Criminal : Week of December 4

Review

• Exam Writing
  • Time savers: Feel free to abbreviate names, etc. Informal citation (just case name).
  • It's open book, but know where to find things.
  • Read the question carefully: need to answer all parts, need to address the call of the question.
  • 1 fact situation. (in general, it's worth reading all questions first). The essay is the most important, obviously. Go ahead and highlight, etc., first. [some sort of hint about renunciation?]
  • Pay attention to point of view. Before outlining, list thoughts and ideas (some of this as you read through the first time). Don't censor yourself, just free associate.
  • Start grouping the ideas, next. Common themes, dependencies, etc.
  • From the outline, you'll know which parts will need the most discussion: the areas where there are plausible arguments on either side. Don't spend excessive time analyzing things that are clear-cut-- just mention them.
  • Use headings, use IRAC. Show all the steps: state the rule fully. The rules are more important than the factual analysis, for the exam.
  • Probably do the short answers first, but don't get stumped on them. There will be 15-20 of them, some will have extra pieces.
  • Bring jury instructions, etc. They will not be provided.
  • You need to be patient: don't just jump to the end and say what you think the right answer is. This essay question will not have a right answer in mind. Give the rules, the tests, apply them to the facts, and say what you think the result is. The specific conclusion is not where you earn points here.
  • So, for example: starting with Winship, you need to prove each element beyond reasonable doubt. So then you list each element. And one element might involve consent. So define consent. And then entry, so then entry. And if the facts suggest that this might just be an attempt, define that, and if there are parties involved, define what that means. Only after all of that should you go to facts. Walk through the whole thing. Ping-ponging is considered messy for this.
  • It will be WI-centric
• Sentencing
  • Broader sentencing (as opposed to formal) really starts with arrest. Setting bail, for example, or filing charges. The defendant is already experiencing consequences for the alleged action.
  • Gallion and McCleary are the main authorities in WI. Strong tradition of discretionary sentencing: a broad range of options allowed. In general reviewers will uphold a sentence if it is clear that the trial court went through a process of reasoning.
  • Gallion talks about probation being the first alternative, but really there's not close scrutiny over the reasons used for sentencing. Objectives: protection of the public, seriousness of the offense, and rehabilitative needs of the defendant. The court should specify which of these objectives were of the greatest importance in the case.
  • There's also the list of factors to consider (this is not necessarily an exhaustive list): past criminal record, uncharged offenses, offenses dismissed/acquitted, personality character & social traits, nature of the crime, degree of culpability, degree of remorse, need for rehabilitative control, rights of the public, aggravated nature of the crime, length of pre-trial confinement. A "read-in" offense is one you admit, but you're not really convicted of: you're being sentenced for one crime, but the other one is sort of included, and you can also pay restitution for it. This also has double-jeopardy effects (whereas dismissed w/o prejudice does not).
  • §973.017: aggravating factors (being in disguise, being near a school, etc.). The court can consider other factors, as long as they don't run afoul of other restrictions.
• Renunciation/withdrawal
  • That was Class 20. The Jury Instruction applies to PTAC situations (3 ways: principal, aid-and-abet, and conspiracy), or the separate crime of conspiracy.
  • 3 parts:
    • Voluntarily change mind
    • No longer desires that the crime be committed
    • Notifies others in a timely way so they can also withdraw
  • Once you've already committed the crime, it's too late to withdraw (cf. the case of panhandling at the bus stop).
  • Defense needs to produce some evidence of the withdrawal (risk of non-production). This will most likely come from the defendant. Then the state needs to prove beyond reasonable doubt that withdrawal did not occur.
• For an affirmative defense, some evidence of the defense must be in the record (i.e., risk of non-production), but generally it is the defendant's testimony that establishes this. It's a bit tricky, because then the defendant gets cross-examined by the DA, and that tends to be bad for defendants. Sometimes (e.g., intoxication) you can get evidence from other people, but others (e.g., mistake) would be hard to do this. And that's a little risky: you don't just want to do the minimum to get the jury instruction, you're shooting for a lesser included or an acquittal.
• Defendants are often very intimidated by the courtroom setting, even if they are very tough. Inappropriate laughter, etc. They may not choose the best wording, etc.
• Felony murder: committed the crime of ____; death was caused by the commission of ____. So we need to define causation.
• Not guilty by reason of mental disease or defect. You plead Not Guilty, and then Not Guilty By Reason Of Mental Disease Or Defect. You get a bifurcated trial. In phase 1, you can address intent via the normal means (affirmative defenses, etc.). You can't talk about the impact of your mental illness and its impact on your ability to form intent. That's for the other phase (the "responsibility phase"). Actually, even there you don't worry about ability to form intent: here it's ability to understand wrongfullness or conform to the law. Note that this will not get you a lesser included or an acquittal: if you are guilty in phase 1, you will go either to the hospital or the prison.
• Specific intent: tests (subjective/objective).