Criminal Law

M.H. Hoffheimer

University of Mississippi
Law School

Spring 2002

Final Exam -- (answers follow last question)

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 (120 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. To paraphrase "Legally Blond": Explain whether you would rather defend someone accused (but not necessarily guilty) of a crime that is malum prohibitum or malum in se.

2. Feckless and Sherlock Holmes were drinking and talking at the Dungeon Bar. Feckless did not know that Holmes was an undercover police officer. After several drinks Feckless asked Holmes if he would like to help him rob the Federal Insured Credit Union. Holmes immediately arrested Feckless.

Feckless has been charged with violation of the federal conspiracy statute. You are appointed to represent Feckless. Your client asks if he has committed the crime charged. Please advise.

3. Same facts. But Feckless has been charged with conspiracy and attempted robbery under the Model Penal Code. You are appointed to represent Feckless. Your client asks if he has committed the crimes charged. Please advise.

4. Same facts. But Feckless has been charged with violation of the Mississippi conspiracy law. Your client asks if he has committed the crime charged. Please advise.

5. On May 10, 2001, sixteen-year-old Cal Driver went to his sister's wedding reception in Oxford, Mississippi. At the reception he drank three glasses of champagne. Later that evening, driving home from the reception on a four-lane divided highway, Driver changed from the left to the right lane. Before changing lanes he looked in the rear view mirror, but he did not turn on his turn signal or turn his head to look out his right passenger side windows. Consequently, he did not see Vic Vickers and Patsy Vickers on a motorcycle attempting to pass him on the right. At the time he pulled into the right lane, the Vickers were approximately even with his rear wheel.

Driver collided with the motorcycle injuring Vic and Patsy. A chemical analysis of Driver's breath and blood revealed that he had a blood alcohol concentration exceeding two one-hundredths of one percent (.02%).

As a result of the collision, Vic suffered several cuts to his left arm and leg. Such cuts would not normally be life threatening. Unfortunately, Vic had previously contracted Acquired Immune Deficiency Syndrome (AIDS), and his immune system was not working properly. Moreover, Vic was a member of Nature's God Church. His diet consisted exclusively of peanut butter and saltine crackers, and he refused to use antibiotics. As result, Vic's wounds did not heal. Infection spread despite amputations of his arm and leg, and Vic died over one year after the original injury on June 10, 2002.

Patsy was not scratched in the collision but a severe jolt to her head caused internal bleeding in her brain. As a result she lay in a coma for six months. But after she regained consciousness, medical experts who examined her agree that she has recovered completely.

You are working for the prosecutor who asks you whether the evidence is sufficient to support a conviction of Cal for manslaughter for the death of Vic. Please advise.

6. Same facts. The prosecutor asks whether the evidence is sufficient to support a conviction of Cal for aggravated driving under the influence for the injury or death of Vic. Please advise.

7. Same facts. The prosecutor asks whether the evidence is sufficient to support a conviction of Cal for either aggravated driving under the influence or attempted manslaughter for the injury to Patsy. Please advise.

8. Tom Tourer visited the People's Republic of China in February 2002. While visiting the People's Market, he purchased a coin that appeared to be an 1875 United States silver dollar. Tourer believed this item was not genuine because it cost only fifty cents and its edge was rusting. Tourer knew, of course, that making or passing counterfeit money is a serious crime, but he did not think that possessing an obvious counterfeit for fun violated any law. He put the coin into his pocket for good luck, planning to have it made into a key chain after he returned to the United States.

At the time that he flew into the sovereign territory of the United States Tourer was asleep. From the entire time that he woke up until he was searched by law enforcement agents he forgot that he had the coin in his pocket.

Tourer was arrested at the San Francisco airport by agents for the United States Customs and charged with violating a federal statute that provides:

Whoever, within the United States, makes or brings therein from any foreign country, or possesses with intent to sell, give away, or in any other manner uses the same, except under authority of the Secretary of the Treasury or other proper officer of the United States, any token, disk, or device in the likeness or similitude as to design, color, or the inscription thereon of any of the coins of the United States or of any foreign country issued as money, either under the authority of the United States or under the authority of any foreign government shall be fined under this title.

18 U.S.C. § 489.

The government and defendant agree to all the above facts, including the fact that the item was a copy of a coin of the United States, that Tourer did not have authority of the Secretary of the Treasury or other proper officer of the United States, that Tourer did not remember that he had the coin in his pocket when he entered the United States, and that Tourer honestly believed that it was not a crime to possess coin.

The defendant moves for dismissal of the charges. You are the judge. Rule and explain.

9. Same facts. While in China, Tourer acquired a taste for the local pork jerky. He bought some at a grocery store, wrapped it in plastic wrap, and packed it in his suitcase. On the flight back to the United States Tourer filled out a customs declaration form that was required to be submitted to customs officials upon reentry into the United States. The form indicated that it was signed under penalty of perjury. In filling out the form, Tourer responded to a question asking whether he was bringing "any vegetable or animal product" into the country by filling in the box for "no." At the time he filled out the form, he was aware that he was carrying pork jerky in his luggage, but he did not consider pork jerky to be an animal product.

Assume that Tourer has been charged with violation of a federal statute that makes it a crime "willfully to provide false or incomplete information on any form required by Customs as a condition of entry into the United States." Explain whether he violated the statute.

10. Millie was washing dishes after dinner when her live-in boyfriend Smasher insisted that she immediately iron his shirt. When she told him she would do the ironing after finishing the dishes, he grabbed her by the wrist and started to drag her out of the kitchen and towards the room with the ironing board in it.

Holding a large knife that she had been washing, Millie screamed, "Let go, or I will have to use this."

Smasher laughed, grabbed her wrist more firmly, and made an obscene remark about what she could do with the knife.

Millie stabbed Smasher in the chest, and he fell to the floor dead.

Millie has been charged with manslaughter. She asks you whether she has a good defense of self defense. Please separately advise as to the merits of her defense under both the common law and Model Penal Code.

11. Jeff Jeffries is a state representative in Arizona. The state of Arizona is facing constitutional challenges to the procedure under which its judges rather than juries determine whether to impose capital punishment for certain murders. Jeffries wants to revise the state code so that every criminal who is found guilty by a jury of intentionally killing while committing armed robbery will be sentenced to death as a matter of law. You are on the bar committee that reviews proposed changes in legislation. Please advise.

12. Undercover police officer Richard Tracy offered to sell four tabs or individual does of VRM to Bob Buyer for twenty dollars. Buyer agreed to buy. Tracy handed Buyer an envelop, and Buyer handed Tracy twenty dollars. Tracy knew that the envelope he handed Buyer was empty, but Buyer believed it contained four tabs or doses of VRM.

The jurisdiction punishes the purchase or possession of VRM as a class D felony, punishable by two years in prison. It punishes the sale of VRM as a class C felony, punishable by four years in prison. It punishes conspiracy as a class D felony, punishable by two years in prison. And it punishes a criminal attempt as a crime of the same class as the crime that was intended.

Buyer has been charged with attempting to possess VRM, attempting to aid and abet the sale of VRM, and conspiracy to sell VRM.

You have been appointed to represent him. The jurisdiction follows the common law. Explain what defenses he should raise to the individual crimes charged. (Do not address the problem of double jeopardy.)


Instructions. Write a coherent, literate essay in the Blue Book that responds to the following problem.

The Case of Unintended Consequences 60 minutes)

After three years of marriage, Wilma decided to divorce her husband Bradford Bigelow ("Big") Dudd. Wilma told Dudd she just did not love him anymore and moved out of the house. Dudd was intensely jealous and was convinced she was seeing another man. He started following her on weekends without her knowledge.

One Friday night, before they were legally divorced, Dudd observed Wilma as she left her new apartment and followed her by car to a nearby house. He watched as Wilma walked up to the front door. There she was greeted by Frank, one of Dudd's old college friends.

Dudd watched as Wilma went into Frank's house. He waited outside the house in his car for three hours drinking beer and listening to country and western music. During that time Dudd drank between eight and twelve twelve-ounce cans of beer. About midnight Wilma and Frank came out the front door, and Dudd saw them kiss. Dudd flew into a rage, seized a handgun from his glove compartment, and rushed up to Wilma and Frank.

Dudd shouted at Frank, "What are you doing with my wife?"

Frank said, "We'll talk when you are sober."

Dudd shouted, "You have been having sex, haven't you."

Frank responded, "I love Wilma and that's all you need to know." Then Frank and Wilma turned and began to walk away from Dudd.

Convinced they were having a sexual affair, Dudd aimed the gun at Frank's back and shouted "Die Frank!" He pulled the trigger, but the bullet missed Frank and struck Wilma in the back. She fell to the ground screaming "My babies!"

Wilma was rushed to the hospital where her life was saved. But Wilma was seven month's pregnant with twin fetuses. As a result of the gunshot, one fetus aborted. One month later she gave birth to the surviving twin but the child died two days afterwards as a result of injuries sustained in the womb caused by the gunshot.

Dudd has given a statement to the police in which he admits shooting the gun at Frank but claims he did not know what he was doing because he was drunk. He also claims he did not know that Wilma was pregnant and says he would never have done anything to harm the babies. Wilma has confirmed that she never told Dudd she was pregnant.

You work for the district attorney who asks you to write a memorandum evaluating Dudd's potential criminal liability. You are specifically asked to organize your memo into two parts. The first part should address Dudd's potential criminal liability under the common law. The second part should address his potential liability under Mississippi criminal law.

Criminal Law M.H. Hoffheimer

Final Exam University of Mississippi

Answers Law School

Spring 2002

1. I would rather defend someone accused of violating a malum in se crime. Such a crime requires the state to prove additional mens rea elements and permits defenses of mistake or ignorance of fact.

2. Client may not have violated the federal conspiracy statute. For federal conspiracy there must also be an overt act to effect the object of the conspiracy by some party to the conspiracy. There may also need to be a conspiring by "two or more."

3. Client might be guilty under the Model Penal Code of conspiracy (if soliciting alone satisfies the agreement requirement) or attempt (if soliciting satisfies a substantial step strongly corroborative of guilt), but he cannot be convicted of both because the Model Penal Code merges simple conspiracy and attempt.

4. Client is apparently not guilty of a unilateral conspiracy in Mississippi because the statute requires conspiring by "two or more."

5. Evidence is insufficient for manslaughter. The failure to look out the side window may be civil negligence, but "culpable negligence" for manslaughter in Mississippi requires reckless and wanton conduct of such character as to show utter disregard for the safety of others.

6. Evidence may be sufficient for aggravated DUI. The defendant operated a motor vehicle under the influence in a negligent manner, and civil negligence is enough. But it is questionable whether the defendant caused the loss of limb or life. Cause in fact is present, but the eventual injuries and death may not have occurred in the natural and continuous sequence and the victim's failure to obtain care may constitute an intervening cause that breaks the causal chain.

7. There is no aggravated DUI for the injury to Patsy because there was no disfiguring mutilation, permanent disability, or death.

8. Dismissal denied. Possession requires some mens rea--knowledge or should have known--which is satisfied when the defendant previously placed item in his possession and then forgot. [United States v. Garrett (5th Cir. 1993).] Belief as to legality is irrelevant as ignorance of the law is no excuse.

9. "Wilfully" has different meanings but probably requires at least some appreciation that conduct was wrongful--i.e., knowledge that the information provided was false. [Bryan v. U.S.]

10. She has no good self-defense. Before employing deadly force, the common law requires that a defendant reasonably believe it necessary to protect herself from the imminent threat of death or great bodily harm. The Model Penal Code requires a belief that deadly force is immediately necessary on the present occasion to repel a threat of death, serious bodily harm, kidnapping, or forcible sexual intercourse.

11. Mandatory death penalty schemes are unconstitutional under Woodson v. North Carolina (1976).

12. Defenses include legal impossibility for the attempt charge (on the theory that the conduct when completed did not constitute a crime) and Wharton's rule for the conspiracy charge (on the theory that the "purchase" necessarily requires the participation of two persons and hence excludes conspiracy liability).

II. Essay

A good essay would apply the appropriate law in discussing the following issues:

Common law analysis

1. Murder of baby

born alive rule

transferred intent (from attempt to kill Frank to unintended death of unknown third party)

2. Mitigation to manslaughter

actual heat of passion not jealousy

legally adequate problems--no sight of adultery

cooling off period

3. Voluntary intoxication as defense only to specific intent crime

Mississippi analysis

1. Causing death of fetus

requires intentional injury to pregnant woman (problem where intention was to injure or kill Frank)

2. Manslaughter for death of unborn quick child by injury to mother that would be murder if she died

3. Murder of born alive baby

4. Manslaughter mitigation broader than common law (evidence of ongoing adultery presented fact question for jury as to lack of malice and presence of heat of passion)

5. No voluntary intoxication defense where defendant could tell right from wrong when sober