Criminal Law @ Moritz College of Law

Mapping out final class plans (and tentative review session plans)

I hope everyone has been having a relaxing holiday weekend, and I am eager to try to avoid adding to the stresses of the end of classes and the start of exam period.  To that end, I want to remind everyone what to expect in the coming weeks:

Class plans:

We finish our official class sessions in this coming week, and we will finish up our substantive review of attribution doctrines with a quick tour of complicity and conspiracy on Monday and Tuesday.  If you have read, thoroughly and carefully, the Ochoa case in our text, you will be well prepared for our class discussions.

We will not have class on Wednesday.

Our final class on Thursday will involve completing evaluations as well as discussing some broad themes of the class and what you should expect on the final exam.  If time permits, I am also happy to conduct an "open" review sessions to answer any questions you might have about course materials.

 

Review session plans:

I am tentatively planning to have (entirely optional) review sessions in the days leading up to our exam.  Specifically, I will plan to be in our classroom to answer questions during the early afternoons (say 2pm) Tuesday to Thursday (December 12 to 14).  These dates and times and the location are entirely flexible, and I am eager to hear any suggestions for other times that will be helpful to you in the coming weeks.

A political hypo for wrapping up attempt / complicity / conspiracy discussions

To facilitate discussion of various doctrines related to attempt (particularly the act requirement), I have in past years put up posts with a sequence of actions by a young man seemingly interested in committing an act of domestic terrorism.  Examples are here (planning to bomb Microsoft's headquarters) and here (planning to bomb Apple's headquarters) and here (planning to bomb the Ron Paul Institute).

Based on recent political developments, I have revised my hypo (and hope it is not too triggering).  Here goes:

1. Joe McAngry calls his parents to say he was excited by Nikki Haley's campaign for President and wishes old folks like Joe Biden and Donald Trump would get out of way

2. Joe emails a friend to say is very depressed and angry that his choices for President in 2024 might again be Biden and Trump

3. Joe texts a co-worker that he wished Biden and Trump would "just die already" so someone else could be president 

4. Joe posts anonymously on X that "someone should kill Donald Trump" to spare the country the spectacle of his trials and 2024 campaign 

5. Joe researches online where Trump is scheduled to give speeches in coming weeks

6. Joe researches online about Mar-a-Lago and contacts persons about events at the property

7. Joe posts anonymously on Facebook that "some day harm would come to Trump and those who defend him"

8. Joe orders a bulletproof vest from an online store for overnight delivery

9. Joe travels to his parents home and picks up his dad's rifle and a ski mask, telling his dad he had hunting plans

10. Joe visits a gun store and buys 60 rounds of ammunition for the rifle and also a handgun with 60 more rounds

11. Joe uses Waze to map out a route from his home in South Carolina to Mar-a-Lago

12. Joe creates a fake document that states he is a member of the Fox News advancement team

13. Joe begins a drive to Mar-a-Lago, with his guns and ammo and vest, staying overnight at a motel in Daytona Beach, Florida 

14. Joe completes his drive to Palm Beach, staying overnight in a motel a few miles from Mar-a-Lago

15. Joe, wearing his a bulletproof vest, drives in morning to Mar-a-Lago and circles grounds 

16. Joe drives to security checkpoint and convinces guard using fake document that he has permission to access the Donald Trump Grand Ballroom

17. Joe parks near where he thinks Trump has his office and is working that morning 

18. Joe waits, watching for workers to arrive at location while monitoring Trump's Truth Social Account

19. Joe emerges from his car with his rifle in one hand and his handgun in another

20. Joe starts running toward the entrance to the Mar-a-Lago, pointing his guns at persons nearby yelling "Where's Trump?"

21. Joe begins to squeeze trigger as he sees someone he thinks is Trump emerge from a door at Mar-a-Lago....

 

ATTEMPT 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?

Is it insane to ask lawyers "Is Eating People Wrong?"

I hope everyone is excited for Thursday's role play, which is intended to focus on defenses (and especially necessity and duress) in Oliwood under the unique provisions of the Model Penal Code.  The lawyers (and the rest of the class) can prepare adequately by just reviewing the MPC doctrine and the facts of the Dudley & Stephens case.   But anyone deeply interesting in learning a lot more should check 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,  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.

Ohio's common law necessity doctrines (aided by a decade-old, inspired student analysis of D&S in Ohio)

As we will discuss in the coming weeks, Ohio's common-law approach to defenses extends to the classic defenses of necessity and duress.  Though the modern common-law cases we will review in the casebook are not from Ohio, they provide a generally effective accounting of how Ohio courts will be inclined to review claims of duress and necessity.  For example, the Ohio Supreme Court decades ago had a case, State v. Cross, 58 Ohio St.2d 482 (Ohio 1979), somewhat similar to the Unger case in its legal holding (though involving somewhat different facts).

And, helpfully, one member of my criminal law class ten years ago had the great initiative to imagine how a modern-day variation on the Dudley and Stephens case  might get resolved in Ohio under its common-law defenses scheme.  That student allowed me to post her analysis, and here is how she sets up the factual context:

Let's imagine a scenario in which four avid hikers, all associated with Ohio’s State Parks, decide to go for a winter hike at Serpent Mound, located in idyllic Adams County, Ohio.  The group consists of Hatlen Brooks, a veteran tour guide, Dursley Dudley and Richard Stephens, members of the Ohio State Parks administration, and Peter Parker, a trainee guide, though noted as a talented climber.  The hike was predicted to be an easy one and take no more than a few hours to complete; it was more-so an excursion to view the aforementioned idyllic landscape.  The hikers deviated from the path because of an intense and unpredicted snowstorm that caught the band off-guard and limited their ability to navigate.  The band happened upon a previously unknown sinkhole that had formed sometime after the last ranger appraisal of the land (which has been some-time ago with state budget cuts).  The group was stranded on a rocky, but stable, covered corner of the hole with only snow for hydration and a 2lb bag of vegan trail mix Stephens brought on the trip.  Despite the group’s reluctance to eat vegan, they subsisted off the mix and an unlucky rabbit for 18 days.

Download Prosecuting Dudley & Stephens in Ohio

Three draft aggravated rape proposal already submitted for legislative consideration

Here are the three proposals I have received (so far) for our legislative role play:

 

From Megan H. and Joshua L.:   Download H & L 2023 Aggravated Rape Statute

 

From Adam B. and Nathaniel H.:  Download B & H 2023 Aggravated Rape Statute Proposal

 

From Sabrina M., Megan S., Tianan Y., and Maggie M:  Download M & M & S & Y 2023 Aggravated Rape Proposal

 

 

Recent prior examples of legislative drafts from prior years' role plays

The folks who have kindly agreed to take on a drafting role for our legislative role play, which is scheduled to take place in class on Thursday, October 26, should know that they need not and ought not feel as though they need to start drafting from scratch.  As is well known by real legislators (and their staff), it is often quite sound and quite wise to seek to build new legislative proposals on prior effort.  To that end, everyone can and should feel free to peruse some of the drafting efforts from prior years captured in the archives of this blog.  Here is an abridged accounting:

 

From 2021:

Draft Aggravated Rape statutes for legislative consideration before scheduled (in-class) legislative hearing 

Draft "Campus Sexual Misconduct Policy" for consideration before scheduled (in-class) hearing

 

From 2022:

Draft "Aggravated Rape Statute" for consideration before scheduled (in-class) hearing

Draft "OSU Sexual Misconduct Policy" for consideration before scheduled (in-class) hearing

 

 

Seeking to summarize and highlight Ohio's major (and intricate) sex offense provisions

As I mentioned in class, I do not test on (or expect you to know thoroughly) modern sex offense doctrines in part because they are quite intricate thanks to modern efforts to properly categorize and criminalize a range of sexual misconduct.  (And we will not look closely at the Model Penal Code's sex offense provisions because the original ones are widely seen as dated and are still under revision.)

As for Ohio, the Sex Offenses Chapter of the Ohio Revised Code has more than 40 distinct provisions criminalizing everything from "Rape" to "Sexual Battery" to "Voyeurism" to "Compelling prostitution" to "Pandering obscenity" and all sorts of stuff in between.  Here are just some portions of Ohio's "Rape" statute, with a few provisions emphasized for potential in-class discussion:

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....  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.... 

(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 sexually transmitted disease or infection 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 sexually transmitted 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....

(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.

Here are links to the other major Ohio sex offense provisions:

ORC 2907.03 Sexual battery.

ORC 2907.04 Unlawful sexual conduct with minor

ORC 2907.05 Gross sexual imposition

ORC 2907.06 Sexual imposition

If you click through to all of these provisions, you will see what looks like a "spouse" exception throughout.  That reality has prompted bills to eliminate such an exception, but these have always been stalled in the Ohio General Assembly.  This effective press article, headlined "Bill to criminalize spousal rape in Ohio has no opponents, so why can’t it pass?," discusses these matters as of last year.  And just earlier this week, there is continued news via this Statehouse News Bureau article headlined, "Bill ending Ohio's spousal rape 'loophole' makes it out of committee."

Post-break schedule reminders AND help from The Simpsons as we get back into unintentional homicides

I hope everyone had a Fall Break that was as restful and restorative as possible.  Though I suspect you are sad the break is winding down, I am excited to get back to our regular meetings.  And, I wanted to remind everyone that we do not have class on Oct 16 (Monday), but do have class on Oct 17-19 (Tuesday though Thursday).   

As for coverage, in our week back, I expect we will wrap up the homicide unit, which means you should finish reading all the unintentional homicide materials (which includes reckless murder and felony murder).  Before we turn to how "more serious" unintentional killings can be murder, though, I will want to quickly review the material we covered right before the break concerning the (diverse) ways "less serious" unintentional killings are labeled as homicides.  To that end, I have often used a Simpsons hypo to explore the how various jurisdictions approach unintended homicides.  I will likely use this hypo to review Ohio and Oliwood law to start out next class.  Here is the full text (with 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 of Marge’s homemade peanut butter.  (Bart took it to the tree house to keep Homer from eating all of it.)  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 the birds away.  Burns urges Smithers to check whether anyone is in the area; Burns knows kids still like to use the tree house, even though Burns had his staff put up a sign stating that kids playing in the tree house would be prosecuted for trespassing.

Eager to do Burns' bidding and to shoo the birds away quickly, Smithers only calls out -- "Hello, can anyone hear me?" -- in an effort to determine if anyone is in the tree house.  Smithers does not directly check to make sure no kids are in the tree house.  Calling out a few times, he gets no response (though the woods are noisy).  Smithers decides he has done enough since he does not plan to shoot directly 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 Simpsons' devout neighbor, were in the tree house praying because they thought being high off the ground brought them closer to their lord.  (The Flanders sincerely thought that praying, rather than playing, in the tree house was perfectly fine.  The kids had heard Smithers call out each time, but they thought it was the lord speaking to them.)  Tragically, the third shot from the antique flare-gun fired off line and into the tree house. 

The third flare shot by Smithers  struck Rod Flanders directly in the chest.  Todd Flanders discovered that his older brother Rod has been killed instantly by the flare; distraught, he jumps out the tree house window to his death.

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

An old documentary about the old Welansky case

Here is a documentary with a partial recreation of the events that lead to the prosecution of Barnett Welansky (whose case we will review this coming week).  The introduction to this old show is a bit much, but the 20 minutes that follow give you a flavor of the story behind an historic and horrific event: 

In addition, if you want to believe that this kind of inferno could not happen again, consider that it roughly did (though with a smaller body count) in The Station nightclub fire in Rhode Island in 2003.  Here are the basic facts of that sad case and the legal aftermath (drawn from this Wikipedia entry):

The Station Nightclub fire was the fourth-deadliest nightclub fire in U.S. history, killing 100 people. The fire began at 11:07 pm, on Thursday, February 20, 2003, at The Station, a glam metal and rock and roll themed nightclub located ... in West Warwick, Rhode Island.

The fire was caused by pyrotechnics set off by the tour manager of the evening's headlining band, Jack Russell's Great White, which ignited flammable sound insulation foam in the walls and ceilings surrounding the stage. A fast-moving fire engulfed the club in 5½ minutes. In addition to the 100 fatalities, some 230 people were injured and another 132 escaped uninjured....

In the days after the fire, there were considerable efforts to assign and avoid blame on the part of the band, the nightclub owners, the manufacturers and distributors of the foam material and pyrotechnics, and the concert promoters.  Through attorneys, club owners said they did not give permission to the band to use pyrotechnics.  Band members claimed they had permission....

On December 9, 2003, brothers Jeffrey A. and Michael A. Derderian, the two owners of The Station nightclub, and Daniel M. Biechele, Great White's former road manager, were charged with 200 counts of involuntary manslaughter — two per death, because they were indicted under two separate theories of the crime: criminal-negligence manslaughter (resulting from a legal act in which the accused ignores the risks to others and someone is killed) and misdemeanor manslaughter (resulting from a petty crime that causes a death)....

The first criminal trial was against Great White's tour manager at the time, Daniel Michel Biechele, 29, from Orlando, Florida.  This trial was scheduled to start May 1, 2006, but Biechele, against his lawyers' advice, pled guilty to 100 counts of involuntary manslaughter on February 7, 2006, in what he said was an effort to "bring peace, I want this to be over with."... Superior Court Judge Francis J. Darigan sentenced Biechele to 15 years in prison, with four to serve and 11 years suspended, plus three years' probation, for his role in the fire....

Following Biechele's trial, the Station's owners, Michael and Jeffrey Derderian, were scheduled to receive separate trials. However, on September 21, 2006, Superior Court Judge Francis J. Darigan announced that the brothers had changed their pleas from "not guilty" to "no contest," thereby avoiding a trial.  Michael Derderian received 15 years in prison, with four to serve and 11 years suspended, plus three years' probation — the same sentence as Biechele. Jeffrey Derderian received a 10-year suspended sentence, three years' probation, and 500 hours of community service.

In a letter to the victims' families, Judge Darigan said that a trial "would only serve to further traumatize and victimize not only the loved ones of the deceased and the survivors of this fire, but the general public as well."  He added that the difference in the brothers' sentences reflected their respective involvement with the purchase and installation of the flammable foam.

Rhode Island Attorney General Patrick C. Lynch objected strenuously to the plea bargain, saying that both brothers should have received jail time and that Michael Derderian should have received more time than Biechele.

Review mens rea issues with my very first exam question (given 26 years ago)!

This week we will wrap up our mens rea unit, and in a few weeks I will be giving you a (small and friendly) mid-term exam that will surely cover some mens rea issues.  As a tool for review and to reveal a common structure for my exam questions, below you can find the full text of a question I asked students on the very first final exam that I gave the very first time I taught Criminal Law at OSU (way back in 1997(!), before we were even the Moritz College of Law):

Oliwood Criminal Code § 555.21. No person shall sell beer or any other intoxicating liquor to any person under 21 years of age.  Violators of this statute, upon a first offense, shall be fined not more than $1000, and/or be required to do not more than 50 hours of community service.

Joseph Merchant, who operates a liquor store near the local university, has a reputation for selling alcohol to underage persons.  Beau Younger, a large and mature looking 19-year-old student at Oliwood State, enters Merchant’s store seeking a bottle of rum. Based on Younger’s appearance, Merchant believes that Younger is in his mid 20s. But, knowing that the police are watching his every move, Merchant asks Younger for some identification. Younger reacts by shouting, “Damn, I’m 25 years old, and I’m sick and tired of getting carded.  You just better give me the booze or else I may have to rough you and this joint up.”  Not wanting any trouble, Merchant sells Younger the rum.  The police find out Younger’s true age as he leaves the store, and they arrest Merchant for violating Oliwood Criminal Code § 555.21.

Joseph Merchant has retained you to defend him. Prepare a brief memorandum discussing and assessing the issues you expect to raise in your defense of Mr. Merchant.

I do not plan to discuss this question in class, though I will be happy to do so (next week) if there is student interest in using class time to go over this question.

Proposal for a new statute: "Criminal crashing while driving in rain"

To start our exploration of mens rea issues, and also to facilitate a focused conversation concerning a legislative proposal seeking to reduce roadway harms, here is some background information about dangerous realities on our roads and highways. First, from the Federal Highway Administration (data from 2007 to 2016, with emphasis added):

On average, nearly 5,000 people are killed and over 418,000 people are injured in weather-related crashes each year. The vast majority of most weather-related crashes happen on wet pavement and during rainfall: 70% on wet pavement and 46% during rainfall. A much smaller percentage of weather-related crashes occur during winter conditions.

And from the car press (in 2019), under the headline "Why Driving In The Rain Is Way More Dangerous Than You Think" (with emphasis added):

[A] new study has shown that even light rain can significantly raise the chances of a fatal car crash. Published in the Bulletin of the American Meteorological Society..., the study asserts that rain, snow, and ice increases the risk of fatal car crashes by a massive 34 percent.  Led by Scott Stevens, a data analyst and meteorologist at the North Carolina Institute for Climate Studies, he and his colleagues reviewed 125,012 deadly crashes in the Lower 48 states between 2006 and 2011, factoring in the number of cars on the road to calculate the risk of a fatal accident.

It turns out that even light rain, which Stevens refers to as a "a drizzle, just at the point where you might consider taking an umbrella out," raises the risk of a fatal crash by 27 percent.  While people tend to become cautious in heavy rain, Stevens believes that "they under-appreciate the risk of light rain," with the weather radar data showing an increase in fatal crashes even in rain of less than one-tenth of an inch per hour.  Moderate rain brings the risk of a deadly accident up to 75 percent greater than in clear weather, while in heavy rain the rate skyrockets to two-and-a-half times more likely.

And from the car website Jerry, under the headline "What’s More Dangerous to Drive In – Rain or Snow? A New Study Sheds Light":

While neither is without risk, most drivers assume that driving in snow is more dangerous than driving in rain.  After all, a build up of snow changes the composition of the road, falling snowflakes make it hard to see, and some cars don’t even start in cold weather. However, a study by Jerry has found that rain is the most dangerous condition ...

[S]tudies show that drivers perceive rain to be less dangerous than snow. This, “it’s just rain” attitude, causes many people to drive too fast, underestimating the risks associated with hydroplaning and reduced braking distances.

Senator JoJo Beesafer has been deeply concerned about traffic safety issues ever since her college days after one of her best friends was killed by a drunk driver who was speeding and swerving on a country road during a summer thunderstorm.  Senator Beesafer has sponsored a number of bills seeking to increase punishment and enforcement efforts for driving under the influence.  Senator Beesafer has now drafted a novel new bill responding to concerns for the many thousands of people economically and/or physically harmed by crashes from persons driving in the rain without being aware of the risks (and/or not being sufficiently cautious):

PROPOSED CODE Section 2999.99: Criminal Crashing While Driving in the Rain

(A) No person shall cause physical harm to another person or damage the property of another while driving in the rain.

(B) Whoever violates this section is guilty of criminal crashing while driving in the rain, a misdemeanor of the second degree.  If a violation causes any physical harm to any person or causes property damage in excess of $10,000, this offense is a misdemeanor of the first degree.  

We will discuss the potential pros and cons of this bill in class.  Everyone should feel free to use the comments to express any comments or concerns now; proposed amendments to this bill are welcome as well.

Reviewing role play roles (and electronic versions of the materials)

Thanks again so very much to the eight students who volunteered to be lawyers in our first role play.  Particularly for their benefit, but really for everyone's consideration and reflection, I wanted to reiterated the respective roles of attorneys and judges at a sentencing proceeding:

Prosecutors do not represent any individual party, but the community as a whole, and they thus tend to view their obligation at sentencing to argue for whatever sentence they believe will serve as just and effective punishment in accordance with applicable law.  Of course, prosecutors know that, right after they make their presentation at sentencing about a proper punishment, the defense attorneys are likely to be giving a different account of the case to the judge(s).

Defense attorneys, in contrast, represent an individual client, and so 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.  Of course, defense attorneys know not only that prosecutors are to be advocating from a distinct perspective, but also that the judge(s) may not be swayed by positions or arguments that seems unrealistic in light of the applicable facts and law. 

The rest of you, as I mentioned in class, get to serve as sentencing judges.  Below everyone can download the Oliwood Pre-sentence reports and the sentencing form that I handed out in class to be used to prepare for the sentencing.  There is no need (or place) to put a name on the form, but I plan collect these forms after our sentencing hearings in class on Monday. 

As mentioned in Wednesday's class, the judges are encouraged to develop tentative ideas about what sentence they might impose before coming to class to hear the legal advocates' presentations.  By doing so, folks can get a sense of their own judicial instincts about punishment before hearing from the lawyers, and they also can experience first-hand whether and how advocacy can have an impact in this kind of setting.

Download 2023 sentencing role play psrs

Download 2023 Judges sentencing form

So grateful for many sentencing role-play volunteers

I was pleased to return to my desk and already hear from many of you about your interest in volunteering for our sentencing role-play planned for Monday afternoon.   As I mentioned, I tried to fill spots in a first-come (by email), first-serve way, and I am sincerely sorry we had  many more volunteers than slots.   Here are the individuals who have been plugged into these coveted early lawyering slots based on the emails I received.  As you will see, as of this writing (5pm on Tuesday), there is one last spot open.

Wed AM UPDATE:  The final spot has been filled!  Thanks to you all, and I am already very excited for Monday!

 

Oliwood v. Rachel Foster (applying US Code, Title 18, Section 3553(a))

Prosecutors:  Roha Tanveer + Noah Golovan

Defense Attorneys: George Sdregas + Kelly Miles

 

Oliwood v. Dan Schayes (applying Ohio Revised Code Section 2929.11)

Prosecutors:  Morgan Kukovec + Gavin Maziarz

Defense Attorneys: Levi Brake + Mitch MacDonald

 

Thanks again to so many of you for you interesting in volunteering.  As I mentioned, we will talk a bit more about the exercise during Wednesday's class.  And we will have a bunch more role plays throughout the semester, so more lawyering opportunities await.

Welcome to the Moritz College of Law, Criminal Law with Professor Douglas Berman, and version 11.0 of this class blog

Get excited about starting a new school and a new class that uses an old technology!

I am so very pleased to welcome you the the Moritz College of Law and to introduce you to the legal field of Criminal Law.  And because the technology has served me quite well for nearly two decades, I remain a big fan of law blogs and continue to make a habit of using various blogs to support my instruction in various law school classes.  I have found that blogs (over a law-school-support technology like TWEN or course software like CARMEN) provide an especially useful and distinctive on-line tool for supplementing my courses and for encouraging students to engage with "public" questioning and commentary (and to see how prior generations of law students engaged with these materials).

So, I will continue as an old dog with old technology tricks in the Fall 2023 semester at the Moritz College of Law by using this blog in our first-semester 1L Criminal Law course.  As the "version 11.0" label in the title of this post highlights, I have built this "new" blog directly atop the blog I have used when teaching this same course nine times before (in Fall 2008, 2010, 2013, 2014, 2016, 2017, 2018, 2021 and 2022) and also when teaching a Comparative Criminal Procedure course (in Summer 2012 as part of our great Oxford summer program).  I am hopeful that new 1Ls will benefit from — or at least find reassuring — seeing some of the posts and comments that were generated in this space in years gone by via these archives.

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

WELCOME!

Getting us started, I am here posting electronic copies of the basic course documents and our assignment for the first week of class (which also appears in the same form on our CarmenCanvas class page).

 

In preparation for our first class on Monday, August 21, you should:

1.  Obtain a copy of Kaplan, Weisberg and Binder, Criminal Law (9th ed. 2021)

2.  Obtain a copy of the course description and the course syllabus, which will be available by August 16 in front of my office (Room 313), and on the course website (linked hereLinks to an external site.), and in the FILES tab in our CarmenCanvas class webpage.

3.  Read the casebook's Introduction quickly and pages 19-25, 29-32, and 589-595 closely. Because the next set of readings provide theoretical background, and because they can and should be read VERY quickly and should enhance your appreciation of our initial discussions, I encourage you also to SKIM the readings from pages 32‑70 in the text as soon as possible.

Download 2023 Course description

Download 2023 Crim Law syllabus

 

 

 

 

Discouragingly timely hypo for wrapping up attempt / complicity / conspiracy discussions

To facilitate discussion of various doctrines related to attempt (particularly the act requirement), I have in past years put up posts with a sequence of actions by a young man seemingly interested in committing an act of domestic terrorism.  Examples are here (planning to bomb Microsoft's headquarters) and here (planning to bomb Apple's headquarters) and here (planning to bomb the Ron Paul Institute).

Based on depressing recent events, and in an effort to highlight the discouragingly challenging realities surrounding mass shootings, I have revised the hypo (and hope it is not too triggering).  Here goes:

1. Joe McAngry calls his parents to say was fired from his job at Twitter and joked he might want to borrow his dad's rifle

2. Joe emails his friends to say he was very depressed and angry Elon Musk bought Twitter and fired so many people like him

3. Joe texts a former co-worker who was also fired to say he hoped someone "got back" at Musk

4. Joe posts anonymously on Twitter that Musk ought to be sure to "keep looking over his shoulder" 

5. Joe researches online about where Musk lives and works and can be found on most workdays

6. Joe researches online about the Tesla Gigafactory in Austin, Texas and contacts persons about arranging a tour 

7. Joe posts on Facebook that some day retribution would come to Musk and those who work with him

8. Joe orders a bulletproof vest from an online store for overnight delivery

9. Joe travels to his parents home and picks up his dad's rifle and a ski mask, telling his dad he had hunting plans

10. Joe visits a gun store and buys 60 rounds of ammunition for the rifle and also a handgun with 60 more rounds

11. Joe uses Waze to map out a route from his home in California to Tesla headquarters in Austin, Texas

12. Joe creates a fake document that states he has been invited for a special tour of the Tesla Gigafactory

13. Joe begins a drive to Texas, with his guns and ammo and vest, staying overnight at a motel in eastern Arizona 

14. Joe completes his drive to Austin, staying overnight in a motel a few miles from the Tesla Gigafactory

15. Joe, wearing his a bulletproof vest, drives in morning to Tesla headquarters and circles grounds 

16. Joe drives to security checkpoint and convinces guard using fake document that he has a tour scheduled at the factory

17. Joe parks near where he thinks Musk has his office and is working that morning 

18. Joe waits, watching for working to arrive at location while monitoring Musk's Twitter account

19. Joe emerges from his car with his rifle in one hand and his handgun in another

20. Joe starts running toward the entrance to the Tesla Gigafactory, pointing his guns at persons nearby yealling "Where's Elon?"

21. Joe begins to squeeze trigger as he sees someone he thinks is Musk emerge from the Tesla Gigafactory....

 

ATTEMPT 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?

Might Thomas Dudley ask his potential lawyers "Is Eating People Wrong?"

I hope everyone is excited for next Monday's role play experience which is intended to focus on defenses (and especially necessity and duress) in Oliwood under the (unique) terms and structure used by the Model Penal Code. The lawyers (and the rest of the class) can prepare adequately by just reviewing the MPC doctrine and the facts of the Dudley & Stephens case.   But anyone deeply interesting in learning a lot more about Thomas Dudley and his travails should check 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.

Draft "Aggravated Rape Statute" for consideration before scheduled (in-class) hearing

I am please to report having just received a completed "Draft Aggravated Rape Statute" from the drafting group of Olivia, Ryan, and Greyson.  The proposal runs three pages, and can be downloaded here:

Download 2022 Completed Draft Aggravated Rape Statute from OGR

Draft "OSU Sexual Misconduct Policy" for consideration before scheduled (in-class) hearing

I have received the first detailed proposal for class consideration of an OSU Sexual Misconduct policy from Luke, Ian, Michael and Nick Wead.  The proposal runs four pages, and can be downloaded here:

Download 2022 OSU Sexual Misconduct Policy from LIMN

 

UPDATE:  This blogging software seems to finally be operational again, as so I can now post here the second piece of draft legislation sent my way.  This "draft Campus Sexual Misconduct Policy" has been provided by the drafting committee of Isabella, Lili, Marie, Reema, and Izzy.

Download Campus Policy Draft from RMIIL

 

LAST MINUTE ADDITIONAL UPDATE:  While I was at a student lunch, I received a final "Proposed Campus Sexual Misconduct Policy" from Sarah, Zarah, Patrick, Stephen, Nick, AJ and Mehek Sheikh:

Download Campus Sexual Misconduct Draft from SZPSNAM

Ohio's major (and intricate) sex offense provisions

As I mentioned in class, I do not test on (or expect you to know thoroughly) modern sex offense doctrines in part because they are quite intricate thanks to modern efforts to properly categorize and criminalize a range of sexual misconduct.  (And we will not look closely at the Model Penal Code's sex offense provisions because the original ones are widely seen as dated and recent revisions are quite extended.) 

As for Ohio, the Sex Offenses Chapter of the Ohio Revised Code has more than 40 distinct provisions criminalizing everything from "Rape" to "Sexual Battery" to "Voyeurism" to "Compelling prostitution" to "Pandering obscenity" and all sorts of stuff in between.  Here are just some portions of Ohio's "Rape" statute, with a few provisions emphasized for potential in-class discussion:

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....  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.... 

(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....

(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.

Here are links to the other major Ohio sex offense provisions:

ORC 2907.03 Sexual battery.

ORC 2907.04 Unlawful sexual conduct with minor

ORC 2907.05 Gross sexual imposition

ORC 2907.06 Sexual imposition

If you click through to all of these provisions, you will see what looks like a "spouse" exception throughout.  That reality has recently prompted a bill to eliminate such an exception, but it has been stalled in the Ohio General Assembly.  This effective press article, headlined "Bill to criminalize spousal rape in Ohio has no opponents, so why can’t it pass?," discusses these matters.

Links to some prior examples of legislative drafts from prior role plays

I will seek to explain in class, perhaps a bit more clearly, the logistics for the legislative drafting role play that is tentatively scheduled to take place in class on Friday, October 28. For now, folks (especially folks who have not yet been involved in a role play) should be thinking about possibly assembling a drafting committee with fellow students.

I am grateful for all those who have already expressed an eagerness to participate, and I will discuss more of particulars of the exercise in the coming days.  In the meantime, you can and should feel free to peruse some of the efforts from prior years captured in the archives of this blog.  Here is an abridged accounting:

From 2013:

Oliwood rape reform proposals from four drafting subcommittees

 

From 2014:

Sexual offense code reform proposals from our drafting subcommittees (bonus trivia: one of the drafters from 2014 is a 538 favorite to win a 2022 seat in Congress)

 

From 2016:

Submitted draft proposals for revised MPC rape provision and for elaborate campus sexual behavior code

 

From 2018:

Fall 2018 proposals for an Aggravated Rape statute in the great state of Oliwood 

 

From 2021:

Draft Aggravated Rape statutes for legislative consideration before scheduled (in-class) legislative hearing 

Draft "Campus Sexual Misconduct Policy" for consideration before scheduled (in-class) hearing

Full text of the Simpsons hypo — RIP Rod and Todd — for reviewing variations in unintended homicides

I quickly read in Monday's class a Simpsons hypo for your consideration as a fact pattern to explore the various ways that various jurisdictions approach unintended homicide charges.  I will likely seek to discuss this case's application at least in Ohio and Oliwood to get us started next week.  Here is the full text (with 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 of 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 all the birds away.  Burns urges Smithers to be sure to check whether anyone is in the area; Burns knows kids still like to use the tree house, even though Burns had his staff put up a sign stating that kids playing in the tree house would be prosecuted for trespassing.

Eager to do Burns' bidding and to shoo the birds away quickly, Smithers only calls out -- "Hello, can anyone hear me?" -- in any effort to determine if anyone is in the tree house.  Smithers does not directly check to make sure no kids are in the tree house beyond repeatedly calling out.  After calling out a few times, he gets no response (though the woods are noisy).  Smithers decides that he has done enough given that he does not plan to shoot directly 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 Simpsons' devout neighbor, were in the tree house praying because they thought being high off the ground brought them closer to their lord.  (The Flanders sincerely thought that praying, rather than playing, in the tree house was perfectly fine.  The kids had heard Smithers call out each time, but they thought it was the lord speaking to them.)  Tragically, the third shot from the antique flare-gun fired off line and into the tree house. 

The third flare shot by Smithers which entered the tree house struck Rod Flanders directly in the chest.  Todd Flanders discovered that his older brother Rod has been killed instantly by the flare; distraught, he jumps out the tree house window to his death.

Smithers turns himself in, and now you are the prosecutor trying to decide whether he might be guilty of some 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.

A working list of lunch dates (with comments available for signing up) .. and now a Google Doc

Rather than devise another website for arranging lunch dates, I figure I will use this space and explain again the basics if you are interested.

The basics: up to 5 students can meet at my office (Room 313) at 11:30am on the designated date so we have time to walk to the Wexner Center to grab a bite (Going Dutch) and chat about life or law or whatever else before our class or other activities.

Viable (initial) dates:

October 7

October 21

October 28

November 4

November 11

November 18

Sign up: by using the comments below claiming certain dates, feeling free to list multiple names if you have coordinated a group.

UPDATE:  MANY thanks for those who have already signed up for lunches.  I finally had the good sense to make an open Google Doc to do this in a more orderly fashion, so I gave moved names from the comments to this Google document which can now be accessed by all who want to sign up (or change plans).

Also, I have adjusted some of the available dates and added a few later in November.

ANOTHER UPDATE:  MANY thanks for those additional signed ups for lunches.  It looks like we are now full on October 28 and November 4.  There is still room on other dates AND I can and will make additional dates if there is interest.

For your review and preparation (and enjoyment?): prior mid-terms and exam prep materials

To help you prepare for the coming mid-term (on Wednesday, Oct 12), I am happy to provide prior exams and other exam prep materials.  To start, I will post here the mid-term exam I gave students in this class last Fall, as well as a "practice" mid-term that I typically offer when I teach a large-section class (and associated follow-up materials).

Download Berman Crim Law midterm for 2021

Download practice_exam.rtf

Download key_issues_on_practice_exam.rtf

Download exam_tips_memo.rtf

I think this is (more than) enough material for helping you prepare for the mid-term (which is supposed to be a relatively low-key event).  But you can find more old exams in the archives if you are a glutton for exam punishment.

A "missing mental state" and a federal proposal for mens rea reform

As we start turning more deeply into mens rea issues, there are lots of topics we will cover (too) quickly that generate broad and deep academic and political debates.  I will sometimes use this space to highlight some of this broader debate, especially if I mention the debate in class in some way. (Critically, you should feel no obligation to read more than these posts, which are just intended to give you a feel for the debate.)  So, two items as follow up from our recent classes:

1. I mentioned in class the work of OSU Law's Alan Michaels on mental states titled "Acceptance: The Missing Mental State."  You can download the full 105-page(!) manuscript at this link, though I would recommend being content with this summary from the paper's abstract:

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

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

The article proposes that where the law requires knowledge, acceptance should be allowed to suffice.  After justifying such an approach from both retributive and utilitarian perspectives, the article establishes, by examining the willful blindness and depraved-heart murder doctrines, that using acceptance would yield a better fit between criminal law and culpability concepts and would substantially diminish vagueness problems.

2. I mentioned in class that federal criminal law has never been fully or formally revised since the Model Penal Code was developed.  But there are often proposals for all sorts of reviews, and here is the full text from a notable press release, "Sens. Lee, Tillis, and Paul Introduce Mens Rea Reform Act," from last year describing a federal criminal law reform proposal:

Sens. Mike Lee (R-Utah), Rand Paul (R-Ky.) and Thom Tillis (R-N.C.) yesterday introduced the Mens Rea Reform Act of 2021, a bill that aims to reduce overcriminalization, rein in excessive regulation, and curb overzealous prosecutions.

As the power of the federal government has grown in size and scope, regulators and prosecutors have found ways to penalize activities that most Americans would view as innocent or non-criminal.  As a result, ordinary Americans have found themselves facing jail time for supposedly “criminal” activities like abandoning a snowmobile on federal land, accidentally diverting sewage backups to the wrong drain, or unknowingly selling goods to the wrong person.  In each of these cases, the government did not have to prove that the person knew or intended to commit a crime; they simply had to prove that the person committed the action.

Current federal law criminalizes all kinds of activities that most people would not know were criminal.  For example, “[p]lacing a vehicle or other object in such a manner that it is an impediment . . . to the . . . convenience of any person” on federal property or writing a check for less than $1 could earn someone six months in prison.  These crimes do not require the government to demonstrate that someone intended to do something wrong — merely that they engaged in the prohibited conduct.

Additionally, many of these so-called “criminal” statutes were written by unelected bureaucrats.  Agency regulators and prosecutors have used laws like the Clean Water Act for decades to punish conduct most Americans would view as innocent, or at least not criminal.

“Prosecutors should have to show a suspect had a guilty mind, not just that they committed an illegal act, before an American citizen is put behind bars,” Sen. Lee said. “Unfortunately, our federal laws contain far too many provisions that do not require prosecutors to prove a defendant intended to commit a crime. The result is a criminal justice system that over-penalizes innocent acts, which only undermines the rule of law.”

“We’ve unfortunately seen too many instances of commonsense and restraint not being used in the prosecution of Americans for innocent acts with no criminal intent,” said Sen. Tillis. “Our legislation will help curb unfair overcriminalization by requiring prosecutors to demonstrate guilty intent.”

The Mens Rea Reform Act would end this wrongful government overreach by establishing a default intent standard for all criminal laws and regulations. In other words, if a law does not require proof that the defendant intended to commit a crime, prosecutors would still have to demonstrate that the defendant possessed a guilty mind in order to convict.

Read the full bill text here.

Proposal for a new Ohio statute: "Criminal crashing while driving in rain"

To start our exploration of mens rea issues, and also to facilitate a focused conversation concerning a timely legislative proposal seeking to reduce roadway harms, here is some background information about dangerous realities on our roads and highways. First, from the Federal Highway Administration (data from 2007 to 2016, with emphasis added):

On average, nearly 5,000 people are killed and over 418,000 people are injured in weather-related crashes each year. The vast majority of most weather-related crashes happen on wet pavement and during rainfall: 70% on wet pavement and 46% during rainfall. A much smaller percentage of weather-related crashes occur during winter conditions.

And from the car press (in 2019), under the headline "Why Driving In The Rain Is Way More Dangerous Than You Think" (with emphasis added):

[A] new study has shown that even light rain can significantly raise the chances of a fatal car crash. Published in the Bulletin of the American Meteorological Society..., the study asserts that rain, snow, and ice increases the risk of fatal car crashes by a massive 34 percent. Led by Scott Stevens, a data analyst and meteorologist at the North Carolina Institute for Climate Studies, he and his colleagues reviewed 125,012 deadly crashes in the Lower 48 states between 2006 and 2011, factoring in the number of cars on the road to calculate the risk of a fatal accident.

It turns out that even light rain, which Stevens refers to as a "a drizzle, just at the point where you might consider taking an umbrella out," raises the risk of a fatal crash by 27 percent.  While people tend to become cautious in heavy rain, Stevens believes that "they under-appreciate the risk of light rain," with the weather radar data showing an increase in fatal crashes even in rain of less than one-tenth of an inch per hour.  Moderate rain brings the risk of a deadly accident up to 75 percent greater than in clear weather, while in heavy rain the rate skyrockets to two-and-a-half times more likely.

And, with the latest concerning traffic data, consider excerpts from this May 2022 press release from the National Highway Traffic Safety Administration (NHTSA) and from this additional August 2022 press release also from NHTSA:

The National Highway Traffic Safety Administration has released its early estimate of traffic fatalities for 2021. NHTSA projects that an estimated 42,915 people died in motor vehicle traffic crashes last year, a 10.5% increase from the 38,824 fatalities in 2020. The projection is the highest number of fatalities since 2005 and the largest annual percentage increase in the Fatality Analysis Reporting System’s history. Behind each of these numbers is a life tragically lost, and a family left behind....

“This crisis on our roads is urgent and preventable,” said Dr. Steven Cliff, NHTSA’s Deputy Administrator. “We will redouble our safety efforts, and we need everyone – state and local governments, safety advocates, automakers, and drivers – to join us.  All of our lives depend on it.”  

----

NHTSA estimates that 9,560 people died in motor vehicle traffic crashes in the first quarter of 2022. This is an increase of about 7% as compared to the 8,935 fatalities projected for the same quarter in 2021. This would be the highest number of first-quarter fatalities since 2002....

“The overall numbers are still moving in the wrong direction. Now is the time for all states to double down on traffic safety. Through the Bipartisan Infrastructure Law, there are more resources than ever for research, interventions and effective messaging and programs that can reverse the deadly trend and save lives,” said Dr. Steven Cliff, NHTSA’s Administrator.

Ohio Senator JoJo Beesafer has been deeply concerned about traffic safety issues ever since her college days after one of her best friends was killed by a drunk driver who was speeding and swerving on a country road during a summer thunderstorm.  Senator Beesafer has sponsored a number of bills seeking to increase punishment and enforcement efforts for driving under the influence.  Now, moved by the call for states to "redouble our safety efforts" and "double down on traffic safety," Senator Beesafer has drafted a novel new bill responding to concerns for the many thousands economically and/or physically harmed by crashes from persons driving in the rain without being aware of the risks (and/or not being sufficiently cautious while driving):

PROPOSED ORC Section 2999.99: Criminal Crashing While Driving in the Rain

(A) No person shall cause physical harm to another person or damage the property of another while driving in the rain.

(B) Whoever violates this section is guilty of criminal crashing while driving in the rain, a misdemeanor of the second degree.  If a violation causes any physical harm to any person or causes property damage in excess of $10,000, this offense is a misdemeanor of the first degree.  

We will discuss the potential pros and cons of this bill in class this coming week.  Everyone should feel free to use the comments to express any comments or concerns now; proposed amendments to this bill are welcome as well.

Real-life case from Australia involving an immoral photographer taking pictures rather than aiding

We will wrap up our quick discussion of omission liability on Wednesday by reviewing the Jones case closely and returning to the topic of who could and should be charged with a crime for letting little Josephine drown in my pool hypothetical.  (We will also get started on the topic of voluntariness with the Martin and Grant cases.)  I have been using the pool hypothetical in class for many years, and often students laugh when I describe the hard-to-believe character of a photojournalist student taking pictures of Josephine drowning rather than doing anything to help.  Indeed, I have long worried this part of my pool hypothetical was too outrageous to seem plausible.  

But last year, a student in this class told me about a recent real-life example of an immoral photographer — kind of like the photo-journalist in my baby-drowning-at-pool hypo — who was subject to a creative prosecution in Australia.  This 2021 press story, headlined "Richard Pusey: Australian jailed for filming dying officers," provides these details:

An Australian man has received a 10-month jail sentence for filming and mocking police officers as they lay dying at a crash scene.  Last month Richard Pusey pleaded guilty to the rare charge of outraging public decency, as well as other offences.

The 42-year-old has already been in custody for nearly 300 days, so he will probably complete his sentence within days. The sentencing judge called his actions "heartless, cruel and disgraceful".

Still, families of the victims were disappointed with the length of the sentence in a case that has stirred huge public anger.  Last month, Judge Trevor Wraight said the media had demonised Pusey to the point where he was "probably the most hated man in Australia".

The mortgage broker had been speeding in his car on a Melbourne freeway last year when he was pulled over by four officers. While they were making his arrest, all four were struck by a lorry that had veered out of its lane.

Senior Constables Lynette Taylor and Kevin King, and Constables Glen Humphris and Josh Prestney died at the scene. Pusey had been standing a few metres away and avoided the crash, but afterwards pulled out his phone and began filming numerous videos, some of which ran for more than three minutes.  The court had heard that Pusey stood over and taunted Senior Constable Taylor as she remained pinned under the lorry. Experts said she was most likely still alive at the time....

He fled the scene on Melbourne's Eastern Freeway shortly after.  The next day he was arrested at his home and initially charged with speeding, drug possession and reckless conduct offences.  However, police then also discovered Pusey's video and that he had shared it among friends.

The lorry driver, Mohinder Singh, was jailed earlier this month to 22 years for the deaths.  A court found that the truck driver had been high on drugs, suffering delusions and hallucinations, and driving erratically when he ploughed his truck into the officers.

Judge Wraight condemned Pusey's behaviour while noting he was only being sentenced for his actions.  Pusey hadn't caused the deaths of the officers, contrary to some public opinion, the judge said.  "Your conduct in recording the police officers in their dying moments, together with the words you used as you recorded, was not only derogatory and horrible... but it was also callous and reprehensible conduct," Judge Wraight said.

He noted that Pusey had a history of mental health problems, including a complex personality disorder "which may go some way to explaining your behaviour". But he said it did not excuse his actions....

Families and supporters of the police officers criticised the sentence after it was handed down in Victoria's County Court. Stuart Schulze, the husband of Constable Taylor, said he felt "almost unbearable" pain every time he remembered how his wife was treated in her final moments.  "This sentence is totally inappropriate of this offending," Mr Schulze told reporters outside court.  He argued it was the court's duty to "set the appropriate standard" in penalising such behaviour.

The offence of outraging public decency has rarely been prosecuted in Australia, and the charge carries no set penalty. The head of Victoria state's police union also criticised the sentence. "Four upstanding heroes died on that day and… one soulless coward lived," Wayne Gatt said.

For anyone so interested, here is a link to the sentencing opinion in DPP v. Pusey.  Relatedly, law professor Jonathan Turley discusses this case in this blog post and highlights that, in the United States, Richard Pusey could not have been prosecuted for failing to aid the officers (though it is not clear he was prosecuted for that crime in Australia, either).

Reminder of role play roles (and the sentencing form in electronic form)

Thanks again for all those who volunteers to be lawyers in our first role play.  Particularly for their benefit, but really for everyone's consideration, I wanted to reiterated everyone's respective roles:

Prosecutors do not represent any individual party, but the community as a whole, and they thus tend to view their obligation at sentencing to argue for whatever sentence they believe will serve as just and effective punishment in accordance with applicable law. 

Defense attorneys, in contrast, represent an individual client, and so 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.  Of course, that may hinge somewhat on figuring out what kind of sentencing advocacy is most likely to sway the judge(s). 

The rest of you, as I mentioned in class, get to serve as sentencing judges.  Below you can download a copy of the form I handed out in class to be used to prepare for the sentencing.  There is no need (or place) to put a name on the form, but I plan collect these forms after our sentencing hearings in class.  As mentioned, the 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 sense of your own judicial instincts about punishment and also can see first-hand whether and how advocacy can have an impact in this kind of setting.

Download 2022-judges-sentencing-form

Does the text or spirit of the Eighth Amendment embrace any particular theory of punishment?

I have asked the first question in the title of this post to many students in many classes, and I am still not sure of the answer and so will be eager to hear another set of views in our class.   The Supreme Court has, in a sense, spoken to this question in a number of Eighth Amendment cases (some of which are discussed in our text).  I plan to discuss briefly some of the Eighth Amendment cases that appear in our reading, but let me start the conversation by highlighting some key text from the Constitution and from the caselaw:

Amendment VIII:  "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Graham v. Florida, 560 U.S. 48 (2010), majority opinion: "The concept of proportionality is central to the Eighth Amendment."

Ewing v. California, 538 U.S. 11 (2003), majority opinion:  "Our traditional deference to legislative policy choices finds a corollary in the principle that the Constitution does not mandate adoption of any one penological theory....  Selecting the sentencing rationales is generally a policy choice to be made by state legislatures, not federal courts."

Ewing v. California, 538 U.S. 11 (2003), Justice Scalia opinion: "Proportionality — the notion that the punishment should fit the crime — is inherently a concept tied to the penological goal of retribution....  In the present case, the game is up once the plurality has acknowledged that 'the Constitution does not mandate adoption of any one penological theory,' and that a 'sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation'."

Many, many thanks for (too) many, many sentencing role-play volunteers

I was overwhelmed get back to my computer after some office hours conversations and already hear from so many of you about your interest in volunteering for our sentencing role-play planned for Monday afternoon.   As I mentioned, I tried to fill spots in a first-come (by email), first-serve way, and I am sincerely sorry we had so many more volunteers than slots.   Here are the individuals who have been plugged into these coveted early lawyering slots based on the early (still during emails I received:

Oliwood v. Rachel Foster (applying US Code, Title 18, Section 3553(a))

Prosecutors:  Ryan Cleary + Olivia Hiltbrand

Defense Attorneys: Lili Biswas + Isabel Cohen

 

Oliwood v. Dan Schayes (applying Ohio Revised Code Section 2929.11)

Prosecutors: Mehek Sheikh + Greyson Teague

Defense Attorneys: Mickaela Davis + Rachel Peterson

 

Thanks again to so many of you for you interesting in volunteering.  We will have a bunch more role plays throughout the semester, so more lawyering opportunities await.

Welcome to the Moritz College of Law, Criminal Law with Professor Douglas Berman, and version 10.0 of this class blog

Welcome to a new school and a new class using an old tech platform!

Ever drawn to a technology that has served me well for many years, I remain a big fan of law blogs and I continue to make a habit of using various blogs to support my instruction in various law school classes.  I have found that blogs (over a law-school-support technology like TWEN or course software like CARMEN) provide an especially useful and distinctive on-line tool for supplementing my courses and for encouraging students to engage with "public" questioning and commentary.

I will continue as an old dog with old tricks in the Fall 2022 semester at the Moritz College of Law by using this blog in our first-semester 1L Criminal Law course.  As the "version 10.0" label in the title of this post highlights, I have built this "new" blog directly atop the blog I have used when teaching this same course eight times before (in Fall 2008, 2010, 2013, 2014, 2016, 2017, 2018 and 2021) and also when teaching a Comparative Criminal Procedure course (in Summer 2012 as part of our great Oxford summer program).  I am hopeful that new 1Ls will benefit from — or at least find reassuring — seeing some of the posts and comments that were generated in this space in years gone by via these archives.

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

WELCOME!

Getting us started, I am here posting electronic copies of the basic course documents and our assignment for the first week of class (which also appears in the same form on CarmenCanvas).

 

 

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

1. Obtain a copy of Kaplan, Weisberg and Binder, Criminal Law (9th ed. 2021)

2. Obtain a copy of the course description and the course syllabus, which are available in front of my office (Room 313) and on the course website (linked below), and also via the FILES tab in our CarmenCanvas class webpage.

3. Read the casebook's Introduction quickly and pages 19-25, 29-32, and 589-595 closely.  Because the next set of readings provide theoretical background, should be read (skimmed) VERY quickly, and should enhance your appreciation of our initial discussions, I encourage you also to SKIM the readings from pages 32‑70 in the text as soon as possible.

Download 2022 Course description

Download 2022 Crim Law syllabus

 

 

 

 

 

 

Timely hypo for wrapping up attempt / complicity / conspiracy discussions

To facilitate discussion of various doctrines related to attempt (particularly the act requirement), I have in past years put up posts with a sequence of actions by a young man seemingly interested in committing an act of domestic terrorism.  Examples are here (planning to bomb MIcrosoft's headquarters) and here (planning to bomb the 2014 Boston Marathon) and here (planning to bomb Apple's headquarters) and here (planning to bomb the Ron Paul Institute).

Based on recent events, and in an effort to bring in some complicity and conspiracy concepts, I have revised the hypo and sequence of events to now involve a few people.  So here goes:

Peter Pour and Paul Pour, bothers who both work as Uber drivers and often tweet about the injustice of income inequality, have told many friends and family that they viewed the recent rash of smash-and-grab thefts of luxury stores to be a kind of justified economic reparations.  In an email to their parents prior to the Thanksgiving weekend, Mary and Michael, Peter said he and Paul were hoping to get the courage to "do some justice at the Oliwood Easton Tiffany store."  Michael wrote back "Be safe"; Mary said "I would like my justice in the form of a bracelet.  And remember your ski masks and maybe other useful supplies are in our garage."  Thereafter:

1.  Both Peter and Paul e-mailed friends asking for persons to join their new "Smash-And-Grab Justice League" via google form

2.  Paul researched online various recent "smash and grab" events and created spreadsheet about number of persons involved 

3.  Peter researched online operating times for the Oliwood Easton Tiffany store in December 2021

4.  Paul traveled to his parents house, picking up ski masks and gloves and large bags

5.  Peter traveled to Home Depot and purchased a dozen large hammers and large bags

6.  Paul and Peter traveled together by car to the Oliwood Easton Tiffany store on the day after Thanksgiving

7.  Peter and Paul take turns entering and walking around the Oliwood Easton Tiffany store; Peter took notes in a notebook when inside, Paul took pictures all around the store with his phone

8.  Two days after Thanksgiving, Peter emails everyone who filled out the google form to explain they were looking at the early morning of December 4 as "justice day" 

9.  Paul, the next day, emails the group saying there would be a meeting on December 3 for all serious "justice warriors" at their apartment 

10. During week after Thanksgiving, Peter and Paul send daily reminders of the meeting planned for the evening of December 3 

11. On December 3, Andrew, James, John, Philip, Bartholomew and Matthew all meet with Peter and Paul at their apartment 

12. At 5:10am on December 4, Paul and Peter in their separate cars each head out from their apartment and pick up three of their friends

13. Around 5:30am on December 4, Paul and Peter in their separate cars each head to Oliwood Easton

14. Around 5:50am on December 4, Paul and Peter in their separate cars each park near Oliwood Easton Tiffany store

15. Around 6:15am, Paul and Peter and their friends emerge from the cars all wearing masks and gloves and carrying hammers and bags

16. Paul and Peter (but not their friends) start running directly toward the Oliwood Easton Tiffany store with hammers raised....

 

LIABILITY QUESTIONS

When do you think, under common law tests or the MPC, the brothers (or others) are guilty of attempted theft/burglary?

When do you think the brothers (or others) are involved in a formal conspiracy to commit theft/burglary?

Do you think the parents of the brothers (or others) are accomplices in an attempted theft/burglary?

 

POLICING QUESTIONS

When do you want police to intervene?

When do you think the police legally can intervene?

When do you think the police likely will intervene?

Might Thomas Dudley ask his potential lawyers "Is Eating People Wrong?"

I hope everyone is excited for Friday's role play experience which is intended to focus on necessity and duress doctrines in Oliwood under the (unique) terms and structure for these defenses used by the Model Penal Code. The lawyers (and the rest of the class) can prepare adequately by just reviewing the MPC doctrine and the facts of the Dudley & Stephens case.   But anyone deeply interesting in learning a lot more about Thomas Dudley and his travails should check 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.

Draft "Campus Sexual Misconduct Policy" for consideration before scheduled (in-class) hearing

The drafting committee of Cody V., Jesse W., and Madi W., has submitted this draft Campus Sexual Misconduct Policy for consideration:

Goal: Prevent sexual misconduct of all kinds and rape on campus, along with providing accused offender’s protection from false accusations.  These are extremely serious claims, and we will treat them as such. We are proposing strict and strong punishments, with the goal to prevent repeated offenses.  All students should be allowed to continue their progress towards graduation at a pivotal point in life in a safe environment.

Premise: Upon becoming students, they will sign legal waivers, requiring them to cooperate with sexual misconduct and rape investigations. They will be required to produce all materials pertinent to the investigations, including phone records, etc.

Section 210.0 Definitions:

Sexual misconduct: any touching of the body parts of another person or forced sexual penetration of another when consent is not provided. This is a broad term that encompasses sexual harassment, sexual assault, relationship violence, stalking, and sexual exploitation.

Consent is a knowing and voluntary expression to engage in a sexual act prior to and during it:

a. Silence or an absence of resistance does not imply consent;

b. Consent can be withdrawn at any time;

c. Substantial impairment of an individual indicates they lack the capacity to give knowing consent;

d. Past consent does not imply future consent;

e. Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another; and

f. Coercion, force, or threat of either invalidates consent.

Watch List: Police/investigators monitoring future actions of students.

Appropriate measures: any reasonable action(s) to stop or bring awareness to the situation without endangering one’s life.

Overwhelming evidence: evidence of anything that was seen or experienced. Includes witnesses, biological evidence such as semen, blood, saliva, etc.

Date-Rape Drug: any substance that is used to rape or sexually assault another person. This includes alcohol and some medications such as Ketamine, Rohypnol, and GHB, etc.

Section 210.1

(1) A person is guilty of sexual misconduct if they commit any of the following:

(a) Sexual harassment

(b) Sexual assault

(c) Relationship violence

(d) Stalking

(e) Sexual exploitation

(2) A person is guilty of rape when non-consensual sexual penetration occurs, whether orally, anally, or vaginally.

Section 210.2 - Punishment

(1) Rape

(a) If clear and obvious evidence of rape is presented through an investigation, the student is permanently expelled from school and immediately required to leave campus.

(b) If evidence is unclear, student will be placed upon suspension and required to leave campus pending investigation

   (i) If the investigation determines that one has committed rape it will lead to permanent expulsion.

   (ii) If the investigation determines that one has not committed rape, the student will be placed upon the watch list and allowed to return to classes and campus.

(2) Sexual Misconduct

(a) If clear and obvious evidence of sexual conduct is presented through an investigation, student is to be suspended.

   (i) 2-year suspension from the semester of the incident and must participate in sexual assault classes. Upon return the student may not live on campus and will be added to the watch list.

(b) If an investigation offers no evidence to support sexual misconduct:

   (i) the student is allowed back into classes immediately upon clearance. The student will be added to the watch list.

(c) If a student on the watch list has continuously received complaints towards them, the student could be subjected to expulsion from the university.

(3) False Accusations

(a) If overwhelming evidence proves the allegation to be false and intentionally made up, the accuser will be suspended from school for 1 year with required furthering education.

(b) If an investigation determines that an accusation was falsely made, the accused student will be removed from the watch list.

(4) Date-Rape Drugs

(a) If found in possession of “date rape drug” - permanent expulsion from school

(b) If evidence of use of date rape drug - permanent expulsion from school

(5) Duty to intervene:

(a) If a student is witness to any sexual misconduct or rape, they must take appropriate and reasonable measures to intervene.

(b) In violation of this subsection:

   (i) One will be required to take bystander intervention courses and any other necessary educational courses.

   (ii) One will be suspended under certain severe circumstances

Raw scores for midterm exam now posted on Carmen under Files

I have now posted, to the Files folder on our Carmen class site, the raw scores for the midterm exam administered earlier this month (in a single page PDF). 

I plan to discuss what these raw scores mean during our class this coming week, and I will also discuss plans for setting up conferences for any and all students who may want to meet to discuss their performance or who may have questions about this midterm and/or law school exams more generally.

As I will stress in class, this midterm is quite intentionally designed as a learning experience and the raw score results are part of the learning process.  I will be eager to continue to advance that learning via one-on-one or group discussions in the weeks ahead.

Draft Aggravated Rape statutes for legislative consideration before scheduled (in-class) legislative hearing

The drafting committee of Katie B., Camryn H. and Hillary L. has submitted this draft of an Aggravated Rape statute for the legislature's consideration:

(A) Aggravated rape is any unconsented to sexual penetration, whether orally, anally, or vaginally, committed by a person charged as an adult, of another, accompanied by any of the following:

(1) Force, threat of force, or coercion:

   (a) Resulting in serious bodily injury or death to the victim

   (b) Use or possession of a deadly weapon by the offender, or leading the victim to reasonably believe s/he possesses a deadly weapon

   (c) Where the offender employs the assistance of another actor to facilitate the offense

   (d) Coercion is assumed where a relationship of authority exists over the victim, as specified in this subsection:

      (i) The offender is related to the victim

      (ii) The offender holds a supervisory, disciplinary, or other authoritative role over the victim, including but not limited to, legal guardian, educator, supervisor, law enforcement officer (including corrections officers)

(2) The offender administers a controlled substance or alcohol, without the victim’s affirmative consent, in an effort to prevent resistance by the victim.

(3) The victim belongs to any of the following vulnerable categories, whether or not it is known by the offender:

   (a) A minor under the age of 13

   (b) Physically incapacitated

   (c) Mentally incapacitated

   (d) Unconscious

(B) Aggravated rape is a first degree felony.

(C) A victim need not show physical resistance for prosecution under this statute.

(D) Evidence of the offender’s past sexual activity is permissible if material to a fact of the case or shows a pattern of behavior.

(E) Evidence of the victim’s past sexual activity is not permissible unless material to a fact of the case and its inflammatory or prejudicial nature does not outweigh its probative value.

(F) Conviction under this statute shall result in a sentence of 15 years - life in prison without the possibility of parole and mandatory lifetime sex offender registration.

(1) Conviction under subsection (3)(a) may be subject to a life sentence with the exception specified under subsection (F)(1)(a)

   (a) A minor convicted under subsection (3)(a) is not subject to a life sentence

(2) If subsection (D) shows that a pattern of behavior exists as specified under this statute the offender shall be subject to a life sentence.

(G) There is no statute of limitations to bring a charge under this statute

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The drafting committee of Sydney B., Juliana H., Colin P. and Maddison W., has submitted this draft of an Aggravated Rape statute for the legislature's consideration:

Section 678.1. Aggravated Rape

(A) A person over the age of 16 who purposely, knowingly, or recklessly commits a non-consensual sexual act with another through force, coercion or threat is guilty of rape.

(1) A person over the age of 16 years who purposely or knowingly commits a non-consensual sexual act to another is guilty of aggravated rape when the offender:

   (a) Uses a deadly weapon to force, coerce, or threaten another to partake in non-consensual sexual activity

   (b) Inflicts serious bodily harm on another in the facilitation of unconsented sexual activity

   (c) Engages in unconsented sexual activity while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit kidnapping, aggravated arson, arson, aggravated robbery, robbery, aggravated burglary, burglary, terrorism, or escape

   (d) Intentionally transmits a sexually transmitted disease

   (e) Commits the unconsented sexual act aided by one or more other persons

   (f) Utilizes a date-rape drug in the commission of an unconsented sexual act

(2) A person over the age of 16 years who purposely, knowingly, or recklessly engages in non-consensual sexual activity with another is guilty of aggravated rape when the victim:

   (a) Is under the age of 13

   (b) Is sufficiently intoxicated to the point that the victim is unable to provide consent

   (c) Is unconscious or otherwise incapacitated

   (d) Is unable to resist or provide consent due to cognitive or mental disability

(B) Definitions

(1) Non-consensual sexual act:

   (a) Non-consensual penetration, no matter how slight, vaginally or anally by another or an object of another, or

   (b) Non-consensual oral penetration, no matter how slight, by the sexual organ of another, or

   (c) Non-consensual masturbation of a person by another.

(2) Consent:

   (a) Consent is present when a person freely, voluntarily, and knowingly agrees to partake in an act.

   (b) Consent may be withdrawn at any time during a sexual encounter. After consent is withdrawn, an individual no longer maintains consent.

(3) Force, Coercion, Threat:

   (a) Power, violence, compulsion, or constraint exerted upon or against a person or thing.

   (b) Exercise of strength or power, especially physical, to overcome resistance.

   (c) Strength or power of any degree that is exercised without justification or contrary to law upon a person or thing

   (d) A victim need not prove resistance to force, coercion, or threat in order it to be established that the offender committed a non-consensual sexual act using force, coercion, or threat

(C) Punishment

(1) Whoever violates this section is guilty of aggravated rape, a felony of the first degree, with a definite prison term of 25 years to life

Reviewing basic sex offense provision in Ohio (and why you should be glad it won't be on the final)

As I mentioned last week and as we will keep exploring this coming week, modern sex offense doctrines can become quite intricate in efforts to properly categorize and criminalize a range of sexual misconduct (and also to keep up to date with modern norms and beliefs).  We will not look closely at the Model Penal Code's sex offense provisions because the original ones are widely seen as dated and on-going revisions are quite intricate. 

The great people of the great state of Oliwood are excited that a new "Aggravated Rape" statute and a new "Campus Conduct" policy are being drafted for legislative consideration in coming days.  Perhaps it could be helpful to those drafting these provisions to see how Ohio statute are constructed.  Here is how Ohio's Rape provision is currently written (with a few points bolding for in-class discussion):

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, as defined in section 3719.01 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 definite prison terms prescribed for a felony of the first degree in division (A)(1)(b) of section 2929.14 of the Revised Code that is not less than five years, except that if the violation is committed on or after March 22, 2019, the court shall impose as the minimum prison term for the offense a mandatory prison term that is one of the minimum terms prescribed for a felony of the first degree in division (A)(1)(a) of 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, except as otherwise provided in this division, 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.  A court shall not impose a term of life without parole on an offender for rape if the offender was under eighteen years of age at the time of the offense.

(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.

Here are some other major Ohio sex offense provisions, with the last one partially reprinted to perhaps aid the drafting of an Oliwood Campus Conduct policy:

ORC 2907.03 Sexual battery.

ORC 2907.04 Unlawful sexual conduct with minor.

ORC 2907.05 Gross sexual imposition.

ORC 2907.06 Sexual imposition:

(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:

(1) The offender knows that the sexual contact is offensive to the other person, or one of the other persons, or is reckless in that regard.

(2) The offender knows that the other person's, or one of the other person's, ability to appraise the nature of or control the offender's or touching person's conduct is substantially impaired.

(3) The offender knows that the other person, or one of the other persons, submits because of being unaware of the sexual contact.

As I mentioned last week and as I will keep repeating this coming week, I will not be testing on any of this doctrine on the final exam!  The goal with this unit is not to work through and understand intricately all of these doctrinal particulars, but rather to explore how and why the law becomes so very intricate in this setting and the broader challenges of effective legislative drafting in this setting and others.

Simpsons hypo (aka RIP Rod and Todd Flanders) for considering unintended homicides

I mentioned in class a Simpson's hypo for your consideration if you want a fact pattern to use to explore the various ways that various jurisdictions approach unintended homicide charges. 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 of 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 all the birds away.  Burns urges Smithers to be sure to check whether anyone is in the area; Burns knows kids still like to use the tree house, even though Burns had his staff put up a sign stating that kids playing in the tree house would be prosecuted for trespassing.

Eager to do Burns' bidding and to shoo the birds away quickly, Smithers only calls out -- "Hello, can anyone hear me?" -- in any effort to determine if anyone is in the tree house.  Smithers does not directly check to make sure no kids are in the tree house beyond repeatedly calling out.  After calling out a few times, he gets no response (though the woods are noisy).  Smithers decides that he has done enough given that he does not plan to shoot directly 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 Simpsons' devout neighbor, were in the tree house praying because they thought being high off the ground brought them closer to their lord.  (The Flanders sincerely thought that praying, rather than playing, in the tree house was perfectly fine.  The kids had heard Smithers call out each time, but they thought it was the lord speaking to them.)  Tragically, the third shot from the antique flare-gun fired off line and into the tree house. 

The third flare shot by Smithers which entered the tree house struck Rod Flanders directly in the chest.  Todd Flanders discovered that his older brother Rod has been killed instantly by the flare; distraught, he jumps out the tree house window to his death.

Smithers turns himself in, and now you are the prosecutor trying to decide whether he might be guilty of some 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.

How would you expect an Ohio version of the Berry case to come out?

A case with facts reasonably similar to the facts in the Berry murder/manslaughter case in our text was litigated all the way up to the Supreme Court of Ohio in State v. Shane, 63 Ohio St.3d 630, 590 N.E.2d 272 (1992).  Here are the facts in the Shane case:

At approximately 6:00 a.m. on October 13, 1989, appellant, Robert Shane II, made a telephone call to the New Philadelphia Police Department to report the death of his fiancee, Tina Wagner.  Shane told the police officer who answered the phone, "I'm the one who did it ... she just drove me crazy and I choked her."  Police officers soon responded to the scene, which was an apartment shared by Shane, Wagner, and the couple's infant child.  When the officers entered the apartment, they discovered Wagner's nearly nude body lying on a bed; a red shirt was wrapped tightly around the victim's throat.  An autopsy revealed that Wagner had died of asphyxiation by strangulation.  Tests done on the victim's body revealed a urine alcohol content of 0.27 grams per deciliter.

Shane was indicted on one count of murder, a violation of R.C. 2903.02, to which he entered a plea of not guilty.  Testifying in his own defense at the trial, Shane again admitted that he had killed Wagner, but told the jury of statements Wagner had made to him immediately prior to the incident, which upset him greatly.  Shane stated that Wagner told him she had been sleeping with other men and that she no longer cared for him.  Shane testified, "I have never felt more upset and more mad with anyone [in] my entire life."  Shane further testified that after he became so upset, the next thing he remembered was "coming to" after having passed out and finding himself lying on the bed with Wagner underneath him.

How do you think the Supreme Court of Ohio applied Ohio's particular version of voluntary manslaughter rule on these facts?  The Shane case provides a helpful account of how Ohio courts look at the issue of provocation, and here some of the general discussion of the law from the Shane court: 

An inquiry into the mitigating circumstances of provocation must be broken down into both objective and subjective components.  In determining whether the provocation is reasonably sufficient to bring on sudden passion or a sudden fit of rage, an objective standard must be applied.  Then, if that standard is met, the inquiry shifts to the subjective component of whether this actor, in this particular case, actually was under the influence of sudden passion or in a sudden fit of rage.  It is only at that point that the emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time must be considered.  If insufficient evidence of provocation is presented, so that no reasonable jury would decide that an actor was reasonably provoked by the victim, the trial judge must, as a matter of law, refuse to give a voluntary manslaughter instruction.  In that event, the objective portion of the consideration is not met, and no subsequent inquiry into the subjective portion, when the defendant's own situation would be at issue, should be conducted.

The Shane court is the last major Ohio Supreme Court discussion of voluntary manslaughter in the context of a domestic dispute, but this issue continues to arise in lower courts.  And for an interesting debate over how Shane should be applied on a slightly different set of facts, you might consider the work of the Ohio Eleventh District Court of Appeals in State v. Wagner, 2007 Ohio 3016 (Ohio Ct. App. 2007), in which the appellate panel divided over the appropriateness of a voluntary manslaughter instruction in another case involving a husband killing his wife amid heated discussions of infidelity.

The "missing mental state" and a federal law that holds drug dealers strictly liable for any resulting deaths

Two follow-up materials from our recent class that may help us round out our discussion of Ryan and subsequent cases.

1. I mentioned in class the work of OSU Law's former Dean Alan Michaels on mental states titled "Acceptance: The Missing Mental State."  You can download the full 105-page(!) manuscript at this link, though I would recommend being content with this summary from the paper's abstract:

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

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

The article proposes that where the law requires knowledge, acceptance should be allowed to suffice. After justifying such an approach from both retributive and utilitarian perspectives, the article establishes, by examining the willful blindness and depraved-heart murder doctrines, that using acceptance would yield a better fit between criminal law and culpability concepts and would substantially diminish vagueness problems.

2. An important "hot" topic in the arena of prosecuting and sentencing drug offenders in recent years, especially with the opioid crisis and increases in overdose deaths, has been the growth in  what are know as "drug-induced homicide" (DIH) cases or "death resulting" cases.  This short 2018 article, "Prosecuting Drug Overdose Cases: A Paradigm Shift," provides an overview of the trend and highlights "the variety of approaches available within existing statutory schemes and case law" for state prosecutors who seek to treat a drug overdose as a criminal homicide.  There is some variety as to the mens rea a drug defendant must have for a resulting death to be charged under a variety of state DIH statutes, though the article notes that "New Hampshire and New Jersey both define the offense as being one of strict liability."

In federal law, there is a special statutory provision that addresses this issue, but technically a person is not charged under federal law with homicide for causing a drug overdose death.  Rather, the federal statute prohibiting drug distribution, 21 U.S.C. § 841(b)(1), has provisions requiring significant sentencing enhancements if and when a person distributes a "controlled substance" and then "death or serious bodily injury results from the use of such substance."   For one of many example of the application of this statute, consider United States v. Harden, 893 F.3d 434 (7th Cir. 2018).  This is a long opinion that you should not feel any obligation to read at all, but I find the facts notable and a passage from the case instructive for our discussion.  First, the basic facts:

A jury convicted defendant-appellant Donald S. Harden of conspiring to distribute heroin, the use of which resulted in the death of Fred Schnettler.  Harden was sentenced to life in prison under 21 U.S.C. § 841(b)(1)(B)....

At 9:39 AM on September 5, 2014, Fred Schnettler, a twenty-five-year-old male, was found dead in his bedroom at his parents' home in Neenah, Wisconsin.  When the sheriff’s deputy arrived on the scene, he found Schnettler’s father performing CPR and observed a needle and spoon on the floor just below Schnettler’s bed.  The deputy believed that Schnettler had been dead for quite some time because his body was cold to the touch and rigor mortis had set in.

Donald Harden was subsequently charged with distributing the heroin that resulted in Schnettler’s death.  At trial, the prosecution’s case focused on Schnettler’s purchase of 0.1 grams of heroin from Kyle Peterson the night before Schnettler was found dead.  Peterson testified that he purchased the heroin from Brandi Kniebes-Larsen, who in turn testified that she received the heroin from Harden.

And now the basic trial process as described on appeal:

Harden was charged with conspiracy to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1).  The jury instructions included two special verdict questions: (1) "whether the United States has established, beyond a reasonable doubt, that Frederick J. Schnettler died as a result of the use of a controlled substance, to wit: heroin, distributed by the defendant"; and (2) "whether the conspiracy involved 100 grams or more of a mixture and substance containing heroin."

With respect to the first special verdict question, the jury instructions said: "The United States does not have the burden of establishing that the defendant intended that death resulted from the distribution or the use of the controlled substance.  Nor does the United States have the burden of establishing that the defendant knew, or should have known, that death would result from the distribution of the controlled substance by the defendant."

Imagining a provision to criminalize "Damaging while driving in rain"

To start our exploration of mens rea issues, and also to facilitate a focused conversation concerning a timely legislative proposal seeking to reduce roadway harms, here is some background information about dangerous realities on our roads and highways. First from the Federal Highway Administration (with emphasis added):

On average, nearly 5,000 people are killed and over 418,000 people are injured in weather-related crashes each year. The vast majority of most weather-related crashes happen on wet pavement and during rainfall: 70% on wet pavement and 46% during rainfall. A much smaller percentage of weather-related crashes occur during winter conditions.

And from the car press, under the headline "Why Driving In The Rain Is Way More Dangerous Than You Think" (with emphasis added):

[A] new study has shown that even light rain can significantly raise the chances of a fatal car crash. Published in the Bulletin of the American Meteorological Society..., the study asserts that rain, snow, and ice increases the risk of fatal car crashes by a massive 34 percent. Led by Scott Stevens, a data analyst and meteorologist at the North Carolina Institute for Climate Studies, he and his colleagues reviewed 125,012 deadly crashes in the Lower 48 states between 2006 and 2011, factoring in the number of cars on the road to calculate the risk of a fatal accident.

It turns out that even light rain, which Stevens refers to as a "a drizzle, just at the point where you might consider taking an umbrella out," raises the risk of a fatal crash by 27 percent.  While people tend to become cautious in heavy rain, Stevens believes that "they under-appreciate the risk of light rain," with the weather radar data showing an increase in fatal crashes even in rain of less than one-tenth of an inch per hour.  Moderate rain brings the risk of a deadly accident up to 75 percent greater than in clear weather, while in heavy rain the rate skyrockets to two-and-a-half times more likely.

Based on a concern for the many thousands economically and/or physically harmed by crashes from persons driving in the rain without being aware of the risks (and/or not being sufficiently cautious while driving), Senator Jo Besafer has drafted this bill:

PROPOSED ORC Section 2999.99: Criminal Damaging While Driving in the Rain

(A) No person shall cause physical harm to another person or damage the property of another while driving in the rain.

(B) Whoever violates this section is guilty of criminal damaging while driving in the rain, a misdemeanor of the second degree.  If a violation causes any physical harm to any person or causes property damage in excess of $10,000, this offense is a misdemeanor of the first degree.  If a violation causes serious physical harm to any person or causes property damage in excess of $50,000, this offense is a felony of the third degree.

We will discuss the potential pros and cons of this bill in class this coming week.  Everyone should feel free to use the comments to express any comments or concerns now; proposed amendments to this bill are welcome as well.

Electronic copy of first ORC handout ... an another example of legal scholarship

As promised, I am providing here (and will also put on Carmen) an electronic copy of the edited provisions of the Ohio Revised Code that I today handed out in class:

Download 2021 Ohio liability-MR statutes.wpd

In addition, as part of my eagerness to document that law professors have a lot to say on every possible topic, I thought I might usefully showcase a relatively criminalizing bad thought alone, is explored in a recent law review article on a topic we reviewed today:

• "Why Is It Wrong To Punish Thought?"

Please know you are NOT required or expected or even encouraged to read any of the law review materials linked here or at any of my other blogs.  Rather, as I have discussed in class, I am  ever eager to showcase how much is available to research, read and consider on all the topics we will encounter in our review of the basics of substantive criminal law.  Let your interests and energy determine whether to check out any of these materials.

Getting into roles for our Monday role play

Thanks again for all those who volunteers to be lawyers in our first role play.  Particularly for their benefit, but really for everyone's consideration, I think it is useful to be somewhat cued into your respective roles:

Prosecutors do not represent any individual party, but the community as a whole, and they thus tend to view their obligation at sentencing to argue for whatever sentence they believe will serve as just and effective punishment in accordance with applicable law. 

Defense attorneys, in contrast, represent an individual client, and so 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.  Of course, that may hinge somewhat on figuring out what kind of sentencing advocacy is most likely to sway the judge. 

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 (that I will also hand our in class on Friday). There is no need (or place) to put a name on the form, but I plan collect these forms 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 sense of your own judicial instincts about punishment and also can see first-hand whether and how advocacy can have an impact in this kind of setting.

Download 2021-judges-sentencing-form

Many, many thanks for the first set of sentencing role-play volunteer lawyers

I was pleased to get back to my desk and already hear from five persons interested in volunteering for our sentencing role-play planned for Monday afternoon.  As I mentioned, I tried to fill spots in a first-come, first-serve way, and here is how I have slotted the first five volunteers based on the first set of emails I received:

Oliwood v. Rachel Foster (applying US Code, Title 18, Section 3553(a))

Prosecutors: Dan Laffin & David Urbancic

Defense Attorneys: Lexi Breitenstine & Kevin Glomski

 

Oliwood v. Dan Schayes (applying Ohio Revised Code Section 2929.11)

Prosecutors: Amy English & Alexandra Goss

Defense Attorneys: Ben Hook & JJ Lesperance 

 

We need three more volunteers (and folks can volunteer in pairs) for the remaining slots.  C'mon folks, your first chance to act like a lawyer!

 

And here is an electronic copy of the Oliwood pre-sentencing reports that I handed out in class today: Download 2021-role-play-psrs

 

Welcome to the Moritz College of Law, Criminal Law with Professor Douglas Berman, and version 9.0 of this class blog

Showing my age and my eagerness to stick with a technology that works well for me, I remain a big fan of law blogs and I continue to make a regular habit of using various blogs to support and supplement my instruction in various law school classes.  I have long found that blog technology (rather than a propriety law-school-support technology like TWEN) provides a useful and distinctive on-line tool for supporting and supplementing my courses and for encouraging students to get used to "public" questioning and commentary.

I will continue my bloggy ways in the Fall 2021 semester at the Moritz College of Law through this blog which will serve an on-line supplement to our first-semester 1L Criminal Law course.  As the "version 9.0" label in the title of this post highlights, I have built this "new" blog directly atop the blog I have used when teaching this very same course seven times before (in Fall 2008, 2010, 2013, 2014, 2016, 2017 and 2018) and also when teaching a Comparative Criminal Procedure course (in Summer 2012 as part of our great Oxford summer program).  I am hopeful that some of you new 1Ls will benefit from (or at least find reassuring) seeing some of the posts and comments that were generated in this space in years gone by via these archives.

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

 

WELCOME!

 

I am also here posting electronic copies of the basic course documents and our assignment for the first week of class.

In preparation for our first class on Monday, August 23, you should:

1.  Obtain a copy of Kaplan, Weisberg and Binder, Criminal Law (9th ed. 2021)

2.  Obtain a copy of the course description and the course syllabus, which are available in front of my office (Room 313) and on the course website (linked below), and also available in the FILES tab in our CarmenCanvas class webpage.

3.  Read the casebook's Introduction quickly and pages 19-25, 29-32, and 589-595 closely. Because the next set of readings provide theoretical background, should be read (skimmed) VERY quickly, and should enhance your appreciation of our initial discussions, I encourage you also to SKIM the readings from pages 32‑70 in the text as soon as possible.

Download 2021 Course description

Download 2021 syllabus

 

 

 

 

 

 

UPDATE:  I think the comments have now been turned on for all new posts, though commenting is entirely optional.  Let me know by email if you have any problems with the comment section.

 

 

 

 

 

 

 

 

A few more (not-so-old) exams for your review

As promised, here are a few more of my old exams, and these are ones that are not so old.  As always, let me know if you have any difficulties accessing any of these materials:

Download Berman 2014 Crim Law Final

UPDATE:  I think I may have mistakenly posted only an incomplete draft version of the 2017 exam.  Here is the full exam:

Download Berman 2017 Final Exam full

And, if you are gluttons for punishment, here now also is my 2016 final:

Download 2016 Crim Law final

Attempt actus reus hypo for consideration and reflection

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 man to get you thinking about where a line should be drawn between "mere preparation" and attempt liability:

Joe McAngry of Columbus sincerely believes libertarian ideas and those who embrace such a political philosophy are the root of much evil in the world, and he often tells his friends that the whole world would be better off without any academics, policy advocate and politicians who advocate libertarian views.   After hearing someone on Fox News say that the United States would be a better place if more politicians would embrace the libertarian philosophy espoused , Cesar took the following steps:

1.  E-mails friend saying he wished all libertarians would just get sick and die because they were barred from government-supported hospitals

2.  Posts twitter comment that he would love to see someone like Cesar Sayoc go after libertarian politicians and pundits

3.  Places stickers on van saying "FOX NEWS SUCKS" and with target symbols next to images of Gary Johnson, Ron Paul and John Stossel

4.  Does internet research on prominent figures in the US who espouse libertarian views 

5.  Writes a "hit list" of Top 5 libertarians, with Gary Johnson, Ron Paul, Rand Paul, John Stossel and Peter Theil 

6.  Does internet research on where those on his "hit list" live

7.  Does internet research on homemade bombs and explosives

8.  Rents Ryder truck for driving to Texas town where Ron Paul Institute is located

9.  Drives rented truck to suburbs outside of Houston, Texas, checks into hotel, sleeps

10.  Drives in morning to Clive and drives around the grounds of The Ron Paul Institute for Peace and Prosperity

11.  Parks near Paul Institute, walks around asking employees when Paul is there

12.  Returns to hotel room in near Houston, does more internet research on bomb-making, sleeps

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

14.  Drives again to Clive, Texas now with bomb ingredients in truck

15.  Parks in strategic location near Paul Institute

16.  Starts building homemade bomb inside rental truck

17.  Waits, watches for Paul to arrive at work

18.  Drives past security guard following Paul's car as he arrives for work

19.  Parks truck right next to Paul's car as he pulls into spot

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

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

22.  Pushes trigger and....

 

ATTEMPT 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 or Ohio law?

 

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?

Ohio perspective on Dudley & Stephens and (in)famous perspective on defense lawyering

I hope everyone enjoyed as much as I did Friday's role play experience, and I also hope it gave everyone a primer on the operation of necessity (and duress) doctrines in Oliwood under the (unique) terms and structure used by the Model Penal Code.  We will be wrapping up discussion of these doctrine in our remaining classes before the Thanksgiving break, but we will not be talking any more about Dudley & Stephens.  Fortunately, if folks remain engaged by the legal and/or philosophical issues raised by the Dudley & Stephens case, there are lots of wonderful additional readings I can recommend.

A "classic" law professor engagement with the issues raised in Dudley & Stephens appeared in a Harvard Law Review article published 65 years ago.  The Case of the Speluncean Explorers by Lon Fuller is one of the most famous law review articles ever written, and the start of this Wikipedia article highlights why it is worth your time and attention:

It largely takes the form of five separate judicial opinions attributed to judges sitting on the fictitious Supreme Court of Newgarth in the year 4300.  The hypothetical involves five cave explorers who are caved in following a landslide.  They learn via intermittent radio contact that they are likely to starve to death by the time they can be rescued. The cavers subsequently decide to kill and eat one of their number in order to survive.  After the four survivors are rescued, they are indicted for the murder of the fifth member.  The prescribed penalty is capital punishment. Fuller's article proceeds to examine the case from the perspectives of five different legal principles, with widely varying conclusions as to whether or not the spelunkers should be found guilty and thereby face the death penalty under the law of Newgarth.  

Joyfully, for a wonderful, shorter and more recent consideration of these issues, one member of my criminal law class five years ago had the great initiative to imagine how a modern-day case of this nature might get resolved in Ohio. That student allowed me to post her analysis five years ago and I believe she will be fine with my reporting again.  Here is how she sets up the factual context:

Let's imagine a scenario in which four avid hikers, all associated with Ohio’s State Parks, decide to go for a winter hike at Serpent Mound, located in idyllic Adams County, Ohio. The group consists of Hatlen Books, a veteran tour guide, Dursley Dudley and Richard Stephens, members of the Ohio State Parks administration, and Peter Parker, a trainee guide, though noted as a talented climber.  The hike was predicted to be an easy one and take no more than a few hours to complete; it was more-so an excursion to view the aforementioned idyllic landscape.  The hikers deviated from the path because of an intense and unpredicted snowstorm that caught the band off-guard and limited their ability to navigate.  The band happened upon a previously unknown sinkhole that had formed sometime after the last ranger appraisal of the land (which has been some-time ago with state budget cuts).  The group was stranded on a rocky, but stable, covered corner of the hole with only snow for hydration and a 2lb bag of vegan trail mix Stephens brought on the trip.  Despite the group’s reluctance to eat vegan, they subsisted off the mix and an unlucky rabbit for 18 days.

Download Prosecuting Dudley & Stephens in Ohio

 -----------------------------------------

Moving from the substance to the style of criminal defense work, it is time for another movie afternoon on Friday, Nov 14.  Specifically, I plan to show a documentary about a famous (or infamous) criminal defense attorney, the 86-minute long documentary William Kuntsler: Disturbing the Universe.  I figure we can start the movie at 3pm, to be followed by a happy hour if there is student interest.

"Is Eating People Wrong?"

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

Some links to some materials concerning Ohio self-defense referenced in class

With apologies for not posting some of these materials sooner, here are links to a couple of sources I have referenced at some point in the last week as we have been reviewing self-defense doctrines:

From the Buckeye Firearms Association, "The Problems of Ohio’s Current Laws on Burden Shifting in Self-Defense Cases," which starts this way:

Under Ohio Revised Code Section 2901.05, a defendant is required to prove all elements of self-defense by a preponderance of the evidence. Recent case law and the development of the status of self-defense strongly suggest that shifting the burden to a defendant in this manner is unconstitutional.  Ohio’s burden shifting rule effectively changes the standard of proof necessary for the government to secure a conviction in self-defense cases.  Furthermore, Ohio’s current rule severely curtails, if not eliminates, the protections provided by the Fifth Amendment.  Ohio Senate Bill No. 180 and House Bill No. 228 provide the necessary changes to ensure those accused of a crime in Ohio receive a fair and just trial.  Where there is evidence presented that tends to show a defendant acted in self-defense, these Bills would place the burden back on the prosecution, where it rightly belongs, by requiring the prosecution to disprove at least one element of Ohio’s version of self-defense, beyond a reasonable doubt.

From the folks at Serial, Episode 5 of Season 3, "Pleas, Baby, Pleas." I highly recommend all episodes of Season 3 of series, but here is part of the transcript from the middle of this particular episode that concerns matters we have been discussing:

Sarah Koenig: The meeting with detectives this morning is to figure out how they're going to handle it — what charges [the local Ohio prosecutor Brian Ratigan] should present to the grand jury. This is a tricky one, though. Because Brian can see how the whole thing unspooled, now he's not sure a crime even occurred.

The stories in the newspaper had quoted police as saying that the older guy, the shooter, had been harassing passengers on the bus. But the bus videos show the opposite — the older guy, the shooter, he was the one being provoked.  It's possible this was self-defense.

Brian Radigan: This is one of those rare cases where you see the whole story.  Ninety percent of our cases, we're not watching them unfold.  And if something is caught on camera or whatever, usually it's from a distance.  And you don't hear the dialogue.  And you don't get to see everybody's reaction. You don't have seven different angles, or nine different angles of it.  You know, this is like the outlier, crazy, I can't believe I have to watch this whole thing and see all the decisions that were made that led to this guy dying.

This cleveland.com article about this Serial episode includes some of the video footage of the shooting that may, or may not, be a good example of self defense.

As always, I welcome and encourage commentary on these materials as well as links or reference to other interesting matters relating to the doctrines we are discussing.

Class may not start today (10/31) until 1:20pm or a little later

As mentioned in class, at lunchtime today in Saxbe, I am part of a panel discussing Issue 1. I just realized that we might not wrap up the panel discussion in time for me to start class at the usual time. So, with apologies for the late notice, feel free to migrate to class a little later than usual and do not expect us to get started until around 1:20pm today.

If so inclined, use the extra time to check out the amazing discussion in the comments that have emerged in the wake of our legislation role-play. Kudos to all for the continued respectful engagement.