Powered by TypePad

Wednesday, September 21, 2016

"Acceptance: The Missing Mental State"

The title of this post is the title of now-Dean (then-Prof) Alan Michaels' very first major law review article.  You can download the full 105-page(!) manuscript at this link, where you will also find this abstract:

This article identifies a serious shortcoming in the traditional criminal law mental state hierarchy and proposes a new mental state-- called acceptance -- as a solution. Acceptance exists where the actor acts recklessly and, in addition, would have acted even "had he known" that his conduct would "cause the harm."  The article establishes, through close analysis of the wilful blindness and depraved-heart murder doctrines, that use of the mental state of acceptance is both practicable and necessary.

When liability lines are drawn at the level of knowledge, the criminal law has rarely been satisfied to restrict liability to actual knowledge, but instead has relied on ambiguously defined crimes (such as depraved-heart murder) or has stretched the definition of knowledge (for example, through the wilful blindness doctrine) to push reckless conduct across the liability line to the knowledge side. These "solutions" have failed.  When contemporary criminal law draws a significant liability line between knowledge and recklessness, doctrine governing cases near the margin is both particularly vague and distinctly lacking in consensus in comparison to most areas of the criminal law.

The article proposes that where the law requires knowledge, acceptance should be allowed to suffice. After justifying such an approach from both retributive and utilitarian perspectives, the article establishes, by examining the willful blindness and depraved-heart murder doctrines, that using acceptance would yield a better fit between criminal law and culpability concepts and would substantially diminish vagueness problems.  The need for acceptance is also demonstrated in briefer examinations of three other criminal law areas: "knowledge of the law," attempt and battery.  In support of the practicability of acceptance as a measure of culpability, the article also surveys the criminal law's use of hypothetical questions to determine culpability in several other areas.  These include the doctrines of recklessness, entrapment, and the German concept of bedingter vorsatz.

September 21, 2016 in Recommended scholarship | Permalink | Comments (1)

Sunday, September 18, 2016

Making sure you fully understand what the US Constitution, the MPC and the ORC have to say about "strict criminal liability"

As I mentioned in class on Friday, your understanding of lots of future discussions over all sorts of mens rea issues the rest of the semester will be greatly enhanced if you appreciate all the theoretical and practical nuances of the the debate we had over my idea of using strict criminal liability to deal with the serious harms of car accidents on wet roads.  I will review those nuances briefly on Monday, and you should already have a feel for how these nuances found expression in the Dillard case and how they inform the classic old case of Faulkner.  

Of greatest importance as we move this week from Berman hypotheticals to real laws, you should appreciate that our debate over my "crashing in the rain" proposal was fundamentally a debate about why, when, whether and how a legislature might be eager to impose "strict criminal liability" -- that is, why and when lawmakers might what to subject some persons to criminal liability for certain risky conduct or harmful results regardless of whether they meant to (or knew or even could reasonably foresee) that they were involved in risky conduct or might cause harmful results.  But as Dillard highlighted, the issues of strict criminal liability arise in court only after a legislature has passed a statute and then a case arises in which the facts make it important to figure out if and how a legislature actually intended to write a statute that does in fact impose "strict criminal liability."

As the title of this post indicates, the Supreme Court cases mentioned in the text, as well as key provisions of the Model Penal Code and the Ohio Revised Code, provided some critical "rules of interpretation" for helping to resolve if/when a statute should be understood to impose "strict criminal liability."  I hope you have already figured this out, and this is what I will try to make sure everyone understands before we get into Faulkner and Handout #2 (which we will certainly get to no later than Wednesday).

September 18, 2016 in Advice, Class reflections, Course materials and schedule | Permalink | Comments (0)

Wednesday, September 14, 2016

Working draft of bill for new ORC provision to criminalize "Crashing while driving in rain"

In order to facilitate further discussion by students/legislators concerning the bill I have proposed in the hope of reducing the harms that too often result from driving in the rain or on wet roads, I have now formally drafted/revised this bill language:

PROPOSED ORC Section 2999.99: Criminal Damaging While Driving in the Rain or on Obviously Wet Neighborhood and Express Roads
(A) No person shall cause any physical harm to any other person or to the property of another person while driving in the rain or while the road are obviously wet.
(B) Whoever violates this section is guilty of criminal damaging while DROWNER, a misdemeanor of the second degree.  If a violation harms property valued in excess of $5000, this offense is a misdemeanor of the first degree.  If a violation harms a person or property valued in excess of $50,000, this offense is a felony of the third degree.  If a violation causes serious harm to multiple persons or the death of any person, this offense is a felony of the second degree.

For further support for this proposal, consider these excerpts from a Science Daily publication from 2008 headlined "Bad Weather: Bad Drivers":

Researchers and statisticians found that 24% of all crashes occur during adverse weather conditions, including ice, snow, and rain.  The research showed that most drivers do not account for adverse conditions created by rainy weather.  They suggest slowing down and increasing the distance between traveling cars as a way to decrease the number of accidents in bad weather.

Each year, nearly 7,400 people are killed and over 670,000 are injured in crashes.  But not all wrecks are because of driver error.....  Rainy weather can wreak havoc on highways.  When a big storm rolls in, drivers tend to either slow down too much or not enough.  Drivers need to be wary of driving in any change in the weather.  A new study by transportation engineers reveals that nearly one-quarter of all crashes occur in bad weather conditions.  Most happen on wet pavement....

Unlike snow and ice covered roads that scare drivers into staying home or driving more carefully.  Many drivers don't consider rain as 'bad' weather, so more cars end up on wet roads, and drivers don't slow down enough to avoid serious accidents.

For more research on this front (which further supports the need to do whatever is necessary to try to make our roads safer during inclement whether in order to save more innocent lives), check out this related story headlined "Rain Is More Lethal For Drivers After A Long Dry Spell."  Here is its key fact based on a review of many years of roadway accident data:  "For any given day in the state, on average, each centimeter of precipitation increases the risk of fatal crashes by about 1 percent, [and] for nonfatal crashes, the increased risk is 11 percent."

September 14, 2016 in Class reflections | Permalink | Comments (9)

Friday, September 9, 2016

Gearing up for classes the week of Sept 12 (and thereafter)

I am writing this post on a plane over the Atlantic, and I am already getting excited about getting back to our conversations about the basics of substantive criminal law.  (For the record, Scotland was an amazing experience AND among the souvenirs I am bringing home is a kilt.  If asked by enough students in the comments, I will wear it to class one day.)

I expect that our first class back together, on Monday Sept 12, will have us wrapping up criminal law's so-called "act requirement" (i.e., actus reus), giving particular attention to the Martin and Grant cases.  I look forward to asking you all a bunch of really hard questions about what purpose the "voluntariness" component of the act requirement serves.

We will thereafter start a multi-week discussion of criminal law's so-called "mental state requirement" (i.e., mens rea or culpability), and will begin exploring whether we really have to always require, and/or really should always require, a defendant to have a "bad mental state" before subjecting him to criminal responsibility.  And discussion of that issue starts with my all-time-favorite class hypothetical (which I call the "driving in the rain" hypo).  For those eager to get a running start on thinking about this hypo, you can (but need not feel any obligation to) check out these posts from prior years' classes:

September 9, 2016 in Course materials and schedule | Permalink | Comments (5)

Wednesday, September 7, 2016

Another interesting real (local) case to consider in light of punishment theories

Even while on the road I have followed and been impressed by recent discussions regarding the AP article about charging drug dealers with homicide for overdose deaths.  And, based on this reporting of a notable sentencing outcome emerging this week from a court just down the road from Moritz, I wonder if folks might refect on what punishment theories were in play.  Here are lengthy excerpts from the story, which is headlined "Driver gets 13 years in prison for 2014 crash that killed two Downtown":

Terrance Trent wept and whimpered, clutching a tissue to his face in a Franklin County courtroom, as he listened to anguished statements about what was lost when his reckless driving caused a crash that killed two pedestrians at a Downtown intersection.

He continued weeping during the Tuesday hearing as he told the families of the dead that he was "so sorry" about what happened to Stephanie Fibelkorn, 21, and Bill Lewis, 58. "I've tried to understand what you're going through, I really have," he said. Looking upward with his hands seemingly clenched in prayer, he wailed, "If I could die right now to bring them back, I'd gladly do it."

Common Pleas Judge David Young said he saw no genuine remorse from Trent, who was convicted last month of two counts of aggravated vehicular homicide for the deaths and two counts of vehicular assault for injuring two others in the crash on Dec. 12, 2014. Young imposed the maximum sentence of 13 years in prison — five years for each death and 18 months for each of the injured — and suspended Trent's driver's license for life.

Fibelkorn's father was thankful for the maximum sentence and unmoved by Trent's tears. "I was disheartened to see Mr. Trent crying today," Stephen Fibelkorn said after the hearing. "I find that he cries for himself and no one else. I don’t believe there’s been an ounce of remorse shown, other than for his own situation."

Trent, 63, was speeding west on East Broad Street in a pickup truck with a flat tire, running red lights and weaving through traffic, finally slamming the truck into a school bus at the busy intersection with High Street. The impact knocked the bus over the curb, killing the pedestrians and injuring the bus driver and the passenger in Trent's truck. Trent testified during his trial that the passenger, his girlfriend, was to blame because she was striking him with a full can of soda as he drove, causing him to go into "panic mode" and not realize what he was doing.

Lewis was the chief mobility engineer for the city of Columbus, working to keep streets safe for drivers and pedestrians. Stephanie Fibelkorn was an Ohio State University engineering student working as an intern in his office. She dreamed of one day working as a Disney "imagineer," designing attractions for the company's amusement parks. The two were walking to a morning meeting when they were struck. She died at the scene, and he died two weeks later at OhioHealth Grant Medical Center.

Fibelkorn's parents told the judge that they have sold their Downtown home to escape the continual reminders of the crash. Mr. Fibelkorn called himself "a broken man, unable to contain my emotions."...

Rhonda Lewis spoke about what the loss of her husband, a loving father, meant to her and their two children. She told the judge that Trent deserved a life sentence "for the destruction in our lives."

Defense attorney Steve Dehnart said his client has mental-health issues and that a maximum sentence "would achieve nothing but revenge."

Assistant Prosecutor Dan Cable told the judge that Trent's actions and lack of remorse cried out for the maximum. "Mr. Trent still does not get it," he said.

September 7, 2016 in Notable real cases | Permalink | Comments (13)

Monday, August 29, 2016

Two "extra credit" answers noting provisions of Ohio law similar to the law struck down in Proctor

I am pleased to be able to report that two students have already sent me answer to my in-class question about Ohio criminal statutes structured very similarly to the statute deemed unconstitutional in Proctor:

  1. Ohio Revised Code Section 2923.241 Hidden compartments in vehicles, Sub-section (B): “No person shall knowingly design, build, construct, or fabricate a vehicle with a hidden compartment, or modify or alter any portion of a vehicle in order to create or add a hidden compartment, with the intent to facilitate the unlawful concealment or transportation of a controlled substance.”  (Added student note: This all works on the theory that modifying your car to have a “hidden compartment” and possessing a “hidden compartment” are the same thing. But with my neophyte knowledge of the law and common reasoning I would say they probably are.)

  2. Ohio Revised Code Section 2923.24 Possessing criminal tools, Sub-section (A): “No person shall possess or have under the person's control any substance, device, instrument, or article, with purpose to use it criminally.“

I was thinking/referencing the Ohio possessing criminal tools statute in class, but I am pleased a student also flagged the Ohio hidden compartment crime (which, if you look at the code sections, is really numbered as a kind of subsection/extrapolation on possessing criminal tools).

A few years ago, the Ohio Supreme Court issued a lengthy split opinion in Ohio v. Chappell, 127 Ohio St.3d 376, 2010-Ohio-5991 (December 15, 2010), on the meaning/reach of the term "criminally" in the Ohio possessing criminal tools statute.  (But, for lots of reasons, I think your time this week would likely be better spent re-reading Jones and Martin (or watching Dave Chappelle bits on YouTube) than reading Ohio v. Chappell.)

UPDATE: Another student just sent me another possible addition to the list of Proctor-like laws in Ohio:

Ohio Revised Code Section 2925.041 Sub-section (A):  "No person shall knowingly assemble or possess one or more chemicals that may be used to manufacture a controlled substance in schedule I or II with the intent to manufacture a controlled substance in schedule I or II in violation of section 2925.04 of the Revised Code."  (Added student note:  Thus, this statute is making it illegal to possess a chemical that otherwise would be legal to possess when the possession is coupled with the intent to use the chemical in the making of a controlled substance. This appears to be a nearly identical situation as was presented in Proctor. Then, right before prohibition when alcohol was viewed as extremely problematic, this coupling line of reason was used to aid the prevention of speakeasies. Today, ORC 2925.041 is using the coupling line of reason is being used to aid in the prevention of the manufacturing of what we consider problematic, drugs. Let me know if this was the answer you were looking for.)

August 29, 2016 in Class reflections, Course materials and schedule, Notable real cases, Reflections on class readings | Permalink | Comments (1)

Sunday, August 28, 2016

Some background on drug dealers being criminally responsible for causing overdose deaths (and its possible theoretical justification)

Friday's in-class discussion and debate over the sentecing of (very fictional) Oliwood drug dealer Dan Schayes raised the interesting and controversial (very real) issue of whether persons involved in drug dealing can and should be held criminally liable for the death of a customer.  As the prosecution in the Schayes case noted, federal criminal law already speaks to this issue through a provision in 21 U.S.C. §841(b)(1)(C): it states that a convicted drug dealer involved with serious drug substances generally  "shall be sentenced to a term of imprisonment of not more than 20 years," but that such a drug dealer, "if death or serious bodily injury results from the use of such substance, shall be sentenced to a term of imprisonment of not less than twenty years or more than life."

Toward the end of September, we will looking at the basic substantive criminal law rules that generally apply for determining when and how a defendant can be held responsible for causing a result, and a few years ago this issue in federal law dealing with overdose deaths made it all the way up the US Supreme Court in the case of Burrage v. United States.  I would urge you all NOT to read the Burrage case closely (or at all) at least until we get to our causation discussions in class (though, at that time, you will be able to earn more extra credit for engaging with the Burrage SCOTUS ruling).

On the topic of earning credit, I am now pretty sure I have figured out how to get the comment section of this blog open, and that means every class member can earn some credit ASAP by using the comments here to share thoughts on what theory or theories of punishment might support holding drug dealers criminally liable for the deaths of their customers.  Notably, just a few weeks ago this lengthy and interesting AP article, headlined "Prosecution trend: After fatal OD, dealer charged with death," discussed this kind of criminal action as a growing trend.  And I stirred up some interesting commentary on the trend with this post about that AP article on my main blog titled "Should I be more troubled by drug dealers facing homicide charges after customers' overdose death?"

August 28, 2016 in Class reflections, Current Affairs, Notable real cases | Permalink | Comments (11)

Wednesday, August 24, 2016

Lawyers signed up for Friday afternoon's role-play

I am so please to have already heard from many of you as volunteers for our sentencing role-play planned for Friday afternoon.  Here is the current run-down:

Oliwood v. Rachel Foster

Prosecutors:  Emily Cashell & Sophie Daroff

Defense Attorneys: Ali Najaf & Alex Szaruga


Oliwood v. Dan Schayes

Prosecutors: Miki Someya & Kaiqin Huang

Defense Attorneys: Joe Barton & Matt Brinzo

For these lawyers, it is useful to try to be a bit cued into your respective roles: Prosecutors do not represent any individual party, but the state as a whole, and they thus tend to embrace the obligation to argue for whatever sentence they believe will be just and effective as a punishment. Defense attorneys, in contrast, have an individual client, and their role is typically understood to require them to seek and advocate for the most lenient/defendant-friendly sentence as seems possible under the circumstances.

The rest of you, as I mentioned in class, get to serve as sentencing judges.  Available below is a form all judges should use for sentencing.  There is no need (or place) to put a name on the form, but I will collect them after our sentencing hearings in class on Friday.   As you will see when you download the form, judges are encouraged to develop tentative ideas about what sentence they might impose before coming to class to hear the advocates' presentations.   By doing so, you all can get a better sense for whether and how advocacy can have an impact in this kind of setting.

Download 2016 judges sentencing form 

August 24, 2016 in Course materials and schedule | Permalink | Comments (0)

Tuesday, August 23, 2016

Electronic copies of Handout #1 and materials for Friday afternoon's sentencing role-play

Available below for downloading are:

(1) Handout #1 (Excerpts of Remarks by President Obama at the July 2015 NAACP Conference), and

(2) Materials for our Friday afternoon sentencing role play (PreSentencing Reports (PSRs) for Rachel Foster and Dan Schayes). 

These materials will also be available in hard-copy in class on Wednesday.  In the meantime, think hard about whether you would like to volunteer to serve as a prosecutor or defense attorney in our afternoon role play (earning a free drink and immunity from being called upon in class for most of September).  As will be explained in class on Wednesday, those not serving in a lawyer-advocacy role will serve as judges in the role play.

As I will explain in class, for purposes of our sentencing role-play exercise, both the lawyers and judges of Oliwood should assume that the great state of Oliwood has adopted the first two subsections of US Code, Title 18, Section 3553(a) as a guide for sentencing advocacy and sentencing decision-making by Oliwood judges.   (In other words, lawyers and judges should focus on the substantive provisions of 3553(a)(1) and 3553(a)(2), but should not worry about the subsequent sections of 3553(a).)

Download Prez NAACP speech

Download 2016-role-play-psrs

August 23, 2016 in Course materials and schedule | Permalink | Comments (0)

Thursday, August 18, 2016

First day assignment and electronic copies of the course description and class syllabus

I have posted on the Moritz official website our first-day assignment, but I figured it would be useful to repost the details here, while also providing electronic copies of the basic course documents.  So....

In preparation for our first class on Monday, August 22, you should:

1. Obtain a copy of Kaplan, Weisberg and Binder, Criminal Law (7th ed. 2012)

2. Obtain a copy of the course description and the course syllabus (part 1), which are available in boxes outside my office (Room 313) and below.

3.  Read the casebook's Introduction quickly and pages 21-27, 31-34, and 573-79 closely. Because the next set of readings provide theoretical background, can be read quickly, and should enhance your appreciation of our initial discussions, I encourage you also to SKIM pages 34‑77 in the text as soon as possible.

Download 2016 Course description

Download 2016 Criminal Law Syllabus (Part 1)


August 18, 2016 in Course materials and schedule | Permalink | Comments (0)

Wednesday, August 10, 2016

Welcome to the Moritz College of Law, Criminal Law with Berman, and version 6.0 of this class blog

As some of you may already know, I am a big fan of law blogs and I make a regular habit of using blogs to support and supplement my instruction in law school classes.  Sometimes class blogs serve my purposes and goals well; other times, not so much.  Undaunted, I remain convinced (but not entirely confident) that the blog technology (rather than a propriety law-school-support technology like TWEN) provides the best on-line tool for supporting and supplement law school courses.

I will continue my bloggy ways in the Fall 2016 semester at the Moritz College of Law through this blog to supplement our first-semester 1L small-section Criminal Law course.  And, as the version 6.0 label highlights, I have built this "new" blog directly atop the blog I used when teaching this very same course four times before (in Fall 2008, 2010, 2013 and 2014) and when teaching a Comparative Criminal Procedure course (in Summer 2012).  

I am hopeful that some new 1Ls will benefit from (or at least find reassuring) seeing some of the posts (and comments) that were generated in this forum at other times.   Current users might focus especially on the archives from Aug-Dec 2013 and Aug-Dec 2014 to see some of the "action" in this class from the last two times I taught it.  

So, welcome to the latest re-launch of this 1L Crim Law blogging adventure. I am always pleased when this blog helps to promote a distinct type of student engagement, and it will certainly provides the means for me to share required and optional materials and ideas.


P.S.:  To provide proof that mining the blog archives can be useful, here are some items from deep in this blog's archives you might already find interesting or useful.  For example, two prior posts and the student comments thereto (one from Aug 2008 and the other from Aug 2010) might be worthwhile as you gear up for our first week of class discussions:

In addition, in the archives from 2008, one can find these links to another of my favorite law blogs providing lots and lots of (old but still timely) advice for incoming 1Ls:












August 10, 2016 in About this blog | Permalink | Comments (0)

Thursday, December 11, 2014

Reminder: Review session today (Thursday 12/11) ...

starting around 10:45am in our room and running until attendees run out of questions (or until I need to head to airport around 1pm)....

December 11, 2014 in Course materials and schedule | Permalink | Comments (1) | TrackBack (0)

Tuesday, December 9, 2014

Extra credit accounting update (and final deadline for first three EC opportunities)

As of early afternoon on Tuesday, December 9, 2014, my records reflect that I have received all of the first three extra credit submissions from 19 of 28 students in the class.  In addition, I have received two EC submissions from six other students, one EC submission from two students and one student has submitted no EC.

For various reasons, I am going to now provide that I must receive any final EC submissions for the class-related assignments — that is, the first three assignments on (1) two past SCOTUS causation cases, (2) Ohio defense cases and (3) Elonis briefing and arguments — no later than the end of the day this Friday (Dec. 12, 2014).  For the record, I am happy to and probably even would prefer getting the final EC submission — about how to improve legal education and your ideal summer job — only after exams have been finished for the season.

December 9, 2014 in Course materials and schedule, Notable real cases, Research assignment | Permalink | Comments (0) | TrackBack (0)

Thursday, December 4, 2014

Review session plans for Thursday (12/11) and Saturday (12/13)

As mentioned in class, I will plan to conduct (entirely optional) review sessions in the days leading up to our exam.  Specifically, I plan to be at the law school and will head to our usual room to answer questions for as long as possible/needed on:

On Thursday, I will have to leave by around 12:45pm to catch a flight, and on Saturday I will have to leave by around 4:30pm to pick up my daughter from a rehearsal.  But, save for those restrictions, my time is yours for any and all types of review students request.

December 4, 2014 in Course materials and schedule, Preparing for the final | Permalink | Comments (0) | TrackBack (0)

Monday, December 1, 2014

"Crazy or Faking It? The impending execution of Scott Panetti and the search for a standard of sanity."

The title of this post is the headline of this effective new piece from The Marshall Project which highlights some of the mental health issues we have discussed in recent classes with a special focus on a controversial execution scheduled to take place in Texas later this week.

December 1, 2014 in Current Affairs, Notable real cases | Permalink | Comments (1) | TrackBack (0)

Sunday, November 30, 2014

My accounting of extra credit efforts submitted as of end of November

Over the break I reviewed my electronic records to account for all the extra credit (EC) efforts submitted to date (based on three eligible EC opportunities).  Here, listed by last name and number of EC submissions, is what my accounting shows:

Al-Akhras (1)
Borgert (1)
Bullock (1)
Carnes (2)
Cline (3)
Dewey (2)
Gesiotto (2)
Jama (2)
Lee (2)
Lelli (2)
Manion (3)
Mayer (3)
Ostrander (2)
Pedicelli (3)
Ransey (2)
Riley (2)
Santiago (2)
Scott (2)
Trivunic (2)
Troyer (2)
White (2)
Woods (2)
Workman (2)
Yaptangco, Robert (2)

If your records show a different number of EC submissions, let me know ASAP.

November 30, 2014 in Course materials and schedule, Research assignment | Permalink | Comments (0) | TrackBack (0)

Thursday, November 27, 2014

Links to a bunch of my old exams

As I have suggested to various folks at various times, reviewing my old exams is an effective and important way to prepare for my final. To help toward that end, here I will now post links to prior posts where you can download many of my old exams:

After you all get a chance to look through all (lucky?) seven of these prior exams, I may post a few more.

November 27, 2014 in Preparing for the final | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 26, 2014

Some effective overview/previews of SCOTUS case Elonis v. United States

I hope everyone has/had a great holiday break and that perhaps a few folks are interested in reading up more about the interesting Supreme Court criminal case to be argued next week. As students should recall, I briefly discussed Elonis v. United States in class, and the last extra credit opportunity involves discussing critically one of the many amicus briefs submitted in the case.

Not surprisingly, the upcoming oral argument is generating discussion about the case, and these two recent media accounts seemed worth noting in this space:

The SCOTUSblog posting provide this helpful summary of the case and its legal basics:

[Anthony] Elonis’s legal troubles date back to 2010, when his wife left him, taking their two young children with her.  He began to post lyrics from popular songs on Facebook, and he soon moved on to post his own, sometimes violent, rap lyrics.  As part of his posts, Elonis included disclaimers about how his lyrics were merely fictitious, and that he was just “exercising his constitutional right to freedom of speech.”  He also sometimes included links to the Wikipedia entry on the First Amendment and even the text of the First Amendment itself.

In the fall of 2010, Elonis’s Facebook posts included several that discussed harming his ex-wife.  One post was a take-off on a comedy routine available on YouTube: Elonis asked his Facebook friends whether they knew that it was illegal for him to say that he wanted to kill his ex-wife, and he added that it would be “incredibly illegal” to suggest that someone could kill his ex-wife by firing a mortar launcher from the cornfield behind her house. A day later, Elonis put up a post about shooting a kindergarten class.

These posts earned Elonis a visit from an FBI agent.  After the visit, he posted about that encounter too, suggesting in rap lyrics that he had strapped a bomb to his body and would have detonated it if he had been arrested.  This post was apparently the last straw for the FBI: a few weeks later, Elonis was arrested and charged with violating 18 U.S.C. § 875(c), which makes it a crime to communicate threats in interstate commerce — for example, over the Internet.

Elonis claimed that the charges against him should be dismissed because you can only violate the law if you intend to harm someone.  And he didn’t have any plans to hurt his ex-wife, the FBI agent, or anyone else: his rap lyrics and “venting” about his problems on Facebook just made him feel better.  But if he can be convicted without any intent to hurt anyone, he added, that would violate the First Amendment.  A federal trial court rejected both of his arguments.  Instead, it instructed the jury, it could find Elonis guilty if the average person, looking at a statement objectively, would believe that it was intended to be a threat.  The jury convicted Elonis, and he was sentenced to nearly four years in prison....

In his briefs at the Supreme Court, Elonis argues that a “threat” by its very nature requires an intent to cause fear.  Because the whole point of a crime, he says, is that the defendant meant to do something wrong, the Court has interpreted criminal laws as requiring a wrongful intent even when they did not explicitly do so.  Making it a crime to threaten someone even if you didn’t intend to hurt them, he contends, would cause people not to speak at all, because they would be worried about whether they could go to jail based on a jury’s possible misinterpretation of their comments.  This is particularly true, he concludes, when you are talking about alleged threats on social media and email, where nuance and tone matter so much and it’s so easy to misconstrue what someone says.

The federal government counters that, as the trial court in this case instructed the jury, courts should determine whether something is a “true threat” by looking at whether an average person would interpret the statement as reflecting a serious intent to harm someone. The government emphasizes that courts and juries can and should look at the context in which the alleged threat was made, and at the reactions of the people who heard the alleged threat, but they should not consider whether the defendant himself actually intended to carry out the threat.  This, the government explains, is because even if Elonis didn’t intend to harm his ex-wife or the FBI agent, they were still afraid and their lives were still disrupted: the First Amendment doesn’t protect him even if he knew that he didn’t mean to carry out the threats.

November 26, 2014 in Notable real cases | Permalink | Comments (1) | TrackBack (0)

Monday, November 24, 2014

Another sad police shooting surely not "justified," but will it get excused in Ohio?

Especially as the news media continues to await a grand jury outcome in Ferguson, this new sad story out of Cleveland of a seemingly mistaken use of defensive force is likely to become the next national story about police use of excessive force.  This New York Times report, headlined "12-Year-Old Boy Dies After Police in Cleveland Shoot Him," provides these basics:

Officials in Cleveland were investigating the police shooting of a 12-year-old boy who died on Sunday, a day after an officer shot him outside a recreation center when he reached for a weapon that turned out to be a fake pistol.

The boy, Tamir E. Rice, died on Sunday at MetroHealth Medical Center in Cleveland, the Cuyahoga County medical examiner’s office said. He was shot in the torso at a park on Saturday after witnesses reported that he was waving a gun around and pointing it at people, the police said.

Two police officers responded to the scene and ordered the boy to raise his hands, the police said, but he refused and reached for a gun in his waistband. An officer fired two shots, striking the boy once, the police said.

In a 911 call released by the police, a man said that “a guy” who appeared to be a juvenile was pointing a pistol at people and scaring them. The caller said twice that the gun was “probably fake.”

“There is a guy with a pistol,” the caller said. “It’s probably fake, but he’s pointing it at everybody.” The police were investigating what information from the call was relayed to the officers, said Jennifer Ciaccia, a police spokeswoman. The Cuyahoga County prosecutor’s office was also investigating the shooting....

The shooting happened about 3:30 p.m. at the Cudell Recreation Center on the city’s west side, the police said.  Deputy Chief Ed Tomba of the Cleveland police said on Saturday that the boy had not threatened the officers or pointed the weapon at them.

The police learned that the gun was fake after the shooting, Ms. Ciaccia said.  The weapon was an “airsoft” replica gun resembling a semiautomatic pistol, with the orange safety tip removed, the police said.  “It looks really, really real, and it’s huge,” Ms. Ciaccia said

November 24, 2014 in Notable real cases | Permalink | Comments (2) | TrackBack (0)

I can do exam reviews Monday (11//24) starting at 12noon....

if anyone without a scheduled time already wants to try to fit in a quick meeting during the lunch hour.

As I noted in the previous post, it seems that these meetings only take about 15-20 minutes, so I could probably fit in three or four meetings during the lunch hour before class and maybe can get twice as many after class today.

If you are interested in a lunch-hour exam review meeting today, please say so in the comments AND indicate the time you expect to come by.

November 24, 2014 in Course materials and schedule | Permalink | Comments (2) | TrackBack (0)

Wednesday, November 19, 2014

Materials and times for midterm review

As long promised and now finally delivered, here are available for download both the Crim Law 2014 midterm and the grading grid I used when reviewing/scoring answers:

Download Berman full mid-term for 2014 crim law

Download Basic 2014 mid-term exam scoresheet

Also, I will be available to review student performances one-on-one at the following times throughout this week and next week:

Wednesday 11/19: From 4:30pm to 6:00pm

Thursday 11/20: From 4:00pm to 5:30pm

Friday 11/21: From 3:00pm to 5:30pm

Monday 11/24: From 3:00pm to 5:30pm



11/19:  Still open

11/20:  Valerie J at 4pm, Holly C at 4:30; Neil S at 5

11/21:  Sasa T at 3pm;  Robert Y at 3:30; Devin S at 4; Abi W at 4:30

11/24:  Madison T at 3pm; Madison G at 3:30

I can/will make more review times available as needed and able...



If those with scheduled times can send me their exam numbers AHEAD of the meeting time so I can prepare for the meeting, I ought to be able to complete most review meetings in 15 minutes.  So those eager to still get fit but not yet on the schedule might usefully send me their exam number AND hang around during meeting times to get in the mix.

November 19, 2014 in Course materials and schedule, Preparing for the final | Permalink | Comments (17) | TrackBack (0)

Monday, November 10, 2014

Would you consider it lewd for a man to...

"make a 'V' with his finger, rub it with his pointer finger and lick the top of his finger ... [and also touch] a Barbie doll between the legs"?  I ask because these are the facts of a crimina case discussed in this local article from Pennsylvania.   The story caught my eye because we discussed what lewd might mean as used in one of the proposed campus sexual codes.

November 10, 2014 | Permalink | Comments (3) | TrackBack (0)

Tuesday, November 4, 2014

Mid-term results available for downloading

Everyone running for office or interested in politics will have to wait until late tonight to get "mid-term" election results on Election Day 2014.  But students in Berman's Criminal Law small section can now get the raw score results of the mid-term exam by downloading the document with all the data here:

  Download Berman 2014 Criminal Law Mid

As I mentioned in class, I will set up some times over the next two weeks to go over these results if/when folks want to review specifics of their performance. 


November 4, 2014 in Course materials and schedule | Permalink | Comments (5) | TrackBack (0)

Monday, November 3, 2014

Sexual offense code reform proposals from our drafting subcommittees

At the risk of losing something in translation or formatting (indeed, I fear some of the numbering is messed up), I am going to post here, in the order for in-class presentation, the subcommittee proposals for revising/reforming Oliwood's rape provisions and for a campus sex cod. (I urge everyone to put any needed corrections/clarifications/concerns in the comments AND I suggest each group consider bringing hard-copy versions of their proposals to our legislative session this afternoon to aid full committee review and consideration.)

First Oliwood Rape Reform Drafting Subcommittee (FORR)


Section 213.0. Definitions.  In this Article, unless a different meaning plainly is required:
(1) the definitions given in Section 210.0 apply;
(2) "Sexual contact" includes the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person.
(3) “Consent” means that at the time of the act of sexual contact there are actual words or conduct indicating freely given agreement to have sexual contact.
(4) A person is deemed incapable of consent when he or she is: (i) unconscious; or (ii) asleep; or
(iii) mentally disabled; or (iv) mentally handicapped; or (v) less than than 15 years old

 Section 213.1 Aggravated Rape: A person who commits rape while any of the following circumstances are present is guilty of aggravated rape: 

(a) if it is committed by using force or threat of death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone is caused; or
(b) if death, serious bodily injury, extreme pain or kidnapping is caused to anyone; or
(c) the offender purposefully or knowingly acted without the person’s consent; or
(d) the offender purposefully or knowingly acted without the person’s consent and (i) the offender has substantially impaired the person’s power to appraise or control the person’s conduct by administering or employing, without the person’s knowledge, drugs, intoxicants or other means for the purpose of preventing resistance; or (ii) the person is less than 18 years old; or (iii) the offender has previously been convicted of committing a rape or an aggravated rape in any degree

Violations of § 213.1(a) and § 213.1(c) are considered to be aggravated rape in the second degree. Violation of § 213.1(b) and § 213.1(d) are considered to be aggravated rape in the first degree.

 Section 213.2 Rape. A person who engages in sexual contact with another person without that person’s consent while any of the following circumstances are present is guilty of rape: 

(a) the offender recklessly or negligently acted without the person’s consent
(b)the person was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act  due to the offender’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.

Section 213.3 Provisions Generally Applicable to Article 213.
Mistake as to Age. Whenever in this Article the criminality of conduct depends on a child's being below the age of 15, it is no defense that the actor did not know the child's age, or reasonably believed the child to be older than 15. When criminality depends on the child's being below a critical age other than 15, it is a defense for the actor to prove by a preponderance of the evidence that he reasonably believed the child to be above the critical age.


Second Oliwood Rape Reform Drafting Subcommittee (SORR)

Section 213.0. Definitions
"Sexual conduct" means vaginal intercourse between a male and female; anal intercourse, or oral between persons; and, without privilege to do so, the insertion, however slight, of any part of the body or any object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse. [ORC 2907.01]

Section 213.1. Rape and Related Offenses
(1) Rape. A person who engages in sexual conduct with another person is guilty of rape if:
    (a) that person compels another to submit by force, by threat that would prevent resistance by any person of ordinary resolution, or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or
    (b) the offender has impaired the others ability to appraise or control their conduct by knowingly administering or employing without their knowledge drugs, intoxicants, or other means; or
    (c) the person is unconscious, or suffers from a mental disease or defect rendering them incapable of understanding the nature of the conduct; or
    (d) the person is less than 14 years old and the offender is more than two years older;

(2) Gross Sexual Imposition. A person is guilty of gross sexual imposition if they:
    (a) recklessly engage in sexual conduct with a person who is unaware of the conduct due to intoxication or other means of inhibition not resulting from the offender's conduct; or
    (b) knowingly engage in sexual conduct with another by impersonating the victims significant other or spouse; or
    (c) purposely engage in sexual conduct with another by deception in regards to contraceptive methods
    (d) engage in sexual conduct with another by acting recklessly in regards to their own sexual transmitted diseases

(3) Sentencing
    (a) Any person found guilty of (1)(a)-(d) under Section 213.1. is guilty of a felony in the first degree
    (b) Any person found guilty of (2)(a)-(b) under Section 213.1. is guilty of a felony in the third degree
    (c) Any person found guilty of (2)(c)-(d) under Section 213.1 is guilty of a misdemeanor


First Oliwood Campus Code Drafting Subcommittee (FOCC)


Universities have a fundamental responsibility of educating students. In order to fulfill this responsibility, a safe learning environment must exist, which is threatened by the prevalence of campus sexual offenses. While sexual offenses occur throughout society, there are important distinctions between those that occur on college campuses and those that occur in other contexts.

Currently, campus sexual offenses are very common and very underreported. Studies suggest that college students are an exceptionally vulnerable population. According to data collected from nearly three dozen universities, of students found responsible for sexual assault, only 30% were expelled, 47% were suspended, 17% received educational sanctions, and 13% were placed on probation, sometimes in addition to other punishments. Further, 70% of guilty students are allowed to remain on campus and most are repeat offenders, thus creating a strong concern about incapacitation.

FOCC takes a utilitarian approach to drafting a model campus sexual offense code. Simply put, we have weighed the costs and benefits of imposing a stricter, broader code and trust universities to enforce it responsibly. Educative and retributive theorists may argue that college students are less mature and therefore less culpable, however, we take the position that expulsion, or incapacitation, is necessary for the two worst forms of sexual offenses. That is, universities should be able to eliminate potential threats in order to keep other students safe.

Given the prevalence of sexual violence across college campuses, and recognizing the need for a more effective campus sexual offense policy, the FOCC proposes the following code.


(A) Rape: Any individual is guilty of rape if:
    (i) They compel the victim to submit by force or threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or
    (ii) They subsequently impair the victim’s power to appraise or control their conduct by administering or employing without their knowledge: drugs, intoxicants, or other means for the purpose of preventing their resistance; or
    (iii) The victim is unconscious.
(B) Rape is defined as nonconsensual (i) sexual intercourse; (ii) sexually deviant acts resulting in the penetration of the victim’s orifices.

Punishment. Any individual found to have violated any subsection of this provision beyond a preponderance of the evidence, upon examination by the FOCC Board, shall be expelled from the University at the discretion of the Board’s consideration of the surrounding circumstances of the case.


Any person who has non-consensual sexual contact with another, defined as any intentional sexual touching with any body part or object. Sexual contact is any touching of the sexual or other intimate parts of the person for purpose of arousing or gratifying sexual desire. Assault includes but is not limited to:
Sexual exploitation is defined as taking non-consensual, unjust or abusive sexual advantage of another (i.e. prostituting another student, non-consensual video or audio-taping of sexual activity, knowingly transmitting or exposing another person to a sexually transmitted infection (STI) without the knowledge of the person)
Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other physical or verbal conduct of a sexual nature
Indecent exposure is defined as the exposure of the private or intimate parts of the body in a lewd manner, in public or in private premises, when the accused may be readily observed.

Punishment. An individual who is found to have violated any paragraph of this provision’s subsection (A) beyond a preponderance of the evidence, upon examination by the FOCC Board, shall be prescribed a punishment according to the discretion of the Board. In determination punishment, the Board may consider the circumstances surrounding the incident and are given the discretionary power to assign loss of academic privileges, academic probation, and subsequent scholarship awards as they deem appropriate, unless:
The violator has been previously convicted of violating § II or § III of this code. Conviction of a second offense under this University’s Code on Sexual Related Offenses results in automatic expulsion from the University.


“Consent” is defined as the voluntary act of knowingly and affirmatively verbally or non-verbally agreeing to engage in a sexual activity.
(A) Consent to one form of sexual activity does not imply consent to other or all forms of sexual activity.
(B) Prior sexual activity or relationship does not, in and of itself, constitute consent.
(C) Consent may be withdrawn at any time.
(D) An individual cannot consent when the person is:
    (1) Substantially impaired by any drug or intoxicant
    (2) Has been compelled by force, threat of force, coercion, or deception
    (3) Unaware that the act is being committed
    (4) Physically or mentally disabled



Second Oliwood Campus Code Drafting Subcommittee (SOCC)

§ 1 Gross Sexual Misconduct

(A) Any person who does any of the following, either purposely, knowingly, or recklessly has committed an act of Gross Sexual Misconduct:
    (1) Any non-consensual intercourse (defined as penetration; anal or vaginal) however slight, by force or threat of imminent force, in the absence of clear, knowing, and voluntary consent,
    (2) Any non-consensual oral sex, however slight, by force or threat of imminent force, in the absence of clear, knowing, and voluntary consent,
    (3) Participation in non-consensual act in any substantial way.  Substantial participation includes but is not limited to: (a) aiding in the misconduct by luring a victim, (b) helping to plan the assault,(c) spiking his or her drink, and (d) taking and promulgating pictures or videos of the act.

    (4) Binding of the victim so that they are bound or confined without his or her consent, even if the non-consensual sexual act is not sexual intercourse or oral sex.

    (5) Attempting to have non-consensual intercourse when the offender is aware that the victim has ingested any date rape drug (including but not limited to ketamine, rohypnol, rufilin), or is incapacitated to the point of inability to consent. If the victim is under the influence of alcohol and his or her physical condition is that of or near unconsciousness, consent cannot be obtained.

(B) Victim must expressly object to the sexual activity, unless he or she reasonably anticipates that her objection will result in further danger.

Punishment Procedure for Violation of § 1(A):
If a student has been accused of gross sexual misconduct, he or she will be sent written notice, and required to attend a hearing by the Student Code of Conduct Review Board.

The Board will be comprised of representatives from the Student Body, Faculty, and Administration.

The Board will consider all of the evidence and testimony from both parties.

If the Board finds beyond a reasonable doubt that gross sexual misconduct has in fact occurred, immediate expulsion of the violating party will be ordered, and the case will then be referred to the police for further investigation.

In the event that the two parties have direct conflicting testimony, and the evidence weighs in the favor of the plaintiff, the accused will face suspension for 1 year, and the case will be referred to the police for further investigation.

If it has come to the Board's attention that false accusations have been made, the accuser will be expelled.

Lesser offenses are subject to lesser penalties according to severity

November 3, 2014 in Course materials and schedule | Permalink | Comments (1) | TrackBack (0)

Saturday, November 1, 2014

Results of Friday afternoon's survey....

can be found in the document for downloading below.  Perhaps it will help some of the drafting committees with their work this weekend.

Download 2014 sex offense survey results 

November 1, 2014 in Class reflections, Course materials and schedule | Permalink | Comments (1) | TrackBack (0)