Final Examination Wednesday, December 16, 1998 [page 1] 1.

Your copy of this exam should consist of ten (10) pages, including this page. If your copy of the exam is incomplete, please obtain another copy from the proctor. 2. You are allowed three and one half (3 1/2) hours to complete the exam. However, you may not begin writing your answers during the first half hour of the exam. Please use that time to read the questions and outline your answers on scratch paper that will be provided to you. At the end of the first half hour, the bluebooks will be distributed (or, if you are taking the exam on computer, you will be permitted to begin using the computer). You will then have three hoursto write your answers. 3. The time allocation at the beginning of each question reflects the amount of time I suggest you spend writing your answer to that question. It also reflects theweight to be accorded that question in the grading process. 4. This exam will be graded anonymously. Please place your examination number on your bluebooks or, if you are taking the exam on computer, in your document. Do not put your name on or in any of your bluebooks or computer documents. 5. This is a limited open book exam. You may consult the following materials: (1) the casebook; (2) the Supplement and any other materials I distributed during the course of the term; (3) your briefs and class notes; (4) e-mail exchanges you or others had with me; and (5) any outlines that you prepared or that you had a substantial role in preparing. 6. If you are using bluebooks, please use a separate bluebook for each question. If you are taking the exam on computer, please begin each question on a new page. 7. If you are writing your exam, please write legibly and write on one side of the page only. If you are taking the exam on computer, please double-spaceyour answer. 8. You should try to address all issues raised by a question, including alternative theories for reaching a particular result. If you conclude that factual or legal information beyond that stated in the question is necessary to your answer, please make reasonable assumptions and set forth those assumptions in your answer. 9. You may underline or otherwise mark up the exam questions as you please. At the end of the exam, return your copy of the exam to the proctor. 10. GOOD LUCK! [pages 2 and 3]

QUESTION I (80 minutes) John and Paul, who had been best friends since childhood, were accomplished acrobats who could earn thousands of dollars for one of their dare-devil performances on the high wire. The Town of Kidneypond, eager to book an act that would boost attendance at the town's annual circus, hired John and Paul to perform on the opening night. This decision angered Ringo, a former partner of John and Paul who had left the act several years earlier when he developed an intense fear of heights. Ringo, who was now performing a lion-taming act, had been the headline performer at the circus in both of the past two years, and he did not like having his place in the spotlight taken by his former partners. Ringo decided to "scare the daylights" out of John and Paul during their performance by setting off the cannon used by Mr. Mustard, the Human Cannonball, who was scheduled to perform later that night. Back in the days when Ringo had been part of the acrobatic act, Ringo had pulled pranks like this once or twice during practice sessions, and it had not made John or Paul fall. Even though John and Paul were performing a complicated maneuver from a great height, it simply did not occur to Ringo that setting the cannon off might make one of them fall; he was convinced it would only scare them. Ringo set off the cannon as Paul was preparing to catch John, who was performing a triple flip. The loud sound caused Paul to flinch to the left. This, in turn, made him miss catching John, who fell thirty feet to the ground. Ringo watched these events unfold with utter surprise and horror and then rushed over to John, who lay bleeding on the ground. With tears streaming from his eyes, Ringo confessed his actions to Paul, who by now had made it down to the ground. In response to Ringo's confession, Paul began chasing Ringo around the circus ring. They ended up near the cage where Ringo's lions were kept. Paul, in the grips of intense anger and anguish, opened the cage and yelled "Attack!" to the lions. (Paul knew that the lions would attack the nearest person if given this command.) The lions lunged for Ringo, who managed to duck into a nearby room and shut the door. The lions then turned their attention to Linda, an assistant to Ringo who was standing nearby. The lions attacked and killed Linda. Paul then returned to John, who was seriously injured but still alive. Paul arranged for John to be taken to the closest hospital, where he was seen by George, an emergency room doctor. John would have fully recovered had George given him competent care, but George missed several obvious features of John's injuries, which caused him to administer an injection that put John into a deep coma. George's supervisor, Eleanor, intervened at that point and determined that George's mistake had been a fatal one B because of the injection, John was going to die, probably within just a few hours. An autopsy later confirmed Eleanor's conclusion. With the intent of alleviating John's suffering, Eleanor then injected John with a fatal dose of a drug, and John died within minutes. Eleanor sincerely believed her actions were permissible under a recent Court of Appeals decision she had read, which declared that euthanasia (mercy killing) by doctors was not a

criminal offense when a patient was in a comatose state with no realistic hope of recovery. However, two months after Eleanor caused John's death, the Court of Appeals decision was overturned by the Supreme Court, which ruled that the Court of Appeals had misinterpreted applicable law in rendering its decision and that deliberate euthanasia was punishable as murder in all circumstances. Back at the circus, pandemonium had erupted as the lions continued to rampage. Paul, who had let the lions loose, desperately tried to coax the lions back into their cage, and finally succeeded. By that time, however, several members of the circus audience had been trampled by other members of the audience as they fled in panic. Paul recognized one of the injured as his own 10-year-old son, Desmond. Paul immediately moved Desmond into a secluded corner to make sure he would not be trampled by the crowd. Paul, who knew that Desmond was seriously injured, left Desmond alone in the corner while he went to the hospital to check on John's condition. By the time Paul returned thirty minutes later, Desmond had died. An autopsy revealed that Desmond would have survived if Paul had sought treatment for him immediately. Discuss the criminal liability of (a) Ringo, (b) Paul, and (c) Eleanor under both the common law and the Model Penal Code. [pages 4 and 5] QUESTION II (30 minutes) The questions given below are intended to test your understanding of, and ability to apply, the mens rea provisions of Section 2.02 (General Requirements of Culpability) of the Model Penal Code. Your answers, therefore, should be based on the provisions of Section 2.02. Answer all of the following questions. For each question, choose the one best answer for the mens rea that applies to the underlined statutory element. Do not mark your answers on this exam -- write the letter corresponding to your answer for each question in your bluebook or computer document. In addition, please briefly explain or justify each of your answers. 1. "Endangering Welfare of Children. A parent, guardian, or other person supervising the welfare of a child under 18 commits a misdemeanor if he purposely or knowingly endangers the child's welfare by violating a duty of care, protection or support." (a) Purposely, under s. 2.02(4).

(b) Knowingly, under s. 2.02(4).

(c) Recklessly, under s. 2.02(3).

(d) Recklessly, under s. 2.02(4).

2. "Deceptive Business Practices. A person commits a misdemeanor in the first degree if, with purpose to deceive another, he willfully uses a false weight or measure in the course of selling any commodity and if the value of the commodity sold exceeds one hundred dollars." (a) Purposely, under s. 2.02(4)

(b) Willfully, under s. 2.02(4).

(c) Knowingly, under s. 2.02(4).

(d) Recklessly, under s. 2.02(3).

3. "Aiding or Soliciting Suicide. A person who purposely aids or solicits another to commit suicide is guilty of a felony of the second degree if his conductcauses such suicide or an attempted suicide." (a) Purposely, under s. 2.02(3).

(b) Purposely, under s. 2.02(4).

(c) Recklessly, under s. 2.02(3).

(d) Recklessly, under s. 2.02(4).

4. "Criminal Trespass. A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or surreptitiously remains in any building or occupied structure, or separately secured

or occupied portion thereof. An offense under this section is a misdemeanor if it is committed in a dwelling at night. Otherwise it is a petty misdemeanor." (a) Knowingly, under s. 2.02(3).

(b) Knowingly, under s. 2.02(4).

(c) Recklessly, under s. 2.02(3).

(d) Recklessly, under s. 2.02(4). [page 6] QUESTION III (40 minutes) You are a law clerk to Ivana Ruby Stovner, a judge on the Kent Superior Court. Judge Stovner is trying to decide what sentence she should impose on Guy Goodly, a defendant who recently pled guilty to a charge of murder. Guy Goodly is a retired minister. He and his wife, Polly Goodly, celebrated their 50th wedding anniversary last summer, shortly before Polly's doctor informed her that she was dying of cancer. The disease progressed quickly, and by early October Polly was bedridden and physically unable to care for herself, although she was still mentally alert. Her doctor told her that her mind would start to deteriorate soon and that she would die a lingering and painful death. In the doctor's judgment, there was no hope for a cure. After several long discussions with Guy and other family members, Polly announced that she wanted to kill herself so that she could die with dignity and avoid being a burden on her loved ones. Because she was physically incapacitated, Polly asked Guy to assist her by procuring a fatal dose of Seconol, which she had read would kill her quickly and without pain. Guy initially refused to help Polly in committing such a drastic act, but he eventually decided that his resistance was based on his inability to accept Polly's condition rather than on Polly's best interests. Reluctantly, he agreed to help his wife kill herself. Guy contacted a friend of his who was active in the right-to-die movement and who, through unspecified "contacts," was able to obtain the pills requested by Polly. Within a few weeks, Polly began to experience intense pain and periodic episodes of dementia. During a period of mental clarity, Polly reiterated her desire to die, and Guy helped her swallow the pills. Polly died peacefully in her sleep a short time later.

When questioned by police, Guy freely admitted that he had obtained the pills for Polly and helped her take them. The local prosecutor filed murder charges again Guy several weeks later for assisting in his wife's suicide. The case has been widely discussed by both scholars and the general public and has generated a great deal of attention in the media. It is clearly established under Kent law that assisted suicide is a form of murder. Judge Stovner has accepted Guy's guilty plea to the murder charge. As the sentencing date approaches, the judge asks you to draft a memo proposing a sentence and justifying the sentence you would impose. The penalty provision of the murder statute provides for a minimum sentence of 5 years' imprisonment and a maximum of life imprisonment, unless "extraordinary mitigating circumstances" are present, in which case the judge can impose a sentence of less than 5 years, including a sentence of probation. If a judge chooses probation, the judge is authorized to impose a wide variety of conditions on the defendant as terms of the probation. Draft the memo requested by the judge. Keep in mind, as you do so, that the judge is interested in theories of punishment and has read the literature on the subject extensively. [pages 7 to 10] QUESTION IV (30 minutes) [The 10 multiple-choice questions comprising Question IV are omitted from the published version of this exam.]

CRIMINAL LAW -- SOWLE -- FALL 1998 EXAM CHECKLIST Exam number: __________ EXAM TOTAL: _________ (180 pts. possible)

QUESTION I [80 pts.] Total points earned: _______ (a) Ringo's liability for John's death (_____) [18] Common law --Involuntary manslaughter:

*Issue: Whether Ringo is guilty of murder, requiring on these facts proof of extreme recklessness (_____) [1], or involuntary manslaughter (_____) [1], requiring proof of either ordinary recklessness or criminal negligence. (_____) [1] *Answer: This was not recklessness, either ordinary or extreme, because Ringo had no subjective awareness that his actions risked human life. (_____) [2] This probably was criminal negligence, which requires proof of gross or extreme negligence (civil negligence "plus") (_____) [1], because it was a gross deviation from the care a reasonable person would take for Ringo to shoot the cannon even though he knew that John and Paul would be performing without a net. (_____) [1]

--Causation: *Issue: Was George's malpractice, or Eleanor's injection of a fatal drug, an intervening cause relieving Ringo of liability for John's death? (_____) [1] *No, because George's and Eleanor's actions were in direct response to Ringo's attack, which makes these actions dependent intervening causes. (_____) [2] If an intervening act is dependent, then defendant is liable even if the intervening act is not reasonably foreseeable (_____) [1], absent exceptional circumstances.

--Bonus issue: Is Ringo liable for the deaths of Linda or Desmond? (_____) [1] This would be an issue of proximate causation; probably no liability because the deaths were not reasonable foreseeable, and because Paul's intentional act intervened. Model Penal Code --Negligent homicide: *Issue: Whether Ringo is guilty of manslaughter or negligent homicide. (_____) [1] *Answer: Because Ringo had no subjective awareness that his conduct entailed risk, this is negligent homicide.(_____) [2] Under the MPC, negligent homicide is a separate offense from manslaughter and a less serious one.(_____) [1]

--Causation: *Issue: Do the circumstances of John's death satisfy the causation requirements for crimes permitted negligently?(_____) [1] *Answer: Probably yes, because the results of George's malpractice involved the same kind of harm as the probable result (_____) [1]; and because malpractice by a doctor is not "too remote or accidental" an occurrence to make convicting Ringo unjust. (_____) [1]

(b) Paul's liability for Linda's death(_____) [20] Common law --Murder: *Issue: Whether Paul is guilty of murder, requiring on these facts proof of intent to kill or to cause serious bodily injury(_____) [1], or voluntary manslaughter, requiring proof that Paul acted in the "heat of passion." (_____) [1] *Answer: This was murder, because Paul clearly intended at least to cause serious injury, as indicated by his ordering the lions to attack (_____) [1]; and because under traditional common law principles, Ringo's provocation was not legally adequate to reduce the offense to voluntary manslaughter. (_____) [2] Ringo's actions did not involve an assault on Paul, adultery with Paul's wife witnessed by Paul, or any other ground recognized at common law. (_____) [1]Bonus issue: This may have been adequate provocation under the modern trend, which abandoned the list approach of traditional common law in favor of a reasonableness standard to be decided by the jury. (_____) [1]

--Causation: *Issue: Does it matter that Paul intended to kill Ringo, but actually killed Linda? (_____) [1] *Answer: No, because Paul's intent is "transferred" from Ringo to Linda. (_____) [2] Model Penal Code --Manslaughter: *Issue: Whether Paul is guilty of murder (_____) [1] or manslaughter, requiring on these facts proof that Paul committed an act that would otherwise be murder (_____) [1], but did the act under the influence of extreme mental or emotional disturbance (_____) [1], for which there was reasonable explanation or excuse. *Answer: Paul probably is guilty of manslaughter, not murder. (_____) [1] Although Paul acted at least with extreme recklessness in causing Linda's death (_____) [1], he did so under the influence of an emotional disturbance caused by witnessing his best friend's death. (_____) [2] There probably was reasonable explanation or excuse for his emotional disturbance, because an average or reasonable person would likely be enraged in similar circumstances.(_____) [1] The different results under MPC and common law illustrate the fact that the "mental or emotional disturbance" test under the MPC is broader than the "heat of passion" standard under common law. (_____) [1]

--Causation: Same issue and result as under common law. (_____) [2] (c) Paul's liability for Desmond's death(_____) [20] Common law --Two theories of liability: *Murder or Involuntary manslaughter: -Issue: Whether Paul is guilty of murder or involuntary manslaughter. (_____) [1] -Answer: Credit for either answer. (_____) [1] Paul could be convicted either of murder or involuntary manslaughter, depending on whether he was subjectively aware that his conduct risked injury or death to audience members (_____) [1] and, if so, whether this was ordinary or extreme recklessness. (_____) [1] -Causation: Is Paul relieved from liability because the audience members who trampled Desmond were intervening causes? (_____) [1] No, because the actions of the audience members were dependentintervening causes, i.e., their actions were in direct response to Paul's actions. (_____) [1] *Omissions liability -- Murder/Involuntary manslaughter: -Issue: Can Paul also be held liable for his failure to aid Desmond? (_____) [1] -Answer: Omissions liability requires an affirmative duty. (_____) [1] There was a duty here on three separate grounds: (1) There was a special relationship between Paul and Desmond, because Desmond was Paul's minor child. (_____) [1] (2) Paul owed a duty to Desmond because he created the risk by releasing the lions. (_____) [1] (3) Paul secluded Desmond from other potential rescuers. (_____) [1]

-Paul could be convicted of murder or involuntary manslaughter (_____) [1], depending on whether Paul was aware that Desmond might die and, if so, whether his failure to act was ordinary or extreme recklessness; credit for either answer. (_____) [1] Model Penal Code --Two theories of liability: *Manslaughter or Negligent homicide: -Issue: Whether Paul is liable for murder, manslaughter, or negligent homicide. (_____) [1]

-Answer: Paul is not guilty of murder, because even if his act was extremely reckless with respect to causing deaths among audience members, he acted under the influence of an extreme emotional disturbance (see analysis of Paul's liability for Linda's death). (_____) [1] Whether Paul is guilty of manslaughter or negligent homicide depends on whether he was subjectively aware that his conduct risked injury or death to audience members; credit for either answer. (_____) [1] -Causation: Is Paul relieved from liability because the audience members who trampled Desmond were intervening causes? (_____) [1] No, because the death of an audience member from trampling was a predictable result of Paul's actions, and thus was not "too remote or accidental in its occurrence" to have a just bearing on Paul's liability. (_____) [1]

*Omissions liability -- Murder/Manslaughter: Same issue and result as under common law, because the principles of omissions liability are the same under MPC and common law. (_____) [2] (d) Eleanor's liability for John's death(_____) [14] Common law --Murder: *Issue: Absent an acceptable defense, is Eleanor liable for John's death? *Answer: Yes, she would be guilty of murder, because she intentionally caused John's death. (_____) [1]

--Causation: *Issue: Does the fact that John would have died anyway within hours alleviate Eleanor of liability? (_____) [1] *Answer: No, because one who accelerates an inevitable result is still liable for causing the result. (_____) [2] This is an issue of "but-for" causation. (_____) [1]

--Mistake of law: *Issue: Whether Eleanor should be acquitted because she made a mistake of law when she relied on the Court of Appeals decision. (_____) [1] *Answer: Eleanor reasonably relied on an official statement of the law contained in a judicial opinion, (_____) [2] and it does not matter that the court's decision was later overturned by the Supreme Court. (_____) [1] Bonus issue: In determining if a defendant's reliance was reasonable, some courts might consider it relevant whether the Supreme Court had granted cert. at the time of defendant's actions, or whether the cert. period was still open. (_____) [1]

Model Penal Code --Murder: *Issue: Absent an acceptable defense, is Eleanor liable for John's death? *Answer: Yes, she would be guilty of murder, because she purposely caused John's death. (_____) [1]

--Causation: Same issue and result as under common law. (_____) [2] --Mistake of law: Same issue and result as under common law. (_____) [2]

Other Factors (_____) [8] --Organization: Better organized if considered liability of each defendant separately (_____) [1], and if organized response as to each defendant by considering all issues under common law liability first, and then all issues under MPC. (_____) [1] --Overall quality of answer (depth and persuasiveness of argument, clarity of expression, etc.) (_____) [6]

QUESTION II [30 pts.] Total points earned: _______ 1. Endangering Welfare of Children: "child under 18" (_____) [6] Answer: (b) Knowingly, under s. 2.02(4) (_____) [2] Analysis: "Purposely or knowingly" are the only mens rea specified. (_____) [1] "Purposely" can be ignored, because "knowingly" automatically includes all more serious mens rea, including "purposely" (_____) [1] "Knowingly" should then be applied to all of the remaining elements under s. 2.02(4), because it is attached to the main conduct element and the statute could easily be reordered so that it appeared at the start. (_____) [2]

2. Deceptive Business Practices: "exceeds one hundred dollars" (_____) [10] Answer: (c) Knowingly, under s. 2.02(4) (_____) [1] Analysis: Mens rea terms appear at two places in the statute -- "with purpose" and "willfully." (_____) [1] This initially suggests that "recklessly" should apply under s. 2.02(3). (_____) [1] But one of these mens rea terms -- "with purpose" -- is a collateral element(_____) [2], because it is not attached to the main conduct element and the deception intended by the defendant may well occur in the future. (_____) [1] Thus, this mens rea should be "bracketed" and ignored in deciding whether to apply

"willfully" to the other elements of the statute. (_____) [1] Because "willfully" is attached to the main conduct element and the statute could easily be reordered so that it appears at the beginning, it should be applied to the remaining elements under s. 2.02(4). (_____) [2] "Knowingly" is the best answer, though, because "willfully" normally should be interpreted to mean "knowingly" under s. 2.02(8). (_____) [1]

3. Aiding or Soliciting Suicide: "causes such suicide" (_____) [5] Answer: (b) Purposely, under s. 2.02(4) (_____) [2] Analysis: "Purposely" is the only mens rea specified. (_____) [1] It should be applied to all of the remaining elements under s. 2.02(4), because it is attached to the main conduct element and appears at the very beginning of the statute. (_____) [2]

4. Criminal Trespass: "in a dwelling at night" (_____) [9] Answer: (c) Recklessly, under s. 2.02(3) (_____) [2] Analysis: "Knowing[ly]" is the only mens rea specified. (_____) [1] Because it appears at the beginning of the statute, this initially suggests that it should be applied to all of the remaining elements under s. 2.02(4). (_____) [1] But "knowing[ly]" is attached to an attendant circumstance, not the main conduct element, and this indicates that it probably was not intended to apply to the remaining elements. (_____) [2] This leaves recklessly as the mens rea, under s. 2.02(3). (_____) [1]

An argument could be made that "knowingly" should be applied, despite the above analysis, on the theory that it is unlikely that a defendant would "recklessly" enter or remain in a building, etc., while "knowing" that he did not have a license or privilege to do so.(_____) [1] Although this may not be the typical scenario, there are many circumstances in which such a combination of mental states is possible; thus, there probably is not sufficient reason to override the operation of the default rules. (_____) [1]

QUESTION III [40 pts.] Total points earned: _______ [Note: The issues and positions outlined below are only illustrative of the kinds of discussions that would constitute good or acceptable answers to these questions.] I. Theories of punishment (_____) [34]

(a) Retribution(_____) [12] Emotive retribution: This kind of retribution is based mainly on communitarian or utilitarian grounds than liberal or libertarian grounds and is rooted in the need for venting retributive impulses in the community. It is likely that there is less need for emotive retribution in this case, because many members of the community are likely to feel sympathy more than anger for Guy's actions given his background and generally good character, and given the split among the public on the issue of whether assisted suicide should be criminal. But many members of the public may be angered by Guy's actions, and this may support some amount of punishment on emotive retribution grounds. Rational retribution: This kind of retribution is based on liberal or libertarian theories and is the more important of the two kinds of retribution theories. This probably provides a stronger basis for punishing Guy than emotive retribution, but even here there is probably less need for punishment than in most cases. One element of rational retribution emphasizes the defendant's invasion of the rights and interests of the victim; here, though, the victim actively sought Guy's assistance in killing herself. Another element of rational retribution emphasizes the need to punish defendants who exercise their free will in such a way as to cause social harm, as defined by the criminal laws. Guy clearly exercised his free will in this way, and thus deserves some punishment under this theory.

(b) Deterrence(_____) [12] General deterrence: The purpose of general deterrence is to deter other people from committing the kind of act committed by the defendant. This may be the most compelling rationale for punishing Guy, because as long as the Legislature decides that assisted suicide should be deemed a criminal offense, the criminal justice system should seek to prevent people from committing it. Adding to the potential deterrent effect in this case is the fact that the case has generated a great deal of attention in the media and has been widely discussed by the public. Specific deterrence: The purpose of specific deterrence is to prevent this particular defendant from committing further criminal acts. There is arguably little need for specific deterrence in this case because Guy is not likely to commit this, or any other crime, in the future. (c) Rehabilitation(_____) [10] Pragmatic rehabilitation: The goal of this kind of rehabilitation is to condition criminals to conform their behavior to social norms. There is less need of this here than in many cases, arguably, because Guy is not likely to commit this or any other crime again, and because there is less consensus on the underlying social norms with respect to this crime than there is with most other crimes. Paternalistic rehabilitation: The goal of this kind of rehabilitation is to reform the moral character of the criminal, to induce penitence and reclaim the criminal as a person worthy of respect and a place in the law-abiding community. There is arguably less need of this here than in many cases, because Guy was

deeply conflicted about his decision and there is no indication that this crime was committed because of any deep-rooted criminal tendencies in Guy's character.

II. Proposed sentence (_____) [6]

Points granted for proposing a specific term of imprisonment or, if probation is proposed, for explaining what, if any, terms of probation should be imposed. Points granted for justifying the proposed sentence with specific reference to the facts of the case and the theories of punishment outlined in the answer.

QUESTION IV [30 pts.] Total points earned: _______ [The 10 multiple-choice questions comprising Question IV are omitted from the published version of this exam.]