Criminal Law § 1 Fall, 2001 (Professor Haugen)

Comments on Exam

General Comments. This was a pretty straightforward exam, and the results were about what I would have expected. Some were quite good; a few were really not adequate. Since the questions called upon you to use the Model Penal Code exclusively, and the relevant sections were all appended to the exam, your discussions should have clearly referred to the appropriate code sections. Some sections deal with specific crimes for you to consider, of course, but there were also causation problems, culpability issues and statutory defenses to consider.

Probably the most prevalent problem with the exams was a failure to identify clearly the relevant statutory provisions and to use the language of the Code in your discussions. The second most common problem was a failure to read the statutory sections carefully. Although there were a number of places for the exercise of judgment and difference of opinion about the applicability of a provision, there were a surprising number of students who reached clearly erroneous conclusions, owing to having misread one or more of the statutes. Others failed to discuss the crimes they had decided not to charge, which was a mistake where the facts reasonably raised the question whether the discarded crime had been committed. As with any other law school exam, it was important to explain all your conclusions, including the reasons for deciding that one crime rather than another should be charged.

Specific Comments. You were asked to consider what crimes appeared to have been committed, and what charges should be brought against each of the three defendants, Andy, Christopher and the security guard, Fowler. You were asked to explain judgments you made about the most appropriate crimes, and problems and defenses that a prosecutor might encounter in attempting to prove guilt.

Andy. Andy’s case was of course the most complicated of the three and raised the largest number of possible crimes to discuss. The best approach was to consider the facts chronologically, starting with his unlawful presence in his uncle’s building. A charge of Burglary, under MPC 221 should have been considered and discussed, but rejected. While this was an “occupied structure” under 221.0 (1) and Andy had no permission to be there after the place cleared out for the day, the crime is committed when the accused enters the building ”with the purpose to commit a crime therein, unless the premises are at the time open to the public or the actor was licensed or privileged to enter.” Many of you focused on the intended crime, probably not an area of difficulty here, since there was planned illegal drug use at the party. The real problem with a charge of burglary against Andy was the fact that at the time he entered his uncle’s business, the building was open to the public and he was licensed to come in. The burglary statute could not be clearer that the entry itself must be unlawful, which it was not here. A surprising number of students missed that important point. A number of you also spent time discussing the nighttime aspect of the statute, not at all relevant here, since that reference in both Burglary and Criminal Trespass relates to “dwellings,” not business buildings like this one.

Since Burglary was not committed here, what about Criminal Trespass, under § 221.2? This pretty clearly seems to be applicable, as it is committed by one who “knowing he is not licensed or privileged to do so,…enters or surreptitiously remains” in the building – exactly what Andy did here. Again, any discussion of the fact that this took place at night was irrelevant, as that is only important as to “dwellings.” It was also a waste of time to talk about Andy as a “defiant trespasser” under (2) of § 221.2, as some students did.

The rest of Andy’s crimes arose out of his altercation with his former friend, Ben. Important to this discussion was a full consideration of the culpability states set out in § 2.02, as each crime that might have been committed against Ben required an understanding of the applicable statutory mens rea. You may well already have defined “purposely” in your consideration of burglary, but the other culpability states are implicated in any charges against Andy that arise out of the events inside the building, and they must be explained either right away, or as they come up in your discussion of the various crimes.

Kidnapping is a charge that should be considered here, though you may reject it. Under § 212.1, a person is guilty of the crime if he “unlawfully confines another for a substantial period in a place of isolation with any of the following purposes: … [c] to inflict bodily injury on or to terrorize the victim…”

While Andy did confine Ben in the freezer, we may have factual difficulty with proving his purpose, but given what had been going on between them, and given Andy’s knowledge of Ben’s diabetes and his tendency to “attacks” when drinking, the prosecution may have a good prima facie case of kidnapping (isolating) Ben for the purpose of either terrorizing him or inflicting bodily injury on him. On the other hand, a prosecutor might conclude that this was basically a drunken argument between two old friends that got out of hand; perhaps Andy just wanted to leave Ben there for a few minutes and then planned to let him out. The definition of “purposely” in § 2.02(2)(a) may make it difficult for a prosecutor, or it may not. You could have decided to take a hard line here, or to exercise some restraint in your charging recommendation on this offense, but you should have discussed it and reached a conclusion.

Felonious Restraint, under § 212.2 seems pretty clearly to be present here, if you decided against kidnapping. This felony is committed by one who  “knowingly restrains another unlawfully in circumstances exposing him to risk of serious bodily injury. “Knowing” is defined in § 2.02, along with the other culpability states, and includes knowledge of attendant circumstances (i) and, where an element involves a result of the actor’s conduct (ii), awareness that it is “practically certain that his conduct will cause such a result.” Given Ben’s light clothing, the airless freezer, and his diabetes, all factors known to Andy, this would seem a fairly easy crime to prove, absent some a persuasive defense from Andy.

False Imprisonment, under § 212.3, is the least serious charge that might be brought against Andy for the confinement of Ben, but under the circumstances, it would be completely inappropriate here.

Ben’s death, of course, is the biggest problem for Andy. Again, understanding the mens rea elements, that is, the culpability states set out in § 2.02 is critical to proving any homicide charge against Andy. And because Ben died not specifically from the effects of the confinement but from his diabetes, causation requirements under § 2.03 must also be discussed. Causation should not have been a big stumbling block to a homicide prosecution here, because we know that Ben would have died from the confinement anyway, and but for Andy’s locking him in the freezer, he likely would have been noticed and had attention for his diabetic coma in time to save his life. Here at the very least, the actual result involved an injury that one could probably say is “not too remote or accidental in its occurrence to have a [just] bearing on the actor’s liability.” § 2.03 (3) (b); in fact, it is a result that probably is “within the risk of which the actor is aware or, in the case of negligence, of which he should be aware” 2.03 (3), so as to satisfy the mens rea for a homicide involving recklessness or negligence. You may have reached a different conclusion about causation, but you should have discussed the requirements of § 2.03.

Criminal Homicide under the MPC may be murder, manslaughter or negligent homicide, depending on the mental state of the actor, and various other circumstances set out in Article 210. You should have discussed the differences and selected the offense you thought most appropriate here, as very likely more than one form of criminal homicide could be proven. Murder, under 210.2 may be committed purposely or knowingly (that is with Ben’s death the conscious object of Andy’s act, or at least a result that Andy is aware is practically certain will be caused by his act] § 2.02 (2)(a) (i) and (b)(ii). While it may be possible to convince a jury that Andy knowingly caused Ben’s death here, it is more likely that a prosecutor would choose murder under § 210.2(1) (b), where the death results from an act “committed recklessly under circumstances manifesting extreme indifference to the value of human life.” This offense requires a mens rea of recklessness, defined in § 2.02(2)(c), as a “conscious disregard of a substantial and unjustifiable risk that “involves a gross deviation from the standard of conduct that a law-abiding person would observe…” and circumstances manifesting extreme indifference to the value of human life. A prosecutor may conclude that this form of murder should apply only to cases of truly extreme conduct, and that this freezer confinement does not rise to that level. (On the other hand, the required recklessness and indifference are “presumed” under § 210.2(1)(b) when the death occurs while the actor is engaged in burglary or kidnapping. This “felony murder” provision of Article 210 is one more reason you should have considered kidnapping here.)

Perhaps the better charge here is Manslaughter, which requires only a mens rea of recklessness. § 210.3(1)(a). A number of you discussed the extreme mental and emotional distress manslaughter of 210.3(1)(b), but there really was no factual basis for raising this.

The most conservative criminal homicide to charge here would be under § 210.4, Negligent Homicide, in which the mens rea required is that the actor should be aware of a substantial and unjustifiable risk and his failure to perceive it involves a gross deviation from the standard of care of a reasonable person. While this certainly seems to be amply proved by the facts here, it may be too lenient a charge for Andy.

Andy’s only real defense here, under the facts we have, is intoxication, but under § 208, he won’t get very far with it. It is clearly self-induced, under 2.08(5)(b). While it may negative the element of purpose, in one form of murder, it won’t negative recklessness if Andy was too drunk to be aware of the obvious risk he posed to Ben. § 2.08(2) makes it clear that his unawareness, if due to self-induced intoxication, is immaterial and won’t relieve him of fault for offenses requiring recklessness as the state of mind. Even if Andy can prove that his intoxication prevented him from forming a purpose to kill Ben, or an “extreme indifference” for reckless murder, he will be unable to offer that defense to manslaughter or negligent homicide.

Christopher. Here again, there were several possibilities for you to consider, and some problems with each. Nearly everyone went immediately to a charge of “causing or aiding a suicide”, under § 210.5(1) by “force, duress or deception.” While this is an intuitive choice, careful reading of the statute reveals that it requires that the actor may “only” be convicted of the crime if he “purposely” cause the suicide by one of the means described. As we know, purpose requires that it was Chris’s conscious desire to have Darren commit suicide, which I think cannot be shown here, and further, the means must involve force, duress or deception, of which only duress is even remotely possible. That, in turn requires a threat of force, of which there is no evidence here.

There is also the causation issue. Did the Chris’s taunting really cause Darren’s death, or can we conclude that Darren, however bullied he was, in fact ”intervened” in such a significant way that one can only conclude that he himself was a sort of superceding of his own death. A reference to § 2.03, on causation, again is appropriate here. If this a crime requiring purpose, then the actual result has to be within the contemplation of the actor, or at least involve the “same kind of injury or harm as that designed or contemplated and not be too remote or accidental in its occurrence to have a …bearing on the actor’s liability or on the gravity of his offense.” When the crime involves recklessness or negligence as the mens rea of the actor, the result must be within the risk of which the actor is aware, or should be aware, or is of a type that is not too remote or accidental.

Whatever you conclude about causation, it seems that it would be hard to prove that this result was “purposeful.”

The better charge here would seem to be reckless, “extreme indifference” murder or manslaughter under either 210.2(1)(b) or 210.3(1)(a), or even negligent homicide, under 210.4, assuming you can satisfy the requirements of causation, as noted above. This would seem to be a case where one could argue that Chris knew and “consciously disregarded” the fact that he was exposing Darren to “a substantial and unjustifiable risk” of death in bullying him into a game of Russian roulette, in which there would be a 1 in 6 chance of death.