Question: Bria is asserting the insanity defense in her criminal prosecution for murder. In Bria’s state, defendants have the burden of production and persuasion to a preponderance of evidence when proving the insanity defense. Bria offers her own testimony that she is insane and incapable of forming criminal intent. Will Bria be successful with her defense? Why or why not?

Answer: Bria will not be successful with the insanity defense because she cannot meet the burden of proof, which is **preponderance of evidence**. Preponderance of evidence is a fairly low standard, but Bria must still convince the trier of fact that it is more likely than not she is insane. She cannot do this with her testimony, standing alone. Clearly, Bria has an important *self-interest* in eliminating her criminal responsibility in this case. Thus her *subjective* testimony regarding her own mental state is not compelling enough to meet the 51 percent to 49 percent standard.


Question: Read *Sullivan v. Louisiana*, 508 U.S. 275 (1993). In *Sullivan*, the jury was given a constitutionally deficient jury instruction on beyond a reasonable doubt. Did the US Supreme Court hold that this was a prejudicial error requiring reversal of the defendant’s conviction for murder? Which part of the Constitution did the Court rely on in its holding? The case is available at this link: <http://scholar.google.com/scholar_case?case=1069192289025184531&hl=en&as_sdt=2002&as_vis=1>.

Answer: The US Supreme Court held that a constitutionally deficient jury instruction on the definition of beyond a reasonable doubt was a *prejudicial error* and required a reversal of the defendant’s conviction for murder. The Court determined that the improper jury instruction deprived the defendant of his Sixth Amendment right to a jury trial.


Question: Jenna sues Max for $25,000, based on a car accident that occurs in Indiana. Jenna loses at trial and appeals to the highest state appellate court in Indiana, where she loses again. Can Jenna appeal her case to the US Supreme Court? Why or why not?

Answer: Jenna cannot appeal to the US Supreme Court because she does not appear to have a *federal* issue. Parties can appeal from a state’s highest level appellate court directly into the US Supreme Court, but the US Supreme Court is a federal court and only has the jurisdiction to hear federal matters. Jenna cannot meet the criteria of diversity jurisdiction or diversity of citizenship because even if she and Max are citizens of different states, the amount in controversy is too low (it needs to be at least $75,000).


Question: Read *United States v. P.H.E., Inc.*, 965 F.2d 848 (1992). In *P.H.E., Inc.*, the defendant never went to trial but was *indicted*. The defendant challenged the indictment, which was upheld by the trial court. The government claimed that the Court of Appeals for the Tenth Circuit could not hear an appeal of the trial court’s decision, because there was never a “final judgment.” Did the Circuit Court agree? Why or why not? The case is available at this link: <http://scholar.google.com/scholar_case?case=16482877108359401771&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.

Answer: The US Court of Appeals for the Tenth Circuit held that there *was jurisdiction*, in spite of the absence of a trial. The court also held that the extraordinary circumstances compelled a reversal of the district court order denying a motion to dismiss the defendants’ indictment. The court essentially ruled that the defendants had a right not to be tried.


Question: Read *Hertz Corp. v. Friend*, 130 S. Ct. 1181 (2010). How did the US Supreme Court determine citizenship of a *corporation* for the purpose of diversity jurisdiction? The case is available at this link: <http://scholar.google.com/scholar_case?case=11481058059843290042&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.

Answer: The US Supreme Court held that a corporation is a citizen of its state of incorporation *and* the state in which its *principal place of business* is located. The principal place of business is the “nerve center state,” which is the state that houses the corporate headquarters.


Question: Paul, a law enforcement officer, arrests Barney for creating a disturbance at a subway station. While Barney is handcuffed facedown on the ground, Paul shoots and kills him. Paul claims that he accidentally grabbed his gun instead of his Taser. Is this an issue of criminal law or criminal procedure?

Answer: This is an issue of *criminal law*. Although Paul is a law enforcement officer, when he shoots Barney while he is facedown in handcuffs, he may be committing a crime. The question in this case is not whether the arrest was executed properly, but whether a *crime was committed* after the arrest.


Question: Andrew is sentenced to death for torture. In Andrew’s state, there is an “eye-for-an-eye” statute that mandates punishment that mimics the crime the defendant committed. Pursuant to this statute, Andrew will be tortured to death. Is the state’s eye-for-an-eye statute constitutional under the Eighth Amendment? Why or why not?

Answer: The eye-for-an-eye statute is unconstitutional because it mandates an inhumane punishment under the Eighth Amendment. Torture is too severe a punishment for *any* crime.


Question: Read *Lockyer v. Andrade*, 538 U.S. 63 (2003). What was the defendant’s sentence in *Lockyer*? What was the defendant’s crime? Did the US Supreme Court hold that the defendant’s sentence was constitutional under the Eighth Amendment? The case is available at this link: <http://scholar.google.com/scholar_case?case=1810564739536423477&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.

Answer: The defendant’s sentence was two consecutive terms of twenty-five years to life in prison under California’s three-strikes statute. The defendant’s crime(s) were stealing five videotapes from Kmart worth $84.70 on one occasion and stealing four videotapes from Kmart worth $68.84 on another, with two previous strikes. The US Supreme Court *upheld* the sentence and denied the defendant’s petition for habeas corpus.


Question: Read *Fierro v. Gomez*, 77 F.3d 301 (1996). Did the US Court of Appeals for the Ninth Circuit hold that the gas chamber procedure in California was constitutional under the Eighth Amendment? The case is available at this link: <http://scholar.google.com/scholar_case?case=26906922262871934&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.

Answer: The US Court of Appeals for the Ninth Circuit held that the gas chamber under California’s protocol was *cruel and unusual punishment* in violation of the Eighth Amendment.


Question: Read *Gall v. U.S*., 128 S. Ct. 586 (2007). In *Gall*, the federal judge departed from the US Sentencing Guidelines and imposed a sentence of probation because the defendant had reformed and rejected his criminal lifestyle. Did the US Supreme Court uphold this sentence? Why or why not? The case is available at this link: [http://scholar.google.com/scholar\_case?case=5158806596650877502&q= Gall+v.+U.S.&hl=en&as\_sdt=2,5&as\_vis=1](http://scholar.google.com/scholar_case?case=5158806596650877502&q=Gall+v.+U.S.&hl=en&as_sdt=2,5&as_vis=1).

Answer: The US Supreme Court reversed the US Court of Appeals for the Eighth Circuit, which held that the sentence was unreasonable according to the US Sentencing Guidelines. The Court reaffirmed that the Guidelines were advisory, but stated that the trial court has *great discretion* in setting the sentence, as long as the basis of the sentence is explained on the record.


Question: A mayor enacts a policy that prohibits police officers in his city from enforcing a state law prohibiting the possession and use of marijuana. The mayor’s policy specifically states that within the city limits, marijuana is legal to possess and use. Which constitutional principle is the mayor violating? Which branch of government should check and balance the mayor’s behavior in this matter?

Answer: The mayor is violating separation of powers because members of the executive branch cannot invalidate or supersede laws passed by the legislative branch; only the *judicial* branch is entitled to do this via *judicial review*. The judicial branch should check and balance this action, *if* someone attacks the mayor’s policy in court.


Question: Read *Hamdi v. Rumsfeld*, 542 U.S. 507 (2004). In *Hamdi*, the US Supreme Court reviewed the US Court of Appeals for the Fourth Circuit’s decision prohibiting the release of a US citizen who was held as an enemy combatant in Virginia during the Afghanistan War. The citizen’s detention was based on a federal statute that deprived him of the opportunity to consult with an attorney or have a trial. Did the US Supreme Court defer to the federal statute? Why or why not? The case is available at this link: <http://scholar.google.com/scholar_case?case=6173897153146757813&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.

Answer: The US Supreme Court reversed the US Court of Appeals for the Fourth Circuit. The Court held that the judicial branch is not required to allow unconstitutional federal statutes to remain in effect during wartime because of *separation of powers*. The Court determined that the detainee’s constitutional right to due process allowed him access to an attorney and a court trial, in spite of the federal statute.


Question: Harrison kills Calista and is prosecuted and sentenced to one year in jail. Did Harrison commit a felony or a misdemeanor?

Answer: This crime is probably a *misdemeanor* because Harrison was sentenced to one year in *jail*, rather than prison. Although the result, Calista’s death, is very serious, the method of killing may have been accidental. Criminal homicide is discussed in Chapter 9.


Question: Read *State v. Gillison*, 766 N.W. 2d 649 (2009). In *Gillison*, why did the Iowa Court of Appeals rule that the defendant’s prior convictions were felony convictions? What impact did this ruling have on the defendant’s sentence? The case is available at this link: [http://scholar.google.com/scholar\_case?case=8913791129507413362&q= State+v.+Gillison&hl=en&as\_sdt=2,5&as\_vis=1](http://scholar.google.com/scholar_case?case=8913791129507413362&q=State+v.+Gillison&hl=en&as_sdt=2,5&as_vis=1).

Answer: The Iowa Court of Appeals based its ruling on New Jersey law. Although New Jersey named the offenses “high misdemeanors,” New Jersey case law indicates that any offense with a sentence of one year or more incarceration is a common-law *felony*. This triggered a sentencing enhancement increasing the defendant’s sentence to an indeterminate sentence of incarceration not to exceed fifteen years.


Question: Congress passes a law criminalizing the posting of child pornography on the Internet. Where does Congress get the authority to pass this criminal law? If a state has a criminal law criminalizing the same conduct, can both the state *and* federal government prosecute a defendant for one act of downloading child pornography?

Answer: Congress gets the authority to criminalize conduct involving the Internet from the commerce clause because the Internet includes economic activity and *crosses state lines*. Both the federal and state government can prosecute the defendant under federal and state criminal statutes for one act without violating double jeopardy.


Question: Read *U.S. v. Morrison*, 529 U.S. 518 (2000). Which part(s) of the Constitution did the US Supreme Court rely on when it held that 42 U.S.C. § 13981 is unconstitutional? The case is available at this link: <http://www.law.cornell.edu/supct/html/99-5.ZS.html>.

Answer: The US Supreme Court relied on the commerce clause and the Fourteenth Amendment. Specifically, the Court ruled that gender-motivated crimes of violence are not *economic activity* and do not have a *national* effect, so the commerce clause does not support federal legislation in this area. Furthermore, the Court held that the Fourteenth Amendment due process clause is targeted at state government action, not *individual* defendants, so it is likewise inapplicable.


Question: Jerry, a law enforcement officer, pulls Juanita over for speeding. When Jerry begins writing Juanita’s traffic ticket, she starts to berate him and accuse him of racial profiling. Jerry surreptitiously reaches into his pocket and activates a tape recorder. Juanita later calls the highway patrol where Jerry works and files a false complaint against Jerry. Jerry sues Juanita for $500 in small claims court for filing the false report. He uses the tape recording as evidence. Is this a **civil litigation matter** or a **criminal prosecution**?

Answer: This is a *civil litigation* matter. Although the incident involves Jerry, who is a law enforcement officer, and it takes place while Jerry is writing a traffic ticket, Jerry is suing Juanita for *damages*. Thus this is civil litigation, not criminal prosecution. If Juanita is *prosecuted* for the crime of filing a false police report, then this would be a criminal prosecution.


Question: Read *Johnson v. Pearce*, 148 N.C.App. 199 (2001). In this case, the plaintiff sued the defendant for **criminal conversation**. Is this a civil litigation matter or a criminal prosecution? The case is available at this link: [http://scholar.google.com/scholar\_case?case=10159013992593966605&q= Johnson+v.+Pearce&hl=en&as\_sdt=2,5](http://scholar.google.com/scholar_case?case=10159013992593966605&q=Johnson+v.+Pearce&hl=en&as_sdt=2,5).

Answer: The *Johnson* case reviews an award of damages and is thus a *civil litigation* matter. Criminal conversation is the tort of adultery in North Carolina.


Question: A state statute prohibits inmates in state prison from engaging in consensual sodomy. An inmate is prosecuted under the statute. How will a court determine whether this statute is constitutional? Read the statute on which this exercise is based: California Penal Code § 286(e), <http://law.onecle.com/california/penal/286.html>.

Answer: The court will probably analyze whether the statute is constitutional under the **right to privacy** and the **equal protection clause**. The right to privacy analysis will use *strict scrutiny* because the right to privacy is *fundamental*. The state must demonstrate a *compelling* state interest in regulating sex in prison. The state’s arguments will probably focus on maintaining integrity, safety, and security in the institution. Under the equal protection clause analysis, the state has to show a *legitimate* state interest pursuant to the rational basis test because the category targeted—inmates in prison—is *rational*, not arbitrary.


Question: Read *Planned Parenthood v. Casey*, 505 U.S. 833 (1992). In *Casey*, Pennsylvania modified its abortion statute to include a twenty-four-hour waiting period and informed consent for minors. Did the US Supreme Court uphold the Pennsylvania abortion statute? The case is available at this link: <http://www.law.cornell.edu/supct/html/91-744.ZS.html>.

Answer: The Court upheld the statute, even though this case was post-*Roe v. Wade*. The Court reaffirmed *Roe*, but imposed a new standard for abortion laws. The new standard analyzes whether a state abortion law places an *undue burden* on a woman seeking an abortion. The Court held that the twenty-four-hour waiting period and informed consent for minors do not place such a burden. The Court did strike a separate requirement, which mandated husband notification before an abortion could take place.


Question: What is one difference between criminal victims’ restitution and civil damages?

Answer: The court awards criminal restitution to the victim after a state or federal prosecutor is successful in a criminal trial. Thus the victim receives the restitution award *without paying* for a private attorney. A plaintiff that receives damages has to pay a private attorney to win the civil litigation matter.


Question: Read *Campbell v. State*, 5 S.W.3d 693 (1999). Why did the defendant in this case claim that the restitution award was too high? Did the Texas Court of Criminal Appeals agree with the defendant’s claim? The case is available at this link: <http://scholar.google.com/scholar_case?case=11316909200521760089&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.

Answer: In *Campbell*, the defendant entered a plea agreement specifying that he had committed theft in an amount *under* $100,000. The trial court determined that the defendant had *actually* stolen $100,000 and awarded restitution of $100,000 to various victims. The defendant claimed that this amount was excessive because it exceeded the parameters of the theft statute he was convicted of violating. The Texas Court of Criminal Appeals *disagreed* and held that the discretion of how much restitution to award belongs to the judge. As long as the judge properly ascertained this amount based on the facts, restitution could exceed the amount specified in the criminal statute the defendant was convicted of violating.


Question: Phillipa sees Fred picking up trash along the highway and decides she wants to frighten him. She drives a quarter of a mile ahead of Fred and parks her car. She then hides in the bushes and waits for Fred to show up. When Fred gets close enough, she jumps out of the bushes screaming. Frightened, Fred drops his trash bag and runs into the middle of the highway where he is struck by a vehicle and killed. Is Phillipa’s act the **legal cause** of Fred’s death? Why or why not?

Answer: Phillipa’s act is the **factual** and **legal cause** of Fred’s death. Phillipa’s act in jumping out of the bushes screaming caused Fred to run onto the highway, so Phillipa’s act is the factual cause of Fred’s death. In addition, a reasonable person could *foresee* that frightening someone next to a major highway might result in them trying to escape onto the highway, where a vehicle traveling at a high rate of speed could hit them. Thus Phillipa’s act is *also* the legal cause of Fred’s death.


Question: Read *Commonwealth v. Casanova*, 429 Mass. 293 (1999). In *Casanova*, the defendant shot the victim in 1991, paralyzing him. The defendant was convicted of assault with intent to murder and two firearms offenses. In 1996, the victim died. The defendant was thereafter indicted for his murder. Massachusetts had abolished the year and a day rule in 1980. Did the Massachusetts Supreme Judicial Court uphold the indictment, or did the court establish a new death timeline rule? The case is available at this link: <http://scholar.google.com/scholar_case?case=16055857562232849296&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.

Answer: The Massachusetts Supreme Judicial Court upheld the defendant’s indictment, and did not create a new death timeline rule.


Question: A state statute enhances the penalty for battery if the crime is committed “because of the victim’s race.” To prove race-biased intent, it is frequently necessary to admit evidence of the defendant’s statements indicating racial hatred and intolerance. Does this statute violate the First Amendment’s free speech protection? Why or why not? Read the case on which this question is based, *Wisconsin v. Mitchell*, 508 U.S. 47 (1993). The case is available at this link: <http://www.law.cornell.edu/supct/html/92-515.ZO.html>.

Answer: The statute does not violate the First Amendment’s free speech protection because *battery* is not speech and is not covered by the First Amendment.


Question: Read *Reno v. American Civ. Liberties Union*, 521 U.S. 844 (1997). This case reviews the constitutionality of a federal statute regulating Internet activity to protect minors. Why did the US Supreme Court hold that certain provisions of the federal Communications Decency Act of 1996 were unconstitutional? The case is available at this link: caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=96-511.

Answer: The US Supreme Court held that the provisions were unconstitutional under the First Amendment because they were *vague* and *content based*. The Act did not specifically define “indecent” communications, or demonstrate that offensive material lacks any value under the three-part test for obscenity set forth in *Miller*.


Question: Read *Holder v. Humanitarian Law Project*, 130 S. Ct. 2705 (2010). Did the US Supreme Court uphold a federal statute prohibiting aid to terrorist groups? Why or why not? The case is available at this link: <http://scholar.google.com/scholar_case?case=3116082426854631219&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.

Answer: The US Supreme Court upheld 18 U.S.C. § 2339B (a) (1) *as applied*. The Court ruled that the federal government can prohibit aid to terrorist groups, even if it consists of training and advice on *legal* activities, without violating the First Amendment.


Question: Allen tackles Brett during a high school football game, and Brett is severely injured. Can Allen be criminally prosecuted for battery? Why or why not?

Answer: In most jurisdictions, Allen cannot be criminally prosecuted because Brett **consented** to being tackled by *choosing* to participate in football, a contact sport.


Question: Read *Donaldson v. Lungren*, 2 Cal. App. 4th 1614 (1992). In *Donaldson*, the defendant sought court permission to be cryogenically frozen because he had a brain tumor and wanted to be frozen until there was a cure. The defendant also sought to protect the individual who was going to help with the process and filed a lawsuit seeking an injunction and immunity from criminal prosecution for **assisted suicide**. The defendant claimed he had a constitutional right to **consent** to this procedure. Did the Court of Appeals of California uphold the defendant’s right to be frozen—that is, to commit suicide? The case is available at this link: www.rickross.com/reference/alcor/alcor7.html.

Answer: The Court of Appeals of California held that the defendant had no constitutional right to be cryogenically frozen and affirmed the lower court’s dismissal of his lawsuit seeking an injunction and immunity from criminal prosecution. The court reasoned that the defendant’s right to refuse medical treatment is different from involving another individual in his death. It thereafter held that the defendant was legally free to commit suicide, but he could not authorize another to kill him.


Question: Read *Ramey v. State*, 417 S.E.2d 699 (1992). In *Ramey*, the defendant, a police officer, was convicted of battery for beating the defendant with a flashlight and burning his nipples. The defendant claimed that the victim, who appeared to have mental problems, consented to this treatment. The trial court refused to instruct the jury on the consent defense. Did the Court of Appeals of Georgia uphold the defendant’s conviction? The case is available at this link: <http://scholar.google.com/scholar_case?case=10809733884390698075&hl=en&as_sdt=2002&as_vis=1>.

Answer: The Court of Appeals of Georgia upheld the defendant’s conviction for battery. The court stated, “It is the act and intent and results of the defendant’s act which constitute the crimes as charged; the attitude of the victim is not called into issue by these elements.”*Ramey v. State*, 417 S.E.2d 699, 701 (1992), accessed November 23, 2010, <http://scholar.google.com/scholar_case?case=10809733884390698075&hl=en&as_sdt=2002&as_vis=1>.


Question: As Jordan is driving to school, she takes her eyes off the road for a moment and rummages through her purse for her phone. This causes her to run a stop sign. Jordan is thereafter pulled over by law enforcement and issued a traffic ticket. What is Jordan’s criminal intent in this case? Is Jordan criminally responsible for running the stop sign? Why or why not?

Answer: Jordan is acting **recklessly** or **negligently**. If Jordan is an experienced driver, then she knows that there is a substantial risk of injury or harm when a driver takes his or her eyes off the road. If Jordan is not an experienced driver, she may not be aware of the risk, but she *should be* because she has been trained to drive and has passed exams and practical driving tests that emphasize this fact. Whether Jordan’s intent is reckless or negligent is probably irrelevant because most states make running a stop sign a **strict liability** offense with no criminal intent required.


Question: Read *Morissette v. U.S.*, 342 U.S. 246 (1952). In *Morissette*, the defendant was convicted of unlawful conversion of federal property for gathering and selling spent bomb casings dropped during US Air Force practice maneuvers. The statute required “knowing” conversion of the property, and the defendant claimed he believed the property was *abandoned*. Did the US Supreme Court uphold the defendant’s conviction? Why or why not? The case is available at this link: <http://scholar.google.com/scholar_case?case=787130527265701764&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.

Answer: The US Supreme Court reversed the defendant’s conviction. The Court disagreed with the lower court that this was a strict liability public welfare offense and determined that a *presumption* of intent was inappropriate. The Court held that criminal intent was an element of the offense that the trier of fact needed to find beyond a reasonable doubt.


Question: Read *State v. Crosby*, 154 P.3d 97 (2007). In *Crosby*, the defendant was convicted of manslaughter of a dependent person by neglect. The defendant’s mother died of “sepsis” and was brought to the hospital covered with feces and bedsores. The defendant was her mother’s caregiver. The jury was instructed that the defendant possessed the mental state of “recklessness” under the statute if she disregarded a substantial risk of **harm** or **circumstances**. The jury asked the judge if “circumstances” included the *bedsores* or *just death*. He responded that the risk could be more than just death and left it up to the jury to decide. Did the Supreme Court of Oregon uphold the defendant’s conviction? Why or why not? The case is available at this link: [http://scholar.google.com/scholar\_case?case=10006178173306648171&q= State+v.+Crosby+S53295&hl=en&as\_sdt=2,5](http://scholar.google.com/scholar_case?case=10006178173306648171&q=State+v.+Crosby+S53295&hl=en&as_sdt=2,5).

Answer: The Oregon Supreme Court reversed and held that the substantial risk applied to the victim’s *death* (bad result), not the victim’s *bedsores* (attendant circumstances).


Question: A local ordinance makes it a misdemeanor to dress in “gang attire.” Is this ordinance constitutional? Why or why not?

Answer: The ordinance is void for vagueness and overbroad, violating the First Amendment and the Fourteenth Amendment due process clause. The term *gang attire* is **void for vagueness** because it is imprecise, can mean different things to different people, fails to give notice of what is criminal, and gives too much discretion to law enforcement. The ordinance is **overbroad** because prohibiting all individuals from wearing gang attire probably includes First Amendment constitutionally protected conduct, such as wearing a gang-related Halloween costume or wearing a costume to act in a play or movie.


Question: Read *Smith v. Goguen*, 415 U.S. 566 (1974). Why did the US Supreme Court strike down the Massachusetts flag misuse statute? The case is available at this link: <http://scholar.google.com/scholar_case?case=14723025391522670978&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.

Answer:
In *Smith*, the US Supreme Court held that the flag misuse statute was **void for vagueness**. The Court stated,

  But there is no comparable reason for committing broad discretion to law enforcement officials in the area of flag contempt. Indeed, because display of the flag is so common and takes so many forms, changing from one generation to another and often difficult to distinguish in principle, a legislature should define with some care the flag behavior it intends to outlaw.*Smith v. Goguen*, 415 U.S. 566, 582 (1974), accessed October 3, 2010, <http://scholar.google.com/scholar_case?case=14723025391522670978&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.


Question: Read Justice Sandra Day O’Connor’s concurring opinion in *Lawrence v. Texas*, 539 U.S. 558 (2003). Why did Justice O’Conner feel that Texas’s sodomy law was unconstitutional? The case is available at this link: <http://www.law.cornell.edu/supct/html/02-102.ZC.html>.

Answer: Justice O’Connor said that the Texas sodomy statute was unconstitutional pursuant to the **equal protection clause**. The statute only criminalized sodomy between *persons of the same sex*, so it targeted gay couples without a rational basis.


Question: A fire sweeps through a residential neighborhood. Clark and Manny light their neighbor’s house on fire to create a firebreak. This prevents several houses from burning, including Clark’s and Manny’s. Do Clark and Manny have a defense to arson in this case? Why or why not?

Answer: Clark and Manny can use **choice of evils** as a defense to arson in many jurisdictions. Clark and Manny were confronted with two harms: the loss of several homes or the loss of their neighbor’s home. Clark and Manny ranked the loss of one home lower than the loss of several homes, which is *objectively reasonable*. Thus Clark and Manny could be acquitted or have a reduction in sentence or severity of the offense, depending on the jurisdiction.


Question: Read *People v. Lovercamp*, 43 Cal. App. 3d 823 (1974). In *Lovercamp*, the defendants escaped from prison and were immediately captured. The defendants claimed they were forced to escape because a group of prisoners threatened them with sexual assault. The trial court did not allow the defendants to introduce evidence supporting the defense of **necessity**, and the defendants were convicted of escape. Did the Court of Appeals of California uphold their conviction for escape? The case is available at this link: <http://scholar.google.com/scholar_case?case=6496346791408865822&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.

Answer: The Court of Appeals of California held that the defendants should have been allowed to present evidence in support of the **necessity** defense and were entitled to a retrial.


Question: Read *State v. Daoud*, 141 N.H. 142 (1996). In *Daoud*, the defendant was convicted of driving while under the influence. The defendant appealed because the trial court did not allow her to present evidence in support of the **duress** defense. Did the Supreme Court of New Hampshire uphold the defendant’s conviction? The case is available at this link: <http://scholar.google.com/scholar_case?case=18389754229002463686&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.

Answer: The Supreme Court of New Hampshire upheld the defendant’s conviction. The court recognized that a common-law defense of **duress** exists in some jurisdictions, but held that the facts in the defendant’s case did not indicate that she was under duress. The court stated the defendant had lawful alternatives to driving while under the influence, such as calling a taxi or a friend for a ride or walking.


Question: Jacqueline is diagnosed with epilepsy two years after receiving her driver’s license. While driving to a concert, Jacqueline suffers an epileptic seizure and crashes into another vehicle, injuring both of its occupants. Can Jacqueline be convicted of a crime in this situation? Why or why not?

Answer: Jacqueline can be convicted of a crime in this situation. Although an epileptic seizure is not a voluntary act, Jacqueline’s conduct in driving while aware that she has epilepsy *is*. Only *one* voluntary act is required for a crime, and Jacqueline was able to control her decision making in this instance. Punishing Jacqueline for driving with epilepsy could specifically deter Jacqueline from driving on another occasion and is appropriate under the circumstances.


Question: Read *Oler v. State*, 998 S.W.2d 363 (1999). In *Oler*, the defendant was convicted of possession of a controlled substance by misrepresentation. The defendant solicited and received prescriptions for Dilaudid, a controlled substance, from four different physicians without informing them that he already had a prescription for Dilaudid. The defendant appealed, arguing that he had no *legal duty* to disclose his previous receipt of the drug to the physicians, and was therefore unlawfully punished for an **omission to act**. Did the Texas Court of Appeals uphold the defendant’s conviction? Why or why not? The case is available at this link: [http://scholar.google.com/scholar\_case?case=460187562193844690&q= 998+S.W.2d+363&hl=en&as\_sdt=10000000000002](http://scholar.google.com/scholar_case?case=460187562193844690&q=998+S.W.2d+363&hl=en&as_sdt=10000000000002).

Answer: The Texas Court of Appeals upheld the defendant’s indictment and conviction. The court stated that the defendant’s conduct in deliberately seeking out four physicians and presenting his medical problem to them with the intent to gain a prescription for a controlled substance in violation of Texas law is a criminal *act*, not an *omission to act*.


Question: Read *Staples v. U.S.*, 511 U.S. 600 (1994). In *Staples*, the defendant was convicted of possession of an unregistered automatic weapon in violation of the National Firearms Act. The defendant claimed the conviction was improper because the prosecution did not prove that *he knew* the weapon was automatic, and the prosecution must prove this knowledge to convict under the statute. Did the US Supreme Court reverse the defendant’s conviction? Why or why not? The case is available at this link: <http://www.law.cornell.edu/supct/html/92-1441.ZO.html>.

Answer: The US Supreme Court reversed the defendant’s conviction and held that the prosecution must prove that the defendant *knew the weapon was automatic* to convict him of failure to register an automatic weapon.


Question: A public university raises tuition in the middle of the semester after students have already paid and sends all registered students a bill for “fees past due.” Does this violate the prohibition on ex post facto laws? Why or why not?

Answer: The public university can impose a retroactive tuition because this is not a *criminal* statute or procedure and does not violate the prohibition against ex post facto laws.


Question: Read *Smith v. Doe*, 538 U.S. 84 (2003). Why did the US Supreme Court hold that Alaska’s Megan’s Law is constitutional? The case is available at this link: <http://scholar.google.com/scholar_case?case=14879258853492825339&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.

Answer: In *Smith*, the US Supreme Court held that Alaska’s Megan’s Law statute was not *criminal*, but part of a civil regulatory scheme, and thus did not violate the prohibition against ex post facto laws.


Question: Hal invents a new drug that creates a state of euphoria when ingested. Can Hal be criminally prosecuted for ingesting his new drug?

Answer: Hal can be prosecuted for ingesting his new drug only if he is in a state that allows for common-law crimes. The *drug is new*, so the state legislature will probably *not* have criminalized it by enacting a statute.


Question: Read *Shaw v. Murphy*, 532 U.S. 223 (2001). Did the US Supreme Court allow prison inmates the First Amendment right to give other inmates legal advice? Why or why not? The case is available at this link: <http://scholar.google.com/scholar_case?case=9536800826824133166&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.

Answer: The US Supreme Court held that inmates do not have the First Amendment right to give other inmates legal advice. The Court based its ruling on the prison’s interest in ensuring prison order, security, and inmate rehabilitation. The Court stated, “We nonetheless have maintained that the constitutional rights that prisoners possess are more limited in scope than the constitutional rights held by individuals in society at large.”*Shaw v. Murphy*, 532 U.S. 223, 229 (2001), accessed October 4, 2010, <http://scholar.google.com/scholar_case?case=9536800826824133166&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.


Question: Read Justice Scalia’s dissenting opinion in *Lawrence v. Texas*, 539 U.S. 558 (2003). What is the *primary* reason Justice Scalia dissented to the US Supreme Court’s opinion in *Lawrence*? The dissenting opinion is available at this link: <http://www.law.cornell.edu/supct/html/02-102.ZD.html>. The judicial opinion in *Lawrence v. Texas* is available at this link: <http://www.law.cornell.edu/supct/html/02-102.ZS.html>.

Answer: Justice Scalia criticized the US Supreme Court majority for not adhering to stare decisis. According to Justice Scalia, the Court did not follow a recent (seventeen-year-old) precedent set in *Bowers v. Hardwick*.


Question: Melanie watches as Betty verbally abuses Colleen. Betty is a known bully who verbally abused Melanie in the past. Betty calls Colleen an expletive and gives her a firm shove. Melanie walks up behind Betty, removes a knife from her pocket, and plunges the knife into Betty’s back. Betty suffers internal injuries and later dies. Can Melanie use defense of others as a defense to criminal homicide? Why or why not?

Answer: Melanie *cannot* use defense of others as a defense to criminal homicide. Melanie can defend Colleen only to the same extent she could defend *herself*. Nothing in the fact pattern indicates that Colleen could defend herself using **deadly force**. Thus Melanie could be successfully prosecuted for criminal homicide in this situation.


Question: Read *Dutton v. Hayes-Pupko*, No. 03-06-00438 (2008). In *Dutton*, a law enforcement officer asked the victim for her name and date of birth after she allegedly sprayed her neighbors with a hose. The victim refused to respond, and the law enforcement officer handcuffed her and forced her into his vehicle, injuring her wrist. The victim sued for use of *excessive* force in arrest. Did the Texas Court of Appeals hold that the victim had the right to sue the officer for use of excessive force in arrest? The case is available at this link: [http://scholar.google.com/scholar\_case?case=17543977294597089197&q= Dutton+v.+Hayes-Pupko&hl=en&as\_sdt=2,5&as\_vis=1](http://scholar.google.com/scholar_case?case=17543977294597089197&q=Dutton+v.+Hayes-Pupko&hl=en&as_sdt=2,5&as_vis=1).

Answer: The Court of Appeals of Texas held that the victim had the right to sue for excessive force used to arrest. The evidence did not indicate that the victim posed an *immediate danger* to the law enforcement officer’s safety, or that she was attempting to resist arrest or flee. Moreover, the offense—failure to identify herself or give her date of birth—was minor. Thus the law enforcement officer was not immune from a lawsuit for damages under the circumstances.


Question: Allen has a criminal record for burglary. Roger, a law enforcement decoy, approaches Allen and asks if he would like to purchase methamphetamine. Allen responds that he would and is arrested. This interaction takes place in a jurisdiction that recognizes the **subjective entrapment defense**. If Allen claims entrapment, will Allen’s criminal record be admissible to prove his predisposition to commit the crime at issue? Why or why not?

Answer: Allen’s criminal record for burglary is not admissible to prove his predisposition to commit the crime of purchasing contraband. The fact that Allen committed a burglary in the past does *not* indicate that he is *predisposed* to purchase contraband. Thus Allen’s criminal record for burglary is irrelevant and inadmissible, even though he is claiming entrapment in a jurisdiction that recognizes the **subjective entrapment** defense.


Question: Read *Farley v. State*, 848 So.2d 393 (2003). In *Farley*, the government contacted the defendant, who had no criminal record, in a reverse sting operation with a mass e-mail soliciting individuals to purchase hard-core pornography. The defendant responded to the e-mail and was thereafter sent a questionnaire asking for his preferences. The defendant responded to the questionnaire, and an e-mail exchange ensued. In every communication by the government, protection from governmental interference was promised. Eventually, the defendant purchased child pornography and was arrested and prosecuted for this offense. The defendant moved to dismiss based on subjective and objective entrapment and the motion to dismiss was denied. The defendant was thereafter convicted. Did the Court of Appeal of Florida uphold the defendant’s conviction? The case is available at this link: www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=bdjgjg&searchTerm= eiYL.TYda.aadj.ecCQ&searchFlag=y&l1loc=FCLOW.

Answer: The Court of Appeal of Florida reversed the defendant’s conviction under both theories of entrapment. The court based its holding on the defendant’s lack of *predisposition* to commit the crime and the government’s assurance that there would be no governmental interference, which was *false* under the circumstances.


Question: Read *Gonzales v. Oregon*, 546 U.S. 243 (2006). Did the US Supreme Court preserve Oregon’s right to legalize physician-assisted suicide? The case is available at this link: <http://www.law.cornell.edu/supct/html/04-623.ZS.html>.

Answer: The US Supreme Court held that the attorney general cannot criminalize the use of drugs under Oregon’s Death With Dignity Act by enforcing the Controlled Substances Act. The Controlled Substances Act is targeted at preventing recreational drug use, and, therefore, the Court upheld Oregon’s ability to legalize assisted suicide.


Question: Scott’s wife Diane constantly physically abuses him. One night while Diane is sleeping, Scott places a pillow over her face and smothers her. Can Scott defend against a charge of criminal homicide by claiming **self-defense**? Why or why not?

Answer: Colin cannot claim *traditional* self-defense because there is no objectively reasonable fear of imminent injury or death while Diane is sleeping. Colin also cannot technically assert the battered wife defense because he is a husband. Courts *can* expand statutory defenses or create new common-law defenses. However, courts may be reluctant to expand the battered wife defense to spouses of either gender, based on the physical differences between men and women and the lack of empirical evidence documenting battered husband syndrome.


Question: Read *Rodriguez v. State*, 212 S.W.3d 819 (2006). In *Rodriguez*, the defendant was convicted of murder and attempted murder. The defendant appealed his convictions on the ground that the jury did not *unanimously* reject each element of self-defense. Did the Court of Appeals of Texas uphold the defendant’s convictions? The case is available at this link: www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=bcdba&searchTerm= eNjT.TNga.aadj.ecGW&searchFlag=y&l1loc=FCLOW.

Answer: The Court of Appeals of Texas affirmed the defendant’s convictions, holding that the jury does *not* have to be unanimous as to each required element of self-defense.


Question: Read *Shuler v. Babbitt*, 49 F.Supp.2d 1165 (1998). In *Shuler*, the defendant shot and killed a grizzly bear that charged him while he checked a sheep pasture to make sure his sheep were safe. The sheep had already been subjected to several bear attacks. The Fish and Wildlife Service thereafter fined the defendant under the Endangered Species Act. The defendant claimed **self-defense** against the bear. The Fish and Wildlife Service ruled that the defendant *provoked* the attack and could not claim self-defense. Did the US District Court for the District of Montana uphold the fine? The case is available at this link: www.gilalivestockgrowers.org/documents/ShulerVsBabbitt.pdf.

Answer: The US District Court for the District of Montana reversed the fine and held that the defendant did not provoke the attack and was entitled to shoot the bear in self-defense.


Question: Burt, a sixteen-year-old, consumes alcohol for the first time at a party. Unaware of alcohol’s effect, Burt drinks too much, attempts to walk home, and is cited for being drunk in public. In Burt’s state, the juvenile court has concurrent jurisdiction over minors ages seventeen and under, with a waiver to adult court available at the judge’s discretion. Burt has not broken any laws before. Is it likely that the judge will **waive** juvenile court jurisdiction in this case and allow the adult criminal prosecution of Burt? Why or why not?

Answer: It is unlikely that the judge will waive juvenile court jurisdiction in this case. Some of the criteria a judge will analyze when waiving jurisdiction are the nature of the offense, the sophistication it requires, the defendant’s criminal history, and the threat the defendant poses to public safety. This is Burt’s *first offense*, and it did not involve violence or require much sophistication. Thus the judge will probably allow Burt to be adjudicated in juvenile court.


Question: Read *People v. Register*, 60 N.Y.2d 270 (1983). In *Register*, the defendant shot and killed an individual in a bar after drinking heavily for many hours. The defendant thereafter sought a jury instruction on the **intoxication** defense to a charge of depraved mind murder. The trial court refused, and the defendant was convicted. Did the Court of Appeals of the State of New York uphold the conviction? The case is available at this link: <http://scholar.google.com/scholar_case?case=9019321014077082981&hl=en&as_sdt=2&as_vis=1&oi=>.

Answer: The Court of Appeals of the State of New York upheld the defendant’s conviction and the trial court’s refusal to instruct the jury on intoxication. The court based its holding on the depraved mind murder statute, which requires **reckless** criminal intent, and the intoxication defense statute, which *disallows* evidence of intoxication as a defense to a reckless intent crime.


Question: Read *Garnett v. State*, 632 A.2d 797 (1993). In *Garnett*, the defendant, an intellectually disabled twenty-year-old, had sexual intercourse with a thirteen-year-old girl whom he believed to be sixteen, and was prosecuted for statutory rape. Did the Court of Appeals of Maryland reverse the trial court and allow the defendant to assert **mistake of fact** (the victim’s age) as a defense? Why or why not? The case is available at this link: <http://scholar.google.com/scholar_case?case=9331824442522694687&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.

Answer: The Court of Appeals of Maryland upheld the trial court’s decision to disallow the mistake of age defense. The court based its holding on the plain meaning of the statutory rape statute, which is a **strict liability** offense.


Question: Carol is on trial for battery, a general intent crime. Carol puts on a defense that proves her conduct was accidental, *not* intentional. Is this an affirmative defense? Why or why not?

Answer: Carol’s defense creates *doubt* in the *intent* element for battery. Thus Carol’s defense is a denial or failure of proof defense, *not* an affirmative defense.


Question: Read *State v. Burkhart*, 565 S.E.2d 298 (2002). In *Burkhart*, the defendant was convicted of three counts of murder. The defendant claimed he acted in self-defense. The jury instruction given during the defendant’s trial stated that the prosecution had the burden of disproving self-defense. However, the instruction did not state that the prosecution’s burden of disproving self-defense was *beyond a reasonable doubt*. Did the Supreme Court of South Carolina uphold the defendant’s conviction for the murders? The case is available at this link: <http://scholar.google.com/scholar_case?case=1066148868024499763&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.

Answer: The Supreme Court of South Carolina reversed the defendant’s conviction because the jury instruction should have explained that the prosecution has the burden of disproving self-defense *beyond a reasonable doubt*.


Question: Read *Hoagland v. State*, 240 P.3d 1043 (2010). In *Hoagland*, the defendant wanted to assert a **necessity** defense to the crime of driving while under the influence. The Nevada Legislature had never addressed or mentioned a necessity defense. Did the Supreme Court of Nevada allow the defendant to present the necessity defense? The case is available at this link: [http://scholar.google.com/scholar\_case?case=8002120339805439441&q= Hoagland+v.+State&hl=en&as\_sdt=2,5&as\_ylo=2009](http://scholar.google.com/scholar_case?case=8002120339805439441&q=Hoagland+v.+State&hl=en&as_sdt=2,5&as_ylo=2009).

Answer: The Supreme Court of Nevada held that necessity was a valid *common-law* defense to driving while under the influence. However, the court upheld the defendant’s conviction because he did not meet the requirements for necessity under the circumstances.


Question: Brad, the president and CEO of ABC Corporation, recklessly hits and kills a pedestrian as he is driving home from work. Could ABC Corporation be held vicariously liable for criminal homicide? Why or why not?

Answer: ABC Corporation probably is not vicariously liable for criminal homicide because Brad’s reckless conduct did not occur during the scope of employment; the criminal homicide occurred as Brad was *driving home*. However, if Brad were required to work while driving home (by making work-related phone calls, for example), vicarious liability could be present in this instance.


Question: Read *People v. Premier House, Inc.*, 662 N.Y.S 2d 1006 (1997). In *Premier House*, the defendant, a housing cooperative that was incorporated, and members of the housing cooperative board of directors were ordered to stand trial for violating a New York law requiring that window guards be installed on apartment buildings. A child died after falling out of one of the windows. The members of the board of directors appealed on the basis that their positions were merely honorary, and they had no personal involvement in the crime. Did the Criminal Court of the City of New York uphold the order as to the members of the board of directors? Why or why not? The case is available at this link: <http://scholar.google.com/scholar_case?case=6854365622778516089&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.

Answer: The Criminal Court of the City of New York upheld the order to stand trial, holding that the prosecution was within its rights to charge the members of the board of directors under the statute. The court stated that whether the board of directors could be held vicariously liable was a question of fact to be determined by the judge or jury at trial.


Question: Read [Connecticut General Statute § 53a-8(b)](http://law.justia.com/connecticut/codes/2005/title53a/sec53a-8.html), which criminalizes the sale or provision of a firearm to another for the purpose of committing a crime. The statute is available at this link: <http://law.justia.com/connecticut/codes/2005/title53a/sec53a-8.html>. Does this statute create **accomplice liability** or **vicarious liability**? Read the Connecticut Criminal Jury Instruction 3.1-4 for an explanation of the statute. The jury instruction is available at this link: www.jud.ct.gov/ji/criminal/part3/3.1-4.htm.

Answer: The jury instruction explains that the statute criminalizes **vicarious liability**, not **accomplice liability**. The defendant could also be charged as a principal or accessory under section (a) of the statute.


Question: Cory watches as her sister Amanda breaks into a parking meter across the street and starts scooping change into her purse. Amanda thereafter runs into a nearby alley and hides behind a dumpster. A police officer arrives on the scene and asks Cory if she witnessed the crime. Cory responds, “No, I didn’t notice anything.” The police officer does a search, does not find Amanda, and leaves. Has Cory committed a crime? If your answer is yes, which crime has Cory committed, and does Cory have a possible defense?

Answer: Cory has probably committed the crime of **accessory** in most jurisdictions. Cory’s response to the police officer’s question was false, and it appears to be made with the intent to help Amanda escape detection. Note that Cory renders assistance using words, but words are enough to constitute the criminal act element required for accessory. Cory is not an accomplice to Amanda’s crime because she did not act to assist Amanda with the parking meter destruction and theft; she only acted *after* the crime was committed. Her failure to report the crime is probably not an “omission to act” because it is extremely unlikely that a statute exists requiring individuals to report theft committed in their presence, creating a **legal duty to act**. A potential defense to accessory would be the *family* relationship, which creates an exemption to accessory in some jurisdictions.


Question: Read *State v. Truesdell*, 620 P.2d 427 (1980). In *Truesdell*, the prosecution appealed the dismissal of the defendant’s case that was a prosecution for accessory to her twelve-year-old son’s felony shooting of her ex-husband. The lower court held that the defendant could not be an accessory to a felony because her son was not an adult who could be charged with a felony. Did the Oklahoma Court of Criminal Appeals reverse the lower court and permit the defendant to be tried as an accessory? Why or why not? The case is available at this link: [http://scholar.google.com/scholar\_case?case=14038267185437754114&q= State+v.+Truesdell+620+P.2d+427+%281980%29&hl=en&as\_sdt=2,5](http://scholar.google.com/scholar_case?case=14038267185437754114&q=State+v.+Truesdell+620+P.2d+427+%281980%29&hl=en&as_sdt=2,5).

Answer: The Oklahoma Court of Criminal Appeals reversed the lower court and allowed the defendant to be prosecuted for accessory. The court held that it is not necessary for the principal to be charged with or convicted of a felony to prosecute another for accessory to that felony, so the child’s age or prosecutability is irrelevant.


Question: Jeffrey is diagnosed with schizophrenia. For fifteen years, Jeffrey kidnaps, tortures, kills, and eats human victims. Jeffrey avoids detection by hiding his victims’ corpses in various locations throughout the city. If the jurisdiction in which Jeffrey commits these crimes recognizes the M’Naghten insanity defense, can Jeffrey successfully plead and prove insanity? Why or why not?

Answer: Jeffrey will not be successful in a jurisdiction that recognizes the **M’Naghten** insanity defense. Although Jeffrey has a mental defect or disease, schizophrenia, Jeffrey’s behavior in *hiding* the victims’ corpses indicates that he knows his behavior is **wrong**. Thus Jeffrey cannot produce evidence establishing the second element of M’Naghten.


Question: Read *State v. Guido*, 191 A.2d 45 (1993). In *Guido*, the defendant killed her husband and claimed insanity in a jurisdiction that recognizes the M’Naghten insanity defense. Psychiatric experts examined the defendant and deemed her legally sane at the time of the killing. The experts thereafter met with the defendant’s attorney and changed their opinion to state that the defendant was legally *insane* at the time of the killing. The jury found the defendant sane after being made aware of this discrepancy. Did the New Jersey Supreme Court uphold the defendant’s conviction? The case is available at this link: lawschool.courtroomview.com/acf\_cases/8791-state-v-guido.

Answer: The New Jersey Supreme Court reversed the defendant’s conviction, holding that the experts changed their opinion after being educated as to the *meaning* of mental defect or disease under M’Naghten. Thus the change by the experts was not fraudulent and the defendant was entitled to a retrial.


Question: Read *State v. Hornsby*, 484 S.E.2d 869 (1997). In *Hornsby*, the defendant sought to reverse his convictions for burglary and murder after jury verdicts of guilty but mentally ill. The defendant wanted to invalidate South Carolina’s statute recognizing the verdict of guilty but mentally ill as unconstitutional. The defendant claimed that defendants incarcerated after guilty but mentally ill verdicts receive the same mental health treatment as defendants incarcerated under regular guilty verdicts, violating the Fourteenth Amendment due process clause. Did the Supreme Court of South Carolina uphold the statute? The case is available at this link: <http://scholar.google.com/scholar_case?case=13615864613799310547&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.

Answer: The Supreme Court of South Carolina upheld the convictions and the statute. The court held that the statute rationally accomplishes its goals, and guilty but mentally ill defendants receive *immediate* rather than *delayed* treatment, which complies with due process.


Question: Nancy asks Jennifer to help her counterfeit twenty-dollar bills. Jennifer refuses. Has a crime been committed in this situation?

Answer: Nancy has committed **solicitation** to commit counterfeiting, which is criminal if Nancy’s jurisdiction criminalizes the solicitation to commit this type of offense. It is of no import that Jennifer refuses Nancy’s request because the criminal act element of solicitation is requesting another to commit a crime, not a mutual understanding or agreement (like conspiracy).


Question: Read *People v. Dennis*, 340 N.W.2d 81 (1983). In *Dennis*, the defendant was convicted of incitement to murder, which is the Michigan equivalent of solicitation to murder. The defendant appealed based on the fact that she solicited a police officer posing as a hit man, so the police officer did not have the intent to murder, and thus the murder was not possible. Did the Michigan Court of Appeals uphold the defendant’s conviction? The case is available at this link: <http://scholar.google.com/scholar_case?case=4173359376569096786&hl=en&as_sdt=2002&as_vis=1>.

Answer: The Michigan Court of Appeals upheld the defendant’s conviction, based on the plain meaning of the statute that does not require the individual solicited to have the intent to commit the crime solicited.


Question: Justin asks his girlfriend Penelope, a bank teller, to let him know what time the security guard takes his lunch break so that he can successfully rob the bank. Penelope tells Justin the security guard takes his break at 1:00. The next day, which is Penelope’s day off, Justin successfully robs the bank at 1:15. Has Penelope committed robbery? Why or why not?

Answer: Penelope could be charged with and convicted of robbery as an **accomplice** in many jurisdictions. Penelope *assisted* Justin by telling him what time the security guard took his break. Although Penelope was not present at the scene, if the trier of fact determines that Penelope had the proper criminal intent required for accomplice liability (**specific intent** or **purposely** or **general intent** or **knowingly**, depending on the jurisdiction) then Penelope can be held accountable for this crime. Note that Penelope assisted Justin with words and that words are enough to constitute the criminal act element required for accomplice liability.


Question: Read *State v. Ulvinen*, 313 N.W.2d 425 (1981). In *Ulvinen*, the defendant sat guard and then helped her son clean up and dispose of evidence after he strangled and dismembered his wife. Thereafter, the defendant was convicted of murder as an accomplice. The defendant was asleep when the killing occurred, but before the killing her son told her that he planned to kill the victim. The defendant reacted with passive acquiescence by demurring and expressing disbelief that he would go through with his plans. Did the Supreme Court of Minnesota uphold the defendant’s murder conviction? The case is available at this link: <http://scholar.google.com/scholar_case?case=5558442148317816782&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.

Answer: The Supreme Court of Minnesota reversed the defendant’s murder conviction, holding that the Minnesota Accomplice Liability Statute required more than passive acquiescence as a criminal act element. The court held that evidence of conduct occurring *after* the crime could raise an **inference** of participation *before* or *during* the crime’s commission, but in this case, the evidence was insufficient to uphold the verdict.


Question: Read *Joubert v. State*, 235 SW 3d 729 (2007). In *Joubert*, the defendant was convicted and sentenced to death based on his participation in an armed robbery that resulted in the death of a police officer and employee. The jury convicted the defendant after hearing testimony from his accomplice and reviewing a video of the defendant confessing to the offense. The defendant appealed the conviction because in Texas, accomplice testimony must be corroborated by other evidence, and the defendant claimed that the other corroborating evidence was lacking in this case. Did the Court of Criminal Appeals of Texas uphold the defendant’s conviction? Why or why not? The case is available at this link: <http://scholar.google.com/scholar_case?case=10119211983865864217&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.

Answer: The Court of Criminal Appeals of Texas upheld the defendant’s conviction because the video of the defendant’s confession corroborated the accomplice’s testimony. The court specifically held that corroborating evidence does not have to be enough to prove beyond a reasonable doubt that the defendant committed the crime; it only has to “tend to connect him to the offense.”*Joubert v. State*, 235 SW3d 729, 731 (2007), accessed January 22, 2011, <http://scholar.google.com/scholar_case?case=10119211983865864217&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.


Question: Gail and Roger conspire to commit a **misdemeanor**. In Gail and Roger’s state, conspiracy is punishable as a **felony**. Can Gail and Roger be convicted of a felony for conspiring to commit a misdemeanor? Why or why not?

Answer: Gail and Roger can be convicted of **felony** conspiracy to commit a **misdemeanor** because it is not unconstitutional to punish conspiracy more severely than the crime that is its object.


Question: Read *State v. Blackmer*, 816 A.2d 1014 (2003). In *Blackmer*, the defendant appealed his conviction for conspiracy to possess marijuana with intent to sell because the individual with whom he was conspiring was a police decoy who did not have conspiracy intent. Did the Supreme Court of New Hampshire uphold the defendant’s conviction? The case is available at this link: [http://scholar.google.com/scholar\_case?case=10340846332108789820&q= State+v.+Blackmer&hl=en&as\_sdt=2,5](http://scholar.google.com/scholar_case?case=10340846332108789820&q=State+v.+Blackmer&hl=en&as_sdt=2,5).

Answer: The New Hampshire Supreme Court upheld the defendant’s conviction because under New Hampshire law it is not necessary for *both* parties to the conspiracy to possess conspiracy criminal intent.


Question: Read *Commonwealth v. Roux*, 350 A.2d 867 (1976). In *Roux*, the defendant was convicted of murder and conspiracy to commit murder after a barroom brawl resulted in a victim’s death. The defendant and others beat the victim with their fists. Thereafter the criminal actor took a knife from a defendant who then walked away. The criminal actor stabbed the victim, who died as a result. The defendant who walked away claimed that he “abandoned” the conspiracy by leaving before the stabbing, and this should be an affirmative defense to the conspiracy and murder charges. Did the Supreme Court of Pennsylvania uphold the defendant’s convictions? The case is available at this link: <http://scholar.google.com/scholar_case?case=1692554406000599210&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.

Answer: The Supreme Court of Pennsylvania upheld the defendant’s convictions, determining that it was *too late* for him to abandon the conspiracy, and also that the evidence indicated he was holding the knife “at the ready” for the criminal actor to grab and use.


Question: Carol shoots her father Carl with malice aforethought. He thereafter lingers in a coma for two months and then dies. Carol is in a jurisdiction that recognizes merger for attempt and that also requires a victim to die within one year and a day if the defendant is to be charged with murder. Can Carol be charged with attempted murder and murder? Why or why not?

Answer: Carol can be charged with **murder** because her father died within the jurisdiction’s requisite time limit. If her father did not die within one year and a day, Carol could only be charged with **attempted** murder. Carol *cannot* be charged with attempted murder and murder because attempt **merges** into the offense if it is completed in Carol’s jurisdiction.


Question: Read *State v. Withrow*, 8 S.W.3d 75 (1999). In *Withrow*, the defendant made frequent visits to a house that was under law enforcement surveillance. While searching the house pursuant to a search warrant, law enforcement officers saw the defendant emerging from a bedroom that had a locked closet containing a jar with pills dissolving in it, which is the first step of methamphetamine production. The defendant was convicted of attempted methamphetamine production and received a sentence of eighteen years in prison. Did the Supreme Court of Missouri uphold the defendant’s conviction? The case is available at this link: <http://scholar.google.com/scholar_case?case=17239945130468444353&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.

Answer: The Supreme Court of Missouri reversed the defendant’s conviction. Following a substantial steps analysis, the court determined that in the absence of evidence that the defendant placed the pills inside the jar, the defendant must be in **possession** of the jar to be guilty of attempted methamphetamine production, and the facts did *not indicate* that possession.


Question: Read *People v. Strand*, 539 N.W.2d 739 (1995). In *Strand*, the defendant was convicted of assault with intent to commit *attempted* kidnapping. Did the Michigan Court of Appeals uphold this conviction? The case is available at this link: <http://scholar.google.com/scholar_case?case=1507705469884283003&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.

Answer: The Michigan Court of Appeals reversed the defendant’s conviction, reasoning that assault with intent to commit attempted kidnapping is a nonexistent offense because it would require the **specific intent** to commit an *uncompleted* crime.


Question: What is the fundamental difference between homicide and suicide?

Answer: The fundamental difference between homicide and suicide is the identity of the **victim**. In a homicide, the victim is another human being. In a suicide, the victim is the perpetrator, which is one of the reasons that homicide is often criminal and suicide is not.


Question: Read *Washington v. Glucksberg*, 521 U.S. 702 (1997). Which part of the Constitution did the US Supreme Court analyze when it held that it is constitutional to criminalize assisted suicide? The case is available at this link: [http://scholar.google.com/scholar\_case?case=17920279791882194984&q= Washington+v.+Glucksberg&hl=en&as\_sdt=2,5](http://scholar.google.com/scholar_case?case=17920279791882194984&q=Washington+v.+Glucksberg&hl=en&as_sdt=2,5).

Answer: The US Supreme Court held that the right to assist a suicide is not a fundamental liberty interest protected by the **due process clause** in the Fourteenth Amendment.


Question: Reread the second question of the exercises in Section 9.4. When Kurt shoots the homeless person in the alley, is this killing first or second-degree murder? Explain your answer.

Answer: There is no evidence of premeditation, and Kurt did not kill the homeless person using a specified means. This is not a first-degree felony murder (based on the felony of robbery) because the felony had ended when the killing occurred. Thus this is most likely **second-degree** murder.


Question: Read *Berry v. Superior Court*, 208 Cal. App. 3d 783 (1989). In *Berry*, the defendant was charged with second-degree murder when his pit bull attacked and killed a young child. The pit bull had never bitten anyone before this incident. Did the California Court of Appeal uphold the defendant’s murder charge on a theory of implied malice? The case is available at this link: lawschool.courtroomview.com/acf\_cases/9986-berry-v-superior-court.

Answer: The California Court of Appeals upheld the defendant’s second-degree murder charge and stated that it was up to the trier of fact to determine the probability of death and the subjective mental state of the defendant.


Question: Read *Dowda v. State*, 776 So.2d 714 (2000). Why did the Mississippi Court of Appeals hold that this killing was a depraved heart murder? The case is available at this link: www.mssc.state.ms.us/images/Opinions/Conv9328.pdf.

Answer: The Mississippi Court of Appeals held that putting a gun to someone’s forehead and pulling the trigger indicates *depraved heart intent*, even if the defendant believes the gun to be unloaded.


Question: Jay is angry about the grade he received on his criminal law midterm. Jay pulls a loaded revolver out of his backpack, aims at a tree and fires in an attempt to release his frustrations. Unfortunately, Jay is an inexperienced marksman and the bullet strikes an innocent bystander in the forehead, killing him. What was Jay’s criminal intent when shooting the revolver?

Answer: Jay has the criminal intent of **depraved heart**. Jay’s conduct in shooting at a tree in a public place might cause someone’s death, which indicates that Jay is indifferent to whether he takes a life. This indifference is a form of implied malice, knowingly, or recklessly manifesting extreme indifference to the value of human life.


Question: A prosecutor reviews the file for Jay’s criminal case. After reading the facts, he chuckles and tells his paralegal, “It won’t be hard to prove criminal intent in this case.” Is this true? Why or why not?

Answer: Yes, this is true. Because Jay used a revolver, the prosecutor has the benefit of the deadly weapon doctrine in many jurisdictions, *alleviating his burden of proving criminal intent*.


Question: How does the Model Penal Code classify criminal homicides?

Answer: The Model Penal Code classifies criminal homicides as felonies of the first, second, and third degree, depending on the defendant’s intent. Murder is supported by purposeful, knowing, or extremely reckless intent and is a felony of the first degree. Manslaughter is supported by reckless intent, or is a murder that is committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse, and is a felony of the second degree. Criminal homicide committed with negligent intent is a negligent homicide and is a felony of the third degree.


Question: Read *Stevens v. State*, 691 N.E.2d 412 (1997). Why did the Indiana Supreme Court affirm the lower court’s decision to refuse a jury instruction on voluntary manslaughter in this case? The case is available at this link: [http://scholar.google.com/scholar\_case?case=1747625552972024733&q= stevens+v.+state+691+ne2d+412&hl=en&as\_sdt=2002&as\_vis=1](http://scholar.google.com/scholar_case?case=1747625552972024733&q=stevens+v.+state+691+ne2d+412&hl=en&as_sdt=2002&as_vis=1).

Answer: The Indiana Supreme Court held that a jury instruction on voluntary manslaughter was inappropriate because a reasonable person would not be provoked by words alone. In this case, a ten-year-old boy threatened to expose sexual molestation by the defendant, who was twenty years old. The Court held that this threat was not **adequate provocation**.


Question: Read *Tripp v. State*, 374 A.2d 384 (1977). In this case, the defendant killed his ex-girlfriend, her mother, her niece, and her son. Did the Maryland Court of Appeals hold that *the victim* must be the source of adequate provocation in a voluntary manslaughter case? The case is available at this link: <http://scholar.google.com/scholar_case?case=17743318345966072534&hl=en&as_sdt=2002&as_vis=1>.

Answer: The Maryland Court of Appeals held that *the victim* must be the source of the adequate provocation in a voluntary manslaughter case. Thus the defendant could not claim voluntary manslaughter when he killed his ex-girlfriend’s family members because he was provoked only *by her*.


Question: Read *Walker v. Superior Court*, 47 Cal.3d 112 (1988). What was the basis for the involuntary manslaughter charge against the defendant in this case? Did the California Supreme Court uphold this charge? The case is available at this link: <http://scholar.google.com/scholar_case?case=11713950418773441100&hl=en&as_sdt=2&as_vis=1&oi=scholarr>.

Answer: The defendant was charged with involuntary manslaughter because she treated her daughter’s meningitis with prayer, rather than obtaining medical care. The California Supreme Court upheld the involuntary manslaughter charge, in spite of the First Amendment **free exercise clause** and the Fourteenth Amendment **due process clause**.


Question: Coby is in the process of robbing a bank. When a security guard threatens to shoot Coby, he grabs a customer in the bank and holds a knife to her throat. Coby thereafter demands a getaway vehicle and fifty thousand dollars in cash in exchange for the hostage’s release. Has Coby committed **kidnapping** in this case? Why or why not?

Answer: If Coby’s state does not require **asportation** for kidnapping when the kidnapping is for ransom, then Coby has probably committed kidnapping. He confined a victim against her will with the purpose of committing another offense (theft) and demanded a ransom, which are all the elements of kidnapping.


Question: Read *State v. Salaman*, 949 A.2d 1092 (2008). In *Salaman*, the defendant grabbed the victim, pinned her to the stairs for five minutes, punched her in the face, and violently stuck his fingers down her throat. He was thereafter convicted of second-degree kidnapping and appealed, claiming his restraint of the victim was merely **incidental** to the crime of assault. In Connecticut, the state where the offense occurred, the kidnapping criminal act is restraint with the specific intent to prevent the victim’s liberation. Connecticut also had case precedent holding that restraint that is incidental to the commission of a separate offense is still kidnapping. Did the Supreme Court of Connecticut uphold the defendant’s conviction? The case is available at this link: [http://scholar.google.com/scholar\_case?case=13933358391504195031&q= kidnapping&hl=en&as\_sdt=2,5&as\_ylo=2008](http://scholar.google.com/scholar_case?case=13933358391504195031&q=kidnapping&hl=en&as_sdt=2,5&as_ylo=2008).

Answer: The Connecticut Supreme Court rejected precedent and *changed the rule* that an act of kidnapping could be incidental to the commission of a separate offense. Thereafter, the court ordered a new trial on the kidnapping charge, although it surmised that a jury could reasonably find the defendant guilty of kidnapping separate from the assault.


Question: Read *Commonwealth v. Rivera*, 828 A.2d 1094 (2003). In *Rivera*, the defendant, who had a court order depriving him of custody, forcibly removed his daughter from her day care and drove around with her in his car, frequently calling and terrorizing the child’s mother. The defendant’s daughter disappeared, and the defendant was later convicted of felony murder, kidnapping, and other offenses. The underlying felony for the felony murder was **kidnapping**, and the defendant appealed claiming he could not legally kidnap his *own biological child*. Did the Superior Court of Pennsylvania affirm the defendant’s felony murder and kidnapping convictions? Why or why not? The case is available at this link: [http://scholar.google.com/scholar\_case?case=6955582630525573237&q= %22interference+with+the+custody+of+children%22&hl=en&as\_sdt=2,5](http://scholar.google.com/scholar_case?case=6955582630525573237&q=%22interference+with+the+custody+of+children%22&hl=en&as_sdt=2,5).

Answer: The Superior Court of Pennsylvania affirmed the defendant’s convictions, holding that the kidnapping statute applied to *any* individual—including a **parent**.


Question: Johnnie decides he wants to kill Marcus, the leader of a rival gang. Johnnie knows that Marcus always hangs out in front of the gas station on Friday nights. Johnnie puts his gun in the glove compartment of his car and drives to the gas station on a Friday night. He sees Marcus standing out front. He slowly drives by, takes aim, and shoots Marcus from the car, killing him. Could this be first-degree murder? Explain your answer.

Answer: This killing could be first-degree **premeditated murder** or first-degree **murder by a specified means**. The facts indicate a willful, deliberate, premeditated killing. Johnnie evidences a specific intent to kill the leader of a rival gang. He indicates planning by putting his gun in the glove compartment of his car and driving to the gas station on Friday night where he suspects Marcus will be present. He kills Marcus by shooting him in a manner calculated to cause death. In addition, first-degree murder by a specified means frequently includes drive-by shooting as a method of killing.


Question: Read *State v. West*, 844 S.W.2d 144 (1992). Did the Supreme Court of Tennessee hold that a defendant’s failure to report a shooting to the police for over an hour and concealment of the murder weapon constitutes sufficient evidence to prove premeditated murder? The case is available at this link: <http://scholar.google.com/scholar_case?case=3481778471457660977&hl=en&as_sdt=2002&as_vis=1>.

Answer:
The Tennessee Supreme Court held that the defendant’s failure to make a timely police report and concealment of the murder weapon did not prove that the murder was premeditated. The Court stated the following:

  One who has recently killed another person recklessly, passionately, or even negligently may be extremely hesitant to reveal the details of the crime, and yet not be guilty of first-degree murder…One who kills another in a passionate rage may dispose of the weapon when reason returns just as readily as the cool, dispassionate killer.*State v. West*, 844 S.W. 2d 144, 147 (1992), accessed July 30, 2010, <http://scholar.google.com/scholar_case?case=3481778471457660977&hl=en&as_sdt=2002&as_vis=1>.


Question: Read *U.S. v. Downs*, 56 F.3d 973 (1995). Identify motive, planning, and preconceived design in this case. The case is available at this link: ftp.resource.org/courts.gov/c/F3/56/56.F3d.973.94-3404.html.

Answer: The **motive** was to exact revenge. The defendant and victim had a relationship fraught with abuse, most of it based on the defendant’s desire to control the victim. The **planning** was as follows: the defendant selected the day of the killing with care, made a copy of the key to his son’s house, rented a minivan with tinted windows and altered the interior, sent four letters to his son that he knew the victim, a postal employee, would deliver, packed the murder weapon and supplies in the minivan, called his son’s house to ensure his son had left, arrived early at his son’s house, and prepared the interior for the killing. **Preconceived design** is shown by the following actions: The defendant shot the victim several times with the shotgun he brought to his son’s house. He paused to reload and also to retrieve a handgun from the snow in between shots.


Question: Chris punches and slaps Rhianna, his roommate and girlfriend. Could this be considered domestic violence?

Answer: Most domestic violence statutes include **individuals residing together**, so this could be domestic violence battery or assault.


Question: Read *State v. Holbach*, 2009 ND 37 (2009). In *Holbach*, the defendant appealed a conviction for stalking based on his constitutionally protected right to travel around town and do errands. The defendant was on probation for stalking the victim and subject to conditions of probation, including a stay-away order. However, the victim claimed that she saw the defendant following her around town on many occasions. Did the Supreme Court of North Dakota uphold the defendant’s stalking conviction? Why or why not? The case is available at this link: [http://scholar.google.com/scholar\_case?case=14788412528928431856&q= stalking&hl=en&as\_sdt=2,5&as\_ylo=2009](http://scholar.google.com/scholar_case?case=14788412528928431856&q=stalking&hl=en&as_sdt=2,5&as_ylo=2009).

Answer: The Supreme Court of North Dakota upheld the defendant’s conviction, stating that the constitutional right to travel is not absolute and can be restricted to protect a victim from **harm**, as in this case.


Question: Read *Burke v. State*, 676 S.E.2d 766 (2009). Why did the Court of Appeals of Georgia reverse the defendant’s conviction for aggravated stalking in this case? The case is available at this link: [http://scholar.google.com/scholar\_case?case=14247986447862424093&q= stalking&hl=en&as\_sdt=2,5&as\_ylo=2009](http://scholar.google.com/scholar_case?case=14247986447862424093&q=stalking&hl=en&as_sdt=2,5&as_ylo=2009).

Answer: The Court of Appeals of Georgia reversed the defendant’s conviction because aggravated stalking in Georgia requires a **course of conduct** violating a protective order. In this case, the prosecution only proved that the defendant committed *one act* violating the protective order.


Question: Read *People v. Anderson*, 666 N.W.2d 696 (2003). Did the Minnesota Supreme Court uphold a charge of second-degree felony murder when the underlying felonies were possession of a firearm by a convicted felon and possession of a stolen firearm? The case is available at this link: www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=bdjhdg&searchTerm= ejhU.Iaea.aadj.ebKG&searchFlag=y&l1loc=FCLOW.

Answer: The Minnesota Supreme Court reversed the court of appeal and held that felon in possession of a firearm and possession of a stolen firearm are not felonies *inherently dangerous to life*, so they cannot be predicate felonies for a felony murder conviction. The Court stated the following: “Applying the statute as previously interpreted by us to this record, we conclude that the predicate offenses of felon in possession of a firearm and possession of a stolen firearm are not inherently dangerous. While the *use* of a firearm can pose significant danger to human life, simple possession—standing alone—does not.”*People v. Anderson*, 666 N.W. 2d 696, 700 (2003), accessed July 30, 2010, www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format= FULL&sourceID=bdjhdg&searchTerm=ejhU.Iaea.aadj.ebKG&searchFlag=y&l1loc=FCLOW.


Question: Kurt robs a convenience store at gunpoint. As the cashier hands him money out of the cash register, Kurt hears a siren and runs outside, stuffing the money in his pockets. He sees a dark alley and dashes into it. While he crouches there waiting for the police to leave, a homeless person living in the alley taps him on the shoulder. Startled, Kurt spins around and shoots and kills the homeless person. Is this felony murder? Explain your answer.

Answer: Kurt did not commit felony murder in this case because he had reached a place of *temporary safety*, so the felony had ended.


Question: Read *Enmund v. Florida*, 458 U.S. 782 (1982). In *Enmund*, the US Supreme Court held that the death penalty is unconstitutional in a felony murder case for one who neither took life, attempted to take life, nor intended to take life. On which part of the Constitution did the Court rely in reaching this holding? The case is available at this link: <http://www.law.cornell.edu/supct/html/historics/USSC_CR_0458_0782_ZO.html>.

Answer: The US Supreme Court based its holding on the *Eighth* and *Fourteenth* amendments. Primarily, the Court determined that the death penalty was cruel and unusual punishment under the circumstances.


Question: Bob and Rick get into an argument after drinking a few beers. Bob swings at Rick with his fist, but Rick ducks and Bob does not hit Rick. Bob swings again with the other hand, and this time he manages to punch Rick in the stomach. Identify the crimes committed in this situation. If Bob only swings once and misses, which crime(s) have been committed?

Answer: In the first scenario where Bob swings once and misses, then swings again and connects, two crimes have been committed: assault and battery. The first swing that misses is an assault. The swing that punches Rick in the stomach is a battery. In the second scenario, where Bob only swings and misses, only an assault has been committed.


Question: Read *State v. Higgs*, 601 N.W.2d 653 (1999). What criminal act did the defendant commit that resulted in a conviction for battery? Did the Court of Appeals of Wisconsin uphold the defendant’s conviction? Why or why not? The case is available at this link: [http://scholar.google.com/scholar\_case?case=10727852975973050662&q= State+v.+Higgs+601+N.W.2d+653&hl=en&as\_sdt=2,5](http://scholar.google.com/scholar_case?case=10727852975973050662&q=State+v.+Higgs+601+N.W.2d+653&hl=en&as_sdt=2,5).

Answer: The defendant threw a cup of urine in the victim’s face. Although the battery statute in Wisconsin requires **bodily harm**, the court held that the stinging sensation in the victim’s eyes was sufficient and upheld the defendant’s conviction.


Question: Read *Commonwealth v. Henson*, 259 N.E.2d 769 (1970). In *Henson*, the defendant fired blanks at a police officer and was convicted of assault with a deadly weapon. The defendant appealed, claiming that he had no present ability to shoot the police officer because the gun was not loaded with bullets. Did the Supreme Judicial Court of Massachusetts uphold the defendant’s conviction? The case is available at this link: <http://scholar.google.com/scholar_case?case=11962310018051202223&hl=en&as_sdt=2002&as_vis=1>.

Answer: The Supreme Judicial Court of Massachusetts upheld the defendant’s conviction, reasoning that the defendant’s **apparent ability** to consummate the shooting is what is essential to the crime of assault with a deadly weapon, not the secret fact that the gun is loaded with blanks rather than bullets.


Question: Recall a scenario in Chapter 1 where Linda and Clara browse an expensive department store’s lingerie department and Linda surreptitiously places a bra in her purse and leaves the store without paying for it. What type of theft did Linda commit in this scenario?

Answer: Linda has committed **larceny** because she **took** personal property belonging to another without consent and with what appears to be the intent to keep it permanently. Shoplifting is typically larceny. A bra is not a high-value item (even in an expensive department store), so Linda’s larceny is probably petty, second-, or third-degree theft under a consolidated theft statute.


Question: Ellen goes to the fine jewelry department at Macy’s and asks the clerk if she can see a Rolex watch, valued at ten thousand dollars. The clerk takes the watch out of the case and lays it on the counter. Ellen tells the clerk that her manager is signaling. When the clerk turns around, Ellen puts her hand over the watch and begins to slide it across the counter and *into her open purse*. Before the watch slides off the counter, the clerk turns back around and pins Ellen’s hand to the counter, shouting for a security guard. Has Ellen committed a crime in this scenario? If your answer is yes, which crime?

Answer: Ellen has committed **larceny** because she **took** personal property belonging to another without consent and with what appears to be the intent to keep it permanently. When Ellen put her hand over the Rolex watch, she gained **control** of it. When she slid it across the counter, this was sufficient **asportation** of the property because asportation for larceny can generally be any distance—no matter how slight. The Rolex is valued at ten thousand dollars, so Ellen’s larceny is probably grand or first-degree theft under a consolidated theft statute.


Question: Read *State v. Larson*, 605 N.W. 2d 706 (2000). In *Larson*, the defendant, the owner of an automobile leasing company, was convicted of theft by temporary taking under a consolidated theft statute for failing to return security deposits to customers pursuant to their automobile lease contracts. The defendant appealed, claiming that the lease deposits were not the “property of another.” Did the Supreme Court of Minnesota uphold the defendant’s conviction? Why or why not? The case is available at this link: [http://scholar.google.com/scholar\_case?case=18374046737925458759&q= embezzlement+%22temporary+taking%22&hl=en&as\_sdt=2,5](http://scholar.google.com/scholar_case?case=18374046737925458759&q=embezzlement+%22temporary+taking%22&hl=en&as_sdt=2,5).

Answer: The Minnesota Supreme Court reversed, holding that the lease deposits were held in trust and belonged to the *defendant*, not the lessees. The court also held that the prosecution failed to prove a relationship of **trust** and **confidence** between the defendant and the lessees, which is required in Minnesota for embezzlement theft under the consolidated theft statute.


Question: Read *People v. Traster*, 111 Cal. App. 4th 1377 (2003). In *Traster*, the defendant told his employer that it was necessary to purchase computer-licensing agreements, and he was given the employer credit card to purchase them. The defendant thereafter appropriated the money, never purchased the licenses, and quit his job a few days later. The defendant was convicted of theft by false pretenses under a consolidated theft statute. Did the Court of Appeal of California uphold the defendant’s conviction? Why or why not? The case is available at this link: [http://scholar.google.com/scholar\_case?case=14111729725043843748&q= larceny+false+pretenses+possession+ownership&hl=en&as\_sdt=2,5&as\_ylo=2000](http://scholar.google.com/scholar_case?case=14111729725043843748&q=larceny+false+pretenses+possession+ownership&hl=en&as_sdt=2,5&as_ylo=2000).

Answer: The Court of Appeal of California modified the defendant’s conviction under a consolidated theft statute. The court held that the defendant actually committed attempted **larceny by trick**, not false pretenses, because he was directed to purchase licensing agreements with the money, which put him in *possession* of it rather than *ownership*.


Question: Read *U.S. v. Ingles*, 445 F.3d 830 (2006). In *Ingles*, the defendant was convicted of federal mail fraud when his son’s cabin was burned by arson and his son made a claim for homeowner’s insurance. The evidence indicated that the defendant was involved in the arson. The defendant’s son was **acquitted** of the arson, and only the insurance company, which sent several letters to the defendant’s son, did the acts of mailing. Did the US Court of Appeals for the Fifth Circuit uphold the defendant’s conviction? Why or why not? The case is available at this link: [http://scholar.google.com/scholar\_case?case=6621847677802005327&q= federal+mail+fraud+%22one+letter%22&hl=en&as\_sdt=2,5&as\_ylo=2000](http://scholar.google.com/scholar_case?case=6621847677802005327&q=federal+mail+fraud+%22one+letter%22&hl=en&as_sdt=2,5&as_ylo=2000).

Answer: The US Court of Appeals for the Fifth Circuit reversed the defendant’s conviction. The court held that the *defendant* did not have to use the mails or intend that the mails be used by another to be convicted of federal mail fraud. However, because all the mailings involved the defendant’s *son*, who was acquitted of the arson and therefore not involved in a scheme to defraud the insurance company, the defendant’s mail fraud conviction had no basis.


Question: A city enacts an ordinance that prohibits standing or remaining in a crosswalk for an extended period with a sign. What are three potential constitutional challenges to this ordinance? Can you identify a government interest supporting it?

Answer: The ordinance can be challenged under the **First Amendment**, as **void for vagueness**, and as **overbroad**. A sign is expressive, so a First Amendment challenge is appropriate. The words “extended period” are vague, which can lead to uneven application by law enforcement and a failure to provide notice to the public of what behavior is criminal. Holding a sign such as a school crossing sign is protected activity, so an overbreadth challenge is also in order. The government has an interest in keeping the roadways *safe*, and in preventing dangerous distractions that could occur when drivers try to read signs while approaching a crosswalk.


Question: Read *State v. Russell*, 890 A.2d 453 (2006). Why did the Supreme Court of Rhode Island reinstate a complaint against the defendant for disorderly conduct in this case? The case is available at this link: [http://scholar.google.com/scholar\_case?case=15220603438033851670&q= State+v+Russell&hl=en&as\_sdt=2,5](http://scholar.google.com/scholar_case?case=15220603438033851670&q=State+v+Russell&hl=en&as_sdt=2,5).

Answer: The Supreme Court of Rhode Island held that the disorderly conduct statute was not vague or overbroad simply because it does not require conduct to occur in **public**, and therefore the defendant’s attack of his spouse in a private residence could be prosecuted as “creating a hazardous condition.”


Question: Read *People v. Hoffstead*, 905 N.Y.S.2d 736 (2010). Why did the New York Supreme Court overturn the defendant’s conviction for loitering in this case? The case is available at this link: [http://scholar.google.com/scholar\_case?case=16147172189959232373&q= People+v.+Hoffstead&hl=en&as\_sdt=2,5](http://scholar.google.com/scholar_case?case=16147172189959232373&q=People+v.+Hoffstead&hl=en&as_sdt=2,5).

Answer: The Supreme Court of New York held that “begging” is constitutionally protected expression under the First Amendment, and thereafter reversed the defendant’s conviction under New York’s loitering for the purpose of begging statute.


Question: Review the example given in Section 11 with Jeremy and Chuck. In this example, Chuck shows Jeremy a video he made of Jeremy reading a magazine instead of tuning up Chuck’s taxi. Chuck thereafter threatens to show this video to the district attorney if Jeremy does not pay him two hundred dollars. Has Chuck committed a crime in this scenario? If your answer is yes, which crime?

Answer: Chuck has committed the crime of **attempted extortion**. Although Chuck threatened to expose Jeremy’s crime of false pretenses with the intent to force Jeremy to pay him two hundred dollars, Jeremy did *not pay* Chuck. Thus the **harm** element of extortion is lacking, and Chuck’s conduct is only attempted extortion.


Question: Read *State v. Robertson*, 531 S. E. 2d 490 (2000). In *Robertson*, the Court of Appeals of North Carolina reversed the defendant’s conviction for robbery of the victim’s purse. What was the basis of the court’s reversal of conviction? The case is available at this link: [http://scholar.google.com/scholar\_case?case=10266690205116389671&q= robbery+%22purse+snatching%22&hl=en&as\_sdt=2,5&as\_ylo=2000](http://scholar.google.com/scholar_case?case=10266690205116389671&q=robbery+%22purse+snatching%22&hl=en&as_sdt=2,5&as_ylo=2000).

Answer: The Court of Appeals of North Carolina reversed the defendant’s robbery conviction because he *snatched* the purse, using only the force required to take it from the victim’s possession. Thus the crime was most likely **larceny** rather than **robbery**.


Question: Read *People v. Pratt*, 656 N.W.2d 866 (2002). In *Pratt*, the defendant was convicted of receiving stolen property for taking and concealing his girlfriend’s vehicle. The defendant appealed, claiming that there was no evidence to indicate that he intended to permanently deprive his girlfriend of the vehicle, and thus it was not “**stolen**.” Did the Court of Appeals of Michigan uphold the defendant’s conviction? Why or why not? The case is available at this link: [http://scholar.google.com/scholar\_case?case=9260508991670862336&q= actual+knowledge+%22receiving+stolen+property%22&hl=en&as\_sdt=2,5&as\_ylo=2000](http://scholar.google.com/scholar_case?case=9260508991670862336&q=actual+knowledge+%22receiving+stolen+property%22&hl=en&as_sdt=2,5&as_ylo=2000).

Answer: The Court of Appeals of Michigan upheld the defendant’s conviction. Although the court conceded that a theft by larceny requires the intent to *permanently* deprive the owner of personal property, the court held that the term “stolen” in the receiving stolen property statute encompasses more than larceny theft, and thus it includes *any taking* of personal property without permission of the owner.


Question: Joshua shoots and kills Khalid in front of the Pakistani Embassy in Washington, DC. Is this an act of domestic terrorism? Why or why not?

Answer: Whether or not this is an act of terrorism requires more information. Although the killing takes place in front of the Pakistani Embassy within the territory of the United States, this evidence is not enough to prove that Joshua intended his conduct to influence a civilian population or government by intimidation or to affect the government’s conduct by assassination. The location of the shooting could be a pure coincidence, and Joshua could have a nonterroristic motive for the killing, such as a *personal* hatred or **malice** toward Khalid.


Question: Read *Humanitarian Law Project v. Reno*, 205 F.3d 1130 (2000). Did the US Court of Appeals for the Ninth Circuit uphold 18 U.S.C. § 2339, which prohibits providing material support to terrorists? What were the constitutional challenges to this federal statute? The case is available at this link: [http://scholar.google.com/scholar\_case?case=6926778734800618484&q= convicted+%222339%22&hl=en&as\_sdt=2,5&as\_ylo=2000](http://scholar.google.com/scholar_case?case=6926778734800618484&q=convicted+%222339%22&hl=en&as_sdt=2,5&as_ylo=2000).

Answer: The US Court of Appeals for the Ninth Circuit upheld the statute, which was in place before September 11, 2001, and under AEDPA prohibited domestic material support to terrorists and terroristic organizations. The court held that the statute was not an unconstitutional prohibition on the right of free association or expression under the First Amendment, nor did it violate federal due process under the Fifth Amendment by granting the secretary of state unfettered and unreviewable authority to designate organizations as terroristic. However, the court affirmed the US District Court’s decision that portions of the statute defining “personnel” and “training” were **unconstitutionally vague**.