Criminal Law § 1                   M.H. Hoffheimer

Final Exam (answers at end)       University of Mississippi

                                  Law School

                                  Spring 2006

General instructions

    This is a closed book exam. Do not speak with any person other than the faculty member who is administering this exam until you have turned in your exam. Do not remove any exam materials, questions, or blue books from the room during the exam. After you complete the exam and turn in your blue books, you may take the questions with you when you exit the room.

    The exam consists of two parts. You will have three hours to complete the exam. Recommended times are indicated for each part. Answer all questions.

    Identify yourself on your blue books only by your exam number. By placing the exam number on your blue book and by submitting your blue book for credit, you are agreeing to the following pledge (as required by law school policy):

    "On my honor I have neither given nor received improper assistance. And I will report any improper assistance that I am made aware of."

    Do not assume any additional fact or law, except those laws studied in the course, without stating explicitly your assumption and explaining why such additional information is necessary for your answer.

PART I. SHORT ANSWERS (60 minutes for this part--or an average of ten minutes for each question)

    Instructions. Write a coherent, literate response to each of the following problems. Each problem in this part can be answered adequately with a response that is no longer than one paragraph.


    1. Don hated Victor. He drank four beers, armed himself with a handgun and went looking for him. When Don saw Victor, he walked up to him, pointed the handgun at him and pulled the trigger. Victor died instantly.

    Don is being prosecuted for murder on the theory that the killing occurred during the commission of the felony of aggravated assault. The jurisdiction's statute defines felonious aggravated assault as follows: "A person is guilty of aggravated assault if he or she attempts to cause or intentionally causes bodily injury to another with a deadly weapon."

    The jurisdiction follows the common law. Please explain any possible obstacles to getting a conviction on the prosecution's theory.

    2. What is an irresistible impulse and what jurisdictions recognize it as a defense in criminal cases?

    3. On Monday, Devon and Ed were inspired by a television program to form an organization that would kill people for money. Devon agreed to contribute the use of his car, and Ed agreed to contribute the use of his gun.

    On Tuesday, Ed called Devon to tell him that a man named "Bob" wanted to meet with them on Friday at a bar to discuss the possibility of killing his wife. Devon agreed to meet Ed and Bob at the bar.

    On Wednesday, Devon was arrested for possession of cocaine. While sitting in jail overnight, Devon realized that murder was evil.

    On Thursday, after he was released on bail, Devon called Ed and announced that he quit the business, and he told Ed that he could not use his car. He also urged Ed not to meet with Bob.

    Despite Devon's urging, Ed met with Bob on Friday and made arrangements to kill Bob's wife. A week later, Ed shot Bob's wife and wounded her.

    Devon has been charged with conspiracy and as an accomplice to attempted murder. The jurisdiction follows the Model Penal Code.

    You are Devon's lawyer. Devon insists he had completely changed his mind and backed out of the plan to kill anyone. He asks you whether this is a valid defense. Please explain.

    4. You are interviewing with a district attorney in Mississippi for the job of your dreams. The D.A. says, "As I remember, courts do not permit a criminal to be convicted based on the testimony of accomplices. Is that right?" Please explain.

    5. What is diminished capacity and do Mississippi or federal courts recognize the defense?

    6. Dave and Ray were sitting at the bar talking about their favorite World War II generals. Dave declared, "My hero is General Patton."

    Ray replied that General Patton was overrated and was a homosexual.

    In response, Dave pushed Ray off the bar stool, causing Ray to fall to the floor. Dave assumed a karate pose and demanded, "Apologize or stand up and fight like a man."

    Instead of apologizing, Ray pulled out a large knife. Slowly rising to his feet, he announced, "I'm going to kill you."

    Dave then pulled out a handgun, and said, "Stay where you are or I'll shoot."

    Ray continued to approach with the knife. When he was three feet from Dave, Dave shot and killed Ray.

    Dave is charged with murder in a jurisdiction that follows the common law. You are representing him. During your first interview, Dave says, "I have an airtight case of self-defense, don't I." Please advise Dave.


    Instructions. Write coherent, literate essays in the Blue Book that respond to the following problems.

A. The Case of the Baby Sitter's Boyfriend (60 minutes)

On August 2, 2004, fifteen-year-old Denise Knievel agreed to baby sit for her neighbors, the Goodmans. When she arrived at the Goodmans house at 5 pm, Mrs. Goodman showed her around the house and introduced her to her children, Andy (age 6) and Bobby (age 7). Mrs. Goodman instructed Denise to feed the children at 6 o'clock and to put them to bed at 8 o'clock. She informed Denise that she and Mr. Goodman would return around midnight. As Mrs. Goodman left the house, she cautioned Denise not to let the children play in the backyard because it was "dangerous."

    One minute after the adult Goodmans left the house, Denise called her seventeen-year-old boyfriend Duddley Sleeze on her cell phone and invited Duddley to come to the Goodmans. Duddley arrived ten minutes later. Duddley and Denise promptly locked themselves in an upstairs bedroom where they smoked marijuana and ignored the children.

    While Duddley and Denise were in the bedroom they passed back and forth a bag containing over one kilogram of marijuana. Possession of this quantity of marijuana is a felony in the jurisdiction.

    Soon Bobby knocked on the door and asked what he should do. Duddley whispered to Denise, "Tell him to go outside and play."

    Denise whispered back, "They might get hurt."

    Duddley whispered in reply, "Who cares?"

    So Denise shouted to Bobby through the locked door, "Go outside and play."

    Bobby and Andy then went into the backyard. Within five minutes, Andy fell into a swimming pool and drowned.

    Bobby called for help but Denise and Duddley were so intoxicated that they thought Bobby was joking and laughed.

    Evaluate Denise's and Duddley's criminal liability for homicide under the Model Penal Code.

B. The Case of the Bicycle Basher (60 minutes)

One night, Dobson drank a six pack of beer and some rum and coke and went for a drive. He knew he was drunk, so he drove out to the lake on a rural road where there was rarely any traffic. Dobson concedes that his level of intoxication satisfies the Mississippi statutory definition of diving under the influence.

    Dobson was driving below the speed limit with his headlights on. Suddenly a bicycle appeared in front of him in his lane. The bicycle had no lights.

    After being informed of his right to remain silent, Dobson explained to a police officer, "I froze for a couple of seconds. Then I slammed on the brakes, turned the wheel and honked the horn but it was too late."

    Dobson collided with the bicycle at a low speed, knocking the bicycle over. The bicycle was operated by Misty, who was only slightly injured. But Misty was carrying a three-month-old infant, Beth, in a backpack. Beth was not properly secured in the backpack and was thrown from the backpack. Beth struck her head on the pavement and died.

    Dobson has been charged with the attempted murder of Misty and with murder, manslaughter and aggravated driving under the influence for the death of Beth.

    Please evaluate Dobson's liability for the crimes with which he has been charged under Mississippi law.

Criminal Law § 1                   M.H. Hoffheimer

Final Exam answers                University of Mississippi

                                  Law School

                                  Spring 2006

Short answers

    1. The merger doctrine at common law prevents application of the felony murder theory where the assault crime is not independent but is included in fact in the homicide.

    2. Irresistible impulse is a form of insanity defense focusing on the actor's inability to control his or her conduct. It is added in some jurisdictions as a "volitional" test to the common law M'Naughton "cognitive" definition, and a form of it was adopted by the Model Penal Code. It fell out of favor in many jurisdictions, including federal courts, in the 1980s.

    3. The Model Penal Code recognizes a defense of withdrawal that is motivated by a complete and voluntary abandonment. An accomplice must take steps to render prior assistance ineffective (which may be established by the facts). A conspirator must thwart the conspiracy (which may not be established).

    4. The statement is wrong. Although in some jurisdictions uncorroborated accomplice testimony is insufficient, such testimony is admissible and sufficient everywhere when corroborated. Moreover, Mississippi permits convictions based on uncorroborated accomplice testimony, but it requires cautionary instructions when the testimony is uncorroborated.

    5. Diminished capacity is a defense where a defendant shows he or she lacked the mental ability to have a particular mental state required for a crime but does not necessarily meet the jurisdiction's definition of criminal insanity. It is rejected in Mississippi and in federal courts.

    6. Defendant does not have a defense of self-defense because he was the initial aggressor. But where the victim aggravated the level of violence requiring the initial aggressor to respond with deadly force in necessary self defense, then the initial aggressor will qualify for "imperfect self-defense" and the resulting homicide can be mitigated from murder to manslaughter.

 A. Case of Baby Sitter's Boyfriend

    A good answer would contain the following:

    1. In discussion of negligent homicide, a precise definition of Model Penal Code negligence as entailing a substantial and unjustifiable risk (of death) under circumstances comprising a gross deviation from standards of community behavior.

    2. In evaluation of manslaughter, an explicit discussion that recklessness under Model Penal Code requires awareness and conscious disregard of risk (of death).

    3. In evaluation of murder, a precise application of requirement that Code makes recklessness murder only when it manifests an extreme disregard for the value of life.

    4. Intoxication defense evaluation must explain that Code does not permit defense to crime of recklessness when actor would have been aware of the risk when sober (and apply this to the facts).

    5. Denise's voluntary act consisted of her instruction to the child to go outside. (Words are acts.) Her later omission is a basis of liability, too, because she had a legal (contractual) duty to act as the baby sitter.

    6. Dudd's accomplice liability may be satisfied only if he purposely encouraged the principal to engage in the criminal conduct (recklessly or negligently causing death) under circumstances where he either was or should have been aware of the risk of death. The Model Penal Code does not require purpose with respect to the resulting death.

    7. To satisfy causation under the Model Penal Code, for crimes based on recklessly or negligently, the resulting death must have been within the scope of the risk of which the actor was aware of should have been aware.

B. Bicycle Basher

    A good answer would contain the following:

    1. There is no attempted murder because Mississippi attempt requires specific intent, and there was no specific intent to kill the victim.

    2. Legally precise definition that murder includes death resulting from an eminently dangerous act evincing depraved heart regardless of human life. This definition must be applied to the facts, and the answer should discuss the impact of the driver's precautions and effort to avoid the collision.

    3. Application of murder for "any felony" (other than capital felony) to facts.

    4. Evaluation of manslaughter requires a precise identification of the statutory element ("culpable negligence"), its definition (reckless or wanton conduct evidencing utter disregard for safety), and application to the facts.

    5. Evaluation of aggravated DUI requires identification of requirement of ordinary civil negligence and recognition of possible problem establishing it in the case.

    6. Cause analysis requires application of but-for cause test and a recognition that proximate cause may be a problem due to possible break in natural sequence by the mother's potential gross negligence.

    7. Additional points awarded for: explicit recognition that there is no defense of voluntary intoxication in Mississippi; possible application of misdemeanor manslaughter if conduct is underlying conduct is criminal but not felonious.