I

CRIM-LAW I

PROFESSOR HUMBACH December 19, 2000

FINAL EXAMINATION TIME LIMIT: 2 1/2 HOURS

IN TAKING THIS EXAMINATION, YOU ARE REQUIRED TO COMPLY WITH THE SCHOOL OF LAW RULES AND PROCEDURES FOR FINAL EXAMINATIONS. YOU ARE REMINDED TO PLACE YOUR EXAMINATION NUMBER ON EACH EXAMINATION BOOK AND SIGN OUT WITH THE PROCTOR, SUBMITTING TO HIM OR HER YOUR EXAMINATION BOOK(S) AND THE QUESTIONS AT THE CONCLUSION OF THE EXAMINATION.

DO NOT UNDER ANY CIRCUMSTANCES REVEAL YOUR IDENTITY ON YOUR EXAMINATION PAPERS OTHER THAN BY YOUR EXAMINATION NUMBER. ACTIONS BY A STUDENT TO DEFEAT THE ANONYMITY POLICY IS A MATTER OF ACADEMIC DISHONESTY.

This is a closed book examination.

GENERAL INSTRUCTIONS:

This examination consists of 5 questions based on five fact situations. The questions are to be answered in the Examination Booklets provided by the Registrar's Office. Please clearly number your answers (1 to 5) to each of the questions. Follow the instructions carefully and answer only what is asked.

Legal arguments are called for, and your grade will be based substantially on the quality of your legal argumentation. Remember, your answer should first make clear where you are going--what you are going to talk about. It should also:

(1) state the rules, considerations or principles that are relevant to deciding the issues raised by the facts,

(2) point out the specific features of the factual situations that make the rules, considerations or principles relevant, and

(3) pull the two together with appropriate conclusions.

Remember, too, to keep your answers on point, and answer only the questions asked. In so doing, do not circle around your point. Aim for the bull's eye. Otherwise, you will risk running out of time. You have about 20-25 minutes per answer, plus about a 1/2 hour of reading time.

During deer hunting season this year, newspapers reported the story of a man who shot and wounded a deer, which then took off running. The hunter followed the animal in the sights of his gun and, when he believed he had a solid aim, he pulled the trigger a second time. At the time of the second shot the deer was situated between the hunter and the New York State Thruway. The second shot missed the deer and slammed into the window of passing car.

Suppose the second shot had hit and killed someone in the car. Would the hunter be guilty of manslaughter? Discuss the various elements that would have to be shown in order to support a charge of manslaughter against the hunter and whether, on the facts given here, you think a prosecutor could make a plausible case that these elements are present.

II.

Dave and Marie were having a rough time of it during the past few months of their marriage. One of the things that irritated Marie was the fact that Dave spent so much time at the gas station he recently had bought. He was not only gone all day but most evenings, too. Even though Marie understood at one level that the business needed a lot of attention, especially in the beginning, she couldn’t help feeling lonely, and the two of them quarreled increasingly.

One evening Dave came home from the station late and found Marie sitting up in one of her nicer dresses, even though it was a weeknight. She had a heavy smell of alcohol on her breath. Dave asked where she’d been, and Marie replied “out with friends.” The tone of discussion escalated as the two of them, sitting at the kitchen table, took successive hits from a bottle of whisky. Marie had been drinking from the bottle even before Dave’s arrival. They started exchanging taunts, Marie saying Dave was “never around for her” and Dave saying Marie only cared about herself and didn’t give him any “support” when he got home from hard days at the station.

Finally, the talk returned to Marie’s doings that same evening and she said she’d been at a bar with her friend, Ginger, and one of Ginger’s cousins, Teddy. She said Teddy was visiting from out of town. Then, she added, Ginger went home early, so it was just “me and Teddy” and Teddy had made a move on her, and she “was, like, what the heck,” and it ended up being one of the “most beautiful, finest evenings” she remembered in a long time. Dave was furious. He called her a “slut” at her admission that she’d cheated on him, and Marie replied, “C’mon, Dave, grow up!” throwing the contents of her whisky glass in Dave’s eyes. It burned fiercely.

As soon as Dave could see again at all, a few seconds later, he reached around and grabbed one of the metal-framed dinette chairs and flung it at Marie. The impact to her head knocked her sideways, and she fell unconscious and later died of the injuries that resulted.

Dave’s lawyer is now bargaining for the best deal he can get. The prosecutor is making the “ante” very high by proposing to charge Dave with murder. Does the doctrine of provocation provide a solid basis for Dave to avoid (at least) a charge of murder?

III.

Delick is a drug dealer who is charged in the death of a fellow co-conspirator. Delick killed the decedent, known as “Roach,” in the apartment where Delick was living. The decedent was engaged in an argument with Delick and a couple of their confederates, including the gang’s leader, Fedders, over how to divide up the proceeds of certain sales that Roach had arranged earlier that week. In an ill-considered and impulsive moment, Roach suddenly stood up and said if he didn’t get a better shake he was going to “split for good” and, on his way, was going inform the police of the gang’s present location. The gang had a fairly large quantity of contraband, guns, etc. in the apartment, so the prospect of being forced into a hasty departure looked highly inconvenient. Delick sized this up immediately and, a bit of a hothead anyway, pulled out a gun. The story gets a little confused here, but the outcome was clear enough. Roach was found dead on the floor, having been shot several times with a gun possessed by Delick.

Some of the neighbors must have heard the discharges from Delick’s gun because somebody called the police. Before Delick and his confederates could even begin to think of what to do with Roach’s body and the mess on the floor and walls, the police were outside. Soon they had Delick and the others under arrest.

There is no real question that Delick is guilty of murder, but there is the question of degree. The local criminal code declares “intentional homicide with premeditation” to be first degree murder and “all other murders” to be second degree.

Discuss whether these facts permit Delick to be convicted of first degree murder. (Do not discuss provocation here.)

IV.

Gerard is a prosecutor who has been working for several months on bringing a domestic violence case to trial. The original complaining witness was the defendant’s wife, who says that the defendant gave her a severe beating after she was involved in a traffic accident that damaged the family car. Now, however, on the eve of trial she has recanted her story and says that all her injuries (which were treated and documented at a local hospital) were caused by the traffic accident itself. Gerard has another witness, a neighbor who says that she personally heard the altercation between the defendant and his wife. She says she heard yelling and screaming, and she saw the defendant run from the house. The problem is that Gerard thinks this witness is probably confusing two different events and not telling the truth.

While Gerard personally has no doubt that the defendant caused his wife’s more serious injuries, he notices that the neighbor’s story does not coincide in certain particulars with the story told by the defendant’s wife. For one thing, the neighbor said at one point that it was dark out and she was able to see some of the commotion through the windows of the defendant’s lighted living room window. However, it seems undisputed (even by the neighbor) that the fight took place during the afternoon. On the day in question, moreover, the sun shone brightly all afternoon and it would have been hard to see into any windows of the defendant’s house without going up very close to them. Also, the defendant’s wife had said that the entire altercation took place in upstairs rooms where (as it happens) it could not have been viewed from outside, except by a person who had entered defendant’s fenced backyard and climbed a tree there. These and certain other discrepancies make Gerard wonder whether the neighbor is recollecting and describing another altercation, on some different occasion, which may or may not have involved actual physical injuries to the defendant’s wife.

Despite the foregoing evidentiary problems, Gerard thinks that, given the neighbor’s testimony, the police report from the traffic accident and the hospital records, he can probably get a conviction of the defendant, even without the testimony of the defendant’s wife. Is it ethical for him to try? Would it make any difference if he were not personally convinced of the defendant’s guilt?

While driving home on a snowy night Gelton picked up a hitchhiker at the edge of the town where he had been attending a meeting. The smell of alcohol on the hitchhiker’s breath, noticeable as he stepped into the car, gradually became overpowering. Worse yet, before they had driven any distance at all, the hitchhiker started acting very drunk, talking boisterously, falling over onto Gelton as they rounded a curve, and singing uproariously. After several miles, he asked Gelton to pull over so he could pay a call “to nature.” Gelton complied. While the hitchhiker was walking behind Gelton’s car, Gelton decided he was sick of the smell and had had it with the noise. He put the car in gear, hit the gas and left.

Gelton had left the hitchhiker at the side of a farm road about 4 miles from town. The snow increased and the temperature dropped over night. The next morning, the hitchhiker was found frozen to death at the side of the road, near where Gelton had left him.

Gelton has come to you and wants to know whether he can be held guilty of homicide. Can he?