Some notes on the final exam

Some notes on Mr. Becker’s final exam

Fall 2004

Prepared February 12, 2005.

Overall you did well on what was a difficult final examination. The table below shows the curve, which given the B median rule could not in any event have been any higher. The raw scores, for those of you who are curious, ranged from 11 to 22. The rough allocation for scores on the individual parts is shown in the next table.

Grade	Number	Percent
A	3	14
A-	2	9
B+	5	23
B	10	45
B-	2	9

Raw Scores – rough allocation

Homicide		10
Self-defense	Reasonable grounds; retreat; imperfect self-defense	6
First-degree murder or second-degree	No good premeditation claim, therefore second-degree	2
Other: provocation/manslaughter, going after Ralph	Hard (but possible) to argue provocation under traditional test; going after Ralph too much of a stretch as consequence of a rape	2
Rape		10
First-degree rape - No, second-degree rape, yes; spousal rape, no if that’s the relevant provision	No showing of force; not “mentally incapacitated” as that is a term of art and not enough evidence to say he drugged her. But “physically helpless” is pretty strong.	4
Spousal rape issue	Mens rea; mistake of fact/mistake of law	4
Other	Anything not covered by the previous area.	2
Remainder		10
Alice threw phone at Enrico; wants him charged with (sexual) assault)	Does she have a defense of justification or self-defense? He didn’t cause pain, but did he assault her (or attempt to assault her) sexually by the caress?	3
Alice didn’t pay her half of the bill	Does statute even cover this?	2
Alice broke into Enrico’s apartment	Not burglary b/c no felony inside (claim of right at least for larceny); query knowledge of privileges; liability of accomplices	3
Enrico kept Alice’s phone and asked for a reward	Statute: reasonable attempts to return? Asking for reward?	2
Extra Credit
Other	General excellence, other matters not covered above.	Variable, generally 1 or (at most) 2

I’d be happy to talk with any of you about your examination; you can either come to office hours (Wednesdays 1:00 to 2:00) or email me for an appointment (MW afternoons, or Tuesday or Friday, are best; start by suggesting a few times that are good for you). In a few cases I wrote “see me” on the grading sheet. If I did, that means that I thought I saw something about your examination, usually easily remedied, that made you underperform in terms of what you probably knew. I strongly advise you to see me if I’d written such a note.

The most important thing about an examination is to answer the question put. Your boss asked you to tell him who was guilty of the various charged offenses. This is a hard question, and I’m not surprised that you wanted to avoid it, but I’m a little startled that nobody answered that precise question. Almost everybody answered the related question “Of what crimes could these people plausibly be charged,” – or something similar – whih though interesting and related is not quite the same thing. Since nobody actually answered the question put, this hurt everyone equally, so it didn’t make a difference in the grading.

Most of the answers, even the very good ones, would have benefited by closer attention to the precise language of the statutes. Most of you didn’t bother to quote the statutory language, and only paraphrased it – something that often resulted in your missing one or another of the issues in the question. The notes on specific questions below aren’t exhaustive, and may have little to do with any specific examination (see the sample answers to note how many different approaches are possible), but hit the high points.

Tom’s death. Carol killed Tom by shooting at him three times at close range, and so absent some form of defense is guilty of some kind of criminal homicide. Self-defense (covered by statute) is the obvious claim, and if it is made out she’s not guilty of anything, so that’s pretty clearly the most important issue. A secondary one is whether, if her self-defense claim fails because her belief in justification was not reasonable, the killing would nevertheless be mitigated to manslaughter under the doctrine of imperfect self-defense, which Nutmeg apparently hasn’t ruled on.

Beyond that, it’s possible she has a defense of provocation (which would also limit the crime to manslaughter) though I would say it’s doubtful that she’s in the out-of-control state of mind required at common law for that defense. The remaining issues are the degree of the crime if all defenses fail; it seems pretty clear to me that the answer is second-degree, though some of you made arguments for first-degree. Involuntary manslaughter is out since it’s pretty evident that common-law malice (purpose to cause death or grievous bodily harm) is present here.

Felony murder could provide the mens rea to charge Ralph, but the causation issue is pretty near insuperable (though some of you made valiant tries).

Me, I don’t think either of them is guilty of homicide.

Rape. On the evidence second-degree rape (“physically helpless” as defined in the statute) is pretty much open and shut, but there’s nowhere near enough evidence to find force (tying someone up and raping them could plausibly be called force, but there’s no evidence Carol was raped after she was tied up) and though there’s a fair suspicion that Ralph might have doped her drinks, there’s nothing close to evidence that would be proof beyond a reasonable doubt.

The kicker, and it’s a big kicker, is that Ralph presumably will say he thought that he was married to Carol, that therefore he didn’t have the mens rea required with regard to sexual intercourse (which for the main statutes is limited to people not married to each other), and therefore he isn’t guilty. The easiest way to defeat this claim would be to uncover facts that show he didn’t think they were (still?) married, and we should try to see what Carol knows or perhaps what he said in the past to other acquaintances.

If we can’t negate this beyond a reasonable doubt, the only hope is either to fight the legal claim, by constructing an argument that no mens rea is required with respect to spousal status, or by finding a basis to prosecute him under the spousal rape provision. That, however, requires force, and we don’t have much to go on there. (We might try attempted spousal rape, on the argument that he tied Carol up and planned to return and have sex again, but the evidence of intent isn’t compelling.) One thing in our favor is that it’s likely that a trial court or jury would like to convict Ralph of rape if they can do so without perverting the law.

I certainly think Ralph should be guilty of some form of rape, though I’m not completely sure he is.

Little stuff. I think that Alice should be cheered not prosecuted for throwing the phone at Enrico. There’s enough (pain) to turn the legal litmus of assult, but in the circumstances I think her use of non-deadly force was justified. If pushed, I’d argue a reasonable belief that it was necessary to prevent a minor sexual assault (touching the inner thighs). Maybe he hadn’t yet, and maybe he wouldn’t if not stopped, but I don’t think it’s unreasonable for Alice to think he would and the trivial force she used isn’t an unreasonable response.

Enrico didn’t cause pain. Depending on where he touched her he might or might not be guilty of sexual contact (we can find out by asking Alice). We might argue attempted sexual contact, but I don’t think we can prove intent beyond a reasonable doubt, though in my heart of hearts I believe he is guilty of this.

The statute on theft of services needs some careful parsing to see if Alice might be guilty of theft on that basis. To begin with, it only covers services “rendered,” which would seem to limit it to the wine and soup. Moreover, it’s almost certain Alice wasn’t thinking of evading the bill when she walked out, and we don’t know what, if anything, she heard of the restaurant’s demand as she was hanging up the phone.

As to breaking into Enrico’s apartment, burglary is out because there was no intention to commit a felony therein. Criminal trespass is a possibility but Alice had to know she wasn’t privileged to enter. Her behavior makes it pretty obvious that she knew Enrico wouldn’t want her to enter with a purpose to reclaim her phone, but she might claim she thought she had a privilege to enter to recover her phone. I don’t believe her, and a jury might not, but they might well choose to believe her rather than convict. I think she’s probably guilty but wouldn’t waste time prosecuting.

Betty and Carol are accomplices (see statute), and guilty if they too knew Alice wasn’t privileged to enter. Same comment about them as about Carol.

Finally, I don’t think Enrico is guilty of theft, though that’s debatable. His most obvious claim is claim of right, that he believed he was entitled to deal with the phone as he did. (There’s no specific provision dealing with this classic defense but not the “wrongfully É. withholds” language of the statute). She threw the phone at him, and it’s not evident that this is covered by “he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient.” He could I suppose have offered to return it more promptly, but it’s a far cry to say that the timing of his offer to return was unreasonably delayed. Finally, what about asking for a reward? Does this make his withholding wrongful or unreasonable? Maybe (see the common-law case), but even if he didn’t take reasonable measures to restore, it’s questionable whether he had a “purpose to deprive” as the term is defined in the statute. I don’t think he’s guilty of crime here.