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December 05, 2017

Current plans for review sessions

As I have mentioned in class, my "scheduled" review sessions are designed to provide a designated time and place for students to gather in order to ask me questions about course materials, doctrines or past exams (many of which can be found at links here and here).

As of this writing, I am still committed to scheduled reviews session on:

December 5, 2017 in Course materials and schedule, Preparing for the final | Permalink | Comments (0)

November 13, 2017

Attempt actus reus hypo for consideration and reflection

Though we will start our review of attempt law by unpacking the required mens rea for attempt liability, the most challenging and controversial issues surrounding attempt throughout history has concerned the required actus reus for the crime.  To facilitate our discussion of the actus reus of attempt liability, below is a list of hypothetical actions by a hypothetical troubled young man to get you thinking about where a line should be drawn between "mere preparation" and attempt liability:

Joe McAngry of Columbus truly believes modern technology is the root of much evil in the world, and he often tells his friends that the whole world would be better off without the likes of Apple and Google and Microsoft and their leaders. After watching a documentary about the Oklahoma City bombing and the Unibomber, Joe McAngry does the following:

1. E-mails friend saying he wished Tim Cook was dead and Apple and Google and Microsoft were bankrupt

2. Posts blog comment that he would love to see Apple and Google and Microsoft headquarters blown up

3. Does internet research on location of Apple headquarters in Cupertino, California

4. Does internet research about how often and when Tim Cook goes to his Apple office

5. Does internet research on homemade explosives

6. Rents hotel room for two nights in San Jose, California

7. Rents Ryder truck for driving to San Jose, California

8. Drives rented truck to San Jose, California, checks into hotel, sleeps

9. Drives in morning to Cupertino and drives around the Apple headquarters repeatedly

10. Parks near Apple headquarters, walks around asking employees when Cook is there

11. Returns to hotel room in San Jose, California, does more internet research on bomb-making, sleeps

12. In morning, buys fertilizer/gas/timer and other ingredients for making primitive bomb at hardware store

13. Drives again to Cupertino, now with bomb ingredients in truck

14. Parks in strategic location near Apple headquarters

15. Starts building homemade bomb insider rental truck

16. Waits, watches for Cook to arrive at work

17. Drives past security guard following Cook's car

18. Parks truck right next to Cook's car as he pulls into spot

19. Jumps out of truck with remote bomb trigger in hand

20. Runs away planning to push trigger after hiding behind stone wall

 

LIABILITY QUESTIONS

When SHOULD Joe McAngry be deemed guilty of attempted murder?

-- When could he be deemed guilty at common law?

-- When could he be deemed guilty under the MPC?

 

POLICING QUESTIONS

When do you want police to intervene?

When do you think the police legally can intervene?

When do you think the police will intervene?

November 13, 2017 in Course materials and schedule | Permalink | Comments (0)

November 04, 2017

For those interesting in learning more about Thomas Dudley and his travails....

9780521188517check out this Wikipedia page on the Dudley and Stephens case and some of the links therein.  That page provides this accounting of the activities that led to a criminal prosecution:

Drawing lots in order to choose a sacrificial victim who would die to feed the others was possibly first discussed on 16 or 17 July, and debate seems to have intensified on 21 July but without resolution.  On 23 or 24 July, with Parker probably in a coma, Dudley told the others that it was better that one of them die so that the others survive and that they should draw lots.  Brooks refused. That night, Dudley again raised the matter with Stephens pointing out that Parker was probably dying and that he and Stephens had wives and families.  They agreed to leave the matter until the morning.

The following day, with no prospect of rescue in sight, Dudley and Stephens silently signalled to each other that Parker would be killed.  Killing Parker before his natural death would better preserve his blood to drink.  Brooks, who had not been party to the earlier discussion, claimed to have signalled neither assent nor protest.  Dudley always insisted that Brooks had assented.  Dudley said a prayer and, with Stephens standing by to hold the youth's legs if he struggled, pushed his penknife into Parker's jugular vein, killing him.

In some of the varying and confused later accounts of the killing, Parker murmured, "What me?" as he was slain.  The three fed on Parker's body, with Dudley and Brooks consuming the most and Stephens very little.  The crew even finally managed to catch some rainwater.  Dudley later described the scene, "I can assure you I shall never forget the sight of my two unfortunate companions over that ghastly meal we all was like mad wolfs who should get the most and for men fathers of children to commit such a deed we could not have our right reason."  The crew sighted a sail on 29 July.

And if you really want to dig deep and get and even more thorough understanding of the context of the crime and the prosecution, check out Chapter 2 of this book, wonderfully titled "Is Eating People Wrong?".  Here is one of many notable passages to be found therein describing Captain Dudley's background and hiring:

Captain Tom Dudley ... was short of stature with reddish hair and beard.  A self-made man of thirty, he had earned himself quite a reputation as a dependable and intrepid mariner; he brought distinction to his home port of Tollesbury in Essex, on the southeast coast of England at the mouth of the river Blackwater.  He was a religious man, ran a tight ship, and insisted that his crew remain dry.  His wife, Philippa, was a local schoolteacher, and Tom was always on the lookout for ways to improve his financial condition for the benefit of his wife and three children.  Although he did not relish being away from his family for such a long time, the trip to Australia offered substantial remuneration and a chance to check out possible business opportunities on that burgeoning continent.  He seemed an ideal choice as captain for Want and the Mignonette’s sixteen-thousand-mile, 120-day voyage.

[ Australian lawyer John Henry] Want engaged Dudley on a generous contract.  For £100 on signing up and a further £100 on delivery of the Mignonette to Sydney, Dudley was to hire and pay a crew, provide all provisions on the trip, and keep her in good repair.  It seemed a wonderful deal and one that would leave Dudley with a handsome profit. However, he had problems securing the crew he required.  The boat was considered light and small for such an arduous trip through some of the world’s most treacherous waters, especially around the Cape of Good Hope. After some initial failures, he recruited a three-man crew of Edwin “Ed” Stephens (as mate), Edmund “Ned” Brooks (as able seaman), and Richard “Dick” Parker (as cabin boy).

The sailing was delayed for a few weeks because the Mignonette was in far from shipshape condition.  Although many timbers were rotten and needed replacing, the parsimonious Dudley opted to make only minimal and makedo repairs.  After extended and agitated negotiations with the Board of Trade over acquiring the necessary documents to certify the ship’s seaworthiness, the Mignonette and her crew were finally cleared to leave (or, at least, not prevented from leaving).  Like most seamen, Dudley was of a superstitious temperament.  Although he was ready to sail on a Friday, he chose to wait until the following, less ill-starred Monday.  Consequently, the ship set sail for Australia from Southampton on May 19, 1884.

November 4, 2017 in Course materials and schedule | Permalink | Comments (0)

November 02, 2017

Sage words on prosecutorial discretion and the right to counsel from the Deputy Attorney General

Back when we were preparing for the Joe Shooter role play, I mentioned a speech by Deputy Attorney General Rod Rosenstein discussing prosecutorial discretion, but I failed to here provide a link to the text.  I am now finally remedying this failing by linking here to the speech and quoting this snippet from it:

The ideal prosecutor is dogged, but not an automaton who proceeds at all costs.  Nor is the ideal prosecutor a zealot who demands criminal punishment for every arguable violation of the law.

Robert Jackson, another of our nation’s great Attorneys General, observed: “If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate.”  Driving the point home, Jackson explained that “no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning.”

With an ever-growing criminal code, those observations are more accurate today than when Jackson made them in 1940.  Jackson’s point was simple.  Violations of the law abound.  “What every prosecutor is practically required to do,” he said, “is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.”  As Jackson recognized, the prosecutor necessarily chooses which cases to pursue.

The ability to choose which cases to prosecute is an extraordinary power.  Courts exercise the ultimate authority to rule on the strength of the evidence and the meaning of the law.  But the decision whether or not to prosecute, as the Supreme Court has ruled, is “ill-suited to judicial review.”  Such unreviewable power calls for the exercise of judgment, and the wise use of discretion.

When asked, “Why did you prosecute that case?” it will not do for the prosecutor to respond with, “Because I can,” or “Because I must.”  The only right answer is, “Because I should.”

Of course, our next role play does not engage the issues that surround prosecutorial decision-making and discretion, but rather defense representation.  Conveniently, just today, Deputy Attorney General Rod Rosenstein gave this new speech on the topic of the right to counsel. Here is an excerpt that might help inspire those soon to play the role of defending Thomas Dudley:

The right to counsel is enshrined in our Constitution for a reason. The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to . . . have the assistance of counsel for his defense.”

Our Founders understood the necessity of protecting individual liberty from government overreach.  And no clearer overreach exists than the power to take someone’s liberty without due process of law.

Protecting the right to counsel is a fundamental component of preserving the rule of law and ensuring equal access to justice....

Defense attorneys work alongside their clients, at every stage of the proceedings, to advocate on their clients’ behalf. And through that advocacy, they play a critical role, a role that is essential to our concept of liberty and due process.

A defense attorney’s work is not just about the individual client represented in any given case.  Rather, the work is an integral part of our constitutional system.

The right to counsel is both substantive and procedural: a lawyer represents a client’s interests substantively, while simultaneously ensuring that the client’s procedural rights are protected.  A defense lawyer is the ultimate check on a prosecutor’s discretion, and a bulwark against the wrongful incarceration of innocent persons.

November 2, 2017 in Course materials and schedule, Reading about law and law school, Starting a career as a lawyer | Permalink | Comments (0)

October 29, 2017

A couple of notable "castle doctrine" tweaks for Ohio's approach to self-defense

We will review this week the theoretical justifications and doctrinal nuances of the "duty to retreat" before using deadly force in self defense, as well as the so-called "castle doctrine" exception to the duty to retreat.  These refinements on self defense can get intricate and complicated both at common law and under the modern MPC formula.  As the Thomas case highlights, Ohio generally relies on a common-law approach to self defense (and other defense), but the Ohio General Assembly in 2008 decided to enact these (important?) statutory nuances to the application of self defense in "castle" situations:

2901.09 No duty to retreat in residence or vehicle.

(A) As used in this section, "residence" and "vehicle" have the same meanings as in section 2901.05 of the Revised Code.

(B) For purposes of any section of the Revised Code that sets forth a criminal offense, a person who lawfully is in that person's residence has no duty to retreat before using force in self-defense, defense of another, or defense of that person's residence, and a person who lawfully is an occupant of that person's vehicle or who lawfully is an occupant in a vehicle owned by an immediate family member of the person has no duty to retreat before using force in self-defense or defense of another.

2901.05 Burden of proof - reasonable doubt - self-defense....

(B) (1) Subject to division (B)(2) of this section, a person is presumed to have acted in self defense or defense of another when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force.

(2) (a) The presumption set forth in division (B)(1) of this section does not apply if the person against whom the defensive force is used has a right to be in, or is a lawful resident of, the residence or vehicle.

(b) The presumption set forth in division (B)(1) of this section does not apply if the person who uses the defensive force uses it while in a residence or vehicle and the person is unlawfully, and without privilege to be, in that residence or vehicle.

(3) The presumption set forth in division (B)(1) of this section is a rebuttable presumption and may be rebutted by a preponderance of the evidence....

(D) As used in this section.... "Residence" means a dwelling in which a person resides either temporarily or permanently or is visiting as a guest [and] "Vehicle" means a conveyance of any kind, whether or not motorized, that is designed to transport people or property.

UPDATE: As I was gearing up for our discussion of Thomas, I realized I had not provided for you the statutory language the Ohio General Assembly passed in 1990 to address one of the issues raised in this case:

2901.06 Battered woman syndrome evidence.

(A) The general assembly hereby declares that it recognizes both of the following, in relation to the "battered woman syndrome:"

(1) That the syndrome currently is a matter of commonly accepted scientific knowledge;

(2) That the subject matter and details of the syndrome are not within the general understanding or experience of a person who is a member of the general populace and are not within the field of common knowledge.

(B) If a person is charged with an offense involving the use of force against another and the person, as a defense to the offense charged, raises the affirmative defense of self-defense, the person may introduce expert testimony of the "battered woman syndrome" and expert testimony that the person suffered from that syndrome as evidence to establish the requisite belief of an imminent danger of death or great bodily harm that is necessary, as an element of the affirmative defense, to justify the person's use of the force in question.  The introduction of any expert testimony under this division shall be in accordance with the Ohio Rules of Evidence.

October 29, 2017 in Course materials and schedule | Permalink | Comments (0)

October 20, 2017

GREAT WORK Oliwood legislators!

Today was a proud day for Oliwood democracy as we made terrific progress on potentially passing an aggravated rape statute for the great state of Oliwood.  I am hopeful that the Oliwood media — despite it recent affinity for "fake news" — will not falsely portray the reasons why we did not get a statute passed today or in any way misrepresent any of the comments from members of our legislative body. 

In the comments below, I welcome recommendations as to whether and how we should continue to seek to get an aggravated rape bill passed.  And in the meantime for your consideration, here is Ohio's Rape statute here (with also links to other Ohio sex offense provisions) to show you how Ohio (indirectly) sets forth some aggravated rape provisions and defines other sex offenses:

Ohio Revised Code Section 2907.02 Rape.

(A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies:

(a) For the purpose of preventing resistance, the offender substantially impairs the other person's judgment or control by administering any drug, intoxicant, or controlled substance to the other person surreptitiously or by force, threat of force, or deception.

(b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person.

(c) The other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age.

(2) No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force.

(B) Whoever violates this section is guilty of rape, a felony of the first degree.  If the offender under division (A)(1)(a) of this section substantially impairs the other person's judgment or control by administering any controlled substance described in section 3719.41 of the Revised Code to the other person surreptitiously or by force, threat of force, or deception, the prison term imposed upon the offender shall be one of the prison terms prescribed for a felony of the first degree in section 2929.14 of the Revised Code that is not less than five years.  Except as otherwise provided in this division, notwithstanding sections 2929.11 to 2929.14 of the Revised Code, an offender under division (A)(1)(b) of this section shall be sentenced to a prison term or term of life imprisonment pursuant to section 2971.03 of the Revised Code.  If an offender is convicted of or pleads guilty to a violation of division (A)(1)(b) of this section, if the offender was less than sixteen years of age at the time the offender committed the violation of that division, and if the offender during or immediately after the commission of the offense did not cause serious physical harm to the victim, the victim was ten years of age or older at the time of the commission of the violation, and the offender has not previously been convicted of or pleaded guilty to a violation of this section or a substantially similar existing or former law of this state, another state, or the United States, the court shall not sentence the offender to a prison term or term of life imprisonment pursuant to section 2971.03 of the Revised Code, and instead the court shall sentence the offender as otherwise provided in this division.

If an offender under division (A)(1)(b) of this section previously has been convicted of or pleaded guilty to violating division (A)(1)(b) of this section or to violating an existing or former law of this state, another state, or the United States that is substantially similar to division (A)(1)(b) of this section, if the offender during or immediately after the commission of the offense caused serious physical harm to the victim, or if the victim under division (A)(1)(b) of this section is less than ten years of age, in lieu of sentencing the offender to a prison term or term of life imprisonment pursuant to section 2971.03 of the Revised Code, the court may impose upon the offender a term of life without parole.  If the court imposes a term of life without parole pursuant to this division, division (F) of section 2971.03 of the Revised Code applies, and the offender automatically is classified a tier III sex offender/child-victim offender, as described in that division.

(C) A victim need not prove physical resistance to the offender in prosecutions under this section.

(D) Evidence of specific instances of the victim's sexual activity, opinion evidence of the victim's sexual activity, and reputation evidence of the victim's sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim's past sexual activity with the offender, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.  Evidence of specific instances of the defendant's sexual activity, opinion evidence of the defendant's sexual activity, and reputation evidence of the defendant's sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, the defendant's past sexual activity with the victim, or is admissible against the defendant under section 2945.59 of the Revised Code, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

(E) Prior to taking testimony or receiving evidence of any sexual activity of the victim or the defendant in a proceeding under this section, the court shall resolve the admissibility of the proposed evidence in a hearing in chambers, which shall be held at or before preliminary hearing and not less than three days before trial, or for good cause shown during the trial.

(F) Upon approval by the court, the victim may be represented by counsel in any hearing in chambers or other proceeding to resolve the admissibility of evidence.  If the victim is indigent or otherwise is unable to obtain the services of counsel, the court, upon request, may appoint counsel to represent the victim without cost to the victim.

(G) It is not a defense to a charge under division (A)(2) of this section that the offender and the victim were married or were cohabiting at the time of the commission of the offense.

Other major Ohio sex offense provisions:

2907.03 Sexual battery.

2907.04 Unlawful sexual conduct with minor.

2907.05 Gross sexual imposition.

2907.06 Sexual imposition.

2907.07 Importuning.

2907.08 Voyeurism.

 

October 20, 2017 in Class reflections, Course materials and schedule | Permalink | Comments (0)

October 18, 2017

Proposals for Aggravated Rape statute in the great state of Oliwood

I have received the first submitted draft statute.  It comes from these sponsors: Carl T. Crow, Ruben C. Garza, Nataliya Merkoulova, Jacob L. Nathan and Kevin L. Scott. It reads as follows:

Aggravated Rape

(1) A person at least 18 years old commits ‘Aggravated Rape’ where, without consent for oral, anal, or vaginal penetration, that person purposefully or knowingly executes said non-consensual penetration by any of the following means or under any of the following circumstances:

(A) the assailant purposely uses, threatens to use, or displays a deadly weapon in order to facilitate the commission of the assault;

(B) the offender threatens to cause or causes serious or severe physical injury or disfigurement;

(C) the assailant attempts to kill the victim or another person during the commission of the assault;

(D) the assailant purposely or knowingly receives aid from or commits the assault with one or more other persons;

(E) the assailant knows the victim to be unable to consent due to the victim’s physical or mental disability;

(F) the assailant purposely holds the victim captive against their will in order to perpetrate further nonconsensual penetration;

(G) the assailant knows the victim to be under the age of 18 and creates sexually explicit audio, photographic, or video material of the assault, regardless of whether the material created is intended for personal use or for distribution; or

(H) the assailant purposely or knowingly provides or administers to the victim a substance intended to incapacitate the victim.

(I) the assailant is the parent or legal guardian and the victim is under the age of 18.

(2) Any person at least 18 years old engages in oral, anal, or vaginal penetration with a person under the age of 13 is guilty of ‘Aggravated Rape’ regardless of the offender’s knowledge of the victim’s age.

(3) Aggravated Rape Penalties: A person found guilty of Aggravated Rape shall be incarcerated for 15-25 years with the possibility of parole after 10 years.  Any person convicted of Aggravated Rape must register as a sex offender with both the state and national sex offender registries.  A person convicted of Aggravated Rape may never purchase or otherwise possess a firearm.

-----

Here is the second submitted draft statute, coming from the Committee for Free Beer:

Aggravated Rape

1.) A person is guilty of aggravated rape when they engage in the activity of unwanted sexual intercourse or intrusion either vaginally, anally, or orally

(A) with a person age 10 years old or younger whether or not the offender knows the age of the other person, these persons shall be held strictly liable;

(B) purposefully or knowingly using extreme force or threat of extreme force to facilitate the activity;

(C) purposefully or knowingly with a mentally handicapped person who possesses a sufficiently diminished capacity to be able to consent to sex;

(D) while in the commission of or immediately preceding the commission of a violent crime;

(E) purposefully or knowingly with a person who is unconscious;

(F) while purposefully or knowingly using a position of authority or trust to facilitate the activity;

(G) after using drugs administered to the victim without the victim’s knowledge to facilitate the activity;

(H) while purposefully or knowingly acting in concert with another to facilitate the activity or;

(I) if the offender has already been convicted of a previous charge of rape or aggravated rape.

(J) Any person guilty of any provision under this section is guilty of a first-degree felony.

A person convicted of Aggravated Rape will be sentenced to a minimum of 10 years in prison with a maximum of life imprisonment with the chance of parole.

-----

Here is the third submitted draft statute, coming from the Committee of Olli-garchs (updated because "the Committee of Olli-garchs realized there was a formatting error on the draft we sent you."):

1) A person who purposely, knowingly, or recklessly engages in sexual activity with another without the other’s affirmative consent is guilty of aggravated rape

a. Sexual activity that can constitute rape shall not be limited to intercourse. Rape can also be engagement in oral sex, anal sex, sexual touching of the genitalia of either the actor, victim or both, forced masturbation, any type of sexual penetration with a body part or with another object so manipulated by the offender, no matter how slight the touching is.

     i. Rape can be committed against or by any individual regardless of gender or gender identity.

b. These sexual acts are considered aggravated rape when they are done actor purposely, knowingly, or recklessly by an actor and in the absence of affirmative consent or when the victim revokes affirmative consent.

     i. Affirmative consent is purposeful, voluntary, non-intoxicated, non-impaired, non-coerced verbal or nonverbal consent.

2) A person commits an aggravated rape when any of the following apply:

a. The actor engages in sexual activity with a victim who is less than 12 years old regardless of the actor’s mental culpability

     i. Children under the age of of 12 cannot affirmatively consent

b. The actor uses or threatens to use physical strength, force, or other kinds of violence to encourage the victim to submit to sexual activities

     i. The threat is sufficiently made with or without a dangerous weapon

     ii. The actor’s intent to follow through with a threat is immaterial

c. A victim is mentally disabled such that their mental disability renders the victim

     i. Unable to understand the implications of a sexual act

     ii. Unable to affirmatively consent a sexual act

d. The victim is intoxicated and cannot purposely or knowingly consent to sexual activity

     i. An intoxicated victim is one whose mental capacity is impaired or who has become unconscious due to any type of intoxicating substance including but not limited to alcohol and date rape drugs such as rohypnol, ketamine, and gamma-hydroxybutyrate.

e. The victim is unconscious at any point during the sexual activity and the actor continues with the sexual activity.

f. The actor purposely targets a victim due to actor’s hate for a community of which the victim is a member, and it is the actor’s conscious object to inflict harm on the victim because of the victim’s identity with that community.

     i. Community identities include but are not limited to race, religion, gender, gender identity, sexual orientation, nationality, age, disability, and socioeconomic status.

g. Where an actor commits multiple rape offense of any mental culpability, the actor is guilty of aggravated rape even where the individual instances of rape are not aggravated.

3) In instances where there are multiple actors, each actor is equally culpable for the rape of the victim or victims.

4) A dangerous weapon is any object so designed or so used for the purpose of inflicting harm upon another (including body parts of the offender).

a. An actor using a dangerous weapon need not know that the object would or could be classified as dangerous.

b. So long as an actor implies or suggests that there is a weapon, a threat of a dangerous weapon is established. Visual confirmation that there is a dangerous weapon on the part of the victim need not have occurred to establish threat of a dangerous weapon.

5) Punishments

a. For anyone who violates §§ 2(a) and 2(g) the prison term shall be 25 years to life in prison without parole

b. For anyone who violates § 2(b), the prison term shall be 20 years to life in prison

c. For anyone who all other sections of this statute, the prison term shall be at least 15 years in prison

d. Regular police check-ins with a frequency contingent on prison counselor’s recommendation upon release

e. After release, aggravated rape offenders cannot petition for release from community supervision as other sex offenders have the opportunity to do

October 18, 2017 in Course materials and schedule | Permalink | Comments (0)

October 15, 2017

How does (and how should) homicide law respond to the drunk driver who kills?

As we wrap up the homicide unit, we will a look at how the law deals with drunk (and drugged) driving that results in an unintended death.  As a matter of "raw" numbers, this is arguably the most consequential aspect of our homicide unit: data from 2015 indicate that there were more drunk/drugged driving deaths than all types of intentional homicides throughout the US in that year.  As we will discuss, in many jurisdictions drunk driving cases can possibly be prosecuted under many possible forms of homicide ranging from vehicular homicide to negligent homicide to manslaughter to murder.

As time permits, I plan to have an extended in-class discussion of how you think homicide law should treat the "standard" drunk driver (first offense, relatively low BAC) who causes a single death, as well as the "extreme" drunk driver (repeat offense, high BAC) who causes multiple deaths.  The first part of that discussion will explore what level of homicide liability is available under current laws (particularly, of course, in Oliwood and Ohio), and then we will turn to a discussion of what kinds of liability and kinds of punishments you think ought to be applied in these cases.

I would welcome this discussion getting a running start in the comments here, and perhaps a case out of Florida discussed on my sentencing blog provides an interesting starting point.  This case involves Daniel Phillips who, with methamphetamine in his system, fell asleep at the wheel of his truck and slammed into another car killing two women on a rural Florida road.  Interestingly, though the defendant was convicted only of "DUI manslaughter" under Florida law, he was eligible for and did receive a life without parole sentence for his crimes.

Also, for various perspectives on these enduring issues, here is a national and a local article discussing these crimes and punishments:

Drunken driving homicide: Is it an accident or murder?

Vehicular homicide sentences not harsh enough, say victims' families

October 15, 2017 in Course materials and schedule, Notable real cases | Permalink | Comments (0)

October 09, 2017

Here is the Simpson's hypo (aka RIP Rod and Todd Flanders):

Waylon_SmithersThanks to the suggestion of a class member, I realized I could and should provide the Simpson's hypo here for consideration before our next class.  So here it is, with helpful links to the Simpson's wiki:

Mr. Burns, that rich old codger, is having a problem with birds on his country estate.  Bart Simpson built a tree house on the property when he was ward of Mr. Burns, and Bart recently left open a huge vat or Marge’s home-made peanut butter.  (Bart had to take it to the tree house to keep Homer from eating all of it himself.)  Smelling the peanut butter, birds from all over Springfield have invaded Burns’ property.

Burns tells his willing servant Waylon Smithers to get one of his antique flare guns and start firing shots into the tree around the tree house to scare birds away.  Burns warns Smithers to check whether anyone is in the area; Burns knows kids still like to use the tree house, even though he had put up a sign stating that kids playing in the tree house would be prosecuted for trespassing.

Eager to do Burns' bidding and shoo the birds away quickly, Smithers only calls out "Hello, can anyone hear me?" to see if anyone is in the tree house.  Smithers does not personally check to make sure no kids are in the house.  After calling out a few times, he gets no response (though the woods are noisy).  Smithers decides that he has done enough given than he does not plan to shoot at the tree house.  He then takes aim at branches nearby the tree house and starts firing.

Sadly, it turns out that Rod Flanders and Todd Flanders, devout children of The Simpson’s devout neighbor, were in the tree house praying because they thought being off the ground brought them closer to their lord.  (The Flanders thought praying, rather than playing, in the tree house was fine, and they heard Smithers call out, but though it was their lord speaking to them.)  Tragically, the antique flare-gun fired off line and  into the treehouse. 

The flare shot by Smithers struck Rod directly in the chest.  Todd discovers his older brother Rod has been killed instantly, and distraught, he jumps out the treehouse window to his death.

Smithers turns himself in, and now you are the prosecutor trying to decide whether he might be guilty of a form of homicide in Washington (at the time of Williams); in Massachusetts (at the time of Welansky), in Oliwood under the MPC; and in Ohio now.

October 9, 2017 in Course materials and schedule | Permalink | Comments (0)

September 28, 2017

Thoughts on, reactions to, and results from Shooter role-play

In addition to thanking again our terrific state homicide lawyers, I also want to provide this space for any pressing questions or other thoughts on the Shooter exercise.  The primary point of the role-play was to preview homicide issues we will be working through in October.  But the exercise may also prompt thoughts about matters of procedure and practice that I would be happy to field here or elsewhere. 

Some questions and reactions might also be triggered by the document linked below showing the voting results in the Shooter role play in the three different jurisdictions we examined (California, Kansas and Ohio).  Consider whether the pattern of outcomes tells us more about the unique law in the three different jurisdictions or about the unique choices made by the lawyers who presented the case in these jurisdictions.

Finally, and as a preview of the start of our discussions next week, think about (and perhaps comment upon) the ideal number of different types of homicide.  As mentioned in class, the drafters of the Model Penal Code decided there should only be three different types of homicide.  To my knowledge, not a single US jurisdiction has only three types of homicide crimes.  In Ohio, if you include aggravated vehicular homicide and vehicular homicide, the Revised Code has nine different types of homicide.   Do you think it better for a modern criminal code to have fewer or to have more types of homicide?  What are some consequences of one general criminal harm being subdivided into so many different offenses?

Download 2017 shooter results

September 28, 2017 in Class reflections, Course materials and schedule | Permalink | Comments (0)

September 04, 2017

Highlighting why we need to pass the proposed "Driving in the Rain" criminal law in Oliwood

As you may know, the great state of Oliwood borders Ohio, and the headline of this weekend article from an Ohio newspaper provides a reminder for why proposed "Driving in the Rain" legislation seems so important for community protection and safety: "Saturday rain caused several crashes, highway closures."  Here is the article's lead: "Columbus-areas highways were shut down at least four times on Saturday by crashes on rain-soaked roads that frustrated drivers and clogged traffic until mid-afternoon."

Of course, this Ohio article about the local impact of harmful and costly driving during rainy conditions is hardly a surprise given well-known data on the extent of the rain-driving problem.  As explained in this government website drawing on a decade of crash data (with emphasis added):

On average, nearly 6,000 people are killed and over 445,000 people are injured in weather-related crashes each year.  The vast majority of most weather-related crashes happen on wet pavement and during rainfall: 73% on wet pavement and 46% during rainfall. A much smaller percentage of weather-related crashes occur during winter conditions: 17% during snow or sleet, 13% occur on icy pavement and 14% of weather-related crashes take place on snowy or slushy pavement. Only 3% happen in the presence of fog.

In other words, nearly 1000 people in the US are injured every single day thanks to folks crashing while driving in the rain.  And, as this government paper states not only that "wet weather is far more dangerous than winter weather," but also that "weather-related crashes cause between 94 million and 272 million hours of delay each year [with the] annual cost of weather-related crashes estimated to be between $22 billion and $51 billion."

Of course, any proposed driving-in-the-rain criminal law will not prevent all or even most weather-related crashes (just like existing drunk-driving and texting-while-driving criminal laws do not prevent all other dangerous-driving crashes).  But if a proposed new criminal law can reduce the number of weather-related crashes by even just 10%, that could save dozens of innocent lives, reduce by hundreds the number of Oliwood citizens injured on the roadways, and save millions of dollars each and every year.

The simple proposed draft text for a "Driving in the Rain" criminal liability statute appears below, and it is important to note that it does not call for punishing people for driving in the rain, but really only for crashing in the rain.  I look forward to hearing whether and why Oliwood legislators support or oppose this use of the criminal law in our great state.

PROPOSED OPC Section 55.55: Criminal Damaging While Driving in the Rain:  No person shall cause any physical harm to any other person or to the property of another while driving in the rain.  Punishment for a violation of this section shall depend upon the amount of harm caused and other relevant factors in the discretion of the sentencing judge.

September 4, 2017 in Course materials and schedule | Permalink | Comments (0)

August 24, 2017

Applicable law for Monday's sentencing role-play

A few folks have wisely inquired about the applicable sentencing law that the lawyers and judges ought to be considering as they approach the sentencing of Rachel Foster and Dan Schayes. If these hypothetical cases were moving forward in the hypothetical world of Oliwood, which is a Model Penal Code jurisdiction, then MPC § 1.02(2) could be used as the guiding sentencing law. (MPC § 1.02(2) appears at p. 1129 of our text.)

But given that Ms. Foster and Mr. Schayes have both committed crimes that could be federally prosecuted, and especially because Attorney General Jeff Sessions has talked about having the federal government prosecute more gun and drug cases, I like imagining these cases being subject to federal sentencing laws this year. US Code, Title 18, Section 3553(a) sets forth a detailed list of "Factors To Be Considered in Imposing a Sentence," and the first two major subsections can and should serve as a guide for sentencing advocacy and decision-making by the lawyers and judges in our role-play. (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 all the subsequent sections of 3553(a).)

Last but not least, Ohio law has its own unique statute expressly setting forth the purposes of felony sentencing in the Buckeye State. Students can earn Berman brownie points by (1) citing in the comments the Ohio Revised Code section setting forth these purposes, and (2) discussing whether they think Ohio is more concerned with utilitarian or retributivist goals at sentencing.

August 24, 2017 in Course materials and schedule | Permalink | Comments (2)

August 21, 2017

Lawyers signed up for Monday afternoon's role-play

I am so pleased to have already heard from many of you to volunteer for our sentencing role-play planned for Monday afternoon.  As of 3pm on Monday, I have already received requests for all the spots save for defending Dan Schayes. 

UPDATE late Monday: A couple more afternoon volunteers have finalized our roster (and thanks to the extra volunteers).  

Here is the full lawyering role-play run-down:

 

Oliwood v. Rachel Foster

Prosecutors: Conor Strait & Marcellus Mosley

Defense Attorneys: Margaret Huck & Matthew Crawford

 

Oliwood v. Dan Schayes

Prosecutors: Graeme Sua & Zach Marcum

Defense Attorneys: Sam Lioi & Jacob Becker

 

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.  Below you can download a form to be used for the 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.  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, folks can get a better sense for whether and how advocacy can have an impact in this kind of setting.

In addition to the sentencing form, I am also providing here an electronic copy of the "presentence reports" handed out in class.

Download 2017-judges-sentencing-form

Download 2017-role-play-psrs

I will discuss the role-play a bit more during Friday's class and be available to answer any questions about what should be a fun and low-stress experience.

August 21, 2017 in Course materials and schedule | Permalink | Comments (0)

August 14, 2017

First assignments 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 21, you should:

1. Obtain a copy of Kaplan, Weisberg and Binder, Criminal Law (8th ed. 2017)

2. Obtain a copy of the course description and the course syllabus, which will be made available in front of my office (Room 313) and here the course website.

3. Read the casebook's Introduction quickly and pages 21-27, 31-34, and 605-11 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 the readings from pages 34‑76 in the text as soon as possible.

Download 2017 Course description

Download 2017 Criminal Law Syllabus

August 14, 2017 in Course materials and schedule | Permalink | Comments (0)

January 31, 2017

Exam review in the afternoons the week of February 6

Students interested in reviewing their final exam performance can and should email me (1) an ideal afternoon time for Monday through Wednesday (2/6 to 2/8), and (2) their exam number.  I will email back a confirmation and you will have a formal time booked.

Students can and should use the comments to this post to indicate if they would like me to provide other exam review windows.

January 31, 2017 in Class reflections, Course materials and schedule | Permalink | Comments (0)

January 03, 2017

My accounting of extra credit efforts submitted in 2016

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

Aust (3)
Barton (1)
Belcastro (3)
Brinzo (3)
Carpenter (3)
---
Cash (4)
Cashell (3)
Cotton (1)
Darnell (2)
Daroff (4)
---
Duff (3)
Fu (2)
Graves (2)
Hardy (1)
Harris (2)
---
Hartman (2)
Hearon (2)
Johnson (2)
Kannan (3)
McCarroll (2)
---
Michel (0)
Najaf (1)
O'Shea (3)
Pristic (2)
Roper (3)
---
Someya (2)
Szaruga (3)
Zeller (1)

I this it is QUITE POSSIBLE that I have missed some submissions, so if your records show a different number of EC submissions, let me know.

January 3, 2017 in Course materials and schedule | Permalink | Comments (0)

November 13, 2016

Class schedule and activities for classes before Thanksgiving break of November

I hope everyone had a relaxing and meaningful mini-break, and we return with lots to get to. Here is my vision for class plans/activities for the five classes we have before it is time to turn to turkey:

Monday Nov 14: Discussion of Rape Survey results and discussion and votes on various proposed new/improved rape provision for Oliwood/MPC to replace Section 213.1(1).

Wednesday Nov 16:  Finish rape reform discussion and its lessons, begin overview of defenses (in theory and practice), starting with dive into intricacies of self-defense 

Friday Nov 18:  Deep dive into self-defense doctrines, which demands that you all have read (and re-read) La Voie and especially Leidholm and MPC defensive force provisions very carefully.  

Monday, Nov 21:  Deep dive into Ohio's common-law approach to self-defense, most fully defined by Ohio Supreme Court's decision in State v. Thomas, which is available in pdf form at this link. (The official cite is State v. Thomas, 77 Ohio St.3d 323, 673 N.E.2d 1339 (1997).)  Legislative nuances to Ohio's common-law approach to self-defense appear in these Ohio Revised Code provisions: 2901.05. Burden of proof - reasonable doubt - self-defense.2901.06. Battered woman syndrome evidence.2901.09. No duty to retreat in residence or vehicle.

Tuesday, Nov 22 (a constructive Friday):  Wrap up discussions of self-defense doctrines, start turn to other defenses of duress, necessity and insanity 

November 13, 2016 in Course materials and schedule | Permalink | Comments (0)

November 07, 2016

Results of our in-class survey of what should (and should not) be covered by by modern rape provisions...

can be downloaded here:

Download 2016 rape offense survey results

As always, student reactions and feedback are welcome in the comments.  And those who have taken up the challenge of writing a new rape provision for Oliwood can/should perhaps learn a lot from the survey results about the views of your "constituency."

November 7, 2016 in Class reflections, Course materials and schedule | Permalink | Comments (4)

November 02, 2016

Class schedule and activities for first few weeks of November

Because I continue to have way too much fun in class answering all your good questions, I think I now need to put class plans/activities for the coming week in writing here so I make sure we keep moving forward (and so you all can know just what you need to read/do):

Wednesday, Nov 2:  Set up next week's role play, review/recap Berry, Williams and Mayes

Friday, Nov 4: Finish up homicides doctrines (with felony murder and MM), including my (great but dated) Simpson's hypo if we have time, and then watching 86-minute long documentary William Kuntsler: Disturbing the Universe (starting at 3:30pm), and then happy-hour

Monday, Nov 7:  Introduce rape/sexual offenses history and doctrines and enduring challenges

Wednesday, Nov 9:  Legislative drafting role play in which two (or more) legislative subcommittees will present proposals for either:

1.  Drafting a new/improved rape provision for Oliwood/MPC to replace Section 213.1(1),

OR

2.  Drafting a "most serious sex offense always requiring expulsion and prosecution" for a school campus behavior code?

Please indicate your preference in the comments.  Thanks.

 

November 2, 2016 in Course materials and schedule | Permalink | Comments (11)

October 17, 2016

Seeking a California defense attorney for Joe Shooter....

because every other position is filled for Wednesday's role play.  Here is the line-up (as well as the expected order of events):

 

California v. Joe Shooter

Prosecutor:  Chance Johnson

Defense Attorney:  _________

 

Kansas v. Joe Shooter

Prosecutor:  Abbey Zeller

Defense Attorney:  Elizabeth Hartman

 

Ohio v. Joe Shooter

Prosecutor:  Claudia Cash

Defense Attorney:  Erica Duff

 

If nobody volunteers for the last open role, I suppose I will have to defend Joe Shooter in California, but I am certain I will do a much worse job than would a capable student (and I already treat myself to too many beers). Also, to help both lawyers and jurors, here you can find a "verdict" form to help you work through the homicide charging options in each jurisdiction:

Download Shooter-verdict-form

October 17, 2016 in Course materials and schedule | Permalink | Comments (0)

October 13, 2016

"Ballot Questions In Three States May Affect Death Penalty Nationwide"

The title of this post is the headline of this Nebraska NPR piece which talks reviews some of the issues we discussed in class on Wednesday and may prove helpful for anyone doing the death-penalty extra credit and/or making election predictions.

October 13, 2016 in Class reflections, Course materials and schedule, Research assignment | Permalink | Comments (1)

October 12, 2016

Class schedule and activities for week of October 17

Because I had way too much fun, and was disinclined to make you do any "real" work in your last class before the break (and also forgot to hand out the Joe Shooter facts in class), I think we now need to tweak my plans for the week of October 17.  Here is my new/latest thinking:

Monday, Oct 17:  Finally finish causation doctrines, preview rest of class (getting Part II of syllabus), introduce homicide unit, and explain context, value, roles for Joe Shooter role play.

Wednesday, Oct 19Do Joe Shooter role play and discuss its many lessons

Friday, Oct 21:  Celebrate my birthday ... by discussing intentional homicides (Watson and Walker, pp. 346-363 in text), and then watching 53-minute long documentary on American prisons, and then happy hour.

October 12, 2016 in Class reflections, Course materials and schedule | Permalink | Comments (0)

Starting homicide doctrines starting with Joe Shooter role play

Next week we will begin our in-depth discussions of homicide laws and we get started with another role-play.  To get off to a running start, here is a link to the Joe Shooter facts (which I am also handing out in class), along with an encouragement for folks to sign up (in the comments and/or via an e-mail) to play the role of either prosecutor or defense attorney on Joe Shooter's behalf in California (a common-law-influenced jurisdiction) or Kansas (an MPC-influenced jurisdiction) or Ohio (a little of everything).

This time around, we only really need one lawyer for each side -- so 6 total volunteers, a single prosecutor and a single defense attorney for each state.  In addition to the usual offer of future happy hour celebration, volunteers this time around can know that they will be rewarded for their efforts by being assured they get a really good running start at tackling homicide doctrines

So, review the Shooter facts and sign on up in the comments or via an e-mail to me.

UPDATE:  We have our Ohio lawyers, Claudia Cash has volunteered to prosecute and Erica Duff volunteered to be the defense attorney in Ohio.  Thanks, and know now that I think, after having had too much fun in class today, that I am pushing back the role play to Wednesday (10/19).  Watch this space (i.e., this new post) with more details.

And Elizabeth Hartman has now signed up to be the Kansas defense attorney, and now Chance Johnson is to be the California prosecutor.  Two spots left.

October 12, 2016 in Course materials and schedule, Starting a career as a lawyer | Permalink | Comments (0)

October 10, 2016

For a useful set of perspectives on the death penalty in Ohio and elsewhere...

check out this 50-minute local WOSU/NPR segment from last week.  Here is the overview of what you will hear:

Support for the death penalty has been on the decline and recently hit a a record, four decade low. Despite the decline, legislators in many states continue to back capital punishment. Today we discuss Ohio as it prepares to reinstate the death penalty after a two year hiatus, and look at how Nebraska ended the practice.

  • Jim Petro, Former Ohio Attorney General

  • Robert Blecker, Professor of Criminal law and Constitutional law, New York Law School; and Author, “The Death of Punishment: Searching for Justice among the Worst of the Worst”

  • Colby Coash, Nebraska State Senator

October 10, 2016 in Course materials and schedule, Current Affairs, Notable real cases | Permalink | Comments (1)

September 28, 2016

Another real-world follow-up to prior punishment theory discussions and preview of coming homicide discussions thanks to H.R.6158, the HELP Act

I really enjoyed our prior on-line discussions here concerning whether and why drug dealers ought to be criminally responsible for causing overdose deaths.  And, if you are working on the next extra credit assignment focused on the Burrage Supreme Court case, you know how causation doctrines can intersection with these matters.

But, thanks to a few member of Congress, a new bill in Congress also makes this issue on that is worth discussing as we wind down our basic mens rea conversations and start to gear up for talking about homicide crimes and punishments.  I discuss this new bill (which I have not yet seen in full), in a new post over at my sentencing blog: NY member of Congress puts forward federal bill with "Death Penalty Proposal for Heroin Dealers".

 

UPDATE:  This Columbus Dispatch headline/story awaited me in my e-mail in-box after I returned from our class: "Columbus hit by 27 heroin overdoses in 24-hour span"

September 28, 2016 in Course materials and schedule, Current Affairs | Permalink | Comments (1)

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)

September 09, 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)

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)

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)

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)

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)

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

December 09, 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

December 04, 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

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

November 24, 2014

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

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

 

UPDATE on MEETING TIMES AS OF 11/19 at 3pm:

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...

 

ANOTHER UPDATE on MEETING TIMES AS OF 11/20 at 9am:

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

November 04, 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

November 03, 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)

ARTICLE 213. AGGRAVATED RAPE AND RAPE

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)

INTRODUCTION

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.

RAPE AND RELATED OFFENSES

(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.

SEXUAL ASSAULT

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

“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

November 01, 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

October 31, 2014

Some (and only some) of the intricacies of ORC Chapter 2907: Sex Offenses

As I mentioned in class, I do not test on the doctrines of rape and other sex offenses in large part because (1) nearly everyone now views the Model Penal Code sexual offense provisions to be badly dated and anything but "model" for modern times, and (2) the Ohio Revised Code provisions on rape and other sexual offenses are stunningly lengthy and intricate.  You can see for yourself the enormity of ORC Chapter 2907 at this link.

Among the many interesting things to notice about Ohio's "modern" sexual offense provisions is how many different labels we now have for different types of sexual offenses:

Also of note here are the detailed "general definitions" of various key terms set out in ORC 2907.01, which gets started this way:

As used in sections 2907.01 to 2907.38 of the Revised Code:

(A) "Sexual conduct" means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.

(B) "Sexual contact" means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person.

(C) "Sexual activity" means sexual conduct or sexual contact, or both.

October 31, 2014 in Course materials and schedule | Permalink | Comments (1) | TrackBack

October 28, 2014

All needed spots now filled (I think) for next week's drafting role play ... UPDATED 10/29

I am very pleased to be able to report that I have already had voluteers for two sets of legislative sub-committees for next week's role play.  As detailed below, here are (according to my notes) the groups that have formed to work on needed revisions to Oliwood rape law and to establish the terms of the worst offense for a model campus sexual offense code for universities in Oliwood.  I have given silly names/labels to the groups for ease of reference:

First Oliwood Rape Reform Drafting Subcommittee (FORR) is comprised of Madison Gessiotto and Jason Manion ... and Madison Troyer and Holly Cline

Second Oliwood Rape Reform Drafting Subcommittee (SORR) is comprised of Cowles Osatrander, Jogan Riley and Chris Tavenor ... and Sasa Trivunic

---- 

First Oliwood Campus Code Drafting Subcommittee (FOCC) is comprised of Jana Al-Akhras, Anthony Lelli, Cassie Pedicelli and Tara Workman 

Second Oliwood Campus Code Drafting Subcommittee (SOCC) is comprised of Clair Bullock, Kiera Ransey and Abigail Woods

If I have any of these details wrong, let me know ASAP so we can have the groups finalized ASAP.  And thanks so much to the dozen students who have so quickly volunteered to participate in what should be a fun and inforative exercise.

As for what will follow, early next week (likely on Monday), each subcommittee will have about 10 minutes to present their proposed legislation.  Proposed statutes can/should be sent my way via e-mail for posting in this space before too late on Sunday.

In the meantime, every member of the Oliwood legislature can perhaps benefit from reviewing this short (and very informative) 2003 article published in the Ohio State Journal of Criminal Law authored by Professor Deborah W. Denno titled "Why the Model Penal Code’s Sexual Offense Provisions Should Be Pulled and Replaced."

October 28, 2014 in Course materials and schedule | Permalink | Comments (0) | TrackBack

October 24, 2014

For our sex offense legislative drafting role play...

Would you rather have the exercise focused on:

1.  Drafting a new/improved rape provision for Oliwood/MPC to replace Section 213.1(1),

OR

2.  Drafting a "most serious sex offense always requiring expulsion and prosecution" for a school campus behavior code?

Please indicate your preference in the comments.  Thanks.

October 24, 2014 in Course materials and schedule | Permalink | Comments (13) | TrackBack

October 19, 2014

Any lingering concerns or questions (other than grades) with respect to mid-term?

I just wanted to create this space for any enduring question on concerns regarding the mid-term exam.  For a host of reasons, process questions would be easier to answer than substance questions.  But I remain eager to continue the learning from an experience intended to be high-learning, low-stress (to the extent possible).  

I sincerely hope that, with the exam now in the rear-view mirror, everyone is now looking forward and gearing up for a lot of exciting homicide discussions over the next few weeks.  Though I love all parts of the course, I think the next 3-4 weeks are among the most dynamic, engaging and real-world exciting of the entire semester.

October 19, 2014 in Course materials and schedule, Preparing for the final | Permalink | Comments (5) | TrackBack

October 08, 2014

Gearing up for homicide discussions strating with Joe Shooter role play

As I mentioned in class, next week we will begin our in-depth discussions of homicide laws and we get started with another role-play.  To get off to a running start, I will here posting the Joe Shooter facts along with an encouragement for folks to sign up (in the comments and/or via an e-mail) to play the role of either prosecutor or defense attorney on Joe Shooter's behalf next week in California (a common-law-influenced jurisdiction) or Kansas (an MPC-influenced jurisdiction) or Ohio (a little of everything).

This time around, we only really need one lawyer for each side (so 6 total voulneers, a single prosecutor and a single defense attorney for each state).  In addition to the usual offer of happy hour celebration, volunteers this time around can know that they will be rewarded for their efforts by being assured they do get called upon in class until (well) after the midterm.  In addition, as I said in class, I am confident that serving as a lawyer in this role play provides a really good pre-mid-term preparation experience.

So, review the Shooter facts and sign on up in the comments or via an e-mail to me.

Download 2014 Shooter facts

October 8, 2014 in Course materials and schedule | Permalink | Comments (1) | TrackBack

October 03, 2014

I will be in our classroom today at 1:30 for optional discussion followed by happy hour...

The weather forecast has led the OSU golf event to be postponed, so I am now eager to hang out this afternoon in class and after with whomever wants to hang out with me.  I hope to see some of you.

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

September 25, 2014

How about having the mid-term sometime on Friday, October 17?

I would be able/eager to offer the mid-term on either the morning or afternoon of October 17, and the class that day would have an extra focus on the exam (either as prep or as immediate review).

In addition to urging folks to weigh in on that particular date, if it sounds to you like a good date please also in the comments indicate whether you would prefer the exam to be in the morning or afternoon. 

September 25, 2014 in Course materials and schedule, Preparing for the final | Permalink | Comments (6) | TrackBack

September 19, 2014

Handout #2 with mens rea exercises

With apologies for not having enough copies in class, I can now provide below for download an electronic copy of the mens rea handout that I passed around on Friday.

Download 2014 Handout #2

We will discus the exercises in this handout in class on Monday and Wednesday.

September 19, 2014 in Course materials and schedule | Permalink | Comments (0) | TrackBack

August 15, 2014

Welcome to the Moritz, Criminal Law with Berman, and version 5.0 of this class blog

As some of you may already know, I am a big fan of law blogs and I now make a pretty regular habit of use 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 2014 semester at the Moritz College of Law through this blog to supplement our first-semester 1L small-section Crim Law course.  And, as the version 5.0 label highlights, I have built this "new" blog directly atop the blog I used when teaching this very same course thrice before (in Fall 2008, Fall 2010 and Fall 2013) 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 2008, Aug-Dec 2010 and Aug-Dec 2013 to see some of the "action" in this class from the last three 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 also provides an effective means for me to share both required and optional materials and ideas.

 

WELCOME! 

 

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 15, 2014 in Course materials and schedule | Permalink | Comments (0) | TrackBack

December 13, 2013

Relaxation, celebration and reasons to feel lucky Berman Crim Law 2013 is over

If memory serves, I believe 1Ls finish up their second exam today, and I want to encourage everyone to take a deep breath after the exam and enjoy a well-deserved afternoon of relaxation.  No matter how much you feel you need to do to study for your final exam next week, taking at least a few well-earned hours off to recharge your batteries is always a wise and sensible exam-time strategy.

I will be in my office at Moritz after about 3pm this afternoon, and I would be happy and eager to celebrate (and toast) your achievements so far.  In fact, because I have lots of (non-pressing) work to do, I could be readily lured away from my office to cover a round of celebratory drinks just about anytime late Friday afternoon.

Last but not least, and to have a little fun with a Daft Punk lyric, even if you have been up all night 'til the sun, and up all night to study some, you should feel you've gotten lucky that my exam is already over.  That is because, if my exam was still on tap, I would have a really hard time resisting adding a question concerning some of the amazing real-world crim law stories from this week covered on my other blog in these posts:

Especially because I hear some students are eager to pursue the idea of a Cordle-inspired e-book, the first story linked above provides a sad and useful reminder that issues relating to the the appropriate prosecution and punishment for deadly drunk drivers are sure to be timely for many years to come.

December 13, 2013 in Class reflections, Course materials and schedule, Preparing for the final | Permalink | Comments (0) | TrackBack