franny secretly moved out to a room in a hotel with their three-year-old son, Nini. One
week later, Zooey, who had been drinking, found out where Franny was and frantically broke
down the door. A screaming match ensued, and Franny feared that Zooey would either beat or
kill her. Yet, she also realized that Zooey loved Nini. In an effort to protect herself and get
Zooey to leave, Franny grabbed Nini and held him up in front of her, certain that Zooey would
never do anything to harm the child and therefore not harm her. During the struggle, Zooey
started hitting Franny in an effort to knock her down so that he could take Nini. Unfortunately,
his fist hit Nini's head. Nini died instantly.
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Medical testimony later revealed several things. First, had Zooey's fist hit Franny, as
Zooey had intended, the resulting injury would most likely have been a slight bruise. All experts
agreed that the blow would have not been life threatening to Franny. Second, had Nini
possessed the constitution of an average three-year-old, Zooey's blow would most likely have
resulted in an injury far more serious than that which would have occurred to Franny; yet experts
were divided on whether it would have resulted in death. Third, Nini had "hyperlexis," a rare
disorder in which the skull is extremely fragile. Franny knew of Nini's disorder although Zooey
did not. Although experts contended that Nini's disorder contributed to his injury, they were not
clear on the degree to which it contributed.
Zooey was convicted of (1) second degree murder and (2) felony child abuse under a
state statute designating that "a person who intentionally or knowingly causes a child to suffer
physical injury is guilty of child abuse."
(a) On appeal, what would be the arguments for and against Zooey's conviction under
both a common law and a Model Penal Code analysis? Include in your discussion any defenses
Zooey may have.
(b) Are there additional crimes or defenses for which Zooey could be prosecuted under a
common law and a Model Penal Code analysis? Any other defenses?
(c) Would Zooey be eligible for the death penalty?
(d) What would be Franny's liability, if any?
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QUESTION 3
The following constitutes a recent issue before the United States Supreme Court (as quoted with
modification from the November 14, 1995, United States Law Week).
Firearms found in close proximity to drugs have been a fertile source of litigation over
the meaning of firearm "use" in 18 USC 924(c), which imposes mandatory prison terms
for defendants who "use[] or carr[y]" a firearm during and in relation to a crime of
violence or a drug trafficking crime. In a recent oral argument before the Supreme Court
over the meaning of the term "use," counsel for two defendants convicted under the law
told the justices that the statute requires active deployment of a firearm in relation to the
underlying offense. Government counsel, however, suggested that at the very least there
is a jury question whenever a firearm is merely placed near drugs in order to protect
them.
There have been a number of cases involving this issue. In U.S. v. Bailey, for example,
police officers found cocaine and ammunition in the passenger compartment of the
defendant's vehicle during a traffic stop. They searched the trunk of the vehicle,
discovering a loaded 9mm handgun. The D.C. Circuit, applying its "proximity and
accessibility" test, affirmed a 924(c) conviction in Bailey. The U.S. Supreme Court
granted certiorari to review the D.C. Circuit's interpretation of the term "use."
Discuss the implications of the D.C. Circuit's interpretation of the term "use" in light of:
(a) the common law and Model Penal Code approach to mistake of law.
(b) the common law and Model Penal Code approach to felony murder.
QUESTION 4 - 20 MINUTES
Child abuse is a devastating national problem. Yet, the cases we have examined this
semester have approached the problem in various ways, and not always consistently. Please
comment on these cases, as well as the approach taken by the Model Penal Code.
THE END
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Student Answer to Fall 1995 Criminal Law Exam
(Footnotes refer to Professor Denno's comments).
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Question 1
Common Law
Under the common law (CL), rape is a general intent crime. An actor must
intentionally engage in sexual activity, without the other's consent, forcibly, and the victim's
resistance. Courts look at various factors including environmental factors. In this case, Butch
thought the location was frightening because of its remoteness versus Tabatha's interpretation of
the romantic aspect of the locale, courts look to enforce nice sex.
In this case Butch's penis penetrated her vagina, the courts look at the defendant's
interpretation of the victim's consent. This does not help Butch because he thought Tabatha had
not consented when he said, "I'm having you." Courts also look at the victim's reasonableness
in being in fear of the defendant's use of force. This could help Butch because Tabatha wanted
to have sex with Butch but only complained because her hair was being pulled since her long
hair was stuck in his watch. However, this could also hurt Butch because he knew he was
pulling her hair and on a separate incident later on he kept his elbow in her side even though she
screamed, "get off, get off." The fact that there was no prior sexual activity ("it was their first
date") could hurt Butch because he never could have expected Tabatha to have sex with him.
"He knew that Tabatha was unlikely to have sex with him."
The time frame involved in this case could also affect the outcome. If the court takes a
broad look at the time frame, Butch could be at a disadvantage because the purpose for him to
go on the date was to have sex and rape Tabatha. However, if the time frame is looked at
narrowly, Tabatha wanted to have sex with Butch at that time and maybe there was some
chemistry that developed between the two parties.
The specific jurisdiction's definition of consent, force, and resistance will also affect the
outcome. Some courts will say Tabatha consented because she wanted to have sex. Other courts
may say that she was screaming "no, no, you're hurting me" and later, "get off, get off."
The element of force is also important. In M.I.S., the court said that the force in the
sexual act was sufficient to constitute rape. As in this case, when Butch penetrated Tabatha,
some courts like in Berkowitz would say that some resistance is needed. The issue of resistance
is also important. Butch could say she was not resisting the sexual act, but only the injury to her
hair and side. The prosecutor would argue that it was obvious that she resisted by looking at her
exact words.
MPC
Under the Model Penal Code (MPC), rape occurs when a male has sexual intercourse
with a female, not his wife, by force or threat of death, grievous bodily injury, extreme pain, or
kidnaping. Butch could argue that there was no threat of any of the aforementioned.
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The question of force will determine the outcome of this case. The prosecution would
argue force is evident by proof of the facts and Tabatha's pleas for Butch to stop. Butch would
argue that the force was not related to the sexual act or consent, but to the accident with her hair
and his inadvertent elbow to her side. However, the elbow would become a problem because he
did not move it even after Tabatha's repeated requests right before he penetrated her vagina.
Defenses to Rape
Butch could argue Mistake of Fact because he reasonably believed that she was
consenting to his sexual advances. Even though he used force, he could argue that he realized
that Tabatha thought that this manly approach was very appealing and that is why he continued
his actions. Even if his mistake was reasonable, he could have a defense only in a jurisdiction
which followed Regina v. Morgan. Most courts use the approach of strict liability or
negligence as in Commonwealth v. Sherry. Butch would prefer the Morgan standard and
could have a problem under the Sherry standard.
Butch and Tabatha could have had drinks during dinner and he could use a defense of
intoxication. He would only be liable for these crimes if he was reckless or negligent. Under
the MPC, this won't help because one usually uses the reckless standard for mens rea terms.
Butch could use duress as a defense because he felt that the gang members would use
force against him if he didn't rape Tabatha. However under both the CL and MPC if one is
reckless in creating the situation and Butch had acted with the gang members to pick Tabatha
because she wouldn't consent as part of a gang initiation.
Butch may also claim diminished capacity because he was not mentally responsible for
the act since he didn't have the requisite mens rea for the offense. He was under pressure from
the gang and he thought this is what he had to do.
Under MPC, diminished capacity is allowed if it shows that the defendant suffered from a
mental defect. This is a weak argument for Butch.
Other Offenses:
Gross Sexual Imposition (GSI)
Under MPC and the CL, assuming the CL has a similar statute, Butch would be found
guilty of sexual assault. He knew that his conduct was offensive to Tabatha through her
requests for him to stop. However, Butch has a weak argument in saying that even though he
knew the conduct was offensive, he thought she liked it and the conduct was not offensive in
satisfying his sexual desires. However, the elbow that was kept on Tabatha's side again could
cause problems for Butch.
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Complicity
If Butch is convicted of rape, the two gang members could also be found guilty possibly
because they caused Butch, an innocent instrumentality to cause a crime. They wanted him to
rape her, and he did it because he wanted to become a part of the gang. The gang members also
could be viewed as accomplices because they aided and encouraged, the two gang members were
hiding in the bushes so that they could verify the rape. If it could be shown that they acted
intentionally to further facilitate and promote the rape they could be charged with the rape. The
gang members would say that this is ridiculous because they didn't have a gun to Butch's head,
they told him to rape Tabatha but they didn't think he would do it. However, the two gang
members would have some problems because they went to the isolated area and when they heard
the screams of Tabatha they never tried to help her and interpreted her cries of pain as Tabatha's
resistance so they won't have the defense of abandonment.
Conspiracy
CL - At common law a conspiracy occurs when two or more people agree to engage in
illegal conduct. In this case, Butch and the gang members agreed that Butch would rape
Tabatha, a criminal act. As soon as there was a meeting of the minds there was a conspiracy and
it was a natural and probable consequence that Butch would engage in the rape. Under the
Pinkerton doctrine all members of the conspiracy would be guilty of any crimes that occurred
to further the conspiracy. This would be especially damaging to the gang members because if
Butch is found guilty of anything they could also be found guilty.
MPC
Under the MPC, conspiracy occurs when a party agrees to engage, assist, or plan
conduct that would constitute a criminal act or an attempt of the act with the intent to promote or
to facilitate the target offense. There is no Pinkerton doctrine, but there must be an overt act.
Butch went into the isolated area and the two gang members also went this may satisfy the overt
act requirement.
Attempt
Even if Butch is found innocent of rape, he could be guilty of attempted rape. He
intended to rape her the whole night. He satisfies the requirements of physical proximity,
dangerous proximity, indispensable element, probable desistance, or the unequivocality (res ipsa
loquitur) test through his conduct. But he did complete the act so if he is found innocent of
rape, it would seem unfair that he could be guilty of a lesser offense of rape when he has
committed the higher offense.
He could claim that he abandoned his intention to rape Tabatha when he realized that
they were having a good time and she wanted to have sex with him.
He could claim impossibility but under the MPC, he would not be able to because in the
MPC if an actor engages in activities that would constitute a substantial step toward the
commission of the crime and he would be guilty of the crime if the attendant circumstances were
as he believed, he would be guilty under the MPC for attempted rape.
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Paul's defense for attempt under the MPC is weak and if Paul is found guilty of attempted
rape then the other gang members would also be guilty of attempted rape if they aided him.
Question 2
Murder
Under the second degree murder charge, it must be shown that Zooey had the intent to
kill, cause grievous bodily harm, extreme recklessness for the value of human life or during the
commission of a felon caused the death of another. It would be hard to show that Zooey
intended to kill Nini. He only intended to hit Franny, this injury would not have resulted in
severe bodily injury because the injury would most likely have been a slight bruise to Franny.
However, under transferred intent the injury Zooey wanted to cause Franny would be imputed
to Nini. The prosecution would argue that the actions of struggling with his wife and attempting
to knock her down while the child was being held by Franny as a shield would be extremely
reckless and constitute murder in the second degree. Zooey would argue he had no intention to
injure the child, the force that he hit Franny with was so slight that he should be able to lower his
conviction to involuntary manslaughter because he was simply negligent. In looking at
distinguishing between extreme recklessness and negligence one must examine the magnitude of
the harm, the defendant's awareness of the harm and the defendant's justification in using the
force.
In this case, Zooey could argue he didn't know that the child suffered from "by perlexis"
a rare disorder. Nor did he know the magnitude of the harm. He only threw a blow that would
cause a slight bruise. Additionally, he could argue he was justified because his wife, Franny had
taken his child from him and he loved his child "dearly." The prosecution could argue that "but
for" Zooey's action the dangerous outcome wouldn't have occurred. Looking at the
foreseeability of the outcome, it can be seen that hitting a mother as she was holding a baby
could cause substantial injury. There were no other human intervention, although Zooey could
argue that when Franny put the child in front of her this was an intervening act, the intended
consequences of his act were to cause bodily injury to Franny and he did cause bodily injury.
Lack of Foreseeability is also a further defense for Zooey because he could say that the
child's disorder was a gross and bizarre intervening factor. However, as in Stamp, the
prosecution could argue that the defendant must take the victim as he finds him.
MPC
Under the MPC, Zooey could be charged with murder if the courts find that Zooey's
actions constituted a reckless act that demonstrates extreme indifference to the value of human
life. He could also possibly be charged with manslaughter because he was only reckless. Zooey
would argue that he was only criminally negligent under the MPC because his actions were
only negligent.
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Zooey would have difficulties under the MPC for causation because the MPC looks at the
"but for" test and the defendant's mental state. Zooey's mental state was to cause injury, but he
could argue he only wanted to save his baby and he didn't have the mens rea.
Defenses:
Zooey could argue under both the CL and MPC that he was intoxicated and could only
be prosecuted for crimes or recklessness or lower. Zooey could also argue diminished capacity
because he "loved his child so dearly" that he didn't have the requisite mens rea to commit the
crime. Under some jurisdictions proof of only partial responsibility under diminished capacity
would get you manslaughter.
Under the common law, Zooey could use the provocation defense because his child was
taken away from him for one week and he was acting in the "heat of passion." However, this
could be problematic because he didn't kill the person who provoked him. While there was no
cooling time in his discovery of Franny's location, he did have a week to get over it. Also, the
causal link may be missing between the provocation and the act. Since Zooey himself caused
Franny to move out because of his abuse.
Under the MPC, the defense of the extreme mental and emotional disturbance for
which there is a reasonable cause is a better defense than the common law because you don't
necessarily kill the person who provoked you and it looks subjectively at what the reasonable
person under Zooey's circumstances would have done (this defense allows a lot more to go to the
jury for determination).
Child Abuse
Under the child abuse statute:
Act: causing a child to suffer physical injury
Mens rea: intentionally or knowingly causing such injury
Attendant circumstances: a child, physical injury
Result: injury
Under a CL approach, the defense would claim that the terms "intentionally or
knowingly" apply to the whole statute. The prosecution would argue that it only modifies the
"causes" in the statute and they could apply negligence to all other attendant circumstances and
results.
Under MPC 2.02(3) element analysis, "reckless" would apply to all attendant
circumstances and "knowingly" would only apply to the causation. However, under MPC
2.02(4) offense analysis, "knowingly or better"(which the defense would prefer) would have to
apply to the whole statute. Zooey could argue that he did not knowingly cause a child to suffer a
physical injury. He loved his child dearly and he didn't "knowingly" cause his child to suffer a
physical injury. However, the prosecution could argue that Zooey was aware that the baby was
in a precarious situation and that would satisfy the "knowingly" aspect of the statute. Under
MPC, the prosecution would also argue that it was practically certain that his conduct would
result in injury because of the nature of how lightly he hit Franny and the manner in which he
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tried to hit her. He knew that the baby was at risk and Zooey was practically certain that Nini
would suffer injury in the encounter.
Defenses to Felony Child Abuse

Again, Zooey could argue Intoxication and Diminished Capacity.
(b) If Zooey was charged with the felony, he could be charged with felony murder under
the common law. However, if he is convicted of the second degree murder, the felony murder
would merge as it did in Ireland because of the independent felonious purpose or the merger
doctrine. If he is not charged with the murder, it would be doubtful if he could be charged with
felony murder because under the MPC child abuse is not one of the enumerated offenses.
Under the CL, looking at Zooey causing death to the child and the nature of child abuse
most courts would merge the two offenses and Zooey would be charged with both. Zooey could
also say that the child abuse was not inherently dangerous and doesn't constitute felony murder.
Thus, it would be difficult to get Zooey for felony murder. Zooey could be charged with assault
on his wife for his continual abuse of her.
(c) Zooey would probably not be eligible for the death penalty. The factors that he has
working against him are his possible previous criminal record (we don't know) and the fact that
he put so many people at risk, (including his wife and child, with his abuse) the nature of his
crime, or if he had some pecuniary interest in killing his wife.
The factors in his favor are that he was intoxicated, he could have been acting under an
extreme emotional disturbance (EED) "he stormed in frantically", and his intentions to cause
the death, and consideration of the child's precarious and unique medical condition. These
factors could get him off.
(d) Franny's liability could be that she never told Zooey about the child's condition and
looking at her husband's violent nature she should have told him. She could be charged with
criminally negligent homicide or involuntary manslaughter.
Under common law, she used the child as a shield and because of her status
relationship (parent-child) she should have never done that. 1 But Franny could argue that she
thought her husband would never harm the child.
Discuss Battered Woman's Syndrome & Self Defense also.

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Question 3
The D.C. Circuit Court's interpretation of the word "use" and the proximity and
accessibility test is a broad interpretation of the statute. The D.C. Court may have interpreted the
statute by using: legislative intent, statutory construction, judicial discretion, nature of the crime,
assumption of the risk, morals and social policy in looking at the statute. The D.C. Circuit
interpreted the statute as if it intended to hold the drug traffickers to a high level of culpability
for their actions.
The Court looked at the statute similarly to how the mistake of same law doctrine is
applied. As the Latin phrase, "ignorantia legis nemine excusat" if someone makes a mistake of
the same law it is no excuse except if the person relied on an official interpretation of the law
and the reliance was reasonable, or if the mistake of the same law occurred because the
defendant was not given fair notice, as in Lambert, of a law (this is similar to the MPC). The
word "use" as the government is arguing is similar to a mistake of same law. The party should
be held culpable.
However, the defense is arguing that this is a mistake of a different law and the word
"use" is sort of in a statute that is like a specific intent statute. Thus, if a defendant believes that
the statute requires active deployment of a firearm in relation to the offense, he is not culpable
because a mistake of different law in relation to a specific intent crime is a case-in -chief
defense. The prosecution in the appeal to the Supreme Court is sort of admitting that a mistake
of same law doesn't exist but a mistake of different law does because it says that this a jury
question. However, the prosecution is saying that it should be reasonable for the defendant's
argument to work, knowing full well that a mistake of different law defense is no defense if it
only applies to the general intent portion of the crime.
(b) This case is also similar to the approach of the common law to felony murder, which
is defined as causing the death of another during the commission of a felony. The "proximity
and accessibility test" of the D.C. Court is related to the causation aspect of the felony murder.
There must be a "but for" cause and a proximate cause in felony murder, but there are
restrictions.
The agency theory only makes the felon liable for the deaths in the felony, not the deaths
caused by non-felons during the commission of the crime. This relates to the proximity test
under the D.C. Circuit. The D.C. Circuit's interpretation of proximity would also apply to the
proximate cause approach which is the minority position stating that the felons are responsible
for all deaths that occurred during the felony (excluding those by non-felons which are justified
and including those that are excused). If a felony is in proximate relation to the cause of death in
felony murder, the D.C. Court would similarly apply that the gun that was loaded in the trunk of
the vehicle, which also contained the cocaine, is good enough to constitute "use" of a firearm
during a drug trafficking offense.
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The D.C. Court's application of accessibility is similar to the felony murder res gestae
requirement. This means that a felon is not responsible if he reaches a safe haven, far enough
away from the crime, or for antecedent homicides. This is similar to the accessibility test
because someone should not be liable for felony murder if he wasn't "accessible" to the crime of
felony murder. In this case, the accessibility of the firearm loaded in the trunk of the car
containing cocaine, was enough for the D.C. Circuit to extend the drug trafficker's liability.
Also, the rational of using the statute the way the D.C. Court did is to use the same strict
liability concept that the court uses in felony murder cases. The gun being in the car is good
enough to constitute "use" just as someone engaging in a felony who causes a death is strictly
liable, as the Stamp case demonstrates, for the "death" of another. The D.C. Court could also be
using the same rational that someone who engages in drug trafficking and has a loaded gun takes
the risk of being liable under the statute. In the same way, someone who commits a felony and
causes a death in its commission, takes the risk of causing the death.
The MPC only allows felony murder for the crimes of arson, rape, deviant sexual
intercourse, felonious escape, kidnaping, robbery and burglary. Thus, the rationale of only using
felony murder for specified crimes is not in line with the D.C. Circuit's rational for "use." To be
in accordance with the MPC, the D.C. Circuit would have had to say that the gun being in the
trunk is not enough to hold the defendant strictly liable. It must be ready for use or be ready to
be used dangerously by the drug traffickers.
Question 4
Child abuse is indeed a serious problem. As we saw in the Steinberg case, the Pope case,
and the Susan Smith saga it is common in today's society. As we have analyzed in common law
there is a status relationship between a parent and his or her child. The parent must provide
necessities to the child and if the child is at risk and the parent is aware of that risk the parent
must act to save his child. In Pope, a mother brutally killed a child because of a religious frenzy.
In Fabritz, a mother gave the child to a baby sitter and didn't take action when the baby was
abused and the child died. The mother was not held liable because she wasn't aware of the
abuse. Additionally, we have seen cases of sexual abuse as in People v. Anderson where the
defendant stabbed a child over sixty times. This case conflicts with our notions of retribution
because Anderson only got second degree murder. The problem of child abuse invokes the vigor
of the retributionist in all of us to come out. One of the state's main duties is to protect children.
A person who commits child abuse encourages us to want assaultive retribution to vindicate the
victim and society.
In the Steinberg case, the child was beaten over and over again and ironically one of the
main reasons that Steinberg was not able to use the diminished capacity defense was because he
called EMS to help his child get assistance after beating her. Thus, he was aware of the risk he
created and was liable as a parent.
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In terms of sexual assault and abuse of minors, the courts and MPC have held that for
someone under 10 when someone has sex with someone under 10, he is held strictly liable.
Also, the MPC has a corruption of minors provision which doesn't allow someone to have sex or
sexual contact with someone under 16 if the defendant is 4 years or older. Additionally,
someone under 21 who is involved with someone under 21 who is involved with sexual contact
with someone who is the victim's guardian is also held liable under the provision.
The problem with our approach toward child abuse is exemplified by the Susan Smith
case. She killed her children and everyone was outraged by her acts (drowning her children in
the car). However, as soon as she went to trial and was convicted of murder, the jury could not
giver her the death penalty because they felt bad for her. People who commit child abuse usually
have had abuse problems in their past or in their childhood. Courts are stuck between wanting to
enforce the law and give out severe penalties for child abuse and the fact that the people who
commit the acts of child abuse are human and often have many mitigating factors in their
background that may have caused them to abuse their children.
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SPRING 1997 CRIMINAL LAW EXAM
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May 14, 1997
Professor Denno
PLEASE NOTE:
1. This is Part II of a two-part examination. Part II follows Part I and you have two hours to
complete it. No materials may be used.
2. Part II consists of two questions and 3 pages. I recommend 45 minutes to complete the first
question and 75 minutes to complete the second question. These time recommendations reflect
the relative weight I will give each question in grading. Please read both questions before you
begin to write.
4. Please number each bluebook sequentially. For example, if you have three bluebooks,
number the first 1 of 3, the second 2 of 3, and the third 3 of 3.
5. Write legibly. Use every other line and every other page.
7. Take special note that I ask you to discuss the possible outcomes under both the common law
(non-Model Penal Code) and the Model Penal Code. As a summary of your analysis, note how
the results would be similar or different depending on whether you were applying the common
law (non-Model Penal Code) or the Model Penal Code.
Good luck!
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QUESTION 1 - 45 Minutes
Cora, Minerva, and Tabatha were members of an all-female street gang named "Girls Just
Wanna Have Fun" ("Fun"), in the state of Fordham. For the past five years, Fun had become
increasingly violent. This increasing level of violence was reflected in Fun's gang initiation
rites. One recently instituted rite involved having new gang members engage in unprotected
sexual intercourse with males who were HIV positive. The HIV positive males who participated
in this rite were members of a neighboring all male gang, "The Provokers." According to Fun's
established members, a female who engaged in "HIV intercourse" would surely demonstrate her
toughness, her allegiance to the gang, as well as the durability of her physical immunity if she
never became HIV positive.
When Cora, a new member of the gang, heard of the "HIV intercourse" rite, which was to
be held on May 14, she expressed her concern to Minerva and Tabatha, older members of Fun
who had been through their initiation years ago. "I'm scared," said Cora. "I want to be part of
Fun, but I don't want to die. Please help me." Minerva expressed total disdain for Cora's
attitude. "You little coward. We all had to be initiated under dangerous conditions. If you don't
do this, the gang leaders will be angry. Who knows what they will do to you or your family."
Tabatha, however, was more sympathetic. "Maybe they'll let you do something else, Cora. For
our initiation rite, Minerva and I had to nearly beat to death two elderly people. Maybe you'll
get off easy and simply have to do that."
On May 14, however, Cora's worst fears were realized. The Provokers announced they
had sent over one of their HIV positive members, Butch, to have intercourse with Cora. Cora
obediently went to Fun's rite room where the initiation was to take place privately. However, as
soon as Butch saw Cora, he whispered to her a secret plan. First, he explained that he wasn't
HIV positive although many of the Provokers believed that he was because he was a heavy drug
user and, as a result, evidenced a somewhat sickly appearance. Second, he believed the whole
"HIV intercourse" idea was preposterous because it really didn't prove strength or daring in the
way that the members professed. He suggested, however, that he and Cora have intercourse
anyway to disguise his secret because if they didn't, their lives would be endangered. Indeed,
before Cora had any opportunity to respond to Butch's "plan," Butch very quickly threw Cora
down on the "initiation bed," removed her clothing, and vaginally penetrated her.
Finally, Cora found an opportunity to comment. "Butch, you . . .", but her words were
cut off. Appearing at the door was Tabatha, with a gun. "I'll finish that sentence for you," said
Tabatha. "Butch, you are a very dangerous man and you just basically murdered my best
friend." With that statement, Tabatha shot Butch and seriously wounded him.
What crimes and/or defenses that we studied are possible under this scenario under the
common law (non-Model Penal Code) and the Model Penal Code? Please note, in the state of
Fordham, simply being a gang member does not constitute a felony or a misdemeanor. Would
the outcome be different if Butch had died from Tabatha's shooting?
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QUESTION 2 - 75 minutes
Olga, Igor, and Zen decided to "safely" steal equipment from a local computer store. In
order to diminish any potential risks, however, they agreed that they would not carry guns but
would instead grab whatever equipment was readily available and run.
Events did not turn out as planned. Several minutes before the store opened, Olga and
Igor broke one of the locks on the store's doors and entered the store's vestibule. Waiting in the
vestibule was a store guard who saw on the screen of a hidden metal detector, a gun in Olga's
pocket. The guard pulled out her own gun and ordered them to stay still. Olga and Igor quickly
ran out of the store but not before the guard fired at them twice. The first shot hit Igor in the
back, killing him. The second shot missed Olga but killed a pedestrian on the sidewalk.
Pursuant to the group's plan, Zen had hailed a taxi two blocks away from the computer
store where he waited in the back seat for Olga and Igor to return. After getting in the taxi, Zen
asked the taxi-driver if he would be willing to ignore the speed limits to enable Zen and his two
friends to get out of the area in a hurry. For this, Zen would pay the taxi-driver a $200 tip. Even
though this was the taxi-driver's first day in a gear-shift car (he had always previously driven
automatic shift cars), he replied that hed do anything Zen wanted for $200. A few minutes
passed before Olga came running up to the taxi and jumped in the back seat with Zen, shouting
"Let's go." Virtually at the same moment, Robert, a law student who had just completed his last
exam, jumped in the other side of the taxi, thinking that it was unoccupied. Before Robert could
get out, the taxi-driver sped away.
Robert insisted that he be let out the cab. Zen grabbed him and, after conferring with
Olga, explained that because Robert could identify them, he "had better come along." To further
indicate the seriousness of the situation, Olga gave Robert a private peek at her gun when Zen
was leaning over the front seat to give directions. Despite this, at a crowded intersection where
the driver slowed down, Robert opened the taxi's door and jumped. Unfortunately, Robert
landed in an uncovered manhole and was killed instantly by the fall. Zen told the taxi-driver to
keep going. Distraught about what was happening, the driver turned the wrong way down a
narrow one-way street at 60 mph. Mistaking the clutch pedal for the brake, he hit and killed a
bicyclist who was coming the other way.
Discuss the criminal liability of Olga, Zen, the guard, and the taxi-driver under the
common law (non-Model Penal Code) and the Model Penal Code. Are there any defenses?
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Student Answer to Spring 1997 Criminal Law Exam
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Question 1
Rape
Butch could be charged with rape. Rape is a general intent crime which constitutes
sexual intercourse (act) with a female, not one's wife, without her consent and by force.
Generally, courts require that the defendant intend to commit the act (mens rea) with the result
being sexual intercourse (result). At common law (CL) and the Model Penal Code (MPC) this
would include vaginal penetration of a woman by a man, which is what occurred here.
However, these statutes require force. Butch did "throw Cora down" would this
jurisdiction recognize this as force. In Berkowitz, pushing the woman down onto a bed was not
sufficient to constitute force. However in MTS, penetration alone was sufficient to constitute
force. In addition, the surrounding circumstances may provide Cora with proof of "reasonable"
fear. As in Rusk, there was little that the defendant objectively did to constitute force, the
surrounding circumstances made the victim fearful without force or threat of force. Here, she
was in the "initiation room" and had gang members who were threatening her to have sex.
The jurisdiction is also relevant to the element of resistance. Although it is no longer
required for a woman to resist to the utmost some jurisdictions still require some resistance as
objective proof that the woman did not consent. There is no fact to indicate she shoved him
away or hit him. However, in some jurisdictions the element of force and resistance have lost
weight and the woman's statement that she does not wish to engage in sex or the man's failure to
ascertain her consent is sufficient to find liability. However, Cora's presence in the "initiation"
room provided Butch with the presumption she would have sex (as opposed to an ordinary date).
Thus, there was no force, threat of force, presumption of consent, no resistance and more
importantly no intent to rape. Butch intended to engage in consensual sex. Thus it is unlikely
Butch will be prosecuted for rape. Unless Butch was unreasonable in his belief about her
consent in this general intent crime he will likely prevail. This is the case unless in this
jurisdiction a court has the statutory leeway to impose the moral wrong doctrine in order to find
liability. For example holding consent strictly liable. Here a court would say because of the
bizarre circumstances they were committing a moral wrong and Butch should therefore be liable.
Defenses:
Butch's possible defenses are duress, perhaps he was also threatened to engage in the
initiation. Under CL, it is unlikely this will succeed because there was no imminent threat of
death or serious harm. And the court may find Butch at fault for joining the gang. Under the
MPC, there is no imminent requirement. The test is merely whether a person of reasonable
firmness could resist the threat. Thus, if it was a very violent gang a reasonable person may feel
threatened enough to comply.
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Butch could also claim diminished capacity if his heavy drug use impaired his mental
capacity so that he was incapable of forming the intent (mens rea of the crime). At CL, the lack
of framework for this defense may make it a difficult defense to attempt, especially where the
defendant claims drug use should mitigate his crime. Thus Butch's best defense strategy would
be to attach the elements of the crime especially the mistake of fact as to Cora's consent.
As to Tabitha's attempted homicide the prosecution must show that he committed a
substantial step toward the result of the target crime. Under the MPC, the step must be
corroborative of her intent to achieve that result. However, even under Eaghton's (last step
requirement) or Holmes' dangerous proximity test (requiring spatial and temporal closeness)
Tabitha's shooting the gun and wounding Butch will suffice.
The prosecution however must show in this specific intent crime that she also had the
further intent to achieve the target offense. Tabitha's statement, "you are a dangerous man . . .
and you murdered my best friend," would be inconclusive. Did she intend to kill or merely hurt
him? This will be the prosecution's most difficult aspect in proving the specific intent. Should
the prosecution establish Tabitha's intent to kill (use of a deadly weapon would be evidence of
that intent), Tabitha may argue defense of another. Under CL, the defense would only be
available to counter deadly force but the MPC would allow it to defend against forcible rape.
Accomplice Liability (Minerva)
Finally, Minerva may be prosecuted as an accomplice to rape. Minerva threatened Cora
to have sex with a member of the Provokers or the gang will be angry and they might do
something to Cora. However, did she actually provide aid to Butch by threatening Cora? There
was no prearrangement between them and Minerva did not present an imminent threat to Cora,
merely a future threat. Could the gang members be charged with conspiracy to rape? There is
no evidence of an agreement to commit the crime, they thought Cora wanted to "join the gang".
Question 2
Conspiracy
Both Olga and Zen can be charged with conspiracy to commit burglary. They both
agree (with dead Igor) to commit an unlawful act (MPC-a criminal act). Although they agreed
not to carry guns Olea did (possession offense). Zen would be liable for any crime committed in
furtherance of the conspiracy offense that was reasonably foreseeable so he would be liable for
her possession of the gun (assuming it was an illegal possession).
Burglary
They would also be charged with burglary which is the unlawful breaking and entering of
the dwelling house of another, with the intent to commit a crime therein. They broke into the
computer store with the intent to commit larceny (intent to deprive a person of his property).
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Felony Murder
The next question is whether they are liable for the guards killing of a co-felon (Igor).
Under a pure felony murder rule they would be liable for all deaths (even accidental) committed
during the commission of a felony. The felony murder rule may be applied by:
1. Holding the defendant strictly liable even for accidental deaths.
2. Substituting the mens rea of a lesser offense for the homicide.
3. Holding the defendant strictly liability for a potential capital offense.
However courts have placed limitations on felony murder such as the merger rule,
inherently dangerous felony, proximate cause argument, and limitations on whether the victim
is a co-felon. In such a jurisdiction Olga and Zen would not be liable for the guard killing Igor.
First, they were not the proximate cause of his death (the guard was an independent intervening
human actor) and second the guard was not an agent of Olga or Zen committing the killing in
furtherance of the crime.
However, they would be liable under the felony murder rule for the pedestrian killed by
the guard. They had not yet reached a safe haven but rather were fleeing when the innocent
bystander was killed. Burglary has an independent felonious purpose and would not merge. The
merger rule exists so that the defendant is not held strictly liable for all murders.
In a jurisdiction that recognizes the inherently dangerous felony exception, the defendant
will argue that burglary as enumerated is not inherently dangerous and should not underlie
felony murder. In a jurisdiction that does not apply the abstract test but rather looks at the felony
plus the circumstances of the case (i.e. Olea with a gun) they may allow this burglary to underlie
a felony murder conviction. The MPC merely asks whether the defendants acted recklessly or
with indifference for human life which Olga and Zen did not. They did not threaten nor brandish
the guard with the gun.
Self Defense (guard)
The guard would not be liable for the deaths because they were not unlawful where he
was protecting property. A question arises because Igor was shot in the back. The guard may
have been negligent or reckless in his judgement as to whether Igor was dangerous. He did
detect Olga's gun and therefore may have believed Igor was also a threat. The prosecution will
argue however that the guard was not threatened and therefore was not acting in self-defense and
that burglary alone does not provoke deadly force.
The burglars were the aggressors and Olga's possession of a gun may be sufficient under
CL or MPC to justify his belief that he was threatened with deadly force or serious bodily harm.
The CL requires him to believe that the threat is imminent. The MPC requires him to believe
immediate necessary not imminent. However under the CL he may have had a duty to retreat
where he could safely do so. The MPC also has a retreat requirement but it is not stringently
enforced.
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Thus the burglars were the aggressors and had a weapon thus justifying the guard's self
defense argument. He can also argue that he reasonably believed that there was a threat and
where this threat is reasonable may afford him a mistake of fact defense. The prosecution
however will say he was just a guard and not a cop he had no authority to use deadly force to
protect property when he himself was in no danger as evidenced by Igor's being shot in the back.
Accomplice Liability (taxi driver)
Next was the taxi driver an accomplice after the fact. Probably not, he was being asked
to speed to get away fast but there is no evidence he had knowledge of burglary or deaths. To
convict him as an accomplice there must be assistance with intent to aid in the crime. There is
no evidence of the latter requirement as to the burglary or deaths, i.e. no intent to aid.
Was he aware that Robert was being kidnaped? Robert did scream "get me out" which
should have been loud enough in a car for the driver to hear. While as strangers the driver was
under no affirmative duty to help the kidnap victim; yet the driver was creating a greater risk of
harm for Robert which should create a duty for him to help Robert which he did not. It may also
make him an accomplice to kidnaping if the prosecution proves he was aware by showing intent
to help kidnap. Although the driver will argue that he did not see Olga's gun and that he was
unaware from the conversation alone that a kidnaping was taking place therefore he had no
intent to aid in the commission of that crime.
Misdemeanor Manslaughter
The driver however, may be liable for misdemeanor manslaughter in a jurisdiction that
recognizes this as a crime for death resulting from speeding (misdemeanor). It is only a crime
because it is prohibited and not morally wrong even in those jurisdictions he is unlikely to be
convicted. However, he may be guilty of reckless homicide. He was speeding when he knew it
was his first day driving a gear shift car. He was aware that such conduct caused substantial risk
to pedestrians.
Will Olga and Zen be liable for the bicyclist's death? Because at this point in the
narrative they were no longer kidnaping Robert it is unlikely they will be convicted of felony
murder for the bicyclist. The prosecution will say they are still escaping from the crimes and
should be held liable and that they were accomplices to his speeding. Yet the defense has a
strong argument that by this point they have reached a safe haven (in the cab, near the waterfront
a distance away from the crime scene. As accomplices to the drivers speeding (even in
jurisdictions which recognize misdemeanor homicide, involuntary manslaughter this will
probably not lead to conviction for the same reasons given supra for the driver.
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The MPC does not recognize the misdemeanor manslaughter charge at all. And in
regards to the felony murder convictions the MPC would require that the defendants acted with
recklessness or extreme indifference with regard to the value of human life. Olga and Zen
would probably be held liable for Robert's death. Yet they neither brandished guns at the
computer store or acted recklessly in any other way perhaps providing a defense under the MPC.
Robert was a kidnaping victim and in his attempt to escape he died. Olga and Zen will raise the
causation issue. They did not push him, rather he was an independent human actor. However,
because of the Bishop test the court will probably find that Robert was rendered not responsible
for his act because of the kidnaping. He believed he was in serious danger and acted rashly to
avoid probable death (inadvertently leading to his own death). Thus they are going to be held
liable.
Defenses:
Apart from limitations on felony murder, causation and other elemental defenses given
supra, Zen may wish to raise the issue that he did not agree to carry a gun. However,
coconspirators are responsible for actions of other conspirators when the act is done to achieve
the target crime or is committed in furtherance of that crime and it was reasonably foreseeable.
He will likely be held liable because the gun possession was foreseeable.
The facts do not present evidence of duress, diminished capacity, insanity, necessity, self
defense, impossibility or intoxication defenses. Olga will have to rely on exceptions and
limitations for felony murder. The driver, as stated will argue he did not "intend" to help in the
commission of the crime and he will hope he is in a jurisdiction that does not recognize
misdemeanor murder. The guard will argue that he acted lawfully to defend himself and his
property.
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- 26 -

December 14, 1998
Professor Denno
PLEASE NOTE:
1.
This is Part II of a two-part examination. Part II follows Part I and you have two hours to
2.
Part II consists of two questions and 5 pages. I recommend 75 minutes to complete the
first question and 45 minutes to complete the second question. These time recommendations
reflect the relative weight I will give each question in grading. Please read both questions before
you begin to write.
3.
Write your identification number, class section, and my name on each bluebook.
4.
Please number each bluebook sequentially. For example, if you have three bluebooks,
5.
Write legibly. Use every other line and every other page. Please begin the answer to
your second question in a new bluebook, and present your answers in the order in which they are
asked. (Your answer to question 1 should come first, and your answer to question 2 should come
second.)
6.
If you think it is necessary, state assumptions or additional assumptions of fact not
contained in the questions or facts but which you think are appropriate to answer the questions
more fully.
7.
Take special note that I ask you to discuss the possible outcomes under both the common
law (non-Model Penal Code) and the Model Penal Code. As a summary of your analysis, note
how the results would be similar or different depending on whether you were applying the
common law (non-Model Penal Code) or the Model Penal Code.
Good luck!
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QUESTION I - 75 Minutes
Hallop offered Frances, his coworker, a ride home from their work at an auto shop.
Frances accepted, and climbed in the front passenger seat of Hallops Toyota. On the way,
Frances lit a joint [marihuana cigarette] she had pulled from her pocket. Want some?, Frances
offered. Hallop grinned, reached for the joint, and shared it with Frances as he drove.
As Hallop was pulling away from a stop sign, an old pickup truck passed his car from
behind at a high rate of speed, honking as it passed, and raced ahead.
Darn it!, yelled Frances at the pickup as it sped away. Lets teach him some
manners!, Frances shouted, pulling from her waistband a small handgun.
Hallop, seeing the gun, asked, With that?
Sure, grinned Frances, lets just shoot out his tires! Catch up with him.
Hallop sped up and, as he came close to the pickup, Frances leaned out of the passenger
window and fired at the pickup. The noise seemed horribly loud to Hallop, who by that time was
having difficulty navigating the road due to the effects of the marijuana. Hallop became
extremely frightened by the noise. He slowed down and started to pull over.
Hes getting away!, yelled Frances, waving her gun wildly. I missed!, she screamed,
Come on! Go! In terror, wincing and holding his right hand to his right ear, Hallop drove on,
gaining on the pickup. Frances fired again. The pickup swerved headlong into a concrete
barrier, smashing and spinning. Hallops car then crashed into the spinning pickup.
Frances died at the hospital from injuries sustained on impact with the pickup, having
never regained consciousness. The pickup driver, a man named Nims, had not been hit by the
gunshots. However, Nims had died instantly from injuries he received when his truck hit the
concrete barrier.
Hallop lived to tell the tale related above, which was corroborated at points by witnesses
along the route taken by the two vehicles. The tale was also corroborated by the remains of a
marijuana cigarette in Hallops car, the gun found with Francess body, residue from the firing of
the gun on Francess hands, and blood drawn from Hallop and Frances, which indicated recent
marijuana use. No bullet marks or holes were found anywhere on the pickup or its tires.
However, after a careful search, two bullets fired from Francess gun were found along the route,
near the roads edge.
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Courts in this state follow both the Model Penal Code and common law rules
regarding criminal liability. In addition, the state legislature has adopted the following
statutes:
Murder.
First Degree. Whoever deliberately and with premeditation kills another person, or who
causes the death of another person while perpetrating or attempting to perpetrate arson,
rape, robbery, burglary, or kidnaping, shall be guilty of murder in the first degree,
punishable by death or life imprisonment.
Second Degree. All other murder is murder in the second degree, punishable by life
imprisonment.
Voluntary manslaughter. A person who kills another while under a sudden passion
resulting from serious provocation by the person killed shall be guilty of voluntary
manslaughter, punishable by up to fifteen years in prison.
Involuntary manslaughter. Involuntary manslaughter is the reckless or criminally
negligent killing of another, punishable by up to fifteen years in prison.
Aggravated assault. A person who
1) intentionally causes serious bodily injury to another or
2) uses or displays a deadly weapon and either recklessly causes bodily injury to
another or knowingly causes another to reasonably fear imminent bodily injury is
guilty of aggravated assault, a felony punishable by up to ten years in prison.
Possession of a controlled substance. Knowing possession of . . . any Schedule II
controlled substance [including marijuana] . . . in any amount . . . is a felony punishable
by up to ten years in prison and/or a fine up to $10,000.
Felonious destruction of property. Whoever intentionally damages or destroys
property of another, when such damage or destruction results in property loss of over
$500, is guilty of a felony punishable by up to three years in prison and/or a fine of
$1000.
Aiding and abetting. Whoever aids, abets, counsels, commands, induces or procures the
commission of an offense is punishable as a principal.
Conspiracy. If two or more persons conspire to commit any felony, and one or more of
such persons do any act to effect the object of the conspiracy, each shall be fined not
more than $10,000 or imprisoned not more than five years or both.
Intoxication. If recklessness establishes an element of an offense and a person is
unaware of a risk because of voluntary intoxication, the persons unawareness is
immaterial in a prosecution for that offense.
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Duress. A person acts under duress and is thereby excused from liability for an offense
if the person commits the offense under compulsion in the form of threats by another that
create a reasonable apprehension in the mind of the person that his refusal would result in
his instant death.
Insanity. It is an affirmative defense to an offense, that, at the time of the commission of
the acts constituting the offense, the defendant as a result of a severe mental disease or
defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.
The District Attorney would like to prosecute Hallop for both deaths under both a
common law and a Model Penal Code analysis, realizing that the court may accept either
approach. Advise her which charges, if any, should be pursued, under which theories. Be
sure to anticipate and evaluate carefully the arguments that you expect Hallops defense
attorney to raise in opposition.
QUESTION II - 45 Minutes
Dirk, six feet tall and weighing about 195 pounds, worked as a prison guard in a
womens prison. Soon after inmate Olga was transferred to the prison, Dirk initiated several
conversations with her. Olga was an individual with a small built and size. She was also upbeat
and friendly towards everyone. Within a week, Dirk had confided in Olga about problems with
his wife at home. Seeing that he appeared really upset, Olga hugged him. These surreptitious
exchanges occurred a few more times during the next week, with the two of them exchanging
words of personal encouragement.
At the end of that week, Dirk told Igor, another guard, You know Olga? Shes hoping
for a chance to have sex with me. Igor smiled, raised his eyebrows, then suggested, How
about me helping you arrange a rendezvous tonight?
That night, while Igor stood guard for him, Dirk made his way to Olgas cell, unlocked it,
stepped inside, locked it again, checked to see that Olgas cell mate was asleep, and grabbed
Olga.
What are you doing here?, Olga whispered, jumping out of bed.
Finally, we have some time, whispered Dirk, and started to pull down her pajama
pants.
Wait, I dont know about this, Olga said, grabbing his hands. Its not right!
Itll be alright!, he snapped, glancing at her cell mate, who was still snoring. Come
on!, he urged, twisting his wrists to break her grip.
Olga stopped struggling, Dirk pulled down her pajama bottoms, and she sat on the bed.
However, before Dirk could lay down with Olga, Igor banged on the door an warned that another
guard was coming. Dirk zipped up his pants and ducked out of the cell, locking it behind him.
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Part A.
Dirk was charged with attempted rape, and, in the alternative, attempted gross sexual
imposition. Igor was charged with being an accomplice to attempted rape, and, in the
alternative, an accomplice to attempted gross sexual imposition, under the Model Penal Code
provisions defining rape (213.1), gross sexual imposition (213.2), attempt (5.01), and accomplice
liability (2.06).
For each of these four charges, please evaluate carefully the arguments for and against
guilt for both Dirk and Igor. Assume that you are in a jurisdiction that incorporates both the
common law and the Model Penal Code.
Part B.
Now assume that unbeknownst to Dirk and Igor, Olga was not an inmate at all, but rather
an undercover police officer trained in various marshall arts who was posing as a prisoner in
order to infiltrate a gang inside the prison. Would these additional facts change your answer to
Part A? Why or why not?
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Student Answer to Fall 1998 Criminal Law Exam

- 32 -
Question 1
Murder-first degree
Analyzing the state statute for murder according to its material elements shows:
act: kills or causes death
mens rea: deliberately and with premeditation
attendant circumstances: another person, while perpetrating or attempting to perpetrate
arson, rape, robbery, burglary, or kidnaping
result: death
Since the mens rea term occurs at the beginning of the statute, it can be implied to apply
to the whole statute under common law and the Model Penal Code (2.02(4) offense analysis).
Under the state statute, Hallop will probably not be convicted of first degree murder
unless it can be shown by 1) planning activity, 2) prior relationship to the victim or motive, and
3) nature of the killing that he premeditated and deliberated to kill the victim, Nims. In addition,
Hallop was not perpetrating any of the listed crimes, so he would not be found guilty of first
degree murder. Also, there is no evidence of any of the above three conditions. No planning and
no prior relationship or motive. Also the nature of the killing was not deliberate.
All other murder is second degree, so Hallop may be found guilty of this under the state
statute.
Under common law murder is not broken down unto degrees. It involves the killing of a
human being by another human being with malice aforethought. Malice aforethought can be
shown by one of four mental states: 1) intent to kill, 2) intent to inflict serious bodily harm, 3)
reckless disregard for human life and, 4) intent to commit felony, resulting in death which equals
felony- murder. Here, Hallops behavior speeding along a road, chasing after another vehicle,
and having his friend Frances fire at it could show an extreme reckless disregard for the value
of human life, thereby fulfilling common law requirements for murder.
Under the Model Penal Code (MPC), murder is defined as the killing of a human being
by another human being 1) purposely, knowingly or 2) recklessly with indifference to the value
of human life. As in common law, Hallops behavior showed the reckless disregard of a
substantial and unjustifiable risk while speeding and shooting, and he may also be found guilty
of murder under MPC as well as common law, but only 2nd degree murder under the state statute.
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Defenses to Murder
Intoxication voluntary (used with specific intent crimes, maybe not a good defense)
Hallop could argue that his intoxication could have contributed to diminished capacity.
(Hallops driving was impaired by marihuana use, and this could have contributed to the
accident and death.) Under diminished capacity, there are two types: 1) mens rea where the
mens rea of the crime can be negated, or 2) partial responsibility where the murder charge could
be reduced to manslaughter.
Provocation
Under common law, provocation could also be argued. Nims speeding by and honking
at Hallop could have provided adequate and sufficient provocation to make Hallop speed
recklessly after Nim in a sudden heat of passion.
Hallop could also argue duress under MPC, as it is not available as a murder defense
under common law. Frances was egging him on and pressuring him to go on. However, this
probably would not work as a defense because Frances was not threatening Hallop in any way.
Necessity
Necessity is also a defense that would probably not work, as it is not used in homicides
and is usually in response to natural force, not force by a human being.
Lastly, extreme mental and emotional disturbance (EMED) could be argued under MPC.
Here. Provocation and heat of passion are not necessary as long as EMED can reasonably
explain the Defendants behavior. Hallop may be able to use this partial defense to reduce his
murder charge to manslaughter, as he was emotionally disturbed by Nims behavior of speeding
and honking.
Voluntary manslaughter
Under common law, as mentioned above, Hallop could be guilty of this crime. Nims
speeding and honking may have constituted adequate provocation to cause Hallops subsequent
behavior. (Not available under MPC.)
Involuntary manslaughter (Common law only, not MPC)
Hallop could be found guilty of this crime as well. As per the state statute, he was at
least reckless in that he was aware of a substantial and unjustifiable risk but went ahead,
disregarded the risk and engaged in the risky conduct anyway. However, if he was not aware of
the risk, he should have been, therefor fulfilling the negligence requirement.
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Under common law, involuntary manslaughter also includes misdemeanor manslaughter,

or unlawful act doctrine. If Hallop was engaged in a misdemeanor, such as speeding, and a
death occurred during the commission or attempted commission of such a misdemeanor, he may
be guilty of involuntary manslaughter. Here, Hallop may have been speeding, during which
Nims was killed. Probably guilty. However, some courts do not recognize this offense unless it
is a malum in se (inherently dangerous) crime and not malum prohibtum (act prohibited by law).
Under MPC, manslaughter includes either reckless killing (which we have already
discussed Hallop qualifies for if he knew of the risk but disregarded the substantial, unjustifiable
risk) or killing that normally constitutes murder but is done under EMED. Hallop would
possibly qualify for both conditions under MPC definition of manslaughter.
Whether the state legislature relies more heavily on common law or MPC, Hallop could
probably be held liable for manslaughter, regardless.
Felony-Murder
If Nims death occurred during the commission or attempted commission of a felony, then
Hallop can be held guilty of felony-murder. As a prosecutor, I would want to charge Hallop with
felony-murder because the intent to commit a felony is enough and prosecution does not have to
go the extra distance and prove malice aforethought (although we determined earlier, that malice
can be fulfilled by a reckless disregard for value of human life).
Here, the felonies that Hallop could be held for can be: 1) aggravated assault, 2)
possession of a controlled substance, and 3) felonious destruction of property.
1) aggravated assault:
person who intentionally causes serious bodily injury Hallop could argue he did not
intend to injure Nims.
uses or displays a deadly weapon...and causes (recklessly) bodily harm Hallop could
argue that Frances was the one who did this, not Hallop.
However, according to accomplice liability, Hallop may be guilty of the crimes since he
aided in fact by driving Frances close enough to Nims to use the gun against the truck. Under
common law, one must aid in fact while under MPC, one must only attempt to aid. Since Hallop
can be said to have aided in fact, both common law and MPC are fulfilled.
Another counter argument here is that Frances may not have knowingly caused
reasonable fear of imminent bodily injury. Nims may not have even seen the gun. This is a
weak argument, though, as the shooting out of someones tires at high speeds could recklessly
cause serious bodily injury, and did, thereby fulfilling the first prong.
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2) possession of a controlled substance

However, if Frances and Hallop are not found liable for the aggravated assault, they may
be liable of possession of a controlled substance. Marihuana was found in the car, and although
Hallop could argue Frances possessed the joint, he could be held liable as an accomplice,
especially since marihuana was found in his blood.
3) felonious destruction of property
Hallop could argue he did not intentionally damage or destroy Nims car. It was an
accident.
If Hallop is found guilty of any of these three felonies, he could be charged with felonymurder of Nims death. Generally, felony-murder is strict liability for any death that results from
the commission or attempted commission of a felony. However, there are certain limitations.
In the inherently dangerous felony limitation the felony must be considered inherently
dangerous. The first approach is an abstract approach. If the offense is inherently dangerous in
itself, then felony-murder would apply. The second approach looks at dangerous including
particular facts of the case. Under the abstract approach, aggravated assault would probably
qualify, but possession of a controlled substance and felonious destruction of property may not
be considered inherently dangerous in and of themselves.
Under the particular facts of the case, since controlled substances affected Hallops
driving ability and the property being destroyed was a vehicle moving at high speeds, all three
felonies could be considered dangerous for purposes of a felony-murder charge.
Therefore, depending on which felonies Hallop is liable for and then depending on the
approach used, he may or may not be guilty of felony-murder.
Another limitation is the independent felony limitation in which the underlying felony
must be sufficiently independent of the homicide. Here, aggravated assault will probably merge
with the homicide and not trigger felony-murder, while the other two felonies would not merge
and would be sufficiently independent.
Are there any gross and bizarre intervening facts? Arguably not. Firing at a high speed
vehicle could cause an accident such as that which occurred. This brings us to causation. Was
the accident a foreseeable consequence of high speed and shooting? Probably, yes. While the
actual cause button is established, so is proximate cause. There were no intervening factors.
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Now, Hallops liability for Nims death via felony-murder is pretty likely. But what
about his liability for Frances death? According to the majority agency theory rule, killings by
non-felons are excluded. Since no non-felon killed anyone, this does not apply. However,
proximate cause theories either 1) hold felons liable for killings by non-felons if felons put in
motion actions which resulted in the death (irrelevant because no non-felon killings) or 2) hold
felons liable for death of non-felons (but not for co-felons justifiable killings). This issue
becomes difficult because there is arguably no non-felon killings. Some may argue that Nims
spinning pickup can be his (Nims) contribution to the accident which killed Frances, but that
may be difficult to establish.
Regarding conspiracy: under common law there needs to be an agreement, an intent to
agree, and an intent to pursue the unlawful agreement. Here, it is unclear whether there was an
actual agreement. It may be implied by Hallops actions in response to Frances, however. This
conspiracy can bring the Pinkerton doctrine into play for the earlier discussed accomplice
liability. A party to a conspiracy is held accountable for all foreseeable acts by the other party.
MPC does not recognize the Pinkerton doctrine and abandonment may be argued as a
defense. Hallops pulling over to the side of the road may signal his intent to abandon the
conspiracy.
If Hallop was convicted of murder in the first degree and he was potentially facing the
death penalty, his defense attorney could argue either no aggravating circumstances or some
mitigating circumstances. Defense could argue no heinous, depraved desire, and possibly no
previous violent convictions (but we dont know this). As mitigating factors, he could argue:
mental disease or defect by intoxication. Unfortunately, however, one aggravating factor could
be that speeding and shooting on the road would put many people in danger and risk of death.
If insanity could be used as a defense because of any reason:
Common law:
MNaghten Test: complete cognitive impairment (unable to know nature and quality or
wrongfulness)
irresistible impulse test: complete volitional impairment
Durham or product test: any impairment of cognitive or volitional nature (overruled
1972)
Federal Appreciation test: complete cognitive impairment (unable to appreciate nature
and quality or wrongfulness) (only Federal cases)
MPC: Substantial cognitive (unable to appreciate criminality of conduct) or volitional
(unable to conform behavior to law)
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Question 2, Part A
Rape
General intent crime under common law.
Common law: sexual intercourse with a woman, not ones wife with no consent.
The statute is silent here with no mens rea terms. With a silent statute in common law,
since there are over 80 mens rea terms, courts will usually look to statutory interpretation,
legislative intent, judicial discretion, assumption of risk, moral/social policy, and nature of the
crime. Usually, however, intent is read into the act of sexual intercourse.
Dirk
Under common law, attendant circumstances of woman, not ones wife only need to have
recklessness or negligence applied. Since Dirk is in a womens prison and he spoke to Olga
about his wife, it can be argued he was at least reckless with respect to the attendant
circumstances.
Common law attempt requires intent for the conduct with the further purpose that the
crime occur. This is a specific intent crime. Dirk must take a substantial step with requisite
mens rea. There are six tests to determine substantial step. 1) Last proximate act in which
defendant does all he believes necessary to complete the offense. Since Dirk did not attempt to
penetrate Olga, it can be argued he did not complete the last act. 2) Indispensable element
Dirk fulfills this test. He had all the tools necessary to complete the crime: himself. 3) Physical
proximity Dirk was physically close with the ability to complete the crime immediately. 4)
Dangerous proximity Dirk was close spatially and temporally to the crime. 5) Unequivocality
(res ipsa) Dirk, by pulling down Olgas pants and unzipping his, he demonstrated his intent to
commit the crime. 6) Probable desistance Dirk had not passed the point of no return. Dirk
fulfills some, but not all of the term tests.
MPC:
Rape: sexual intercourse with a woman, not ones wife;
1) by force or threat of force, extreme pain, kidnaping,
2) with drugs administered without knowledge,
3) unconscious, and
4) less than 10 years old.
Second degree rape unless:
no bodily injury
not voluntary social companion and no previous sexual liberties
Under MPC, Dirk would probably be guilty of attempted rape in the first degree. He
used force when he pulled her pajama bottoms down and twisted his wrists free. For attempt
under MPC, the actor must purposely engage in conduct and take substantial step corroborative
of his criminal purpose. Dirks conscious objective was to have sexual intercourse with Olga, as
evidence by his earlier comment to Igor. Under MPC, purpose or knowledge is used for conduct
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(sexual intercourse) and reckless or abuse for attendant circumstances of woman, and not ones
wife (see common law discussion). Regarding attempt, Dirks actions show his criminal purpose
as his conscious objective was to get Olga alone to have intercourse.
Dirk will probably be guilty of attempted rape under MPC as well as common law.
Gross Sexual Imposition
Under common law there are no specific cases; so we can assume its in line with MPC.
MPC: third degree felony = gross sexual imposition.
Sexual intercourse with a woman not one wife:
threat of force
mental disease or defect
fraud
Dirk could be found guilty of gross sexual imposition. He did attempt to have sexual
intercourse with a woman, not his wife (although some may argue that the steps he took were not
substantial enough). However, under MPC, there was no threat of force, he did not know any
mental disease or defect on Olgas part, and there was no fraud.
Defenses Dirk
Dirk could argue mistake of fact regarding consent. He could say that Olgas hugging
him and encouragement over time indicated she liked him and wanted to develop a more
personal relationship. Under common law, for a general intent offense like rape, mistake of fact
must be reasonable to be a defense. If the mistake is reasonable, however, the moral wrong
doctrine could be applied in that having sex with a woman whos not your wife is immoral and
Dirk would assume the risk that his behavior the risk that his behavior is not only immoral but
also illegal, thereby resulting in conviction anyway.
For the specific intent crime of attempted rape, the mistake of fact must negate the
specific intent portion of the crime. Specific intent here is the further purpose that the crime of
rape occur. Dirk could argue he did not intend that rape occur, although he intended the conduct
of sexual intercourse. So, depending on the use of the moral wrong doctrine, Dirk could use
mistake of fact as a defense.
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Accomplice liability Igor

If Igor and Dirk could have conspired to rape Olga beforehand in that there was: under
common law: bilateral agreement, no overt act needed; or under MPC: unilateral agreement, an
overt act needed, Igor could be guilty of conspiracy. Under common law, he can guilty of both
conspiracy and the target offense, but under MPC, they merge.
If there was a conspiracy, it could be evidenced by their planning out of the event earlier.
For MPC, Igors standing guard could be the overt act needed to establish conspiracy. Under
common law, Pinkerton doctrine makes Igor liable for all foreseeable consequences of the
conspiracy committed by Dirk. Therefore, Dirks attempted crimes could be transferred to his
accomplice, Igor.
Under common law, Igor can only be convicted if Dirk is. However, under MPC, Igor
can be convicted of the crime without Dirks conviction.
Under common law, Igor must aid in fact while under MPC Igor must attempt to aid. It
could be argued that Igor standing guard is not aiding in fact, so under common law he could not
be liable as Dirks accomplice. Under MPC, however, since attempt to aid is sufficient, Igor
would probably be held liable as an accomplice.
Dirk and Igor (by accomplice liability) may be found guilty of sexual assault (MPC)
because Dirk is in a supervisory position to Olga who is incarcerated. He has authority over her.
Question 2, Part B
If Olga was an undercover police officer, I dont think the answer in Part A would change
much at all. Her status as an undercover police officer does not impact on the attempted rape or
attempted gross sexual imposition.
However, things might change if Dirk was also charged with attempted sexual assault as
there may be a defense of impossibility if Olga was acting as an undercover police officer and
was not actually under the authority or supervision of Dirk. He would be engaging in conduct he
thought was a crime which in actuality was not (assuming it was sexual intercourse and not
rape....).
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- 41 -

Examination in Criminal Law: Section A
April 25, 2000
Visiting Professor Denno
Please note:
This is a closed book exam. No materials may be used.
The exam has 6 pages, including this cover page. Make sure you have every page.
You have 3 hours, or 180 minutes, to complete the exam. There are 3 questions of
varying weight, which total to 180 points. Point allocations and suggested time
allocations are noted at the beginning of each question. Please take note that Question 1
has two parts.
Write your identification number, class section, and my name on each exam book.
Please number each exam book sequentially. For example, if you have two exam books,
number the first 1 of 2 and the second 2 of 2.
Write legibly. Use every other line and every other page.

contained in the questions or facts but which you think are appropriate to answer the
questions more fully.
law (non-Model Penal Code) and the Model Penal Code. As a summary of your analysis,
note how the results would be similar or different depending on whether you were
Please return this exam (all 6 pages) with your answers.
GOOD LUCK!
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QUESTION I (approximately 85 points; 85 minutes)

After a hectic day of shopping, Dolly Pardon wanted to relax and have fun at the
Wildhorse Saloon. Dolly had heard that the Saloon was a well know hang out for famous
country western music stars, particularly Darth Books. Darth had long been a source of
infatuation for Dolly. There was also the possibility that Tammie Whynot, Dollys friend, might
know Darth, so Dolly called Tammie up and invited her to go out to the Wildhorse.
When Dolly and Tammie arrived at the Wildhorse together, the place was packed.
Throngs of people were standing around the bar; even more were line dancing. Soon after
arriving, Tammie pointed out someone who looked just like Darth Books. The man walked
over to the two women. He appeared to be only interested in Dolly, barely responding to
Tammies greetings. The lone figure turned to Dolly and positioned his body in a way that
blocked Tammie from either hearing or participating in the conversation. Dolly was very
flattered by this, since all interest was directed at only her. Hi, Im Darth Books, the man said
to Dolly. With this introduction, Dolly proceeded to talk and dance with the handsome,
swaggering, gentleman for much of the evening. Dolly became so entranced, she barely noticed
Tammie waving good bye and yelling, Good luck, as Tammie left the Saloon.
Now that Dolly was alone, she didnt know if she could contain her passion for Darth any
longer. Indeed, it seemed like only moments later that Dolly progressed from the Wildhorse to
her companions apartment and then, to his bedroom, where both were now unclothed. Dolly
was willing to agree to this level of intimacy so quickly only because she had been so impressed
with Darths fame. Indeed, she was continually reminded of Darths fame by all the photographs
of Darth displayed throughout his apartment, showing him singing before massive audiences all
over the world. Oh, what the heck, thought Dolly to herself. I may never again have this
opportunity. Besides, I can tell my grandchildren one day that I made love to Darth Books.
Yet, only moments after having this thought, Dollys fantasy seemed unlikely. Upon hearing a
noise in the kitchen, her newfound singer-boyfriend leaped up startled and claimed that he had to
get a drink of water.
A fully clothed Darth Books angrily confronted the naked man in his kitchen. It turns out
that the naked man, Snookey Books, was Darths identical twin. The two men were physically
indistinguishable. However, Snookey a third-year medical student frequently impersonated
Darth in order to lure impressionable fans back to Darths apartment so that Snookey could have
sex with them. This behavior angered Darth, who had taken the extra set of his apartment keys
away from Snookey. This night especially angered Darth because Snookey had broken into the
apartment.
Snookey pleaded with Darth to hear him out. Each time Snookey attempted to seduce
women with this technique, he would become impotent and the women would laugh at him and
leave. This upset Snookey enormously. This time, Snookey wanted to ensure that such ridicule
wouldnt happen. Given that Darth was right there, he asked Darth to have sex with Dolly
instead. Snookey explained to Darth that this would be the honest thing to do anyway, since
Dolly was really consenting to making love with Darth, not Snookey. And, according to
Snookey, Darth should be happy because Darth loved having sex with his fans and frequently
did so.
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Darth, however, didnt quite agree with Snookeys logic. Although he enjoyed was
delighted with the prospect of having sex with a willing fan, he thought this solution would
simply encourage Snookey to engage in this kind of deception in the future. What Darth did not
expect, however, was Snookeys rage at Darths resistance. Snookey grabbed a knife from the
kitchen and pointed it at Darth. If you dont have sex with Dolly, you can go kiss your guitar
goodbye, yelled Snookey.
At this point, several thoughts raced through Darths head. First, Snookey could try to
kill him. Yet, Darth questioned whether Snookey had the guts to do that. Moreover, Darth was
somewhat confident that he could defend himself successfully if he had to because of his black
belt karate skills, although hed prefer not to press his luck, particularly since Snookey had a
knife. Second, Snookey could try and kill himself, a prospect that concerned Darth the most. He
knew that Snookey had suicidal tendencies. Third, according to Snookey, Dolly did in fact want
to have sex with Darth. What the heck, thought Darth, it will give her something to tell her
grandchildren about.
With this frame of mind, Darth agreed to have sex with Dolly. He undressed, entered his
bedroom, and engaged in vaginal sexual intercourse with Dolly, who appeared ignorant of the
switch in her partners and remained enthusiastic about her opportunity to have sex with such a
famous star.
QUESTION 1A: What crimes and/or defenses that we studied, if any, are possible under
this scenario under the common law (non-Model Penal Code) and the Model Penal Code? Even
though this scenario took place in Tennessee, assume that Tennessee can legitimately use the law
of any state.
QUESTION 1B: Assume the same scenario as written above except for a change in the
last paragraph, which now reads as follows: Despite all these considerations, Darth still
disagreed to have sex with Dolly because he was tired and just wanted to go to sleep. Enraged,
Snookey lifted the knife with a menacing gesture. Darth did not think Snookey would actually
use the knife against him, but Darth felt nervous with Snookey holding the knife over him
nonetheless. Darth raised his arm simply to knock the knife out of Snookeys hand. However,
Snookey interpreted Darths karate gesture as a possible fatal blow to him. Very swiftly, he
plunged the knife into Darths heart. Darth slumped to the floor, barely alive. Satisfied that he
eliminated any possible threat from Darth, Snookey entered Darths bedroom and engaged in
vaginal sexual intercourse with Dolly, who appeared ignorant of the events that had just occurred
in the kitchen and remained enthusiastic about her opportunity to have sex with such a famous
star. Darth died the next day. Evidence indicated that his life could possibly have been saved if
he had received medical attention immediately after the knife wound. What crimes and/or
defenses that we studied, if any, are possible under this scenario under the common law (nonModel Penal Code) and the Model Penal Code? Even though this scenario took place in
Tennessee, assume that Tennessee can legitimately use the law of any state.
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QUESTION II (approximately 70 points; 70 minutes)

Igor desperately needed cash to buy the latest Darth Books CD. Walking down the
street, he noticed Zen carrying a large briefcase that Igor thought might contain enough cash for
a CD. Igor ran up and snatched Zens briefcase. However, a police officer, while witnessing
this event, started running after Igor.
Terrified of being apprehended by the police officer, Igor dashed down the street carrying
Zens suitcase. While turning a corner, Igor encountered a group of three children, all age
twelve, who were skipping rope. One of the children, Molly, ran into the street for fear of being
trampled by Igor who never altered his course nor his pace. The two other children, Olga and
Trip, stood defiantly in Igors path, annoyed that any adult would interrupt their play. Yet, Igor
was concerned that the two children would try to slow him down. Igor aggressively shoved
both children out of his path and against the side of a nearby building. Stunned by a blow to her
head as a result of the shove, Olga fell down a flight of stairs. She died instantly. Trip was
permanently paralyzed from a brain concussion that resulted when he hit his head against the
building. Molly was hit by a car when she ran into the street, and died instantly. Evidence later
revealed that the driver of the car that hit Molly had been speeding at the time.
Igor is charged with the following two felonies upon discovery that Zens suitcase
contained over $15,000:
Grand theft. A person is guilty of grand theft if he unlawfully takes, or exercises
unlawful control over, movable property of another valued at over $500, with the purpose to
deprive him thereof.
Felonious child abuse. A person is guilty of child abuse in the first degree if the person
knowingly or intentionally causes serious physical or serious mental harm to a child.
Discuss Igors potential liability for Olgas and Mollys deaths and for Trips injuries
under both a common law (non-Model Penal Code) and Model Penal Code analysis. Be sure to
include a discussion of any defenses Igor may have.
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QUESTION III (approximately 25 points; 25 minutes)

In 1997, Zoro, age 49, was charged with violating a state statute, Penal Code section
145, which made it a criminal offense to send, by any means, pornographic material to a minor
with the intent or for the purpose of seducing a minor. Under section 145, a minor was
defined as any individual under age 16.
For several months, Zoro had been engaging in e-mail communication with Gilda, who
lived in the same state as Zoro. Gilda had told Zoro that she was a 13-year-old girl interested in
having sexual relations with an older man. In fact, Gilda was a 25-year-old woman who simply
enjoyed tricking people like Zoro. During the course of their communication, Zoro sent Gilda
pornographic pictures of young girls engaged in sexual activities with older men. When Zoro
suggested that he and Gilda meet at a popular store for teens, to plan in person the kinds of
activities they had discussed over the Internet, Gilda notified the authorities. The authorities
arrested Zoro at the store on the day and at the time he had arranged to meet with Gilda.
Discuss Zoros potential liability under Penal Code section 145 using both a common law
(non-Model Penal Code) and a Model Penal Code analysis. What defenses may Zoro have
available to him?
END OF EXAM
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- 47 -
Question 1A
Snookey:
The first crime that Snookey could possibly be charged with would be attempted rape.
Attempted rape is a specific intent crime and involves all of the elements that an actual
rape possesses (except for the fact that actual rape is a general intent crime).
Common Law Elements Of Rape:
Sexual intercourse, force/threat of force, resistance, non-consent, and the intent to have
sex.
For an attempted rape to be valid, Plaintiff will have to prove that Snookey possessed the
intent to have sexual intercourse with the woman. Although in this case there is no force as far
as harming the potential Victim, the Plaintiff could argue that penetration itself would be
adequate force for this element.
Defendant will argue that there is no possibility of attempted rape because the potential
Victim consented to the action that was to take place. This, Defendant will argue, is extremely
important because an actual rape must include the elements of non-consent and force. Even if
the element of force is satisfied by the penetration itself, there is no possible way to convict
Defendant without the Victim either demonstrating her lack of consent or telling him she was not
consenting. Since she did neither and actually wanted the intercourse, Plaintiff will have a hard
time making this argument.
Model Penal Code: the elements of rape under the Model Penal Code are that the Victim
is under 10, there is a threat of force or actual force, she is drugged, or she is unconscious. Once
again, none of these elements are present and in fact the Victim was desirous of the encounter, so
a charge for attempted rape is probably not going to hold up. It is possible that Plaintiff may
look to argue gross sexual imposition (attempted) since it could be argued that the Victim was
not in a position to understand what she was consenting to. The problem with this is that this
is usually only applied to mentally handicapped or impaired people.
Defenses:
The best defense that Defendant has is that fraud in the inducement is not considered a
crime. Under both the Model Penal Code and Common Law if Defendant lies about his identity
he cannot be convicted of Rape (and of course the same is true of attempted rape).
Impossibility is a possible defense since he is impotent, but attempted rape does not
need actual penetration, and therefore this defense will probably not work.
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He might also try to argue diminished capacity because he was so distressed about the
attention that Darth received.
It is highly unlikely under either the Model Penal Code or the Common Law that he
would be convicted of attempted rape.
Darth:
Darth will be charged with the general intent offense of rape and possibly (under the
Model Penal Code) Gross Sexual Imposition. Common Law: as was mentioned earlier, the
elements of rape do not favor a conviction on this charge.
It is generally held at Common Law that the attendant circumstance of a woman not his
wife is satisfied if Defendant negligently or recklessly enters into a sexual relationship with the
Victim (vaginally). The primary problem here is that the victim did consent and the element of
mens rea which is normally looked at for victims consent is not a problem for Defendant.
Courts usually hold that Defendant must have a reasonable belief that the victim consented and
the actual belief that she consented. While Plaintiff may try to argue that she did not actually
consent with Darth because she actually consented with Snookey, this will be a problem
because of the fraud in the inducement discussed earlier. Yes it is true that she consented to
another person not Darth. However, because she believed him to be Darth at the time this will
be a hard argument to make.
Defendant will argue, and probably successfully, that Defendants belief in her consent
was reasonable because of what Snookey had told him about Dollys desire to sleep with Darth
Books.
Model Penal Code: once again (as with the attempt charge) the victim will have a hard
time demonstrating that there was threat of force or any of the other elements.
Plaintiff will argue that under the Model Penal Code that Darth is guilty of gross sexual
imposition. This will be argued again on the basis of Dollys mind set and her inability to make
a decision in this circumstance. This probably will not make it for the same reason that the
attempt will fail.
Defenses:
Because Plaintiffs case is so week, Defendant will not need many defenses. The most
promising are Diminished Capacity (because he could not think straight with the threat that his
brother placed on him) and Duress. The Diminished Capacity defense will only work under
Common Law (Model Penal Code does not recognize this defense) and so he will have to argue
that under EEMD at the time and that his emotional state was 1) reasonable and 2) actual.
- 49 -
He may also argue duress (threat to a person or a third person, imminent harm, no other
option, belief that the harm is genuine, and Defendant did not put himself in that position). It
will not be a good argument, though, and Darth would have to demonstrate that his guitar is
another person at least to him and that this caused ample duress. The Model Penal Code
provides a better defense under this for him because it loosens the restriction that the threat be to
a person and that it be imminent. In addition to the threat to the guitar, Darth may try to argue
that he was so distraught by Snookeys behavior that he reasonably believed him to be in danger
(or Darth to be in danger).
Question 1B
This scenario presents more problems for Snookey.
Common law: Murder (intent to kill, inflict serious grievous bodily harm, reckless
disregard for human life, felony murder)
In this situation Plaintiff will argue that Act was done with intent and that this satisfies
the first element. The mens rea of knowing that this action could kill Darth will be arguably
present because he put a deadly weapon into his heart and because Defendant is a reasonable
person (Plaintiff will argue) he should have known or did know that this would/could kill victim.
In a common law jurisdiction that recognizes the felony-murder rule this will probably
come up against Defendant because of the breaking and entering that Defendant engaged in
order to get into the apartment. The limitations on this might cause a problem because it must be
an inherently dangerous felony, within the actions of the felony and something that is
foreseeable. It could be argued (by defendant) that breaking into his brothers home is not a
dangerous felony and that it is not in the least foreseeable that someone could die in the course of
this felony. The Defendant will argue that although this is the worst result possibly, it is not an
actual cause and is not a proximate cause of the homicide. Plaintiff will counter with an
argument that the only reason Defendant had to stab his brother is because he broke into the
apartment, and he therefore is responsible for this because it is a direct result of the felony. (This
is assuming that breaking and entering is a felony, if it is not, then the
misdemeanor/manslaughter rule would kick in which is essentially the same.)
Plaintiff will also argue that Defendants omission to help was enough for him to be
charged with murder under the reckless disregard for human life scenario. Because he was
Darths brother, he had a duty to act and therefore his non-action was a crime in the same way
that an action would be.
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MPC: The elements for murder under the MPC are that the killing be done purposefully
or knowingly, or there be a reckless 2 disregard for human life. Although the MPC does not
recognize the felony-murder rule it does give a presumption of recklessness in the event of a
robbery, burglary, kidnaping, arson, rape, or fleeing. Under this circumstance the MPC will
usually take an elemental approach to a statute and will require that Defendant intended an
action and be reckless or worse as to any attendant circumstance. If Snookey was charged with
attempted rape (above) and convicted, then it is very possible that he could be charged with
murder under this standard of the MPC. If he is not, then Plaintiff will have to argue that
stabbing into victims heart was purposeful/knowing and certainly a reckless disregard for
human life. In looking at recklessness they will have a hard time because of the self-defense
element discussed below.
There will not be a causation problem for Plaintiff (they do not look at proximate cause
in the MPC) because this was absolutely an expected result of Defendants actions.
Defenses:
Defendant will first try to get his charge down from murder to manslaughter. In doing
this he will first argue that it was self defense. This is a reasonable defense if in fact Darth was
an expert in martial arts because Defendant may have been fearing for his life. The problem is
that Snookey arguably began the encounter with his picking up of the knife. Because of this, it is
doubtful that self defense would completely absolve Defendant of any of the responsibility.
However, in light of the fact that Plaintiff will be hard pressed to make a good murder case (this
is especially true in the states that rank by degrees because it will be hard to show
willful/premeditated/ and deliberate) so this defense might work as a partial defense and take it
down to manslaughter. Defendant will argue that he was provoked as well (voluntary
manslaughter) and that his killing was done 1) in the heat of passion, 2) with adequate
provocation (victims threatening gestures), 3) that this provocation caused his response, and 4)
that there was no cooling off period. This is a good defense as well because it could be argued
that this action was only during this time and that there was adequate provocation.
The primary problem with Defendants self defense claim is the fact that he was the
aggressor. In a state that recognizes the retreat rule then he would have a responsibility to retreat
and could not raise this defense as a result of Darths action. In a state that does not recognize
this (as most do not) then Defendant would not have this obligation and could use adequate
measures to defend himself. The problem with this is that the deadly force does not seem to be
equivalent to the force by the victim.
In a MPC jurisdiction Defendant may raise the defense of EEMD in order to get his
charge down to manslaughter. That defense is similar to the provocation defense discussed
above except that there is no need for a cooling off period and there need not be a causal link
between Defendants actions and the provocation.
Because a deadly weapon is pointed to victims heart, recklessness will be presumed.

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In light of these charges and partial defenses, Defendant will very likely be guilty of at
least manslaughter in a common law jurisdiction as well as a MPC jurisdiction.
The defense of intoxication is one that Defendant will probably bring up. In the common
law it will depend upon which approach the court takes as to whether it will be effective. Some
courts take the drink at your own risk approach while others break down the crime according
to specific/general intent and work from there. The problem for Defendant is that Plaintiff will
argue (successfully) that this is not a specific intent crime and so there should be no defense for
intoxication. The MPC provides a more hopeful analysis for Defendant because the mens rea
requirement for intent (purpose/knowledge) might be taken out by the alcohol. As long as this
was a decision made after he drank (which it was) then he might be able to make this defense.
Additional Defenses:
Diminished Capacity could be argued because he was so under the shadow of Darth
that he could not think straight. Insanity might be argued because of Snookeys repeated
attempts to seduce girls in this manner (a Durham test being the best chance for Defendant, but
since it is no longer available then the MNaughten or MPC tests will provide a more difficult
argument).
Death Penalty:
This probably will not go to the death penalty because of the fact that there are too
mitigating circumstances (possibly EEMD, Diminished Capacity/Insanity, etc) and the fact that
this look like it is Defendants first offense.
Rape:
As far as the sexual intercourse, this would probably fall under the same analysis as the
earlier rape discussion. Fraud in the inducement is not something that charges can be brought
for.
Question 2
The first determination that must be made is whether Igor was committing a felony. In
light of this information, we can look at the scenarios to the children.
Grand Theft:
Act: Unlawfully takes, or exercises unlawful control over
Mans Rea: Common law ??; MPC purposely or recklessly (depends)
Attempted Crime: moveable property of another... $500
This is a specific intent crime.
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The attendant circumstance under the common law will probably be satisfied because
Igor did not know what was in the case, and it was at least possible that it be over the set amount.
The common law does not approve of strict liability, but will look at many factors including
legislative intent, discretion of the judge, mens rea elements, etc. in determining what ter to
apply. In this case Plaintiff will argue that negligence or worse will suffice, and this is
established. As far as the mens rea requirement for the act itself, the common law will also use
the same criteria in trying to determine it. In this case, it is highly likely that they will use the
element of intent in the act as well as the mens rea.
The MPC will take the elemental or offense analysis. It is likely that in this case they
will take the offense analysis out, because it would defeat the purpose to place the intent of
taking 500+$ because this would be so hard to gauge. Instead, they will probably make
reckless or above the criteria. In this case this is a difficult standard to meet. Certainly the act
and mens rea requirements are met because of the Defendants actions and mind set. The more
difficult element in the attendant circumstance. It will be argued by the Defendant that there is
no reckless or above mens rea as far as the attendant circumstances because he did not know that
the case contained over $500 in it. As such, he cannot be charged with a felony because he did
not have the requisite mens rea standard.
Defendant will try to argue under both the MPC and the common law that he cannot be
charged with this felony because he did not have the required mind set to commit this specific
intent crime. In addition to arguing that he did not know of the amount of money in the case,
Defendant could argue that since he only wanted CDs that he was going to take $20 out of the
case and return the rest, this would then put him under the amount required and therefore take
him out of this felony. Plaintiff will have to argue that there was every reason to believe that the
contents of this expensive briefcase were over $500 and that even if they were not, that the
briefcase itself probably cost over the required amount and therefore Igor recklessly took this
chance... and lost.
Plaintiffs argument is probably the best because of the expensive case and the fact that
courts are not going to look highly on the lie that Defendant told about returning the case.
If the Defendant is convicted this is a felony, and the felony-murder rule comes into
the next question.
Statute:
In this case the common law will take an approach to the statute that will involve the
same factors discussed earlier. Knowingly (like the MPC) involves something that is almost
assured to happen. As such, the court will apply the knowing/intent standard to the statute and
allow prosecution on the basis that Defendant must know that this harm is substantially certain
to occur.
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Plaintiff will argue that Defendant is reasonable, and reasonable people know that you do
not run into children in these circumstances and therefore his actions fit within the statute.
Defendant will argue that he did not know this at all and that he was merely trying to get by
and inadvertently hit the children.
This is a general intent crime and so there is no specific intent of Defendant that must
be proven.
Liability of Molly:
This presents a question of causation and proximate causation under the common law.
The question is whether or not it was foreseeable that Molly would run into the street and be
killed. Defendant will argue that the driver who had been speeding was a superceding cause and
therefore he is not liable for her injury.
Plaintiff will argue under the common law that felonious escape and robbery are both
inherently dangerous and therefore Igor should be liable for murder under felony-murder rule.
For felony-murder, as well as any harm, it must be shown that the result was a foreseeable result
of the action. For the felony-murder rule the Defendant must show that this harm was not within
the perpetration of the felony. Defendant will argue that this was after the felony had taken
place, and therefore the felony-murder rule does not apply. Plaintiff will argue that fleeing the
police officer was within the things that either were contemplated or should have been
contemplated in the commission of the crime.
Under the MPC there is no felony-murder rule, but there is a presumption of recklessness
if one is engaged in robbery. In addition, the causation element eliminates the proximate cause
requirement and instead only requires that the harm be among the things that could be reasonable
expected to occur. Plaintiff will once again argue that this is once again something that could be
expected to occur and Defendant will argue the opposite.
Intervening Cause:
The defense in this case for Defendant is that the speeding driver was acting recklessly
and therefore cut off Igors liability. In addition, he will argue that Molly, in running into the
road, acted unreasonably and therefore cuts off his liability. The problem with this defense is
that the unreasonable actions of a human that are not foreseeable (as these two were) do not cut
off liability.
Olga:
The next two children provide similar analysis for Defendant. Once again it will be
argued that Defendant, because he was reasonable, knew that hitting Olga could result in serious
harm (the requirement of the statute). Once again the felony-murder rule kicks in the common
law, and the MPC provides recklessness presumption.
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Defendant will argue that the blow was not serious, and that he could not know that this
type of harm could come as a result. The problem with this argument is that he must take the
victim as he finds her (eggshell skull) and the fact that she was a child or extremely tender in the
head does not absolve him.
Defendant will also argue that Olga and Trip assumed the risk when they did not move.
This might be a good defense, but the problem is that the felony-murder rule (or MPC
equivalent) does not allow such a defense if the felony is one of the enumerated felonies, is
dangerous, if the two crimes are independent, and if they are foreseeable. We have established
all of these, and so this will probably not be effective.
Under both the MPC and the common law, Defendant will probably be guilty of murder
because of the felony-murder/MPC equivalent. In addition, the death penalty is a possibility
because of the fact that it is so prevalent among felony-murders (around 80% of all death row
inmates).
Trip:
Once again the issues of foreseeability and causation arise and once again they are
probably disposed of in both the MPC and the common law.
In this case there would be a question raised as to whether paralyzation was among the
things considered as physical or serious mantel harm to the child, but this cannot be seriously
evaluated because of the absurdity. Defendant would hopefully not even try to raise this as a
defense.
Manslaughter:
In all of this analysis I am assuming that Igor received a felony conviction for the theft.
If he did not, however, then the felony-murder rule evaluation would simply switch to a
misdemeanor evaluation.
In a MPC jurisdiction, where the misdemeanor manslaughter is not allowed, Defendant
would be prosecuted for manslaughter under a reckless standard and would probably be taken
down in that. The standard calls for conviction if Defendant has demonstrated a recklessness
that is beyond that of ordinary tort recklessness. Because these were children, it is highly likely
that Igor would be found guilty under this standard.
Defenses:
Mistake of Fact: as to the value of the case, but this was evaluated earlier and probably
would not work because it does not negate the material elements of unlawfully taking control
and the purpose to deprive (the value material element was discussed).
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Diminished Capacity: because Igor did not have the new Darth CD, but this is a weak
argument.
Igors best arguments are to take the murder down to manslaughter under a Heat of
Passion or EEMD claim. Or, he could possibly in a common law jurisdiction bring up the
Criminal Negligence defense because; 1) the magnitude of the harm was not great (Defendant
would argue), 2) there was justification because he was being chased, and 3) defendant was not
aware of the harm. It would be difficult to sustain the first two and so the next one (which is
actually possible) probably would fail as well.
Insanity is not going to work unless there is evidence that his complete cognitive
impairment (MNaghten) is so great that he did not know what he was doing. Or, under the
MPC, that he had substantial cognitive and volitional impairment.
Question 3
Since Zorro was actually sending pornography to an adult woman, it seems that he can
really only be convicted of an attempted criminal offense. This would be a case where Zorro
has made a mistake of fact that has actually turned out better than what he had hoped thus
Zorro has the defense of impossibility.
Common law attempt
The court could use a dangerous proximity test (see Peaslee) or the equivocality
approach (minority view). If they look at dangerous proximity, Zorro will be guilty since he had
gone as far as completing all the required acts he was only stopped from committing the crime
by a technicality. The factual impossibility of this crime should not offer a defense. This is
sort of a factual/legal hybrid case since Zorros mistake was regarding a legal element of the
crime. This kind of impossibility sometimes results in acquittal (see Berrigan), however, the
court will probably look at Zorros intention (especially is a morally appalling crime like this)
and find that he is guilty.
MPC:
The MPC looks at Defendants overt acts and their manifested intention. A court
considering the case under the MPC would probably apply a Dlugash type rationale that, even if
the facts werent quite what Zorro intended or hoped, he still committed the substantial acts and
displayed the requisite intention. Again, the impossibility defense wont help Zorro because he
had the requisite intent.
In a case like this, the court will probably be inclined to some morals enforcement
Zorro will be convicted.
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Spring 2001 Criminal Law Exam
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COLUMBIA UNIVERSITY SCHOOL OF LAW

Examination in Criminal Law: Section 3
April 30, 2001
Visiting Professor Denno
Please note:
This is an open book exam. You may bring in your casebook and any other written
materials.
This exam has 8 pages, including this cover page. Make sure you have every page.
You have 3 hours, or 180 minutes, to complete the exam. There are 3 questions of
varying weight, which total to 180 points. Point allocations and suggested time
allocations are noted at the beginning of each question. Question I has 70 points;
Question II has 60 points; Question III has 50 points. These point allocations are
approximate.
Write your identification number, class section, and my name on each exam book or on
each typed page.
Please number each exam book sequentially. For example, if you have two exam books,
number the first 1 of 2 and the second 2 of 2. Please also number each typed page
sequentially.
Write legibly. Use every other line and every other page. If you are typing, you may
type single spaced.

contained in the questions or facts but which you think are appropriate to answer the
questions more fully.
law (non-Model Penal Code) and the Model Penal Code. As a summary of your analysis,
note how the results would be similar or different depending on whether you were
GOOD LUCK!
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QUESTION I (approximately 70 points; 70 minutes)

Danzo, a widower, moved in with his sister Mae after his wife died. Mae had little
contact with her brother over the years (most of her friends didnt even know she had a brother),
yet she took him in when she learned of his situation. The slow, painful death of Danzos wife
from cancer the year before had taken its toll on Danzo, making him look at least seventy years
old, although he was only 58. Danzo now faced another ordeal: Mae, in the prime of her life at
age 45, was diagnosed by her family physician as suffering from terminal leukemia. The
physician gave Mae about three months to live. Danzo was desperate to cure her.
Eugene, a neighbor friend of Maes, suggested to Danzo that he contact Dr. Oz. Eugene
described Dr. Oz as a healer who had treated many other cancer patients. Eugene had heard
from a friend that after Dr. Ozs treatment, her cancer went away. Danzo allowed Eugene to
invite Oz to the house. Oz explained to Mae and Danzo that he did not believe in medical
science and was not an M.D. He showed them an official-looking certificate designating him as
a Healer issued by the State Association of Healing and gave them a pamphlet entitled The
Healing Way. His proven treatment, he said, included exposure to colored light, a special
deep abdominal massage, and a diet of nothing but tea for three weeks. Mae agreed to the
treatment. She figured she would die anyway and had nothing to lose, and, besides, it seemed to
ease Danzos worry and she trusted Eugene. Danzo agreed to pay Oz for four weeks until Mae
was cured. Unbeknownst to Danzo and Mae, Oz agreed to pay Eugene a small fee for signing up
his new client.
Each day during Ozs visits to the house, Eugene helped arrange the lamp with colored
plastic sheets that bathed Mae in various tints of light, then served her tea. Oz administered the
massage. Within two weeks, however, Mae had grown very weak and developed a fever. The
next week, she was delirious, experiencing severe pain, and vomiting frequently. Oz assured
Mae and Danzo that this was typical and continued his regimen of treatments.
After two and a half weeks, Mae had ceased to be coherent. Eugene, hearing Mae
moaning in pain during the massage, ordered Oz to stop. Oz shrugged, and said, looking at
Danzo, Ask him. Eugene begged Danzo to stop Maes treatment with Oz and take her to the
hospital. Danzo refused. Eugene pleaded, I was wrong, stop this, please! Danzo shook his
head. Eugene stomped out of the house. That night Mae suffered several convulsions and
excruciating pain, and Danzo took her to Ozs house. On the way, she died of a massive
hemorrhage in her abdomen. (Doctors later concluded that the hemorrhage was the direct result
of the deep massages.)
The next morning, upon learning what happened, Eugene rushed to the house where Mae
had lived with Danzo and burst in the door screaming, Danzo, you murderer! How could you?
Eugene, who was in his early 30s, but about the same build as Danzo, attacked the grieving
Danzo with his fists as Danzo sat in the kitchen cutting fruit. Eugene then seized the yellow
pages off the counter and started beating Danzo about the head.
Question I continues on the next page
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Question I, continued
Danzo, knocked to the floor by the blows and being kicked in the face by Eugene,
grabbed the knife he had been using, which had fallen on the floor next to him, and swiped at
Eugene just as Eugene jumped down on him. The knife entered Eugenes neck. Both men were
rushed to the hospital after being found unconscious on the kitchen floor by concerned neighbors
who heard the ruckus. Eugene suffered a very serious laceration, blood loss and ensuing
complications. As a result, he died a week later. Danzo suffered a concussion, broken facial
bones, and bruises. He was treated and released from the hospital a week later. Oz, who never
had a state-authorized certificate to practice medicine, was shocked to hear the news of these
events.
The Prosecutor has asked for your assessment of the possible charges against Danzo and the
possible charges against Oz. Please advise her and be sure to anticipate and evaluate
arguments on behalf of the defense. Courts in your state follow the Model Penal Code as
well as common law (non-Model Penal Code) rules.
Of particular interest to the
prosecutor is the application of Ch. 2 2053. Felonious Practice of Medicine without a
License (reprinted below), which courts in your state follow.
Ch. 2 2053 Felonious Practice of Medicine without a License
Any person who, under circumstances or conditions which cause or create a risk of great bodily
harm, serious physical or mental illness, or death, practices or attempts to practice, or advertises
or holds himself or herself out as practicing any system or mode of treating the sick or afflicted
in this state, or diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity,
disease, disfigurement, disorder, injury, or other physical or mental condition of any person,
without having at the time of so doing a valid, unrevoked or suspended certificate as provided in
this chapter, or without being authorized to perform such act pursuant to a certificate obtained in
accordance with some other provision of law, is punishable by imprisonment for up to two years.
Question II begins on the next page
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QUESTION II (approximately 60 points; 60 minutes)

Bill and Jill are second year students and close friends at Mobeach College. Jill told Bill
she was taking a philosophy class with Chuck and that she had a crush on him, even though the
two had never spoken. Chuck is a senior and captain of the Mobeach football team.
Bill was distressed to learn this. He told Jill that he knew Chuck slightly, and that Chuck
had a reputation for being extremely sexually aggressive. Jill replied, I dont believe hes like
that. Anyway, I know it shocks you, but I wouldnt mind making out with him. Hes cute. Bill
said, Dont be a fool, Jill. If a guy like that gets you alone, he could rape you.
After further conversation, Bill persuaded Jill to permit him to create a test of Chucks
character. He installed a hidden video camera in Jills dormitory room. The camera fed its signal
to a videotape machine in Bills room, a room that was adjacent to Jills room. Bill also told
Chuck that his friend Jill was in one of Chucks classes, and that she would like to meet him. At
Chucks request, Bill gave him Jills campus address and telephone number.
On Friday, April 20, after telephoning first, Chuck stopped by Jills room at 5:30 in the
afternoon. Bill was in his room, and he watched and listened as the events unfolded next door.
They are all on videotape.
Chuck introduced himself, and said that philosophy was boring. Jill said she liked some
of this weeks reading, but did not understand what Kant was talking about. Chuck said he never
read it.
After fifteen minutes and twenty-eight seconds of desultory conversation, Chuck said, I
know what girls like you like and he reached out and pulled Jill to him, and then fell forward
onto Jills bed, his body on top of hers. He then put his hands under her clothing, and touched
her breasts. At 18 minutes and 45 seconds, the tape shows Chuck moving to take off his pants,
and saying, We are going to have sex.
Bill jumped up (accidentally disconnecting the electric cord powering the videotape
machine as he did so) and ran into Jills room, shouting, Stop it Chuck, youre a rapist. Bill
took 30 seconds at most to get between the two rooms. Chuck had not yet completed taking his
pants off. No sexual intercourse or penetration had occurred.
When Chuck saw Bill and saw that Bill was looking at him with his pants half-off, and
had interrupted what Chuck thought was a private party, he became violently angry. His face red,
he started punching Bill. Jill screamed. Bill grabbed an aluminum baseball bat that Jill had in
her room, and swung it with all his might at Chucks body. He hit Chuck, and broke three of
Chucks ribs. That stopped the fight, and the police arrived fifteen minutes later.
Question II continues on the next page
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Question II, continued

Mobeach College is in state XYZ, which applies the New Jersey sexual assault statute.
That statute -- which regulates conduct called rape in most jurisdictions is set out at page 347
of your casebook. Sexual contact, which is a less serious sexual crime, is defined by NJSA
2C; 14-3(b):
b. An actor is guilty of criminal sexual contact if he commits an act
of sexual contact with the victim under any of the circumstances
set forth in Section 2C:14-2c. (1) through (4).
In turn, section 2C: 14-2c, the sexual assault statute, provides in paragraphs 1 through 4:
(1) The actor uses physical force or coercion, but the victim does
not sustain severe personal injury;
(2) The victim is on probation or parole, or is detained in a
hospital, prison or other institution and the actor has supervisory
or disciplinary power over the victim by virtue of the actors legal,
professional or occupational status;
(3) The victim is at least 16 but less than 18 years old and;
(a) The actor is related to the victim by blood or
affinity to the third degree; or
(b) The actor has supervisory or disciplinary power
over the victim; or
(c) The actor is a foster parent, a guardian, or
stands in loco parentis within the household;
(4) The victim is at least 13 but less than 16 years old and the
actor is at least four years older than the victim.
Question II continues on the next page
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Question II, continued

Sexual contact and intimate parts are defined as:
d. Sexual contact means an intentional touching by the victim or
actor, either directly or through clothing, of the victims or actors
intimate parts for the purpose of degrading or humiliating the
victim or sexually arousing or sexually gratifying the actor. Sexual
contact of the actor with himself must be in view of the victim
whom the actor knows to be present;
e. Intimate parts means the following body parts: sexual organs,
genital area, anal area, inner thigh, groin, buttock or breast of a
person.
Subsequent careful review of Bills videotape, frame-by-frame, shows no words or

physical movements by Jill that either invited or resisted Chucks actions.
Jill testified before the grand jury, one of whose members asked her whether she had
consented to Chucks actions. She testified: All I can say is I wanted to see what he would do,
because Bill said he knew Chuck was a bad guy and I didnt believe it. Obviously, I was wrong.
But there was no way I was going to have sexual intercourse with him. I dont know what he
would have done once I started to resist.
The Mobeach prosecutor was angry at everyone involved in the Bill, Jill, Chuck affair.
He has secured indictments of 1) Chuck for sexual contact, attempted sexual assault, and assault;
2) Bill for sexual contact, attempted sexual assault, and aggravated assault; and 3) Jill for sexual
contact.
Evaluate each defendants potential liability under both the common law (the non-Model
Penal Code) and the Model Penal Code.
Question III begins on the next page
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QUESTION III (approximately 50 points; 50 minutes)

The New York Penal Law (NYPL), Article 120, Assault and Related Offenses, creates
some twenty-four separate crimes.
One of them, Article 120.01, Reckless assault of a child by a child day care provider
states:
A person is guilty of reckless assault of a child when, being
a child day care provider or an employee thereof, he or she
recklessly causes serious physical injury to a child under the care
of such provider or employee who is less than eleven years of age.
Reckless assault of a child by a child day care provider is a class E
felony.
Bob West was an employee of a child daycare provider. One of the children he
supervised was Terry with whom he had a particularly close relationship. Bob believed Terry
was at least 14 because Terry said so, and Terry was 5'11" and 180 lbs. In fact, Terry was only
10 years, six months of age. Bob told Terry that he trained big guard dogs as a second job. Terry
begged him to bring one to work to show him
On his off-day, Bob brought Shep, a 90 lb German Shepard guard dog to the daycare
center. He took Terry aside from the other children and showed him how Shep would respond to
various commands. While Bob showed Terry Sheps tricks, two smaller children began fighting
some ten feet away from Bob, and one emitted a loud scream. Distracted, Bob walked over to
help the child, leaving Terry with Shep. Terry apparently taunted Shep, and the dog attacked
him, inflicting serious physical injuries on Terry. Terrys hand later had to be amputated.
Bob secured control of Shep, and put him into his vehicle, locked it, and returned to the
daycare center to help quiet and care for Terry. As word began to spread in the community that
Bob Wests wild dog had killed a child, an angry crowd began to form, one angry parent
shouting, Ill kill that sonofabitch. Bob decided he was at serious risk. He got into his car and
began to drive away. A member of the crowd, Vincent, jumped in front of the car. Bobs car hit
him, knocking him to the ground. Vincent sustained a broken arm, and contusions, and was
hospitalized for a week.
Question III continues on the next page

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Question III, continued

The prosecutor has secured indictment of Bob for Reckless Assault of a Child by a child
daycare provider, 120.01, supra, and also for first degree assault NYPL 120.10(4). That statute
provides:
Section 120.10 Assault in the first degree
A person is guilty of assault in the first degree when:
1..........
2...........
3...........
4. In the course of and in furtherance of the commission or
attempted commission of a felony or of immediate flight therefrom,
he, or another participant if there be any, causes serious physical
injury to a person other than one of the participants.
Assault in the first degree is a class B felony.
The prosecutor claims he can prove first degree assault under paragraph 4 of Section 120.10.
The prosecution has also filed a preliminary motion, asking the Court to rule that because
of NYPL 15.20(3), Bobs belief or lack thereof with respect to Terrys age is irrelevant, and no
testimony with respect to it shall be elicited.
15.20(3) states:
3. Notwithstanding the use of the term "knowingly" in any
provision of this chapter defining an offense in which the age of a
child is an element thereof, knowledge by the defendant of the age
of such child is not an element of any such offense and it is not,
unless expressly so provided, a defense to a prosecution therefor
that the defendant did not know the age of the child or believed
such age to be the same as or greater than that specified in the
statute.
You are a summer clerk for Judge Peters, who will try this case. For the judge, please
provide a short memo evaluating the prosecutions theories, and Bobs possible defenses. Please
conduct the analyses applying both the common law (non-Model Penal Code) and the Model
Penal Code.
END OF EXAM
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- 66 -
Question I
Charges against Danzo:
1. Homicide w/ respect to Mae Common Law
(i) Act: Causing the death
(ii) MR: purpose, knowing, reckless, criminal negligence
(iii) Ac: another person
(iv) result: death
Danzo could be held criminally responsible for the death of Mae. Though he did not kill
him directly himself, he had a duty to act. As Mae's brother, he had a special relationship with
Mae. Danzo might argue that since he had so little contact with Mae over the years, he did not
have this special relationship. However, the fact that he is still (presumably her biological)
brother, and that the two of them lived together after she took him in (that is, they had
reestablished contact) indicates that this special relationship duty to act holds.
By failing to prevent Mae's death, Danzo caused her death. When exactly this took place
is arguable, as Mae's condition progressively got worse over the weeks. However, at least by the
time Eugene pleaded with Danzo to stop Mae's treatment and take her to the hospital, and he
refused, it is clear that he failed to act as he should have in taking her to the hospital. Danzo did
eventually take her to see Oz, but by then it was too late, and she died on the way. It is arguable
that in taking her to Oz by then, he did not fail in his duty to act (that is, his conduct was proper
and not illegal). However, this is probably wrong in two counts. First, he should have taken her
for proper care before then, at least before the night she suffered massive convulsions, and
secondly, he should have taken her to the hospital or other proper medical care, not Oz. Also,
Danzo might argue that because Mae thought she was going to die anyway, he did not have a
duty to act.
Murder is a general intent offense. Danzo can be charged for either murder or
manslaughter, depending on his mens rea. Murder requires the killing of another human being
with "malice aforethought." Malice aforethought is implied when a person acts with reckless
disregard for human life. By allowing Mae to undergo treatment of colored light and tea for
almost three weeks, and not taking her to proper medical care despite the progression of her
illness, Danzo might, be said to have acted with reckless disregard for human life, thus
committing murder. Whether this murder is 1st or 2nd degree depends on the statute of the state.
The common law does not recognize degrees of murder. Generally, a murder is first degree if
the person acts willfully, deliberately and premeditatedly. Because of the long, drawn out
progression of Mae's disease, perhaps it can be indicated that Danzo acted with all three.
If it is not shown that Danzo acted with reckless disregard to Maes life, then his act of
omission can be seen-as reckless" or "negligent." If he is criminally negligent, then he will be
conflicted of voluntary manslaughter. If he was "reckless it will generally be up to the jury to
decide whether he is guilty of manslaughter or whether his recklessness was to a degree enough
to reach murder. Danzo might argue that his mens rea was only criminally negligent. He might
argue that he was entrusting himself to the instructions of Dr. Oz, especially given that Oz
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showed off his fake certificate, and that he did not realize that his "healing method" would be
catastrophic. This might depend on the level of Danzo's education and other socioeconomic
factors. Also, the facts indicate that Mae herself trusted Eugene. Danzo might have been relied
on this trust. Note that negligence generally requires something greater than mere tortious
ordinary negligence, and requires gross disregard for a risk. In State v. Williams, it was decided
that the American Indian couple acted with criminal negligence, and so it might be the case here
as well. Although in the Williams case, negligence was only ordinary negligence. Danzo might
also argue that he was not even criminally negligent. According to Eugene, Dr. Oz had treated
many other cancer patients before, presumably successfully. Perhaps Danzo should not even
have known that his treatment would be deadly. However, the evidence of Mae's degenerating
condition would contradict that argument.
MPC
Under the MPC, a person is guilty of murder if he purposely or knowingly kills someone
or showing reckless disregard to the value of human life. Also under the MPC, a person has a
duty to act, if required by statute, or, vaguely stated, required by the law. In this case, Danzo
would probably have a duty to act, for the same reasons as the common law. Under the MPC, a
person is guilty of manslaughter if he acts with EMED or simply recklessly. A person is guilty of
negligent homicide if he acts criminally negligently. Depending on the same mens rea analysis
of the common law, Danzo will be convicted of murder if it can be shown he acted purposely,
knowingly or with reckless disregard for life; manslaughter if he acted with recklessness;
negligent homicide if he acted negligently.
Defenses
Danzo might argue for a defense of diminished capacity or insanity. Being a widower,
the slow painful cancer death of his wife had taken a "toll" on Danzo. He might argue that
because of this he had a mental defect or otherwise was in an extremely diminished state of
mind. He might go so far as to argue for insanity, although there is no evidence of it.
2. Homicide w/ respect to Eugene
Common law
Danzo might be charged with the homicide of Eugene. The facts indicate that he grabbed
a knife and swiped at Eugene, stabbing his neck. Eugene died a week later, so as in the Mae
death, the result is there. In this case, Danzo did not seem to have the "willful, premeditated,
deliberate" state of mind required for 1st degree murder. His actions indicated that he was
reacting to Eugene's unexpected attack, rather than planning to kill Eugene. He might be charged
with second degree murder, because his actions indicate that he intended to kill Eugene, or at
least cause grievous bodily injury--certainly this would be the case if he was specifically aiming
for his neck. There may be a proximate causation problem here because Eugene did not die until
a week after the episode. However, nothing indicates any intervening event taking place
between Danzo's attack and Eugene's death, and one week seems to be a short enough time to
establish proximate cause. (But for cause is also clear from the facts.)
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Danzo might be charged for voluntary manslaughter. if he was acting under a heat of
passion. This is not likely because historically heat of passion was not available for reactions to
attacks. He might be charged for involuntary manslaughter if it is shown that he acted with
criminal negligence.
3. Defense w/ respect to Eugene
In any event, Danzo has a self-defense affirmative defense with respect to the killing of
Eugene. The threat to Danzo was imminent and actual. Danzo was knocked to the floor and was
being kicked in the face. In light of these facts, and the fact that Eugene jumped down on him,
the fact that Eugene called him a murderer, attacked him with the yellow pages and attacked
Danzo with his fists indicate that Danzo's belief that Eugene was attacking him was certainly
honest and objectively reasonable. Because Danzo was in his own house, he had no common law
duty to retreat, let alone the fact whether he knew of a complete safe haven.
The issue here is whether Eugene was attacking with deadly force, and whether Danzo
was responding with deadly force. With the latter issue, it seems clear that attacking someone
with a kitchen knife is deadly force (causing the death or serious bodily harm), although Danzo
might stretch and argue that he was using non-deadly force (not likely). Eugene is younger than
Danzo, but is about the same build. He was not using a deadly weapon (unless you count the
yellow pages to be one, which is a stretch; or unless he knew some martial arts making his fists
deadly, but the facts don't indicate that). But Eugene was attacking Danzo for a good while and
was kicking him in the face, which probably constitutes deadly force. If it is not deadly force,
then Danzo might be charged with imperfect self-defense, in which case a murder charge may be
notched from 1 st to 2nd degree or murder to manslaughter.
4. Homicide w/ Eugene
MPC
Under the MPC, Danzo might be charged for murder, manslaughter, or negligent
homicide, again depending on his mens rea, which was analyzed under the common law. His
chances for self-defense are equally good, because Eugene was attacking him with deadly force
or at least great bodily harm. Also, his chances are greater b/c the MPC allows a mens rea of
subjectivity meaning if Danzo thought Eugene was attacking with deadly force (which he might
have considering the facts) he could respond with deadly force.
Charges against Oz
5. Homicide of Mae
Oz may be charged with the murder or manslaughter of Mae, under the common law. He
has a duty to act with respect to Mae b/c he acts as her doctor. (Technically, he may not be a
"doctor" which might release him from this charge, but since he was feigning a doctor, he still
might have a duty.) He also has a duty to leave his victim in at least as good a position as when
he began. Arguably, Mae would have died anyway, but it is clear that his actions placed her in a
much worse condition. However, his duty to act might be discharged given the fact that Mae's
brother Danzo was with him at all times, as was the case in Pope v. State. In that case,-however,
the defendant was merely an observer, where in this case, Oz is Mae's doctor, supporting the
case for a special duty, despite Danzo's presence.
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Did Oz have malice aforethought? The facts might argue that he had an extreme reckless
disregard for life, especially given the fact that this was his occupation. Since he was acting for
pecuniary gain, it is arguable that he had disregard for life. If so, he would be charged for
murder. Also, arguing for murder in the first degree is greater, since if he knew he was a fraud,
he would be acting willfully, deliberately and premeditatedly. If Oz did not have malice
aforethought, he is guilty of involuntary manslaughter, in acting with criminal negligence. If he
was acting recklessly, it is up to the jury to decide. The fact that he fraudulently showed off his
certificate shows that he was acting with, if not intent to kill or commit grievous bodily harm,
then extreme reckless disregard for life.
Under the MPC, whether Oz had a duty to act is left open for the courts to decide. They
probably will argue that he did. Whether he acted with purpose, knowingly, recklessly, with
reckless disregard for life, or just negligently will depend on the same analysis as the common
law. Under both CL and MPC, however, if Oz acted with gross medical malpractice, this will
argue in favor of murder. This point is befuddled somewhat by the fact that he was not a real
doctor. But that he was feigning being a doctor and further acted with gross medical malpractice
further supports the charge for murder.
6. Defenses
Depending on his background, of which we know little, Oz might argue for diminished
capacity or insanity. We don't know if Oz had a mental defect or not. He might be held to be
insane, analyzing his background through the same MPC or CL tests as Danzo.
7. Felonious practice of Medicine w/o a license
Act: Practices or attempts to practice; advertises or holds herself out as practicing; diagnoses,
treats, operates for, or prescribes treatment.
AC: circumstances causing great bodily harm, serious physical or mental illness or death; any
system or mode of treating the sick or afflicted in this state; for any ailment... disease or
condition, w/o having valid certificate or authorized pursuant to a certificate obtained in
accordance w/ some other provision.
MR: Silent
Result: None
Common law
The courts look at six factors of mens rea when the statute is silent: (1) legislative intent,
(2) statutory construction; (3) judicial discretion; (4) morals social policy; (5) assumption of
risk, and (6) the nature of the crime. Generally conduct is seen as knowingly or above, and
attendant circumstances as recklessly or above. In this case, Oz acted as required by the statute.
Oz advertised himself as a healer; he administered his "treatment; and he assured that his
treatment was typical and working. This was all done purposely or at least knowingly. Oz might
argue that he thought that his treatment should work, and thus arguing that he acted negligently
or recklessly. This might depend on the success of his past treatments. Generally the CL
requires an objective intent, which is to say that the actor must act reasonably but reasonableness
seen in the person's situation. It will be up to the jury to decide what Oz's state of mind was.
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Regarding AC's, Oz never had a state-authorized certificate to practice medicine. It

would be a real stretch for Oz to argue that he did not at least know that he was practicing w/o
official license. Oz knew that Mae was suffering from great bodily harm, and that his treatment
was a system of treating the sick for an ailment. He knew that Mae had cancer, b/c they told him
she did. He knew he was administering treatment, and intended to. He also knew she was
suffering harm b/c Eugene told him that she was, to which he just shrugged. All of this indicates
that the AC are satisfied with at least a mens rea of recklessly or above.
Being that there is no result required for this case, it would appear that Oz can be charged
with this crime. Again the fact that he was acting w/o a license supports the argument that he
violated this statute.
MPC
When a statute is silent, the MPC will generally institute a knowingly or above standard
w/ respect to conduct and a recklessly or above standard w/ respect to AC's. As in the analysis
under the common law, Oz knew and probably intended to act in the way that the statute forbids.
He also knew, or at least was reckless to the AC's of the statute. Thus he would also probably be
convicted under the MPC.
8. Felony murder
Because Oz violated this felony, he might be charged with the felony murder of Mae's
homicide, b/c Mae died in the commission of Ozs felony (if he is convicted of the felonious
statute). This will allow the prosecution to charge him with murder w/o proving malice
aforethought. If the felony charged was enumerated under the state's penal code, this is 1st
degree murder; otherwise second.
The Court might argue that F-M is not applicable b/c the crime of practicing medicine
w/o a license is not inherently dangerous in the abstract. Certainly, one could imagine a scenario
where a person practices medicine w/o a license, but it is not inherently dangerous. If the Court
views the statute in the abstract this exception might prohibit felony-murder. If the court on the
other hand looks at the specific facts of this case, then felony-murder might or might be allowed.
It might be argued that it is not inherently dangerous to treat a patient in this way b/c the patient
was going to die anyway. On the other hand, taking a leukemia patient and subjecting her to
three weeks with no nourishment except tea loses all common sense hope of recovery and could
be seen as inherently dangerous.
The Court might argue the merger rule exception. Treating Mae w/o a license is an
"integral part" of the underlying homicide itself. If it is argued that the purpose of Oz's action
was to kill or at least grievous injury Mae, then the felony merges w/ the homicide. At least
superficially, however, it would appear that Oz was trying to heal, not kill Mae, through the
action of practicing w/o a license, in which case the two actions have separate (indeed,
diametrically opposed) purposes, and the statute does not merge. On the other hand, his purpose
was probably to achieve pecuniary and perhaps reputational gain, in which case, the was acting
with extreme disregard to her life, and therefore the felony might merge.
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Under the Agency theory, if it is argued that Danzo was strictly liable for Mae's death,
and Oz was not liable, then perhaps the court will bar F-M. This is not likely, though, b/c there
is a strong case for there being a duty for Oz to act.
MPC
The MPC creates a rebuttable presumption of guilt, under some enumerated felonies
listed in section 210(l)(b). It would be a stretch to frame Oz's actions as robbery,. although this
may be possible given the level of Oz's fraud. Otherwise, it would probably be difficult to argue
for F-M under the MPC.
9. Conspiracy
The facts indicate that Oz agreed to pay Eugene a small fee for signing up his new client.
Conspiracy is agreeing with another person that one of them will commit a crime. This evidence
might indicate that Danzo agreed to conspire with Eugene in committing the felonious practice
of medicine.
Under CL there must be evidence that the two intended to commit an unlawful act. That
Eugene was given a "finder's fee" supports this case, but it doesn't support that the two of them
were intent on fraudulently acting towards Danzo and Mae. This will probably depend on
Eugene's knowledge of Oz's fraud. The facts indicate that Eugene discovered Oz through a
neighbor and that there is no evidence that he conspired with Oz. Also, CL requires plurality, so
Oz cannot be convicted if Eugene was not also agreeing to fraud Mae.
Under MPC, a unilateral agreement is sufficient. It's possible that Oz unilaterally
conspired with Eugene, in which case he can be guilty of conspiracy. On the other hand, under
MPG the conspiracy merges w/ the target offense, so if Oz is guilty of felonious practice of
medicine, he is not guilty of conspiracy.
10. Complicity
Oz might also be guilty of accomplice liability if he aided and abetted Danzo's murder of
Mae. Under CL this would hold if Oz intentionally acted in assistance and with the minimum
level of culpability required by the target offense. Here, it's possible that Oz aided, since he
administered treatment to Mae. On the other hand, he might only have had knowledge of Danzo's
lack of assistance. When Eugene pleaded with Oz, he merely shrugged," which is to say he
knew that Danzo wasn't doing anything, but he wasn't encouraging it. However, he also might
have psychologically encouraged Danzo to continue treatment, in which case he would be guilty
of complicity.
Under MPC, Oz is also probably guilty under a similar analysis, b/c he had the requisite
mens rea of attempting to aid Danzo in not acting in his duty towards Mae. Either under the
MPC or CL guilty is shown b/c Oz in fact aided in helping (which isn't even needed in the
MPC).
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Question II
1. Chuck
Sexual Contact
The act required is "intentional touching" for purpose of degrading or humiliating victim or
sexually gratifying actor
AC: Directly or through clothing, of victim or actor's intimate parts; or actor with himself
MR: intentional, probably reckless w/ respect to ACT
Result: None
This is a specific intent offense. Chuck intentionally touched Jill, as stated in the facts.
He placed his hands under her clothing, touching her breasts, and was also about to pull down
his pants. Just before this, he said "I know what girls like you like" and "We are going to have
sex." The first statement supports a claim that he wanted to degrade or humiliate Jill, the latter
argues in favor of Chuck's purpose of sexually gratifying himself. The question then becomes
whether this sexual contact came about through "physical force or coercion." Under the NJ State
in the Interest of M.T.S., standard, a victim is not required to resist and any act of sexual
penetration w/o affirmative and freely given permission constitutes force. There are two
questions here. First, does this sexual penetration standard transfer to be a sexual contact
standard? Presumably so. If the state of NJ wanted an expansive reading of "sexual assault" for
rape, it probably also wants it to be expansive also for "sexual contact." Next, if this is the case,
did Jill freely give permission? Note that Jill sustained no physical injuries.
Under the NJ standard, the permission given must be affirmative. In this case, Jill said
nothing to Chuck nor did she act in a way that hints at affirmative permission given. Thus,
Chuck will probably be guilty of sexual contact.
Under a less stringent standard, the reasonableness of the victim's use of force as well as
whether or not Jill consented will come into play. It seems that even reasonably here, Chuck is
using force or threat of force. Less than 20 minutes into their conversation, he pulls her towards
him and begins touching her. Prior relationship will become important here. Basically, they had
none, which hurts Chuck's case. He presumed to have known "what girls like her like and also
his actions will Bill support the fact that he has a violent disposition, supporting the case that he
was using force. On the other hand, under the common law, whether or not Jill consented--and
her point of view--also becomes important. Time framing becomes important here. Previous
conversations with Bill indicate that Jill had a crush on Chuck, and that she wanted to invite him
over. Indeed she herself acted to set up the whole meeting. It also is important that she never
resisted, either verbally or physically, although there is reason to believe that her non-actions
were justified b/c they reasonably might have believed that should she have resisted, she would
have faced imminent harm. Also, her grand jury testimony indicates that she had no intention of
having sexual intercourse with Chuck, and that she didn't know what he would have done had
she resisted. Both from the defendant and victim's point of view, it would appear that Chuck
acted with a threat of force and that Jill reasonably did not consent. (Again, however, evidence
indicates that a reasonable person would believe that Jill consented.)
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Under the MPC the defendant must have acted with force. Under mens rea, the
defendant's point of view is emphasized. In this case, again, it would appear that Chuck was
overreaching in his act of aggression--given their lack of prior history, the brief amount of time
they knew each other before he made his move, and other factors analyzed just above. The MPC
does not require proof of resistance, which helps Jills case.
Attempted Sexual Assault
Common law attempt is a specific intent offense. The actor must have intentionally
committed the acts that constitute the actus reus of the attempt, and he must also have performed
these acts w/ the specific intention of committing the substantive crime. Here, Chuck certainly
intentionally committed the acts. No evidence of involuntary acts or intoxication. He also
appears to have performed his acts w/ the intention of sexually assaulting Jill. This is most
easily seen by his statement, "We are going to have sex." Thus, Chuck appears to have the
proper mens rea.
Whether he also has the proper actus reus, depends on a series of six common law tests.
Under the last act test, Chuck only had his pants half-off, indicating that he did not perform all
the acts necessary to commit the assault. Under physical proximity, he certainly was near enough
to Jill to sexually assault her. Under the dangerous proximity, he was in dangerous proximity to
success to have committed the act. Spatially, he was right next to her. He created an
apprehension that the particular crime was likely to induce. Under the indispensable element,
Chuck had the right "equipment" to do his deed. Under probable distance, it is questionable
whether he passed the point of no return, since his pants were only half-off. Under res ipsa,
Chuck's words indicate that he, intended to commit the crime. Given the six tests and his proper
mens rea, he probably would be convicted of attempted sexual assault.
The MPC requires that the actor act with the kind of culpability otherwise required for
the commission of the crime. Chuck acted intentionally, which is good enough. He also acted
with the purpose of committing the target offense, which satisfies the mens rea. Chuck must take
a substantial step in furtherance of the crime. His actions, as described, certainly appear to be a
substantial step in furtherance of the crime.
Chuck might raise the defense of provocation, in that he was provoked by Jill and Bill to
take his actions. But this would be a weak argument, especially as Bill just told Chuck that Jill
would like to "meet", not have sex with him. And Jill remained quiet and non-active during
Chuck's attempted sexual assault.
Assault
Under either the MPC or CL Chuck might be liable for assaulting Bill, as he started
punching him. However, he has some possible defenses.
Under either the MPC or CL he might argue that he was provoked. The facts indicate that
he became violently angry after Bill interrupted him. If he was in the proper "heat of passion"
then under the common law he might have a case-in-chief at least partial defense. Provocation
under the MPC is more expansive than heat of passion, giving Chuck an even greater chance of
using this as a valid defense, if it can negate his mens rea. This is unlikely for two reasons. First,
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simply interrupting Chuck is not generally sufficient to cause reasonable provocation. Also, if
Chuck was acting criminally, he might perhaps forfeit his right to provocation.
Chuck might argue self defense. But remembering that he is a senior and captain of the
football team, while Bill is a sophomore, and probably smaller than him, there was no threat of
imminent harm (deadly or non-deadly).
Bill
Sexual contact
It would not appear that Bill actually touched anyone sexually.
Attempted sexual assault
Again, Bill did not attempt to rape/sexually assault either Chuck or Jill.
Aggravated assault
Bill might be held liable for this. Bill grabbed an aluminum baseball bat and swung at
Chuck, breaking three of his ribs. This certainly is enough evidence to indicate that he
intentionally wanted to and did assault Chuck.
Bill will argue self-defense. Chuck was already punching Bill when he swung the bat.
There are some questions here. First, was Bill's actions deadly or non-deadly force? Was
Chuck's? Chuck was probably using non-deadly force, as fist fights are usually considered not
deadly, although if Chuck was significantly bigger than Bill, then it's possible he was using
deadly force (in which case Bill was justified, either in using deadly or non-deadly force, as long
as he wasn't the initial aggressor). If Chuck was using non-deadly force, was Bill? Bill swung at
Chuck with an aluminum baseball bat. This might be considered deadly force, but it's also
possible that it's non-deadly, especially if Chuck was much bigger, and especially in light of the
fact that it only resulted in cracked ribs. If it is considered deadly force, then Bill might be
charged with imperfect self-defense, and whatever aggravated assault charge he is convicted
with might be notched down a degree. If he was using non-deadly force, he-does not run into
this problem.
The next question is whether Bill is the initial aggressor. If so, then he forfeits his right
to at least deadly force. It does not appear that he was the initial aggressor here. Although he
charged into the room, all he did was yell at Chuck. Under the CL, words enough are not enough
to provoke, and Bill is not an aggressor. Under the MPC, words are enough, and this might make
him the aggressor, but even still, given the circumstances of the fact, it might be argued that
Chuck's punching and not Bill's words, were what started the fight. Nobody here attempted to
withdraw. Under the CL, depending on the court, an initial aggressor loses even his right to nondeadly retaliation, but other courts hold that he retains this right. Under the MPC, the aggressor
probably retains his right to non-deadly force.
Finally, Bill might have been defending Jill as a third party. Under the CL, Bill must
have reasonably believed that Jill was in danger. Since he was videotaping the whole thing, and
was witnessing Chuck's attempted sexual assault of Jill, he was reasonable to believe that she
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was being assaulted. The MPC gives broader discretion to use self-defense. Either way, it would
appear that Jill was under threat of imminent physical harm and Bill might be justified.
Jill
Sexual contact
First, there is no male or female requirement that is apparent in the sexual contact law.
Jill wanted Chuck to come over, and evidence indicates she wanted at least to make out with
him. Here there doesnt seem to be a sexual contact violation, because, under the CL, it would
appear that Chuck as the victim affirmatively granted permission to whatever touching Jill
wanted. He said himself that "we were going to have sex," which is verbal permission. Even for
a reasonable standard then, it appears that Jill's "use of force" was reasonable. There is also no
evidence that she actually touched Chuck but we do not know what happened in the 30 seconds
that Bill was running to her room. Under the MPC, the defendant's conduct only is looked at, and
there the prosecution would have a stronger case for Jill. Again, though she did not move at all
when Chuck was touching her, so it doesn't appear that she was using any kind of force at all,
and again there is no evidence that she actually touched him.
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Question III
Reckless assault of a child by a child day care provider.
Act: recklessly causes serious physical injury to child
AC: being a child day care provider or employee, child under care of provider; less than 11 years
of age
MR: Reckless
Result: None
Common law
Under the common law, one mens rea term, especially if found in the beginning, can act
as the mens rea standard for the whole statute. Otherwise, the six factors outlined previously is
used. In this case, the recklessly standard is outlined near the beginning of the statute, but is
marked off through the use of commas. The court might want to install a separate mens rea
standard for the attendant circumstances, with respect to the six factors outlined.
The prosecution will argue that Bob acted recklessly, thereby causing serious physical
injury to Terry. Bringing a German Shepard into a daycare is a reckless act. That Terry asked
him to do it is no mitigating factor, since as an employee Bob should have known better. Taking
Terry aside and leaving him alone with the dog is also a reckless act. Also, since it was Bob's
dog, Bob should have known that Shep would be a danger to the children, and would react to
Terry's taunts the way it did. Bob also had a close relationship to Terry, and should have known
that Terry would have a type of personality that would make it foreseeable that he would Taunt
Shep.
Depending on the nature of Shep and his history (which we don't know), Bob might
argue that he did not expect Shep to react the way he did, though the prosecution will rebut that
bringing such a dog to the day care at all was reckless. Bob might show that he wasn't being
reckless b/c he was taking care of the other two children, they were only 10 feet away, and
afterwards Bob secured Shep properly and also properly took care of Terry. These might be
mitigating circumstances, but evidence seems to favor the fact that Bob acted recklessly.
W/ regard to AC, Bob of course knew that he was a child day care provider and that
Terry was under this care. The important question relates to Terrys age. If the Court finds the
reckless standard holds throughout, then the question becomes whether Bob was reckless in
thinking that Terry was greater than 11. This might be difficult to argue, since Terry was 5'11
and 180lbs, and he himself told Bob he was 14. On the other hand, given Bob's close relationship
with Terry, perhaps he might have gathered from previous conversations that Terry was less than
11. Also, depending on Bob's training and education, this also might be something that Bob
could have gleaned. However, it might be argued that Bob was only negligent in thinking that
Terry was 14. If using the six factors, the court finds that the defendant need only be negligent
with respect to this attendant circumstance, Bob would nevertheless be liable. If the Court finds
that this AC requires reckless standard or above, then Bob might not have had the proper mens
rea w/ respect to this circumstance.
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There is also the question of NYPL 15.20(3). This rule is open to two interpretations.
First, the prosecution will argue that this means that Bob must be held strictly liable for Terry's
age. The rule states that knowledge of a defendant's age is "not an element of any offense" and
"unless expressly so provided," which here it is NOT, "a defense that the defendant did not know
the age of the child" is not valid. The prosecution will argue that this indicates that it is irrelevant
what Bob thought Terrys age was, that he cannot use it as a valid defense, and that he should be
held strictly liable as to Terry's age.
But the statute is open to a second interpretation, and here the key term is knowledge.
It states that knowledge of the defendant of the child's age is irrelevant and that the defendant
did not know the childs age is also irrelevant. It is possible that this means that ONLY
knowledge (or presumably also purpose) is invalid. That the defendant did not "know" the child's
age is not relevant unless the statute expressly says so, but that he was "reckless" as to the child's
age is arguably not reached by this rule. In this case, if Bob was reckless as to Terry's age, this
rule might not be applicable. Which of these two interpretations to follow will depend on the
intent of the legislation in constructing 15.20(3) along with the court's social/policy/moral views,
and the other of the 6 factors generally used to interpret silent mens rea.
Depending on the court's analysis of each of these questions, Bob may or may not be in
violation of 120.01. Judging all the factors overall, it would appear that the prosecution has a
strong case.
MPC
The analysis is similar under the MPC, only this time the issue of mens rea will fall under
2.02(3) and 2.02(4). Under 2.02(4), e "reckless" standard outlined would be used throughout.
However, this is subject to the same limitations (use of commas to break, etc) as the common
law, although the court need not explicitly undergo a 6 factor test. If recklessness is not used
throughout, then 2.02(3) would be applicable, in which case conduct is generally seen as a
knowingly or above standard, and AC recklessly or above. However, the conduct here is
explicitly stated as recklessly. It would appear that Bob acted recklessly, as analyzed under the
common law portion. Either under 2.02(3) or 2.02(4), AC would be recklessly or above, and
again for most of the circumstances, except arguably Terry's age, Bob acted recklessly. With
respect to Terry's age, Bob probably acted recklessly, although he will argue that he was only
negligent. Again, rule 15.20(3) would fall under the same analysis as common law.
First Degree Assault 120.10(4)
Act: Causes serious physical injury
AC: In course of commission or attempted commission of felony or immediate flight
thereform; injury to a person other than one of the participants
MR: Silent
Result: Serious physical injury
CL vs. MPC
The analysis is similar to the first issue. Under CL, the six factors are used to decide the
relevant mens rea standard. Under MPC, 2.02(3) would require recklessness or above, at
least for AC, and probably knowingly or above for conduct.
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The first issue here is whether 120.01 is a felony, and the statute says it is a class E
felony.
With regard to conduct, it is arguable that Bob only acted recklessly with regard to
causing Vincent's injury. This is so b/c Vincent "jumped in front of the car," just before Bob hit
him and knocked him to the ground. If so, then Bob is not guilty of this crime, if the proper mens
rea is knowingly or above. However, it also possible that Bob did not that Vincent would be hit,
in which case this element would be satisfied w/ respect to the MPC, and CL if knowingly is the
floor mens rea standard. There is a causation issue here. Did Vincent jumping in front of Bob's
car result in a supervening event? Given that a crowd had been formed in front of Bob it is
reasonably foreseeable that he would hit someone.
The next question is whether Bob was acting in furtherance of a felony or immediate
flight therefrom. Arguably, Bob was immediately fleeing from the place of the felony. He
decided that he was at serious risk, and so decided to drive away. Note that this behavior was not
an action that was in furtherance of the commission or attempted commission of 120.01 but only
flight therefrom. Bob might argue that his course of action was not flight from the felony in a
technical sense. He did not run away from the actual felony recklessly assaulting Terry, but he
was running away from the angry crowed that was forming, in which case this flight is not away
from the felony itself. Perhaps there is a causation question here. Was the aformation of an angry
crowd a foreseeable consequence of Bob's actions? If so, then his flight is from the commission
of the felony. If the unruly mob forming breaks the chain of events from the felony to the flight,
then he was not fleeing from the felony but rather from something else, and he is not liable.
Mens rea also becomes an issue here. Either under the CL or MPC, if the proper mens rea
standard for this AC is recklessness or above, it is easier for the prosecution to argue their case,
since Bob was at least reckless. That is to say, he should have known that he committed a
felony, and he should have known that he was immediately fleeing from the commission of that
felony. If the standard is knowing, then the prosecution has its case if Bob knew or intended to
flee from the scene of the crime, and Bob knew that he had committed a felony. Otherwise,
under a knowing standard, Bob might not be liable. Usually, though AC result in a reckless or
above mens rea standard.
Finally, the result is there. Vincent was seriously injured by getting hit by Bob's car, and
was hospitalized for a week. Overall, the prosecution might have a good case for finding Bob
guilty of 120.10(4).
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Defenses
Bob might argue necessity. Given that his life was at stake, it was better to hit Vincent
then give himself up to the angry mob. This was an imminent danger to himself, and arguably
the only way he could escape. However, if Bob was at fault in creating the necessity--which
arguably he was in that his actions led to Terry's injury-this might not be available as common
law. Some states prohibit the necessity defense for homicide, but it is unlikely that Bob was
trying to kill Vincent here.
Under the MPC, Bob must have thought that the conduct was necessary to avoid harm to
himself, which he probably did. Whether the harm was less than that avoided is arguable, since
Vincent's harm was pretty serious. However, if Bob thought his life was at stake, this might be a
reasonable calculation. Also, Bob has a better chance with defense under the MPC than the CL
b/c his point of view need not br reasonable. If he honestly thought that he was in danger, then
he might have this defense. Again, however, if he was reckless in creating the harm which led to
the situation in the first place, he cannot use this defense for a reckless crime. It would appear,
however, that this was a crime of knowingly or above.
Diminished Capacity and Provocation
Bob might use either of these defenses, if in the heat of the moment, he was at a less
morally culpable state of mind. There is evidence that Bob thought he was at serious risk, and it
is possible that an angry mob will cause a reasonable person to think less reasonably. Diminished
capacity might be harder to argue b/c that usually requires a mental disease or defect, either
under the MPC or CL, and there is no evidence of that here. Provocation might be easier to argue
under the more subjective MPC standard, which views EMED expansively, rather than the more
narrow view of the heat of passion defense.
Finally, Bob might argue duress. Under CL the harm must be from another person and
result in a well grounded (objective) apprehension of imminent death or serious bodily harm,
such that Bob had no choice to commit these acts. Again, though the actor must not be at fault in
exposing himself to the threat, and arguable he was here. Otherwise, it's reasonable to think that
an angry mob will cause imminent death or harm. However, unlike most duress cases, there was
no formal demand from the mob that Bob do anything specifically, which might make duress
inapplicable. Also, it is questionable whether the mob was engaging in any unlawful activity.
Under the MPC the harm suffered need not be imminent or strictly limited to death or bodily
injury, but it would also run into the same problems.
END OF EXAM
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Examination in Criminal Law: Sections 11, 12
Professor Deborah Denno
May 9, 2002
PLEASE NOTE:
2. Part II consists of two questions and 5 pages. I recommend 80 minutes to complete the first
question and 40 minutes to complete the second question. These time recommendations reflect
the relative weight I will give each question in grading. Please read both questions before you
begin to write.
7. Take note that I ask you to discuss the possible outcomes under both the Model Penal Code
and the common law (non-Model Penal Code). As a summary of your analysis, note how the
results would be similar or different depending on whether you were applying the Model Penal
Code or the common law (non-Model Penal Code).
Good luck!
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QUESTION I 80 Minutes
This question provides an account of a recent, real, case. Commentary and quotes derive
from a variety of newspaper articles, along with my own modifications of the facts.
On October 26, 2001, around 3:00 a.m., in the state of Fordham, Chante J. Mallard, a 25year-old nurses aide, was driving home from a nightclub where she claimed she had consumed
two alcoholic drinks. Suddenly, Mallards Chevrolet Cavalier slammed into Gregory Biggs, a
homeless man, age 37, as he walked on a highway. The impact was so great that it impaled
Biggss head and upper torso through the passenger side of the windshield. According to
Mallard, she panicked and continued to drive the remaining four miles to her home with
Biggss body still stuck in the glass.
When Mallard arrived at her home, she left her car in her garage, without moving Biggs
in any way. In her arrest affidavit, Mallard informed the police that at that point, she sat there
and cried and kept telling the [man] that was sticking through her windshield that she was sorry.
The details of what happened next are in dispute and there is currently a gag order on
this case. Initially, accounts by the police stated that Biggs may have been alive in Mallards
garage for as long as three days, his body still wedged in the glass. Occasionally, Mallard would
check on Biggs and apologize to him profusely while he pleaded with her to get help. But she
never did seek aid. According to Mallard, she did not know how long it took the man to die
[because after a while] she quit going out into the garage. Eventually, Biggs bled to death.
There was enormous public outrage when the newspapers finally reported the incident.
Mallards defense attorney told a different story. She is not the cold, harsh, inhumane
person they would have you think .... This girl is not a monster. He claimed that Biggs was
intoxicated and had simply wandered into the highway. After hitting him, Mallard panicked.
When she arrived home, she immediately called her boyfriend, Seymour Boyfriend, who came to
her house soon after her call and tried to console her. When Biggs finally died, Mallard and
Boyfriend removed Biggss body from Mallards garage and dumped it in a wooded city park
where two men soon discovered it.
Over the course of several months, the state of Fordhams Medical Examiners Office
came out with three different reports concerning what they thought had caused Biggss death
based on the information that they had at the time. For the purposes of responding to this
question, assume that all three reports can be admitted as evidence into court even though they
are conflicting. Make this same assumption about all the facts and accounts that are provided to
you in this question since no one yet knows what really happened in this case.
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The Fordham Medical Examiners Offices first report [Report #1] concluded that
Biggss legs were broken in several places as a result of the impact. His death was a direct
result of being hit by Mallards car.
Later, however, the Office revised its findings in a second report [Report #2]. Report
#2 stated that Biggs could have survived if treated, but he eventually bled to death. For example,
medical experts claim that if long-bone injuries, such as a broken leg, are left untreated, they
can lead a person to bleed to death within minutes or several hours as shock sets in. According
to Dr. David Mendelson, We talk about the golden hour, the middle period after an accident
happens, and oftentimes even severe cases can be treated in that time and have a positive
outcome .... It seems in this case, the person never got the definitive help during that time.
The latest and third medical report [Report #3] concluded that Biggs lived just a few
hours, not a few days as the police estimated. Among the injuries that Biggs suffered was the
near amputation of his left leg, suggesting that he died relatively quickly from blood loss. He
couldnt have died instantaneously, the doctor said. There was some interval of time before he
died.
Mallards defense attorney, Michael Heiskell, acknowledged Mallards lack of judgment
but argued that the whole incident was an accident based on Mallards panic. It was a stupid
decision, he said of Mallards behavior. She was evidently distraught and made a stupid
decision. That decision was compounded by the actions of [her boyfriend] who came to her
home...... [H]er [boy]friend led her further down a bad road by telling her not to do anything.
On February 26, 2002, police got a search warrant to go through Mallards house. They
discovered her damaged car in her garage. Blood, hair, and human tissue that matched Biggss
were located on the cars seat and windshield.
According to the Fordham police department, investigators were lead to Mallard by an
informer, Maranda Daniel, who claimed that she had been out at a party with Mallard and
several other women in mid-February. At that time, Mallard talked about the incident and
giggled about what had happened. Mallard also said that she had sex with her boyfriend in the
house while Biggs was bleeding in the garage. The informer told investigators that Mallard was
planning to destroy the car and make an insurance claim for it. In addition, Daniel said that
Mallard had been drunk and taken the drug Ecstasy before she slammed into Biggs.
One of the investigating officers confirmed that Mallard had planned to take the car out
and torch it and claim insurance to get a new car. She had already burned one of the seats.
According to Heiskell, Daniels accounts were embellishments and Daniel was not a
friend of Chantes. In fact, they were enemies.... She wanted to put Chante in the worst possible
light.
Friends and relatives said that Mallard was state certified as a nurses aide who, in recent
years, bounced between jobs. A high school classmate of Mallards described her as a
hardworking A student. Another source said that Mallard was a popular student leader and
played on the schools volleyball team. Neighbors claimed that Mallard was nice and
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friendly and had a strong family bond. Moreover, Mallards mother testified at a hearing
that Mallard had been a Girl Scout who volunteered to help with disabled children.
Again, for the purposes of responding to this question, assume that all the testimony
about Mallard can be admitted as evidence into court even though it is conflicting.
Courts in the state of Fordham follow both the Model Penal Code and the common
law (non-Model Penal Code) rules regarding criminal liability. In addition, the legislature
has adopted the following two statutes regarding the failure to stop and render aid, which
is a felony.
550.021. Accident Involving Personal Injury or Death
(a) The operator of a vehicle involved in an accident resulting in injury to or death of a person
shall:
(1) immediately stop the vehicle at the scene of the accident or as close to the scene as possible;
(2) immediately return to the scene of the accident if the vehicle is not stopped at the scene of
the accident; and
(3) remain at the scene of the accident until the operator complies with the requirements of
Section 550.023.
(b) An operator of a vehicle required to stop the vehicle by Subsection (a) shall do so without
obstructing traffic more than is necessary.
(c) A person commits an offense if the person does not stop or does not comply with the
requirements of this section. An offense under this section is punishable by:
(1) imprisonment in the institutional division of the Texas Department of Criminal Justice for
not more than five years or confinement in the county jail for not more than one year;
(2) a fine not to exceed $5,000; or
(3) both the fine and the imprisonment or confinement.
550.023. Duty to Give Information and Render Aid

The operator of a vehicle involved in an accident resulting in the injury or death of a person or
damage to a vehicle that is driven or attended by a person shall:
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(1) give the operator's name and address, the registration number of the vehicle the operator
was driving, and the name of the operator's motor vehicle liability insurer to any person injured
or the operator or occupant of or person attending a vehicle involved in the collision;
(2) if requested and available, show the operator's driver's license to a person described by
Subdivision (1); and
(3) provide any person injured in the accident reasonable assistance, including transporting or
making arrangements for transporting the person to a physician or hospital for medical treatment
if it is apparent that treatment is necessary, or if the injured person requests the transportation.
The District Attorney would like to prosecute Chante Mallard and Seymour
Boyfriend for the death of Gregory Biggs under both a Model Penal Code and common law
(non-Model Penal Code) analysis, because the court may accept either approach. Advise
her which charges, if any, should be pursued, and under which theories. Be sure to
anticipate and evaluate carefully the arguments that you expect the defense attorneys for
Mallard and Boyfriend to raise in opposition.
QUESTION II 40 Minutes
Over time, courts have changed the actus reus and mens rea of rape statutes. How do
you think these changes could affect the prosecution and conviction of rape defendants? Use
the cases that we studied as a basis for your discussion. In addition, draw comparisons with the
Model Penal Code.
END OF EXAM
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Student Answers to Spring 2002 Criminal Law Exam
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QUESTION 1
The DA can charge Mallard with murder, manslaughter, or negligent homicide for the
death of Biggs. At Common Law (CL), murder was defined as the killing of one human being
by another with malice aforethought. There are four different ways to show malice: 1) intent
to kill; 2) intent to cause grievous bodily harm; 3) extreme recklessness that reflects depraved
indifference to human life; and 4) felony murder rule. Here, the prosecutor can charge that
Mallard acted with depraved indifference to human life by not immediately seeking medical
attention for Briggs. She may argue that she had no duty to help (not a status relationship, or
contractual), but her actions created harm, and so she assumed a duty to render assistance. She
might argue that she was too intoxicated to recognize that duty, but at CL intoxication does not
absolve one of liability for general intent crimes, and the extreme recklessness prong of murder
is general intent. She recognized that not seeking help was extremely reckless, because she
continually apologized to Briggs, and the jury could infer that she was apologizing for not
seeking medical attention.
She may argue that she failed to obtain help (extreme recklessness) because the accident
had such a traumatic effect on her that she had a diminished capacity. Perhaps then a jury would
convict of voluntary manslaughter at common law, just as they would if she could prove that the
victim provoked her into such rage that she did not obtain help. This defense is unlikely,
however. Finally if Mallard can show that she was simply negligent, then the jury might convict
her of involuntary manslaughter. This is unlikely to succeed. However, because she was a
nurse, it is most likely that the jury will find that she appreciated the substantial risk and
consciously disregarded it.
Also, if the death occurred during the commission or attempted commission of a felony,
she could be charged with murder under the felony murder doctrine (to be discussed below).
Because crimes require a voluntary act, mens rea, attendant circumstances, causation, and
result, the defense will focus on causation. Did Mallards extreme recklessness cause the death
of Biggs? Under Reports 2 & 3, it seems that failing to get care would have caused the death.
However, if the jury believes Report 1, then it is likely that the jury will only convict of
involuntary manslaughter at CL.
Murder under the MPC is intent to kill or extreme recklessness. Enumerated felonies
might be used to infer extreme recklessness under the MPCs much modified version of what
could be considered the felony murder rule. None of these felonies is present, but the analysis
above will likely lead to the same results discussed above. However, at the MPC, recklessness
will suffice for manslaughter, and criminal negligence will suffice for negligent homicide.
Causation will continue to be an issue, and will be treated as it was above.
A jury may find that Mallard was driving while intoxicated, depending on her size,
weight, and testimony concerning her behavior before and immediately after the accident.
The first statute 550.021 (Accident) is silent as to mens rea. The prosecution will want
to impose strict liability, but it is likely that the CL court will impose some general mens rea. To
do so, the court will look to statutory construction, legislative intent, assumption of risk, morals,
the nature of the offense, and judicial discretion. Here, due to the nature of the offense (a person
hit by a car may need information about the hitter) the court will likely impose intent as to
conduct and results and negligence or higher as to attendant circumstances. Here because
Mallard intended not to stop, return or remain, and because she was at least negligent as to the
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attendant circumstance (accident person resulting in injury), the jury will likely convict. Mallard
may claim it was unintentional that she left i.e., it was due to diminished capacity or an
involuntary act but that argument will fail.
The Model Penal Code 202(3) imputes recklessness or higher to each element of a
crime. Here, Mallard at least was reckless about each element (not stopping, injury, person) and
so she will be convicted of this felony.
The second offense (Duty) will be analyzed in a similar way. Because only one
portion of the offense must be met for a conviction, it is enough that she intended to not provide
assistance, and was reckless as to whether it was necessary. The MPC will reach a similar
approach, and she need only be reckless in her omission.
Perhaps the two defendants can be charged with mutilating a corpse, or a similar such
crime, although this would be a crime following the death and could not be used for felony
murder rule.
Boyfriend can be charged as an accomplice to the Duty crime because he aided
Mallard with the purpose of aiding. CL courts will read encouragement as aid. If the jury
believes that Boyfriend encouraged her not to provide reasonable assistance to an injured
person, this would be a specific intent crime, and it is enough that he purposely acted to further
the crime.
Similarly, under the MPC, because Boyfriend had the purpose of aiding (encouraging)
Mallard, the jury will find that he was an accomplice. He was at least reckless as to the result of
the crime (which is not giving aid) and so he could be convicted as an accomplice.
As an accomplice at CL, Boyfriend is responsible for any reasonably foreseeable
consequences of the crime. Here, part of committing the crime is not seeking help, and so if
Mallard is convicted of murder, Boyfriends liability may be derivative, and he may be convicted
as well. However, at CL, if Mallard is only convicted of involuntary manslaughter or is
acquitted (even because of an affirmative defense), Boyfriend will only get involuntary
manslaughter or will be acquitted.
At MPC, because Boyfriend had the purpose to aid and had the requisite mens rea,
Boyfriend may be held liable for a more serious offense than Mallard.
Boyfriend was an accomplice to a felony, and that felony continued for as long as
Mallard refused to provide assistance to the injured man in her garage. At common law, any
death that results during the commission of a felony may make one liable for murder under the
felony murder rule (subject to limitations). Here, the felony is not an enumerated one, so the
murder will not bump up to first degree murder.
The real issue will be whether the predicate felony (Duty) is inherently dangerous. The
defense will argue that it is not inherently dangerous in the abstract, but failing to give
reasonable assistance to an injured person seems to be inherently dangerous, and so the
prosecution may likely prevail on this point. Also, if the prosecution can convince the court to
look at the specific facts and circumstances of the case, the prosecution will likely succeed,
because by violating the statute Mallard and her accomplice Boyfriend caused Briggs to die.
The defense will also argue that the predicate offense merges with the actual homicide.
However, it seems that violating the statute had a separate felonious intent. Mallard violated the
statute to avoid arrest, the prosecution might argue, not to kill Briggs. If so, then the two will
likely not merge and Mallard (and possibly Boyfriend) will be convicted of felony murder.
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In the MPC, there is not a felony murder rule per se, and this statute (Duty) is not
one of the enumerated felonies that can introduce a rebuttable inference of extreme recklessness.
However, Boyfriend knew that a wounded man was bleeding to death in Mallards
garage (depending on the jurys reliance on the reports and the inference that Boyfriend was at
Mallards house while the bleeding went on). In that case, perhaps the jury will find that
Boyfriend acted with extreme recklessness (murder), recklessness (manslaughter), or criminal
negligence (negligent homicide). On these facts, murder or manslaughter seem most likely,
because Briggs was bleeding to death. As discussed above, causation is an issue, because if
Briggs died instantly, then violating the statute did not cause the death. Indeed, if Briggs died
instantly, it is possible that Boyfriend committed no offense at all, because one of the attendant
circumstances (injured person) was missing. Perhaps he could be convicted for helping after the
fact under CL or MPC.
Conspiracy is also a possible charge. At common law, the prosecution will have to prove
that there was a meeting of the minds to break the law of Duty. Also, conspiracy is a specific
intent crime, so the prosecution will have to prove the defendants acted with purpose. Here,
because Mallard talked about the crime at a party, and laughed, the jury may infer purpose. In
the MPC, it is enough that either of the defendants believed they have an agreement. Actions
alone are enough to infer an agreement (such as not reporting the offense to the police), and yet
here there is also evidence that they talked about the offense.
At common law, the conspiracy would not merge with the completed offense. In the
MPC, the completed offense merges.
Attempt, like conspiracy, requires purpose. However, it also requires a substantial
step. Although Mallard and Boyfriend possibly could be changed with attempted insurance
fraud, because they didnt take steps, they will be acquitted. But, if the jury believes Mallard
burned the seat as a step toward committing fraud, they may be convicted. They never tried to
report it, but abandonment is not a defense at CL, and the MPC demands voluntary resistance.
Here, because Mallard was arrested before selling her car, she will likely be convicted of
attempted fraud, which for attempted fraud has the same punishment as fraud.
QUESTION 2
Over time, rape statutes have changed in ways that make it easier for a prosecutor to
obtain convictions. The trend has been especially clear in the force requirement and mens rea
requirement.
In the old days, to be convicted of rape a man had to overpower the victims utmost
resistance. Thus, even if a woman submitted because she reasonably feared for her safety, the
defendant would be acquitted.
Subsequently, laws changed and it was sufficient for a woman to resist reasonably. If she
was in fear for her safety, like a victim lured from a bar to a secluded place and she feared for
her safety, she could choose not to resist and the prosecution could still gain a conviction.
However, there were exceptions to this rule, like the small victim raped by a tall strong man on a
bike near a quarry. There, because the victim did not fight back, the court acquitted for lack of
force, one of the elements of rape, which is a general intent crime.
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More modern statutes, however, have done away almost entirely with the force
requirement. In MTS, the court found that penetration (a separate element of rape) sufficed for
the force element. Thus, the statutes have changed over time from requiring a literally
overwhelming amount of force to require a minimal amount of force. Without force, the mens
rea of the defendant becomes a very important issue. Long ago, even an unreasonable belief as
to the victims consent was enough for an acquittal. The defendant had to know, or he was
acquitted.
In the Sherry case, the doctors wanted the jury to acquit even if they had an unreasonable
belief that the defendant consented. The doctors lost, but it seems that the habitual girlfriend
beater who threatened his girlfriend with harm and later raped her was acquitted because she
wasnt forced, even though the court believed that she didnt consent.
More modern statutes are moving to not excuse even what may be a reasonable belief.
The Lafayette College case is an example where the defendant felt the victim had consented but,
even if the belief was reasonable, he could still be convicted.
In NJ, the victim must give verbal assent or else the defendant is liable. Massachusetts
has eliminated both reasonable and unreasonable mistake of fact as a defense, meaning that even
negligence is not a defense. Essentially, this makes rape a strict liability offense in MA as to the
victims consent.
If modern state statutes are moving toward a more appropriate standard of required actus
reus and mens rea, the Model Penal Code is hopelessly behind the times. Rape at CL includes
the traditional definition (discussed above in its movement toward protecting/favoring the
victim), statutory rape, and fraud in the factum. The MPC seems to follow suit, but fraud in the
factum is a lesser offense. The MPC also only imposes strict liability if the victim is under 10,
leaving all other offenses with a young girl subject to a reasonable mistake of fact.
Most importantly, it seems, is the message that the MPC sends to those that read the rape
section. State statutes change with the times, change with public opinion and social norms, as all
laws should. The MPC, however, is stuck in the past. That a man cannot be convicted of
raping his wife under the MPC is insulting to women and men. However, the harm is far
worse than insults. The MPC is a vast improvement over old common law, but that one issue
(husband cannot rape wife) delegitimizes the good things that the MPC promotes. For instance,
though still lagging behind some states, the MPC expands threat of force to mean threat of
kidnaping as well as the original (common law type) threats. It is important to expand these
protections, and the MPC is a valid forum to do so. However, in order to be accepted, the MPC
must be as flexible and progressive as state statutes around the country. MTS, Sherry, and the
Lafayette Case are all instances where the MPC would have led to acquittals, although the
individual state statutes led to convictions.
While there will always be debate on the fringes of modern criminal law jurisprudence,
the MPC is so hopelessly out of date that it cannot validly be used even as a talking point.
Modernity demands a change to the MPC.
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Examination in Criminal Law: Sections 1 and 3
Professor Deborah Denno
December 10, 2002
PLEASE NOTE:
complete it. Part II is open book and you may have any materials you want with you.
2. Part II consists of five questions and four pages. I recommend 25 minutes to complete the
first question, 15 minutes to complete the second question, 25 minutes to complete the third
question, 25 minutes to complete the fourth question, and 30 minutes to complete the fifth
question. These time recommendations reflect the relative weight I will give each question in
grading. Please read all questions before you begin to write.
7. Please read the specific instruction given with each question that I ask of you. Always argue
both sides.
Good luck!
-CONTINUED ON NEXT PAGE-
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QUESTION 1 25 minutes
Can self-defense be claimed by someone charged with felony murder? In State v.
Amado, 756 A.2d 274 (Conn. 2001) [not in your casebook], the defendant attempted a robbery
of a person who, he thought, had taken cocaine from him. A fight ensued in which the victim
may have brandished a weapon himself. The defendant then shot the victim to death. The
Amado court elaborated:
The defendant argues that a bright line rule that self-defense is not available, based
simply on the state's accusation that a defendant committed felony murder, violates
the fundamental principle that all defendants are presumed innocent until proved
guilty beyond a reasonable doubt. We disagree. Our holding is premised on the fact
that a finding, and not an accusation, of felony murder is incompatible with the
defense of self- defense. Our rule as to self-defense assumes that the jury concluded
that the defendant was in the course of and in furtherance of attempted robbery when
the murder occurred. If the jury concluded that the defendant was not committing a
felony at the time of the murder, the jury was instructed to find the defendant not
guilty of felony murder. Our holding today does not violate the presumption of
innocence.
In the present case, the jury reasonably found that the defendant was engaged in the
attempted robbery of the victims when the shootings occurred. The evidence
indicated that the defendant arrived at the victims' house, armed with a ninemillimeter handgun, with the intention of regaining his cocaine. After the defendant
accused the victims of having his cocaine, and both denied having the drugs, the
defendant began shooting. The jury could, and did, find that the shootings were in
the course of and in furtherance of an attempted robbery. The defendant's testimony
that the victims first utilized physical force does not require that he have a defense of
self-defense. For purposes of felony murder, "it is immaterial whether the victim of
the [felony] or the defendant [first utilizes physical force]." It is inconsistent with the
purpose of the felony murder statute to allow a defendant who causes a death in the
course of a felony to claim self-defense because the victim attempted to thwart such a
felony.
QUESTION IA: Could the defendant have successfully claimed that the victim was the initial
deadly aggressor under either the common law or the Model Penal Code?
QUESTION IB: Are there any limiting doctrines under common law felony murder that could
apply in this fact scenario? What would the outcome be under the Model Penal Code?
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This year, the United States Supreme Court will resolve a split among the circuits on the
question of whether a person can be guilty of conspiracy if at the time he himself agrees, the
other co-conspirators have already been caught and have become informants for the government.
The case granted review is United States v. Recio, 258 F.3d 1069 (9th Cir. 2001) [not in your
casebook]. Based upon our limited discussion of conspiracy under both the common law and the
Model Penal code, please discuss briefly the major issues that the Supreme Court may consider
and why.
Is there any coherence to the idea of a culture-specific motivation? One scholar [not in
your casebook] argues against a key foundation of the concept of a cultural defense the
notion that acting in a culturally motivated manner establishes lesser blameworthiness on
the ground that all human volition is influenced by forces that by some manipulation of
definition can be called cultural. Please comment on this scholars view using examples based
upon the common law and Model Penal Code defenses that we studied.
While driving drunk and recklessly, the defendant collided with another vehicle, killing
two passengers and injuring others. He was convicted of assault with a deadly weapon and
felony murder, and a capital sentencing jury recommended a sentence of life imprisonment. The
felony murder statute at issue in this case, N.C. Gen. Stat. Section 14-17 [not in your casebook],
applies to any killing committed in the perpetration of arson, sexual assault, robbery, kidnaping,
burglary, or other felony or attempted felony committed with a deadly weapon. An
automobile qualifies as a deadly weapon under established caselaw. Under the common law,
should the defendant be convicted of first-degree felony murder on the basis of drunk or reckless
driving? Why or why not?
- 95 -
In the state of Fordham, a non-Model Penal Code jurisdiction, the legislators are
considering various proposals to revise the states rape statute, which now reads as follows:
Rape is the carnal knowledge of a woman by force and against her will. Assume that the
legislators have selected the following three proposals as the most worthy of reforming the
statute. Please evaluate the pros and cons among the proposals and the different repercussions of
each.
Proposal 1: If any person has sexual intercourse with a complaining witness, by force and
against the complaining witnesss will, he or she shall be guilty of rape. No mens rea is required
for this offense.
Proposal 2: If any person has sexual intercourse with a complaining witness, without the
consent of the complaining witness, he or she shall be guilty of rape. An honest and reasonable
mistake as to the absence of consent shall be a defense to this crime, with reasonable defined
according to the standards of the community to which the defendant belongs.
Proposal 3: If any person has sexual intercourse with a complaining witness, without the
consent of the complaining witness, he or she shall be guilty of rape. An honest and reasonable
mistake as to the absence of consent shall be a defense to this crime, with reasonable defined
as justified.
-END OF EXAM-
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Student Answers to Fall 2002 Criminal Law Exam
- 97 -
QUESTION 1A
Common Law
Under the common law, the defendant would be considered the initial deadly aggressor
because he was committing an unlawful deadly act (armed robbery) against the victim. The
common law rule as to use of deadly force by an initial aggressor is strict: the initial aggressor
would need to retreat/renounce the use of force prior to gaining the right to use self-defense.
Due to the castle exception, a person who is attacked in his home has wide latitude to use deadly
force because he is not required to retreat from the aggressor. It appears on these facts that the
defendant was committing an unlawful act with a gun, and therefore even if the victims had used
force against him first, they would have been justified in responding with force. It is unclear
exactly what transpired so if the defendant was invited into the home by the victims and didnt
immediately display a weapon but they attacked him, then he could try to argue they were the
initial aggressors. But not if he broke in because they would be justified in using force.
The defendant might also try to argue that he was justified in taking back his stolen
property, but it is not a defense to use force to recapture property (and the fact that the property
is illegal drugs makes such a claim even less plausible). The defendant can argue that the
victims act of theft was the initial aggression but again such a defense probably wont work
because it wouldnt justify using deadly force, and the property was contraband.
Model Penal Code
Under the MPC, the defendant is allowed more flexibility with regard to use of deadly
force because an initial aggressor who is met with an excessive response can use deadly force in
self-defense. If the defendant showed up at the house and was immediately met with excessive
force by the victim he could claim self-defense even if his actions constituted an unlawful
provocation. However, if he displayed his gun first then the victim would also have been
justified in using deadly force for the same reasons as in the common law.
QUESTION 1B
Common Law
The limiting doctrines of felony murder are the type of felony committed, whether it is
inherently dangerous, dangerous as committed, or whether the predicate felony is integral and
therefore merges into the homicide.
Since armed robbery is probably going to be inherently and particularly dangerous, the
defendant should argue that his predicate felony merges. He can claim that he was breaking into
the house with an intent to assault or kill the victim, and such a crime would merge. But, if the
prosecutor proves he intended to steal the drugs, the robbery probably wouldnt merge because
- 98 -
its independent of the homicide. The other limiting doctrine, the agency theory, limits deaths to
those felons in futherance of the crime and it appeared he killed the victim in furtherance of the
crime. Under proximate cause theory, the defendant can be liable for any resulting death, which
wouldnt help him.
Model Penal Code
Under the MPC, there is a rebuttable presumption of extreme recklessness (mens rea for
murder) during the commission of certain felonies (including armed robbery) so the defendant
would have to try to argue he was not reckless. Since he brought a loaded gun and used it, this
would be a difficult claim to make.
QUESTION 2
Under the common law, conspiracy requires the agreement of more than one person to
further a crime. If the other participants have abandoned the conspiracy by taking affirmative
steps to thwart it (by informing the government) then they cant be continuing to agree. If the
defendant made an agreement but there was no meetings of minds, he shouldnt be guilty under
the CL.
Under the MPC, the defendant can make an unilateral agreement to a conspiracy, so if he
thinks the others are agreeing with him but they arent, he can still be guilty. The MPC is
concerned with the danger posed to society by a defendant with such a culpable mental state.
QUESTION 3
The cultural defense is used to protect individuals according to their subjective
understanding of human behavior. However the law needs to enforce objective understanding to
a great extent or there would be mayhem.
The notion that culturally specific motivation makes a person less responsible is not
given much support by the common law. The CL looks to the reasonable person standard in
many of the defenses, such as self-defense, duress, necessity, mistake of fact and law,
provocation, and voluntary intoxication. Usually the defendant is required to act in an
objectively reasonable manner regarding his fear, his appreciation of a risk, his knowledge of
the law, his mistake of fact (except for specific intent). In the Williams case for instance, the
court didnt give evidence to the defendants defense based on their level of education and
culturally-based fear of losing the baby.
On the other hand, provocation defenses, although requiring adequate provocation,
sanction a cultural norm of a man becoming violent in response to his wife cheating on him.
Battered womans syndrome, which recognizes a very subjective condition, could be considered
a cultural defense and is sometimes allowed.
- 99 -
The scholars position is supported by these examples in that BWS and provocation are
forces that can be called cultural. As discussed in the casebook, the other emerging defenses of
battered child or even holocaust survivor syndrome seem to be pushing the law to more and
more subjective standards.
If someone is less culpable based on these defenses, why not based on growing up in a
bad neighborhood, taking drugs, lack of education, economic necessity? The scholar seems to
suggest that once you accept the cultural defense there may be too many categories of such a
defense.
The MPC is much more subjective in its approach to defendants mental states, since it
usually allows even an unreasonable or reckless mistake to negate elements of offenses (unless
recklessness or negligence suffices as a mens rea). However even the MPC has an objective
standard for negligence and requires reasonable explanation for EED, for example. This
shows that the MPC does value a minimum standard of objectivity below which it would be
dangerous for the law to fall.
Cultural defenses might be appropriate in as much as they negate intent or purpose, but,
should people be allowed to claim it for reckless or negligent crimes? Probably not. The scholar
is right to say that all human volition is affected by external or cultural forces. Therefore the
law, while sometimes taking into consideration subjective factors, needs to maintain an objective
standard.
QUESTION 4
The defendants conviction is based on assault with a deadly weapon, which could merge
into the homicide itself. Under the merger rule this shouldnt be an appropriate predicate felony.
Drunk or reckless driving, if recklessness rising to indifference to human life, could qualify for
the mens rea necessary for murder at common law. The only reason for the felony murder to
apply is to make the prosecutors job easier, which is questionable public policy. It would make
more sense for the defendant to be convicted according to his actual mens rea recklessness (or
negligence).
Assault is generally a specific intent crime at common law, so it doesnt necessarily make
sense to charge a drunk person with the specific intent if he was unable to form it due to his
intoxication. Intoxication can be a defense to negate specific intent but not recklessness, so the
defendant could still be punished for his recklessness. This seems to make more sense. Also
under the agency theory the defendant didnt kill those people in furtherance of a crime.
QUESTION 5
The problem of gender neutrality is solved in all of the proposed statutes, because neither
the complainant nor defendent need be a woman or man.
Proposal 1 incorporates force and nonconsent into the statute but does not define those
terms. Thus we dont know what level or force is required, or whether the victim is required to
- 100 -
use resistance to communicate non-consent. Since no mens rea is required, this could be a strict
liability offense. However intent would seem to be inherent in the act of intercourse. Since
force is required, it would seem that the defendant would have to be aware the victim is not
consenting, which is fair to the defendant. However because some women freeze when they are
afraid they will be raped, the defendant might not need to use force even if the victim isnt
affirmatively consenting.
Proposal 2 is not requiring force, just nonconsent. It doesnt define consent (affirmative
permission or the absence of protestation.) The mens rea for mistake of consent is negligence,
which is fair to the defendant because in the absence of a force requirement it is more likely that
he could misinterpret the victims consent. Since reasonable is defined according to the
standards of community, there wont be a problem of the law being out of step with social norms
and thus unfairly punishing the defendant for his reliance on his social experience. However this
statute affords less protection to the victim because if she/he says no the defendant can claim he
thought no really meant yes, given the problem of token resistance.
Proposal 3 allows a lot of judicial discretion for the interpretation of a reasonable
mistake. This will lead to a diversity of interpretations. Common law courts have considered
many factors in interpreting rape statutes, including time frame, morals/nice sex, the defendants
mens rea with respect to the victims fear, the victims perception, statutory definitions,
environmental/aggravating factors, the relationship between D and V, and social policy. Under
this statute the courts can define reasonable according to their own view of public policy and
morals, which may be unfair to defendants. However the approach allows for more flexibility,
and more protection for the victim, since it will take into account her/his fear and nonconsent
rather than only what is considered socially acceptable.
Proposals 2 and 3 would be better if they defined consent in terms of affirmative
permission or absence of objection, since that would provide both victim and defendant with
greater protection. Each individual would know what actions were required of him/her.
- 101 -

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HANDBOOK ON

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