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October 31, 2008

Practice exam feedback materials

I am posting here (finally!) the two promised documents to aid you in reviewing your own efforts on the practice exam. After reviewing these documents (which should be in Word-friendly formats), feel free to come talk to me in person about any questions or concerns.

Download key_issues_on_practice_exam.rtf

Download exam_tips_memo.rtf

October 31, 2008 in Preparing for the final | Permalink | Comments (1) | TrackBack

Ohio Revised Code rape provisions

The full text of all of Ohio's sexual offense provisions are available at this link, and I will post an edited version of some of these statutory provisions over the weekend.  But, to facilitate a pre-class dialogue on Ohio's rape definitions in particular (perhaps in the comments), I am setting forth here the provisions of ORC 2907.02 -- Rape:


(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.... [lengthy sentencing provisions omitted]

(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.

October 31, 2008 in Course materials and schedule | Permalink | Comments (0) | TrackBack

October 30, 2008

All the research assignment materials (and my apologies)

Sorry for taking extra time today and also for jamming my presentation of the assignment into the final few minute before (and after) the end of class.  To make amends, I am posting here all the research assignment materials ---  not just the background instructions handed out already, but also the rough oral script that I was using to discuss the case.

Download 2008_assignment_instructions.wpd (previously distributed in class)

Download 2008_facts_of_case.wpd (rough oral script with lots of typos)

I will readily answer questions about the assignment in class and at other times, but using the comments to this post might be an especially effective way for students to express concerns or questions about any aspect of the assignment or the facts in play.

October 30, 2008 in Research assignment | Permalink | Comments (6) | TrackBack

October 29, 2008

The real story (and crimes?) of "Ken the Shooter" from Ohio

CNN has this effective report on the real Ohio shooting I mentioned in class on Wednesday.  Here are the specifics:

A Warren Township, Ohio, man faces charges of felonious assault after authorities say he fired his rifle at two teens who were attempting to deface his McCain presidential campaign yard sign. Kenneth Rowles, 50, pleaded not guilty to the charge Monday, according to CNN affiliate WBNS.  Bail was set at $10,000.

Rowles told police he was sitting on his porch Saturday when a tan SUV pulled up and a black youth jumped out and ran toward his house, screaming, "This is for Obama."  He said another male was hanging out of the passenger window screaming the same thing.  Rowles said he went inside, got his rifle and fired three shots to scare the youths away, according to a Warren Township police report.

He told officers he believes that the men "were the same two that have been destroying his McCain sign."  Just hours before the shooting, Rowles called police and said that a car had stopped in front of his house and that a black male "ran up and said something about Obama," according to the report, and "damaged his sign again." 

One of the youths, 17-year-old Kyree Flowers, was shot in the arm, according to a police report.  He and the second youth, Patrick Wise Jr., 16, told police they were in the car attempting to leave when Rowles fired at them. "Kyree stated that he witnessed the homeowner trying to shoot Patrick but he was having trouble chambering a round," the police report said.

The teens admitted that they had defaced the McCain sign several times, Warren Township police Lt. Don Bishop told CNN.... Bishop said the teenagers probably will not be charged -- and are unlikely to damage campaign signs again, as the incident scared them.  Warren Township is in Trumbull County not far from Cleveland, Ohio.

As we wrap up our discussion of homicide offenses, give some thought as to what charges an Ohio prosecutor might have brought in this case had Kyree Flowers been killed rather than just shot in the arm as a result of this encounter.  Also, as we prepare to discuss defenses next week, think about whether Kenneth Rowles will be able to avoid conviction through claiming defensive use of force.

October 29, 2008 in Notable real cases | Permalink | Comments (6) | TrackBack

October 28, 2008

Speaking of prosecutorial discretion

We have been talking directly and indirectly about prosecutorial charging discretion.  Against that backdrop, I am interested in student reaction to this local article from Connectivut headlined "Stonington Pastor Spared Prosecution In Teen-Party Case."  Here are the basics:

New London Superior Court prosecutor has decided not to prosecute the Rev. Mark Robinson for hosting a large, underage drinking party in June that ended with two 17-year-old girls being taken to the hospital for treatment of severe intoxication.

Assistant Deputy State's Attorney Christa Baker entered the nolle Monday morning as Robinson, who heads Calvary Episcopal Church in the borough, appeared before Judge Kevin P. McMahon. Robinson, who faced two years in prison and $2,646 in fines, will have to make a $250 contribution to the state victims compensation fund. If he stays out of trouble for the next 13 months, the charges will be erased from his record....

Robinson, who had said in June that one of the hospitalized girls showed up drunk and other students disregarded his rules and brought alcohol onto his property, had no comment on the decision after he left the courtroom. He did write a public letter that was placed in the case file.

”The events of 1 June 2008 have caused our whole family and our community at large to examine the issues and reality of underage drinking. The rise in underage binge drinking has found its way to Stonington and we were infected by its actions,” he wrote. “It is my hope through this unfortunate event that we can all discover ways to continue to honor accomplishments such as graduation without alcohol. The sadness and remorse which this event has caused me, this community and our family has been nothing I had faced prior to this event.”

Baker told McMahon that her office did not make the decision not to prosecute Robinson lightly and that it was not a reflection of how Stonington police had handled the case. Robinson, she said, is very remorseful, and the state believes there will be no reccurrence of the incident.

Baker said her office had sent letters to all of the approximately 30 teens who were at the party and their parents, but those who responded said they did not want to get involved or felt Robinson should not be prosecuted. She also said police did not find any indication that Robinson provided the large quantity of alcohol that officers said they found in plain view on his patio.

October 28, 2008 | Permalink | Comments (1) | TrackBack

October 27, 2008

Deaths on the road and homicide charges for unintended killings

As we turn to our discussion of how the law approaches homicide charges for unintended killings, we should not lose sight of the reality that most unintended killings do not result in any criminal charges being filed.  This reality is worthy of reflection in light of traffic fatality statistics. Helpfully, here is some interesting official data about driving fatalities in recent years.

Though it is easy to get lots in statistics, consider this basic and simple fact of the frequency of deaths on the road: nearly as many Americans die in traffic fatalities each and every month as died on 9/11 or have during serving in Iraq. 

October 27, 2008 | Permalink | Comments (2) | TrackBack

October 22, 2008

Role play participants and roles

Here is my current working list of volunteers and role-play assignments:

For modern day D&S defense discussions in Oliwood (Nov. 4), the junior associate teams are:

Group 1

Group 2

For modern day rape legislation for Oliwood (Nov. 3), the committee assignments are:

Joe the Plumber Party

You Betcha' Party

October 22, 2008 in Course materials and schedule | Permalink | Comments (0) | TrackBack

October 16, 2008

Reflections on the practice exam experience

As of this writing, a majority of students have had a chance to do the practice exam under simulated exam conditions.  For those who have not yet done the practice exam, I am now happy to make it available here on-line (and to continue to encourage looking at it only when prepared to use it as a serious exam-taking simulation):

Download practice_exam.rtf

I am eager to receive through comments here reflections on the practice exam experience. I would like to know, e.g., if anyone found the exam too easy (or too hard) to be a useful simulation, if there was other advice I should have given prior to the exam, if the practice exam should be extended to a full three hours or have more questions, etc.  (N.B.: In the next few weeks, after everyone has had a chance to work on the practice exam, I will be providing general feedback in the form of an outline of key issues on the exam and basic law school test-taking tips.)

In addition, I am eager to know if students would like another practice exam experience later in the semester.  I would be happy — perhaps around the time of Thanksgiving break once you have our research assignment and the contracts mid-term out of the way — to do another simulation using questions from old exams that cover topics from the second half of the course (like homicide and defenses).

October 16, 2008 in Preparing for the final | Permalink | Comments (6) | TrackBack

October 15, 2008

The offense grading problem in another setting

In light of our discussion of different grades of homicide (and in the wake of our Joe Wolvie hypo from a few weeks ago), folks might be interested in this new article by a colleague from the journal Criminal Law and Philosophy entitled "Grading Arson."  Here is the abstract of the article:

Criminalizing arson is both easy and hard.  On the substantive merits, the conduct of damaging property by fire uncontroversially warrants criminal sanction. Indeed, punishment for such conduct is overdetermined, as the conduct threatens multiple harms of concern to the criminal law: both damage to property and injury to people.  Yet the same multiplicity of harms or threats that makes it easy to criminalize "arson" (in the sense of deciding to proscribe the underlying behavior) also makes it hard to criminalize "arson" (in the sense of formulating the offense(s) that will address that behavior).

This article asks whether adopting one or more arson offenses is the best way for criminal law to address the conduct in question, or whether that conduct is more properly conceptualized, criminalized, and punished as multiple distinct offenses.

The article is pretty dense reading, and perhaps it is not a good use of a scarce time to read the article in full.  But this concluding sentence from the article has a message very pertinent to our homicide discussions: "Categories or formulations inherited from prior generations may even cause more harm than good if they become reified to the extent that our conceptualizations of crime become inseparable from the vernacular description or particular conduct the existing categories happen to describe, obscuring the ability to recognize each category's underlying purpose and function." 

If you can understand this final sentence from the article, you are already ahead of the game as we head into a review of the history and modern doctrines of grading homicide.

October 15, 2008 in Recommended scholarship | Permalink | Comments (2) | TrackBack

October 13, 2008

The Shooter results and a key policy question

I have linked below the document shown in class on Monday with the results of the "jury" voting in the Shooter role play in the three different jurisdictions we examined (California, Kansas and Ohio).  I welcome blog comments on whether the pattern of outcome tells us something special about the law in the three different jurisdictions or about the choices made by the prosecutors and defense attorneys in the three different jurisdictions.

In addition, I encourage everyone to think about (and perhaps comment upon) the ideal number of different types of homicide.  As stressed in class, the drafted of the Model Penal Code decided there should only be three different types of homicide.  To my knowledge, there is not a single US jurisdiction that has only three types of homicide crimes.  Why do you think the MPC approach has not been adopted in any modern American jurisdiction?

Consider now Ohio's quite distinct approach.  If you include aggravated vehicular homicide and vehicular homicide, the Ohio Revised Code has nine different types of homicide.   All other considerations aside, do you think it is better for a modern criminal code to have fewer or to have more types of homicide?  What are some of the legal consequences of having a general criminal harm subdivided into many different offenses?

Download 2008_shooter_verdict_results.rtf

October 13, 2008 in Class reflections | Permalink | Comments (4) | TrackBack