SCHOOL OF LAW FALL 1987 LAW 203 CRIMINAL LAW. Instructor in Charge: Prof. S. H. Kadish. Time allowed: 3-1/2 Hours

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1 UNIVERSITY OF CALIFORNIA COURSE EXAMINATION SCHOOL OF LAW FALL 1987 Your Exam No. LAW 203 CRIMINAL LAW Instructor in Charge: Prof. S. H. Kadish Time allowed: 3-1/2 Hours This is a closed book examination. Nothing may be brought to the examination to help you answer the questions except writing implements, blank paper and such. The examination is in three parts: Part I consists of 30 multiple choice questions. You should mark your answers on the Scantron answer sheet supplied with this examination. Be sure to write your exam number in the box at the top of the Scantron designated ID NUMBER." Over the space marked "NAME, SUBJECT, DATE" place your exam label and write "Criminal Law-Kadish." DO NOT WRITE YOUR NAME. Part II consists of eight short answer questions. You are to write or type your answers on the examination pages themselves on the lines provided. Part III consists of one essay question which you are to answer in a separate bluebook supplied by you. Recommended apportionment of your time: Part 1, 1-1/4 hours; Part II, 1 hour; Part 111, 3/4 hour. The extra half-hour is cushion. You should have plenty of time. In computing your scores Part I will count about 40%; Parts II and III will count about 30% each. N.B. THIS ENTIRE EXAMINATION BOOKLET MUST BE RETURNED WITH YOUR SCANTRON ANSWER SHEET AND YOUR BLUEBOOK. MAKE SURE THAT EACH ITEM IS IDENTIFIED WITH YOUR EXAM NUMBER. TO RETURN EXAM, INSERT EXAM BOOKLET AND SCANTRON ANSWER SHEET INTO BLUEBOOK.

2 PART I (Recommended Time: 1 hr. 15 minutes) There follow 30 multiple choice questions which you should answer on the Scantron answer sheet supplied to you. Since this exam will be mechanically scored it is essential that you mark your answer carefully and, if you erase an answer, that you erase it completely. Note that there is a Gripe Sheet on the last page of this examination package. If you believe any of the multiple choice questions are ambiguous or unfair for any reason, you may say so there and state your reason. I will read these Gripe Sheets before preparing the answer code, and if you persuade me you are right, I will not count the question. 1. It has been stated: "The claim for deterrence is belied by both history and logic. History shows that severe punishments have never reduced criminality to any marked degree. It is obvious to anyone familiar with the activities of criminals that the argument for deterrence cannot be logically squared with the doctrine of the free moral agent upon which the whole notion of punishment is based. If a man is free to decide as to his conduct, and is not affected by his experiences, he cannot be deterred from crime by the administration of any punishment, however severe." Which of the following comments on this statement is the least persuasive? a. The statement identifies the basic difficulties with the principles of deterrence as a goal of the criminal law. b. The statement makes an unwarranted inference in concluding that the case for deterrence is necessarily belied by the fact that severe punishment has never reduced criminality to any marked degree. c. The statement improperly sees an inconsistency between the doctrine of the free moral agent and the premise of deterrence. d. The statement overstates the case against the effectiveness of deterrence. 2. A, who has a long history of epileptic seizures, suffers such a seizure while driving, and runs the car up onto a sidewalk and kills a pedestrian, Z. Which of the following defenses to a charge of involuntary manslaughter is a court under our legal system most likely to accept: a. Lack of an actus reus. b. Lack of a mens rea. c. Legal insanity. d. None of the above is likely to be accepted. 3. A, accidentally and wholly without negligence started a fire in a building. After escaping she observed Z, a stranger, trapped at a window. A could have saved Z without endangering herself by propping up an available ladder, but decided not to bother. Of the following arguments for holding A liable for manslaughter, the one which would have the best chance of success would be: a. The defendant's knowledge of the need to act plus her knowledge of the absence of any danger or difficulty in acting make the general. rules concerning omissions inapplicable. b. Since the mens rea requirements of manslaughter are completely satisfied by the recklessness shown in the circumstances, there should be no obstacle to holding the defendant for her failure to act. c. Since she started the fire her behavior includes an act in addition to an omission so that the doctrine as to omissions is not strictly applicable. d. Common humanity creates a duty to act in the circumstances which suffices to make her liable for her refusal to act. 4. A statute makes it a felony (incest) to intermarry with a person within the prohibited degrees of consanguinity, which includes first cousins. A married his first cousin, Z, when she became pregnant as the result of a rape by another man. Which of the following would be the most favorable state of facts for A to present on his trial for incest: a. He did not know that Z was his cousin when he married her. b. He was erroneously informed by a lawyer that the incest statute had been held unconstitutional by the State Supreme Court. c. He felt a moral obligation to marry the girl under the circumstances. d. Z's father threatened to accuse him falsely of rape if he did not marry the girl. 5. In a German case a husband, knowing that his wife had threatened to kill. their child and that recently she had unsuccessfully tried to do so, deserted her without informing the authorities. His wife then killed the child. Which of the following arguments has the least analytical cogency? [N.B.: I am not asking about which has support in the law.]

3 a. He could be held for manslaughter on the ground that he acted with recklessness in creating precisely the risk of loss of the child's life which developed. b. He could be held for manslaughter because of his failure to save the child's life in violation of his parental duty. c. He could be held for manslaughter because of the independently wrongful act of deserting his wife. d. Since his liability does not rest on his being an accomplice of his wife, there is no problem holding him for manslaughter even though his wife is guilty of murder. 6. A, a resident of California, obtained a Mexican divorce and, after obtaining opinion letters stating that the divorce was valid in California from the state's leading legal experts on the law of interstate divorces, married another man. Subsequent decisions revealed that the experts were in error, and the defendant was prosecuted for bigamy in California. A's soundest defense under present law would be (choose one): a. Mistake of law is a defense when the defendant has taken reasonable steps to comprehend and obey the law. b. Under the Lambert decision of the U.S. Supreme Court it would be a violation of due process of law to convict her. c. The mistake, even though of law, negates the mens rea of negligence as to whether the defendant had a spouse at the time of the second marriage, which is required by the definition of the crime. d. None of the above are at all sound. 7. The Model Penal Code recommends the virtual abolition of strict liability. Therefore, which one of the following statements about the authors of the code is necessarily true? a. They have adopted the view that punishment of wrongdoers is the riviin function of the criminal law. b. They have decided that strict liability serves no deterrent purpose. c. Both of the above. d. Neither of the above. 8. A, a drug store owner, is charged with violating a statute prohibiting the dispensing of adulterated or misbranded drugs. A admits that her employee, B, sold an adulterated prescription and that the statute would make B criminally responsible even if B was wholly without fault. Nonetheless A contends that she should not be liable unless she had knowledge that B sold the drug without a prescription. Which of the following kinds of authorities is most in point in support of A's argument? a. Cases holding that, absent knowledge, one cannot be liable for an attempt or conspiracy to commit even a strict liability offense. b. Cases stating that the purpose of strict liability in the food and drug area is to promote the highest possible standards of care. A argues from these statements that the purpose of the statute will not be furthered by holding him responsible for what his employee could not have avoided. c. A statute providing: "In every crime there must exist a union of act and intent or criminal negligence." d. None of the above is at all in point. 9. A operates a stone crusher for Consolidated Quarries. A drunken tramp, Z, wanders into the plant, falls into the feeder, and is carried to his death. It is clear that A could have stopped the machine in time to prevent the death, if A had seen Z fall in. A witness testified that Z was staggering about near the crusher in plain sight, but A was reading his Hegel. A denied that and testified he failed to see the tramp because he was busy making an entry in the log book. The court should (choose one): a. Charge the jury that A could not be held criminally responsible since he was guilty only of an omission to act. b. Direct a verdict for defendant since the conflict of testimony makes it uncertain who is telling the truth. c. Charge the jury to acquit if they find that the tramp is a trespasser, since as such he is protected only against wilful misconduct. d. Charge that A may be convicted of manslaughter if he knew the tramp was staggering about near the crusher. 10. A, an experienced but unlicensed driver, drove his car on the highway and killed a drunk, Z, who staggered into his path. The prosecution failed to show culpable negligence in the way defendant was driving. Of the following propositions, identify the most accurate: a. A could not be held for manslaughter because of the absence of sufficient causal relation between his unlicensed driving and the death. b. A could not be held for manslaughter because unlicensed driving is not a felony. c. A could be held for manslaughter if driving without a license were a crime of absolute liability. d. None of the above propositions is at all accurate.

4 11. A, driving along at a reasonable rate of speed, was distracted by a beautiful sunset. She went through a stop light and hit and killed a pedestrian. She is charged with manslaughter. Of the following proposed definitions of criminal negligence, which is most favorable to A? a. Criminal negligence is something more than the slight negligence necessary to support a civil action for damages. It means disregard for the consequences of the act and indifference to rights of others. b. Any person who drives a motor vehicle should realize the danger to others. If he fails to respond to surrounding circumstances, he is criminally negligent. Criminal negligence involves reckless disregard for the lives or safety of others. c. To find the defendant guilty of criminal negligence, the Jury must find as a fact that he intentionally did something he should not have done or intentionally failed to do something which he should have done under circumstances that demonstrate a conscious disregard of a known danger that his conduct would produce the result that it did produce. d. To be criminally negligent the accused's conduct must be such a gross departure from what would be the conduct of an ordinary prudent or careful person under the same circumstances as to be incompatible with a regard for human life. 12. A is practicing with the javelin on a portion of the school playing field posted with large signs warning people of the danger of entering. Though he sees Z enter the posted area, he nevertheless heaves the javelin. It narrowly misses Z. Which of the following is a plausible defense to a charge of attempted murder (choose one): a. A lacked the mens rea of murder. b. A lacked the mens rea of an attempt. c. Z was guilty of contributory negligence. 13. The most cogent objection to permitting a defendant to be convicted of attempting to commit an assault is (choose one): a. It may result in double punishment. b. It is logically inconsistent. c. It results in pushing back the point at which criminality begins to the early stages of preparation. 14. On which of the following grounds is the current law of attempt plausibly subject to criticism (choose one): a. It serves no deterrent purpose. b. It permits punishment solely on the basis of a person's thoughts. c. It permits the police to stop and question at will. 15. Which of the following persons has the most well accepted legal authority for a defense? a. One who buys sugar in the mistaken belief that it is heroin. b. One who accepts a case of whiskey in the mistaken belief that it is stolen property. c. One who feeds his wife salt in the mistaken belief that it will kill her. d. One who uses a new psychedelic drug in the mistaken belief that it has been outlawed. 16. The main evidence against A was that he drove a truck loaded with yeast and sugar onto the grounds of an illegal still whose operators an hour before were placed under arrest by the police. Of the following statements, identify the one that is most accurate (assuming the required mens rea can be proven): a. Under generally prevailing doctrine the court could properly instruct the jury that it could find the defendant guilty of aiding and abetting the operation of an illegal still. b. Under generally prevailing doctrine the defense of impossibility would preclude liability for attempt. c. Under the Model Penal Code the defendant could be found guilty of aiding and abetting the operation of the still. d. Under the Model Penal Code the defendant could be found guilty of attempt to operate the still. 17. Which of the following furnishes the least plausible justification for punishing an attempt less severely than the completed crime? a. A person who attempts a crime and fails thereby shows himself to be less dangerous than a person who succeeds. b. In punishing the attempter less, little deterrent effect is lost in most cases since the prospect of greater punishment for the successful crime remains. c. It is widely believed to be unfair to punish someone who fails to do the harm as severely as one who succeeds.

5 d. We want to encourage persons who attempt crimes to abandon their attempts. 18. A, B and C got into a dispute with the bartender, Z, abusing him verbally, shoving him, and taking some swings at him with their fists. While A continued to punch at the bartender, B and C ran out the alley door and started heaving garbage and trash back into the tavern from some trash cans outside the door. Meanwhile, unseen by B and C, A suddenly pulled a knife on Z and stabbed him fatally. B knew that A carried a knife on his person; C did not. Identify the most accurate of the following statements: a. B and C may be convicted of some degree of culpable homicide on the basis of a conspiracy with A. b. If A is convicted of murder, B and C may not be convicted of any lesser degree of homicide because accomplices or co-conspirators must share the same guilt as the one who actually strikes the blow. c. C cannot be convicted of murder, but can be convicted of manslaughter because, although he was not present, his intentional aiding of A supplies the necessary mens rea. d. Whether B is guilty of murder or manslaughter depends on his estimate of whether or not A would have been likely to use the knife. 19. A stole a car in Berkeley and ten minutes later picked up his friend B. B asked, "Where did you get the car?" A: "I just stole it. Want to ride to Los Angeles?" B: "Yes." They are arrested in the car the next day in Los Angeles. B is equally guilty as A for theft of the car (choose one): a. As an accessory after the fact. b. As a principal in the theft, because his knowledge immediately after the crime implicates him in its commission. c. Under the principle that a co-conspirator is responsible for the acts of his associates in furtherance of the conspiracy's common design. d. None of the above is correct. 20. A and B planned to break into a federal government office to steal food stamps. A telephoned C one night and asked whether C wanted to buy some stolen food stamps. C said, "Sure, bring them right over." A and B then stole the food stamps as planned. That same night they delivered the food stamps to C, who bought them for $500. C did not ask when or by whom the stamps were stolen. All three were arrested. A and B entered guilty pleas in federal court to a charge of larceny in connection with the theft. C was brought to trial in the state court on a charge of conspiracy to steal food stamps. On the evidence stated, C should be found (choose one): a. guilty, because when a new confederate enters a conspiracy already in progress, he becomes a party to it. b. guilty, because he knowingly and willingly aided and abetted the conspiracy and is chargeable as a principal. c. not guilty, because although C knew the stamps were stolen, he neither helped to plan nor participated nor knowingly assisted in the theft. d. not guilty, because A and B had not been convicted of or charged with conspiracy, and C cannot be guilty of conspiracy by himself. 21. A and B, brothers, operated an illicit still. One day when A was at the still alone, he was approached by Z, who asked to buy a gallon of liquor. Z was in fact a revenue officer. After A had sold him the liquor, Z revealed his identity. A grabbed one of the rifles that the brothers kept handy in case of trouble with the law, and shot and wounded Z. Other officers, hiding nearby, overpowered and arrested A. Shortly thereafter, B came on the scene. The officers arrested him as well. On a charge of battery, which statement concerning A and B is true? a. Neither is guilty. b. Both are guilty. c. A is guilty but B is not, because the conspiracy had terminated with the arrest of A. d. A is guilty but B is not, because A's act was outside the scope of the conspiracy. 22. Officer A had grounds to arrest Z, who was fleeing in his vehicle. A, on foot, fired at the tires of the speeding vehicle. A tire blew out when hit by A's gunfire, and the car crashed into an embankment, resulting Z's death. The common law would require that the jury be instructed that A has (choose one) a. a valid defense only if he was seeking to arrest Z for a felony, as he used deadly force in attempting to apprehend Z. b. a valid defense if he was seeking to arrest Z for either a felony misdemeanor as he was privileged to use deadly force in either circumstance. c. a valid defense if he was seeking to arrest Z for either a felony d. no valid defense even if he was seeking to arrest Z for a felony, as deadly force may never be used to make an arrest unless the officer's life is endangered.

6 23. The United States Supreme Court has held that the prosecution must prove beyond reasonable doubt "every fact necessary to constitute the crimes charged." This has been interpreted to mean (choose one): a. That excuses and justifications must be disproven, as well as the mens rea and actus reus proven, beyond reasonable doubt b. That only the actus reus and mens rea must be proven beyond reasonable doubt, c. That only the actus reus must be proven beyond reasonable doubt 24. A became intoxicated and was physically thrown out of a suburban bar by the bartender for rowdy behavior. He stood there in the street screaming obscene imprecations at the bartender and everyone who happened by until he was arrested by a police officer. He was charged with violation of a section of the state code providing: "Whoever shall disturb the peace by loud and vulgar noises in the streets of a residential neighborhood is guilty of a misdemeanor." Which of the following is a good legal defense? (Choose one) a. Since he was physically thrown into the street against his will he has the defense of involuntary action. b. He was too drunk to have the required mens rea. c. Assuming he was an alcoholic, he has the same defense Supreme Court in Robinson v. California (invalidating being addicted). 25. The Supreme Court of Euphoric State has held that a person cannot be convicted of culpable homicide unless she at least acts with gross or wanton negligence, but that a person who kills in imagined self-defense is guilty of culpable killing if her mistake in estimating the risk is simply negligent. a. This is a consistent position because in the latter case the person has killed intentionally. b. This is inconsistent because in the latter case the fault of the person was only that she was merely negligent. c. The Model Penal Code fails to deal with this problem. 26. The main difference between the definition of the standard of the reasonable person in the Model Penal Code and at the common law is accurately captured in which of the following statements (choose one): a. The Model Penal Code's definition is more rigorously objective than that of the common law. b. The Model Penal Code follows the individualized standard proposed by Professor Hart in asking whether the defendant had the capacity to have acted as a reasonable person would have acted. c. The Model Penal Code's and the common law's definition of the standard of the reasonable person are substantially the same. 27. A, hearing that B has just raped his daughter, immediately seeks him out and shoots him; the bullet just grazes B's head, but strikes and kills Z, a bystander. Which of the following statements is most correct (choose one): a. At the common law the effect of the provocation would serve to reduce A's offense to manslaughter. b. Under the Model Penal Code, A would be guilty of manslaughter if he had killed B, but since he killed Z, an innocent person, he is guilty of murder. c. Insofar as the theory of reducing murder to manslaughter is that it occurs in hot blood under great provocation it should be irrelevant whether A's bullet kills B or Z. d. Since A's intent is transferred from B to Z, so is his justification for shooting B transferred to Z. 28. If A and Z play "Russian Roulette" by taking turns shooting at themselves (and Z is shot), the analysis of A's liability is different than it would be if they were playing the game by taking turns shooting each other. What makes this difference relevant is (choose one): a. The mens rea requirements b. The doctrine of causation c. The concept of criminal recklessness 29. A and B are interrupted in their armed robbery of Z by the arrival of a police officer. The officer shoots at A and B to prevent their escape and accidentally kills Z. Which of the following statements is false:

7 a. Some jurisdictions would hold A and B for first degree murder under the felony-murder rule. b. A and B can be held for second degree murder on a causation analysis even if the felony-murder rule does not apply. c. The police officer was justified in shooting at A and B under the common law only because they were armed. d. Though shooting a fleeing felon is justified in a law enforcement officer he might still be guilty of manslaughter for doing so in some circumstances. 30. A statute of Euphoric State makes wife-beating (defined as any unjustified battery of a wife) a felony. A, enraged by finding his wife, Z, sleeping with another man, inflicts a mortal injury on her. If Euphoric State were California which of the first three of the following, statements (a, b or c) is false? (If none is false, choose d): a. If the felony-murder rule were applicable A could not avail himself of the defense of provocation. b. The felony-murder rule would not apply because the felony is not. inherently dangerous. c. The felony-murder rule would not apply because the felony was not, independent of the homicide. d. None of the above is false. UNIVERSITY OF CALIFORNIA COURSE EXAMINATION SCHOOL OF LAW FALL 1987

8 LAW CRIMINAL LAW Instructor in Charge: Prof. S. H. Kadish PART II (Recommended Time: 1 hour) Please type or write your answers on the question pages themselves in the spaces provided. (If you must destaple to allow you to type, restaple them when you're done.) These are designed to elicit short answers -- a sentence or two should suffice for most. In any event, please stay within the space provided for your answers. Part of the point of these questions is to test your rifle shooting. No shot guns please. 1. A policeman surprised A and Z committing an armed robbery, whereupon A and Z opened fire on the policeman and the latter returned the fire. A shot by the policeman struck and killed Z. Does the fact that the shooting of Z by the policeman was justified homicide necessarily preclude holding A for the culpable homicide of Z, and why? 2. If a jurisdiction makes it a crime to solicit another to commit a crime, does it follow that to be consistent it should make it a crime to attempt to aid another to commit a crime, or are the situations distinguishable? 3. A tells B that he has an 18-year old girlfriend who would like to have sex with him for a fee. B agrees, and following arrangements made by A he meets and has sex with the girl. Though the girl is only 14, A and B actually, but unreasonably, believe she is 18. Assume the age of consent is 16 and that negligence as to the age of the girl suffices for liability. Is there any problem with convicting A, we well as B, of statutory rape, and why? 4. A started to beat Z around the head with the butt of his pistol, but was stopped by a police officer before he was able to do great harm to Z. He was later charged with attempted murder. At the trial the jury was instructed: "To sustain the charge of attempt, the

9 State must prove: First: That A performed an act constituting a substantial step toward commission of the crime of murder; and Second: That A acted with the intent to commit the crime of murder. The crime of murder is committed when a person kills another with the intent either to kill the deceased or to do great bodily harm to that individual." What, if anything, is wrong with this instruction and why? 5. It has been said: "Those who argue that there can be no punishment without blame do not always realize that in so arguing they are committing themselves to the proposition that the object of punishment is to make those who are to blame suffer for their actions." Is this necessarily so, and why? 6. What is the difference, if any, in the legal and moral situation facing a driver (A) who drives through a stop sign so placed that it can not be seen from the road, and a driver (B) who drives through a stop sign because he is stricken by his first epileptic fit and loses control? 7. During the days that a number of cases of fatal poisoning were discovered to have been caused by someone inserting poison into Tylenol capsules, A presented his boss, B, with a new package of Tylenol on the chance that it too might contain deadly poison, even

10 though he knew the chances were even less than those of winning the California lottery. The Tylenol turned out to be harmless and A was charged with attempted murder. What is A's best line of defense under the Model Penal Code? 8. [Courtesy of Lincoln Mintz] You represent Danny Defendant, who was arrested two blocks from the Cleaver house carrying a TV set belonging to the Cleavers. At his trial for burglary the state presents the following evidence: the Cleavers testified that on returning home the night of the incident they saw a lone figure who looked like the defendant fleeing down their walk with a TV set and that their door had been forced and their TV was missing; a police technician testified that he found Danny's fingerprints on the table on which the TV had rested. You put Danny on the stand and ask him one question: "Danny, please tell us your version of the incidents that evening." He testifies to what he previously told you: that he was never in the Cleaver home; that while standing outside the Cleaver residence a stranger with a TV set gave him the set as collateral for a loan. After Danny's conviction you run into the State Bar's lawyer who asks you if there are any good reasons why you shouldn't be brought up on disciplinary charges. You answer:

11 PART III (Recommended Time: 45 minutes) This part of the exam consists of one essay (problem) question. You are to answer it in your bluebooks or, if you type, on your own stationery. Remember to write your exam I.D. number on your answers. As you will see from the time recommended, I do not expect a long essay. I would hope you would not exceed four bluebook pages (single space) or the typewritten equivalent. If you can keep your answer within those limits I am more likely to approach reading your answer with a smile. The secret: think your answer out and outline it before you write it. Problem Defendant was the devoted husband of an incurable invalid afflicted with a terminal disease. She repeatedly urged him to obtain poison for her and he persistently refused. One night, after becoming particularly distressed and depressed, she threatened to find some other way to kill herself if he refused to help. With that, defendant finally relented and left poison on her night table, which she drank during the night. Getting up to look in on her early in the morning, defendant saw that she had consumed the poison and was in great pain. He called an ambulance which, on its emergency drive back to the hospital with his wife, an attending physician and a driver, skidded off a bridge and into the river. All those in the ambulance died of drowning. Discuss the criminal liability of the defendant. (Answer in terms of generally prevailing American law or the Model Penal Code, as you choose).

12 GRIPE SHEET If you wish you may indicate on this page why you think certain Of these multiple choice questions were ambiguous, unclear or otherwise out of court. If I agree with you I will not count the question for anyone. I do not encourage you to expend a lot of precious time on this.