Unfortunately, many first-year students have a tendency not to take the study of criminal law seriously. Too many people believe that they can study other courses, first, then wait until the last minute to give time and attention to criminal law. I believe that "we" tend to do this because we have read about crimes all of our lives, prior to coming to law school. We have read bits and pieces of information in the newspaper, seen crime scenes "live" on television, and had jarring conversations with our friends, family and neighbors. Since we believe that we are familiar with the subject matter, there is some common thread nestled in the minds of first-year law students, that makes them believe they can throw caution to the wind on criminal law exam day.
Not so.
A criminal case against a defendant is carefully crafted. It is complex, complicated, and most of all, it must be crafted correctly. The prosecution has to get it right. THE FIRST TIME. Too many missteps and a prosecutor is looking for another job. The prosecutor represents the government (the United States or a state). We (the public) expect that the prosecutor will bring charges that match what was done by the likely defendant. The prosecution must be very careful when working on a crime(s) that includes one or more individuals. So many strategic decisions to make. Who will we charge; what will we charge; who will we let "go;" who can't we let go? Do we have enough for X, Y, or Z crimes? Maybe combine A and Y, or Z, an X, or C, alone. The more people involved in the criminal act, the more time it takes the prosecutor to create a scenario that will fit the crimes he or she wants to charge against the defendant.
It is no different on an exam, except that you are supposed to include your thoughts on paper. Professors are not mind readers.
The defense has a really difficult job, too. The defendant must go up against a very high standard (beyond a reasonable doubt). I know you won't believe this, but the defense has to poke a lot of holes in a lot of different elements, in as many ways as possible, in order to raise enough doubt. Defense work is tough work. Remember, if a person ends up actually becoming a "defendant," then there was enough evidence to try this person - this person was indicted. There was something there. So, the defense attorney, knowing that everyone else knows "something is there," has to convince a judge and/or a jury, that just because there is a lot there, it is still not enough for a conviction. The defense attorney has to show that there is a problem (or, defense) even when he or she knows that everyone else in the courtroom, except for the defense attorney, the defendant, and the defendant's family, thinks that the defendant should be found guilty.
It is no different on an exam, except that you are supposed to include your thoughts on paper. Professors are not mind readers.
So, slow your roll and think like a prosecutor when creating a case against a defendant or several defendants. AND, don't forget to think like a defense attorney when you prepare to respond to the prosecutor's charges.
The White Hat Syndrome: It seems very easy for for some 1Ls to wear the prosecutor's hat and charge the potential defendant with a lot of crimes. That's okay if the fact pattern calls for it. Some people, however, pull that white hat way too far over their ears, and forget that guilt, beyond a reasonable doubt, is still the standard. Sometimes, she forgets what "reasonable doubt" means. On exams, some people decide that because they would be a prosecutor in everyday life, that they can only be a "good guy" (prosecutor) on the exam.
Please don't do it. Your job is to play the role assigned to you in the question/fact pattern.
Pay attention to the call of the question. Again, play the role assigned to you & only that role. Do not show off, which is a really bad, first-year habit. Confidence is cool (see earlier post). Showing off is reckless (this post).
Got it? Good.
You've heard the phrase, "you can't unring the bell, right?" Well, if you haven't, I think it will be very helpful for you to remember this idea when you answer a criminal law question. Most of the time (most) every movement a potential defendant makes, is a movement made toward a crime, or a movement made that will further a crime.
I'll repeat. Most of the time (most) every movement a potential defendant makes, is a movement made toward the commission of a crime, or a movement made in furtherance of a crime.
So, you (yes, you) enter your roommate's, parents' home to steal a CD that your parents' would like (and because your roommate's, parents' have two of the same CD you don't mind taking it). You take the CD, get on a train, go to your home, wrap the CD very nicely and hold it out to your parents' for a holiday present. You give it to your parents', then when you have second thoughts about what you have done, you remove it from your parents'' CD collection, When you return to school, you place the CD in your friend's old CD pile. The friend decides that her ipod is all she needs while at school, and take the CD home the following weekend. She takes the CD you took from her parents' home and places it in the exact same location where you found it 30 days ago. Her parents know nothing. She knows nothing. Your parents know nothing. You, however, know one thing.
YOU KNOW, AMONG OTHER THINGS, THAT YOU ARE A THIEF.
You know that you have burglarized someone's home, taken the item, allowed your family to be in a position where they could be charged with receipt of stolen goods, you take it back from them, hide the stolen goods, and then your roommate has now received the stolen goods, and has returned the goods to her family's home, which is what you wanted. Still, all of these transactions happened, and there are consequences associated with each. How many crimes do you see?
Just because no one knows anything about anything doesn't mean it did not happen. You cannot go back in time and change what already happened in time. You can stop the number of crimes from adding up over time, but what's done, is usually done. This is, by far, the best piece of advice I can give you for the exam (and, life). No one is exempt. Not even me.
Inchoate Crimes. Every subject you study in law school has a beginning, a middle and an end. This beginning is seen in criminal law day after day; night after night; crime after crime. If you find yourself with a fact pattern (in criminal law) and there is only one person committing crimes and there is no one else mentioned, then there cannot be solicitation or conspiracy because you cannot commit those crimes with yourself. Yes, even the defendant with a multiple personality disorder can not agree to commit a crime with himself. So, if you know the person thinks for one segment of the day that he is Barney, and another segment of the day, he is Fred, and when he sleeps, he is Dino, that he cannot commit a crime with his other two personalities.
Look & wait for the introduction of two or more persons in the fact pattern to think about solicitation, conspiracy (and, attempt - although one can attempt to commit a crime by himself). When there are two or more folk together in a fact pattern, there is going to be some kind of relationship between those parties that you will have to recognize and discuss. Yes, there will be an attempt to do something, there will be some relationship between two people where one or more people attempt to solicit one or more other people to commit a crime. And, yes, there will be some set of facts rolled up together to indicate that two or more people have agreed to do something unlawful, or to do a lawful thing, unlawfully (also known as a conspiracy).
Now, for the rub. Everyone in the fact pattern is doing something to someone else. You must separate the players like they belong to several hockey teams and determine which person in the fact pattern will be charged with what.
TAKE YOUR TIME!!!!!!!!!!!!!!
DO NOT RUSH!@!@!
TAKE ONE PLAYER A TIME and decide what his or her punishment will be.
You ain't got to (yes, I am using a double negative - get over it) move too quickly , but you must be accurate.
Remind each and every possible defendant that you are an equal opportunity student.
Now, there are going to be times where something looks like attempt, solicitation, or conspiracy, but at the end of the day, you are going to say, "nah, it's not enough for one, both or all three." You don't walk away, young man. You let the professor know that you know that it coulda, shoulda, mighta been attempt, solication, or conspiracy, but there was not enough going on in the fact pattern to justify such a charge. Tell what could have been and what has actually happened.
If it looks like attempt, smells, like solicitation, and moves like conspiracy, then you better talk about it. Raise it as an issue - analyze it as an issue, then if it is not actionable, then dismiss it as an issue. You must let your audience know that you saw it. Let the audience know that the series of events, combined, were not enough to create the crime sought (but you must explain why, based on the facts presented, it wasn't enough). Once you do that, then you can complete the discussion of the crime and move on to the next issue or set of circumstances.
Murder: is not pretty, even when it is on an exam. My biggest tip to provide you with here is that there is common law murder and statutory murder. Pick and choose and remember what your professor taught you and match the facts to the type of murder, carefully. Common law facts on an exam go to the common law definition of murder. Ditto with murder based on a statute. You may actually have enough facts under a set of circumstances where the person can be charged with common law and statutory murder.
Tag 'em! Now.
You never know which one will eventually be dropped or which one is the best theory for the state to move on. You are an attorney. Show no mercy.
One sentence on Manslaughter: see if murder fits first. If it does not, then, AND ONLY then, move to manslaughter.
Assault, battery, rape, arson, burglary, larceny, larceny by trick, false pretenses, and embezzlement. Just a few of the crimes I know you've studied this semester. Compartmentalize. That means take one crime at a time and one person at a time and then determine whether the facts support that crime. Charge a defendant one time for one crime. Hmph. I like that. Don't get all scared to charge the defendant with the crime, either. You must make certain that the facts apply to the law, but once you do that, then the game is on.
Charge him or her with as many things as legally SOUND. And it does not matter whether the person is a man or a woman. The woman gets it just as badly and the guy. No pity. No mercy. NO, one more chance. Nope. You lost that chance when you became a defendant on the paper in front of me. It may actually be your job to do this, one day, so roll up your sleeves and charge 'em with the crime and do what you must when the facts say, yes.
I need help, give it to me: if the defendant gets help from someone else, charge that person with aiding/assisting/abetting, but don't forget to defend the person and explain why the charges will (if they will) be dropped. Include first, exclude later.
CHARGE AND DEFEND.
Finally, please first-year students, DO NOT FORGET TO ADD THE DEFENSES TO YOUR LIST. It is one thing to charge, charge, and to continue to charge folk with crime after crime after crime. That's okay, but it is a must that you defend Mr. Defendant with any and everything that looks, smells, and acts like a defense to the crime.
DEFENSES ARE WRITTEN INTO EVERY CRIMINAL LAW EXAM. If you don't find them and apply the defenses, according to the facts, then you are coming back to school in the spring 2011 with no more than a bee-minus in criminal law. Likely less than that because the exam is designed to see if you see charges and defenses. There are two sides to every "v."
A lot of your grade depends on your professor's expectations of you and how well other people in your class did on the exam. Hey, if everyone sees defenses, but you don't, and your colleagues are correct, you will begin traveling down a long, dark alley, A-L-O-N-E. Welcome to C+ land.
You don't want to do that. It can, however, happen.
Okay, these are some things to think about as you prepare for criminal law.
I'll try it again, tomorrow.
Prof. Smith