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1 13922 *13922-W.-13-1* Extegrity Exam4 > W Section. Page 1 of 13 Institution Harvard Law School Printed on June 30, 2009 Course Weinreb - Criminal Law 6 Exam ID Word Count(s) Section Section Section

2 13922 *13922-W.-13-2* Extegrity Exam4 > W Section. Page 2 of 13 Answer-to-Question-_1_ Ed and Louie Ed and Louie are likely guilty of conspiracy to commit theft. Ed and Louie had an agreement to steal Minton, the intent to do so unlawfully, and there was a true meeting of the minds. The requirement of an overt act, if there is one, is satisfied by either asking Walt to help or by going to Jeb and Walt's room. Ed and Louie are probably not guilty of burglary, although they may have committed attempted burglary. They had planned to break and enter into Jeb and Walt's apartment (and if they planned to use burglary tools, this would be a separate offense) and under either the common law or the MPC "substantial step" test their actions are likely enough to meet the standards for attempt. Ed and Louie will likely argue that they could not actually break into the apartment because Walt purposely left the door open so that they could come in. In effect, they had permission of an occupant to enter the premises. This defense is unlikely to hold, though. Factual impossibility is not an accepted defense in any jurisdiction. Under the MPC standard, Ed and Louie's burglary would have succeeded had the facts been as they believed them to be. Ed and Louie may be guilty of the larceny of Minton. This is presumably petit larceny, but may be misdemeanor or even grand larceny depending on the valuation of Minton (he does, after all, have sentimental value that might translate into market price). Although Ed didn't directly take Minton, he is liable under Pinkerton for Louie's actions. Louie's taking was without permission and therefore trespassory. The requirement of asportation is met by the taking itself, or leaving the apartment. Louie and Ed might defend on the grounds that Jeb didn't have title to Minton, so no true taking could occur. However, Jeb had possession as part of his position as captain, and that's all that's required for larceny. They may also argue that they lacked the animus ferandi required for a true larceny, since they only intended to "kidnap" Minton as a prank. This

3 13922 *13922-W.-13-3* Extegrity Exam4 > W Section. Page 3 of 13 is a closer argument. It's unclear what their actual plans were. You might stretch to say that by stealing the mascot before the big match, Ed and Louie intended to hold Minton for long enough to deprive him of significant value - in this case, his ability to bring honor and glory to the Drew College Badminton Team. Ultimately, this would be a question for the fact finder to determine, and given that Ed and Louie will likely be seen as bad actors, I'd say they'll be found guilty. Ed is also guilty of the larceny of the vase. There is no indication that he intended to give that back to Jeb, and the taking was trespassory because it was without Jeb's permission. Asportation is again met by the taking itself or leaving the apartment. Whether the taking is petit or grand larceny will depend on the jurisdiction. Under an MPC jurisdiction, a thief is liable for the greater of his subjective belief about the value of the item, or the actual value of that item. In a jurisdiction following the MPC standard, Ed will be guilty of grand larceny. Whether Louie is liable for this crime is a closer question. Under Pinkerton, Louie is liable for all reasonably foreseeable crimes committed by Ed in furtherance of the conspiracy. It's not clear that Ed's taking of the vase meets either of these two standards. Instead, Louie will probably argue (successfully), that Ed's stealing of the vase was a frolic, and no liability will attach. Although it's a close question, Ed is most likely liable for Jeb's death. Ed didn't intent to kill Jeb, or even grievously to injure him, and it's unlikely that tapping someone on the head with a vase would count as extreme recklessness. However, Ed might be guilty of murder under the felony murder doctrine. Under that rule, a felon is liable as a murderer for any deaths that occur during the commission of the felony. Here, the taking of the vase, and possibly stealing Minton, are felonies. However, in many jurisdictions the underlying felony must be one that is inherently dangerous. A zealous prosecutor might argue that the use of force against Jeb turned the larceny into a robbery, but it's unclear whether this argument would work. Ed may also be liable for Jeb's death under a theory of involuntary manslaughter. Although Ed's conduct may or may not rise to the level of gross and culpable negligence, he may be liable for failing to help Jeb. He created the peril to Jeb's life, and therefore has a duty to assist him.

4 13922 *13922-W.-13-4* Extegrity Exam4 > W Section. Page 4 of 13 The most difficult question to answer in determining whether Ed is liable for Jeb's death is the question of causation. At first glance, it isn't clear whether we can really say Ed "caused" Jeb to die. Ed will probably argue that either Jeb's injury or Monroe's failure to be at his duty station were sufficiently intervening acts to break the chain of causation. I believe this defense will fail, however. Under the "take your victim as you find him" rule, Jeb's prior injury is irrelevant for the causation analysis. His situation is not unlike that of a person with hemophilia who dies from a slight cut. Although the actual harm was greater than what might be reasonably foreseeable, liability still attached. Monroe's actions (discussed in greater detail below), are also unlikely to meet the standard of intervening act. Regular negligence is a fact of life, and it's unlikely that Monroe's failure to answer the phone rises above the ordinary negligence level. If Ed is found guilty for Jeb's death, Louie might be held liable as well under the Felony Murder doctrine. Since he was only a co-felon, and not the direct cause of Jeb's death, it must be determined whether Jeb's death was in the furtherance of the felony. As discussed previously, much of this will turn on whether Minton's theft is a felony, and also whether the theft of the vase is considered part of the conspiracy. It would likely be argued that by hitting Jeb, Ed facilitated the escape, and thus furthered the felonies at issue. Walt Walt is definitely guilty of being a bad roommate, and probably guilty of aiding and abetting Ed and Louie's larceny. Because he purposely left the door unlocked so that Louie and Ed could break in, he can be said to have "made their purpose his own". It's unclear whether he's engaged in a conspiracy with the thieves. By clearly stating that he wanted no part of the plan, Walt failed to meet the requirements of meeting of the minds and agreement. Under the MPC unilateral conspiracy approach, however, it might be argued that Walt did in fact join in the conspiracy. This would require an examination of Walt's subjective beliefs. A jury might

5 13922 *13922-W.-13-5* Extegrity Exam4 > W Section. Page 5 of 13 reasonably conclude that Walt thought he, Ed, and Louie were "in it together", and therefore he was a co-conspirator. If Walt is liable as a co-conspirator, none of his later actions are sufficient for either renunciation or withdrawal, since he never communicated an intent to leave the conspiracy to Ed and Louie. If he's a co-conspirator, Walt might also be liable for Jeb's death through application of the Pinkerton doctrine. However, this charge would run into the same foreseeability/furtherance problems that were previously discussed in connection with Louie. Walt's actions in taking Jeb to the hospital are also unlikely to serve as a basis for liability. Although he may have assumed a duty of care by placing Jeb in the other student's car, there's no indication that his actions were negligent, and certainly not gross and culpably negligent. Monroe Monroe isn't likely to be found guilty of Jeb's death. Although he had abandoned his post to go to the party, this isn't likely to amount to either a misdemeanor or gross and culpable negligence. It might be argued that Monroe's behavior is gross and culpable because he went to get a drink. However, the practical effect of his absence would be the same had he left to go to church. It was the absence, and not the drunkenness, that is implicated in Jeb's death. As with medical professionals, some level of negligence is expected in the performance of all public safety officers. Jeb Jeb has committed no crimes, although he probably should have kept Minton locked away and chosen a better roommate.

6 13922 *13922-W.-13-6* Extegrity Exam4 > W Section. Page 6 of DO-NOT-EDIT-THIS-DIVIDER Answer-to-Question-2 A) Under the common law's standards of provocation, it's unlikely that Betsy's past history would be sufficient to relieve her of liability. Applying the rule of provocation to the facts of the situation shows it's unlikely to succeed as a defense. Ned's conduct consisted of non-informatory words (which are never sufficient under the common law), as well as an unauthorized use of force. This touching might constitute either an assault or a battery, but under the rule of provocation the battery must be "severe". It's unlikely that Betsy could argue that Ned's actions created a sufficient fear of a such a battery. As demonstrated in cases like Bedder and Alexander, the common law standard is unlikely to consider the individual circumstances of a defendant. In Alexander, for example, the racial context of the situation, and any possible history of racial violence experienced by the defendants, was deemed insufficient to meet the provocation standard. Even the use of racial slurs, which are arguably more traumatic than the language used by Ned, has routinely been found to be insufficient to support a finding of provocation. However, under the more relaxed MPC "reasonableness" standard, Betsy might be able to successfully use a provocation defense. The MPC approach is more likely to examine the particular characteristics of the defendant. Ned's sexist remarks, when combined with the unauthorized touching (likely a battery), may be enough for provocation. Still, it's unclear whether Betsy's belief that Ned might attack or rape her was reasonable. It seems unlikely that a reasonable person would believe a man intended to rape her in the middle of the gym. The fear of

7 13922 *13922-W.-13-7* Extegrity Exam4 > W Section. Page 7 of 13 attack is probably more reasonable, however. As a rape survivor, Betsy may have an innate fear of violence by men. She may also be able to argue that by dragging her off the exercise machine, Ned reignite the initial provocation (her prior rape), and thus she was placed in a state of extreme emotional disturbance. Much of the determination of whether Betsy's reaction was reasonable will, in effect, turn on the gender of the so-called "reasonable person". The law of rape itself demonstrates that in many instances, conduct that seems reasonable or consensual in the eyes of a man is actually the opposite when considered from a woman's point of view. Here, a man could presumably see Ned's rough conduct as unwarranted but not outrageous. At the same time, a woman might see any such actions as a possible prelude to further violence. This debate is especially salient in the rape context because rape is overwhelming a crime committed by men against women. Betsy's best bet might be to argue that as a rape survivor, she suffers from a "raped women's syndrome" akin to the accepted defense of battered women's syndrome. Under the BWS defense, a woman's knowledge of her domestic partner can be used to demonstrate her state of mind. For example, if a woman knows her husband always says certain words before severely beating her, she may be able to say that killing him was required to prevent such a beating because her husband had uttered those same words. If we analogize to the rape context, Betsy could argue that as a rape victim, she has a special awareness of when men intend either sexual violence or severe physical violence. Betsy might plausibly claim that her rapist had also called her a "stupid broad" and grabbed her roughly. It's unclear whether this defense could work, however, since in the BWS context there is presumably a pattern of abuse. Betsy's rape is likely an isolated incident. Ultimately, Betsy's situation requires us to determine how far we want to go in using individual characteristics as an excuse. If we allow Betsy to use a defense of provocation, it might be seen as giving carte blanche to any victim of a violent crime to respond to violent situations. At the end of the day, there's a stiff on the floor, and Betsy, not her rapist, seems most

8 13922 *13922-W.-13-8* Extegrity Exam4 > W Section. Page 8 of 13 responsible. However, ignoring the very real psychological consequences of rape seems to be an affront to our belief in justice. I think given her history, Betsy seems less culpable than one who kills in response to finding out about an affair. While I believe the criminal law should try to draw further distinction between culpability and blame, it's unclear whether that can or will happen any time soon. B) The law of self defense is often muddled, and perhaps no where is this more true than in the requirement that a victim retreat On one hand, we as a society highly value individual autonomy and freedom of action. On the other, we hold the value of life to be one of our most sacred principles. Reconciling these two principles is inextricably linked to important normative judgments. At common law, a person subjected to deadly force had a duty to retreat before using deadly in return. In Ned's case, it seems very likely that he could have safely retreated. Betsy no longer had a knife, and Ned had an open route of escape. As such, his actions probably amount to imperfect self-defense through an excessive use of force and Ned could be convicted of voluntary manslaughter. An additional complicating factor is that Ned was the initial aggressor. Under the common law doctrine, an initial aggressor has to fully disengage from the fight - by retreating and announcing an intent to stop fighting - before they can respond with deadly force. There's no indication here that Ned did either of these things, further strengthening the case for finding him liable for the death. Under the MPC, one who uses self defense must be completely sure that they could escape from the situation without harm. This standard is tough to meet. Ned could plausibly claim that he didn't know whether Betsy had other weapons, or what she might do if he turned to run. It's less likely, then that Ned would be convicted in a jurisdiction that follows the MPC. However, given that Ned was the initial aggressor, it seems likely that even under the MPC he

9 13922 *13922-W.-13-9* Extegrity Exam4 > W Section. Page 9 of 13 would bear some responsibility. In recent years, a number of states have steadily eroded the duty to retreat. Some states, like Florida, have passed so-called "stand your ground" laws, entitling individuals to use deadly force in a wide range of circumstances and without a requirement to retreat. Applying the stand your ground principle to Ned's case would likely exculpate him. As an intuitive matter, these laws make some sense. If we allow bad actors to use force to affect the behavior of law-abiding citizens, we risk turning society into a place where might makes right. This seems especially true in cases where deadly force is used. Society has a strong interest in protecting both the freedom and the life of individuals. Moreover, it seems in some sense unfair to hold individuals responsible for decisions that are likely made in a split second. At the same time, allowing individuals free reign to shoot aggressors might perpetuate a Wild West mentality, where law is enforced largely by private parties. We discourage self-help in most other context, so why should we encourage it here? Although individuals in situations like Ned's are faced with tough decisions, it might be argued (as Stephens does) that one of the most important roles the law plays is to guide people in making those tough decisions. In fact, the decision of whether someone deserves death is one of the most difficult decisions we as a society make. Death row inmates are given numerous procedural safeguards which, although sometimes inefficient, are designed to make sure the interests of the inmate are protected. Ned has effectively acted as judge, jury, and executioner. In the end, I believe Ned should be held liable for imperfect self defense. Although Betsy was a bad actor, Ned was too. Society is best served if we let the law, not individual parties, sort out who deserves to live and who deserves to die

10 13922 *13922-W * Extegrity Exam4 > W Section. Page 10 of DO-NOT-EDIT-THIS-DIVIDER Answer-to-Question-3 The American adversary system is an excellent example of an area where most individuals have confused the familiar with the necessary. Because we are unaware of any alternative, we often believe that the flaws in the present criminal justice system can't be fixed. However, our inclination to view the entire proceeding through the lens of the "adversary system" is both unnecessary and ultimately undermines many of the goals we seek to achieve. Able is correct in identifying the adversary system as the source of many failing of our process. These problems often appear in connection with the discovery process. In essence, our discovery system should be a search for truth. In many situations, however, the adversary system impedes, rather than aids, that process. The ABA model ethical standards, for example, essentially expect defense counsel not to turn over inculpatory evidence if counsel doesn't believe the evidence might be destroyed. The ABA standards set a fairly low ethical bar, justified by the assertion that justice requires defense counsel to protect the interests of the defendant. This argument has some appeal, but it ignores the fact that on a more fundamental level, justice also requires the guilty to be punished. Likewise, prosecutors often fail to disclose potentially exculpatory evidence to the defendant. In Agurs, for example, the court held that the failure to turn over evidence of the victim's prior criminal record wasn't sufficiently material to warrant a new trial. It's unclear, though, what effect this evidence might have had on a jury. The standard established by the court in the Brady line of cases essentially requires an appellate court to substitute their judgment for that of the fact finder. The Agurs case also raises a larger issue about the adversary system. In order to work, it

11 13922 *13922-W * Extegrity Exam4 > W Section. Page 11 of 13 depends on both prosecutors and defense counsel performing to the best of their ability. Although the Agurs court found no negligence in the failure of the defense counsel to request any criminal records, this is a highly debatable assertion. In addition to parity in skill, the adversary system also assumes parity in resources. In reality, however, many defendants are represented by overworked, underpaid public defenders with a number of other cases on their docket. As a result, it's unclear just how "zealous" their defense of a given individual can truly be. The excesses of the adversary system can also be seen in our practice of plea bargaining. In Jones, for example, the prosecutor didn't disclose information that a key witness had died. The NY Court of Appeals held that prosecutors aren't required to disclose the strength of their case, a ruling that seems intuitively appealing but suffers from some weaknesses. Most importantly, it seems to conflate the notion that an individual can be proven guilty with their actual guilt. Other elements of the process, like voire dire, seem to be needlessly adversary. When applied to a process like jury selection, the pressures of the adversary system can lead to results like Batson, where a prosecutor struck all the black members of the jury. Whether the prosecutor was acting out of racial animus is unclear, but it is certain that he believed his role as prosecutor, the adversary of the defendant, required him to take such action. Although extreme examples like Batson have largely been eliminated, the corrupting influence of the adversary process continues to have an effect. By making an elaborate game out of a process that could likely be accomplished in a few hours, the defense counsel and prosecution increase the time it takes for a case to reach trial. Furthermore, if jury selection works it may make the ultimate outcome of the case dependant on factors incidental to the actual crime at issue, like an attorney's ability to correctly size up a juror's political leanings. The requirement that a defendant provide his own counsel is one of the most disturbing consequences of our adversary system. We seem to presume that because he has been charged, an individual is in some sense already culpable, and therefore the state has no responsibility to provide counsel. This mindset undermines our commitment to making sure each individual gets a

12 13922 *13922-W * Extegrity Exam4 > W Section. Page 12 of 13 fair trial, and represents a substantial imposition on the accused. At trial, the requirements of the adversary system essentially remove the defendant from participation. The trial becomes a back and forth battle between the prosecutor and the defense counsel, with the judge overseeing the action, and the defendant silent. Defense witness and prosecution witnesses have no interaction, making it difficult to sort out what really happened. Ultimately, the conduct of the trial comes down to the competing narratives of the defense and the prosecution. This system can work, but it seems likely that a more collaborative process, one less driven by the personalities and persuasive abilities or the lawyers, would better serve the professed goals of our system. Even in the rape context, one of the most sensitive issues dealt with by the courts, the adversary system often has a negative influence. Defense attorneys, cognizant of their obligations to their clients, may forget their obligations to the criminal justice system. As a result, rape trials may turn on details like what the victim was wearing, rather than what actually occurred. The ABA standards and other cannons of professional ethics seem to have accepted that both the prosecution and the defense will push the limits of what is acceptable. For example, the use of a victim's child for identification purposes, although possibly prejudicial, is one that most prosecutors would make. The decision is justified by saying that it's up to the judge to worry about prejudice. A similar sentiment is often found among defense attorneys. In particular, defense attorneys use the adversary system and its requirements to reframe moral decisions as tactical decisions. A defense attorney who strongly suspects his client is guilty would be hesitant to remove himself from the case, for fear of violating his duty as an advocate and incurring sanctions from the court. To be sure, there is some merit to Baker's argument. At some level, trial must fundamentally be an "us" vs. "them" proceeding. The prosecution wants the defendant to suffer some punishment, a punishment the defendant wants to avoid. Without zealous representation of

13 13922 *13922-W * Extegrity Exam4 > W Section. Page 13 of 13 defense counsel, it's likely that may innocent individuals would be sentenced either excessively or for crimes they didn't commit. Likewise, prosecutors have a duty to protect the public by making sure criminals are properly punished. Despite it's innate appeal, though, I believe Baker's argument ultimately fails because it fails to consider that in reality the roles played by the prosecutor and the defense counsel are far different from what is supposed in the model system. The decision by defense counsel to waive preliminary examination is one such difference. In Coleman, the Supreme Court called the preliminary examination a "critical stage" of the proceedings because there were potential benefits to the defendant. Yet because defense counsel doesn't believe a trial will occur. It seems, then, that the defense counsel is often excessively adversarial when the stakes are low, but not adversarial enough when the stakes are high. Plea bargaining is another example of a point in our system where the attorneys on both sides often fail to serve their role. When a defense counsel tells his client that she's "done the best I can", that's in some sense sadly true. The failure to the defense counsel to push harder for a better sentence is just another of the ways our formal expectation of the parties' roles differs from their actual performance. Ultimately, the benefits of the adversarial system seem outweighed by the many drawbacks. While some opposition is inherent in any prosecution, we should be hesitant to imply that the same spirit is equally applicable to all stages of the criminal process.