Denno Crim Law Exams Part 4

HANDBOOK ON
CRIMINAL LAW EXAMS

Fall 2009
Deborah W. Denno
Arthur A. McGivney Professor of Law
Fordham University School of Law
140 West 62nd Street
New York, NY 10023
Phone: 212.636.6868
Email: ddenno@law.fordham.edu
PART FOUR:
CRIMINAL LAW EXAMINATIONS, DISCUSSIONS,
AND SAMPLE STUDENT ANSWERS
Fall 2003 - Fall 2007
TABLE OF CONTENTS
Fall 2003 Criminal Law Exam ............................................................................................ 1
Student Answer to Fall 2003 Criminal Law Exam ............................................................. 9
Spring 2004 Criminal Law Exam ...................................................................................... 16
Student Answer to Spring 2004 Criminal Law Exam ....................................................... 22
Fall 2006 Criminal Law Exam .......................................................................................... 27
Student Answer to Fall 2006 Criminal Law Exam ........................................................... 33
Fall 2007 Criminal Law Exam .......................................................................................... 46
Student Answer to Fall 2007 Criminal Law Exam ........................................................... 56
Helpful Hints for Exam Taking ......................................................................................... 68
FALL 2003 CRIMINAL LAW EXAM
FORDHAM UNIVERSITY SCHOOL OF LAW

Examination in Criminal Law: Section 6
Professor Deborah W. Denno
December 15, 2003
PLEASE NOTE:
1.
This is Part II of a two-part examination. You have two hours to complete Part II, which
is open book, thereby enabling you to have any materials you want with you. Part II
follows Part I, a one-hour, closed-book, multiple choice examination.
2.
The proctors will distribute bluebooks to you when they give you Part II of your
examination. However, you will not be able to write in your bluebooks for the first half
hour of your two-hour exam although you will be able to write on the exam pages
themselves. I want you to spend the first half-hour reading your exam very carefully and
making an outline of what you want to discuss.
3.
Part II consists of two questions and seven pages. After the half-hour you have spent
reading the exam, I recommend spending the remaining hour-and-a-half (90 minutes) in
the following way: 65 minutes to complete the first question and 25 minutes to complete
the second question (which has three sub-questions). These time recommendations
reflect the relative weight I will give each question in grading.
4.
Write your identification number, class section, and my name on each bluebook.
5.
Please number each bluebook sequentially. For example, if you have three bluebooks,
number the first bluebook 1 of 3, the second bluebook 2 of 3, and the third bluebook 3 of
3.
6.
Write legibly. Use every other line and every other page.
7.
If you think it is necessary, state assumptions or additional assumptions of fact not

contained in the questions or facts but which you think are appropriate to answer the
questions more fully.
8.
Take special note that I ask you to discuss the possible outcomes under both the Model
Penal Code and the common law (non-Model Penal Code). As a summary of your
analysis, note how the results would be similar or different depending on whether you
were applying the Model Penal Code or the common law (non-Model Penal Code).
Good luck!
-CONTINUED ON NEXT PAGE-
QUESTION 1 65 minutes
One Saturday morning, Zane, a resident of Hallmark City in the state of Fordham, went
to visit his friend Igor. Igor had recently gotten married and had moved with his now pregnant
wife Olga into a new home in a suburb just outside Hallmark City. As the two men toured the
house, Zane said things like, Nice place, man! while inwardly thinking, I would rather die
than live in this suburban hell. Just as Zane was wondering to himself yet again why on earth
his best friend had decided to settle down so early, Igors phone rang. It was his wife, Olga. She
had been out shopping when she felt contractions indicating she was going into labor. The baby
was arriving early! Zane insisted on driving Igor to the hospital while concealing his shock that
Igor was now just about to become a father.
Zane and Igor were only halfway out of the subdivision when Olga called again. Upon
learning that Zane was driving, she demanded to speak to him. With enormous fervor, Olga
yelled, If you dont get Igor here pronto, you will never have another boys night out again!
Horrified by the thought of seeing even less of Igor, Zane stepped on the gas and nearly smashed
into a car pulling out of a nearby driveway. Thats Jayme, the president of the neighborhood
association, Igor said. Hes a real geek hes 55 years old and he still lives with his mom.
Just then Jayme leaned on the horn, and when Zane looked over, Jayme gave him the finger. I
dont think so, mamas boy! Zane cried, and pulled into the oncoming traffic lane to get around
Jayme.
Jayme sped up so that Zane could not pass him, and Zane edged into Jaymes lane,
forcing Jaymes car partially up on the curb. Aw yeah, drag race! Igor yelled. Zane, delighted
to see his buddy acting like something other than a responsible family man, drove even faster.
At this point, the cars driven by Jayme and Zane quickly accelerated to 60 miles-per-hour. As
the cars approached the road leading out of the subdivison, the cars swung around a blind curve
and Zane hit Marybeth, a pedestrian who was crossing the street. Since Zane and Igor were
going to the hospital anyway, they picked Marybeth up and threw her in the backseat. Marybeth
later died as a result of her injuries.
Infuriated, Jayme did what he always did in times of trouble he called his mother,
Fenelda. Fenelda came running, and jumped into Jaymes car just as Zane and Igor took off
again. When Zane finally stopped to park on a street across from the hospital, Jayme pulled into
a nearby bus stop. Leaping out of his car, Jayme began rummaging through his trunk. With great
glee, he announced to Fenelda that he finally found a stick of dynamite left over from last years
New Year that he and Fenelda had celebrated together. Fenelda told Jayme that Zane and Igor
had exited the car, with Marybeth slung over Igors shoulder. Jayme hopped back into his car
and pulled out of the bus stop, narrowly avoiding an incoming bus. He then drove up alongside
Zanes car, placed the stick of dynamite underneath it, and sped away. The dynamite exploded
just as Anne, a passenger on the bus, was stepping off. She was killed instantly as a result of the
explosion.
Jayme didnt get far. Four Fordham police officers saw the whole incident, and Jayme
barely covered a block before his path was barred by two police cars. The officers jumped out of
their cars, weapons drawn, and screamed at Jayme to get out of his car with his hands up.
Jayme, remembering his mothers instructions to never leave his car without putting the Club
across the steering wheel, picked up the anti-theft device (a long metal bar that hooks into a
steering wheel and locks it so no one can steal a car). Seeing Jayme hesitate and reach for a
large metal object, the officers opened fire. When the smoke cleared, Officer Krazipantz was
dead. An autopsy later revealed that he had been shot by a fellow officers gun.
Indignant at the sight of her baby boy being shot at, Fenelda shouted, Hang on, baby,
mamas coming! Jayme responded, We need another car this is a busy street, find one!
Here, this might help, and handed Fenelda the Club. Fenelda took the metal Club and left
the car. Minutes later, she returned, and yanked Jayme out of the drivers seat and into another
car. Noticing blood on the headrests in the front seat of the new car, Jayme looked around and
saw a couple, Angelina and Butch, lying on the street. Their heads had been bashed in, and
blood was running down their faces. I didnt mean for you to kill anyone! Jayme screamed,
grabbing Fenelda and shaking her shoulders. Knocked off balance, Fenelda fell out of the car
and rolled into a lane of oncoming traffic, where she was hit by a car and died instantly.
Horrified and frightened, Jayme sped away in the stolen car.
Meanwhile, at the hospital, Olga was furious that Zane had caused Igor to be so late
when she saw the two finally appear in the hallway. Olga decided to take action. Feeling about
blindly, she grabbed at what turned out to be an oxygen machine, attached to a patient named
Gilda. Gilda, on her way to surgery, was temporarily lying in the pregnancy ward, left there by
an irresponsible nurse who went on a coffee break. Despite Olgas weak condition, she managed
to throw the entire machine at Zane, who ducked. The oxygen machine went flying through the
window, landing on Butch and killing him. Doctors later said that Butch would have died
anyway as a result of injuries inflicted by Fenelda, and offered as evidence the fact that Angelina
was already dead when Butch was hit. Meanwhile, without oxygen, Gilda soon perished.
Courts in the state of Fordham follow both the Model Penal Code and common law
(non-Model Penal Code) rules regarding criminal liability. In addition, the Fordham state
legislature has adopted the following statutes:
Murder.
First Degree. Whoever deliberately and with premeditation kills another person, or who
causes the death of another person while perpetrating or attempting to perpetrate arson,
rape, robbery, burglary, or kidnaping, shall be guilty of murder in the first degree,
punishable by death or life imprisonment.
Second Degree. All other murder is murder in the second degree, punishable by life
imprisonment.
Voluntary manslaughter. A person who kills another while under a sudden passion
resulting from serious provocation by the person killed shall be guilty of voluntary
manslaughter, punishable by up to fifteen years in prison.
Involuntary manslaughter. Involuntary manslaughter is the reckless or criminally
negligent killing of another, punishable by up to fifteen years in prison.
Aggravated assault. A person who
1) intentionally causes serious bodily injury to another or
2) uses or displays a deadly weapon and either recklessly causes bodily injury to
another or knowingly causes another to reasonably fear imminent bodily injury is
guilty of aggravated assault, a felony punishable by up to ten years in prison.
Unlawful imprisonment in the first degree. A person is guilty of unlawful
imprisonment in the first degree when he restrains another person under circumstances
which expose the latter to a risk of serious physical injury.
Grand larceny in the third degree. A person is guilty of grand larceny in the third
degree when he steals property and when the value of the property exceeds three
thousand dollars.
Felonious destruction of property. Whoever intentionally damages or destroys
property of another, when such damage or destruction results in property loss of over
$500, is guilty of a felony punishable by up to three years in prison and/or a fine of
$1000.
Reckless endangerment of property. A person is guilty of reckless endangerment of
property when he recklessly engages in conduct which creates a substantial risk of
damage to the property of another person in an amount exceeding two hundred fifty
dollars.
Arson in the first degree. 1. A person is guilty of arson in the first degree when he
intentionally damages a building or motor vehicle by causing an explosion or a fire and
when (a) such explosion or fire is caused by an incendiary device propelled, thrown or
placed inside or near such building or motor vehicle; or when such explosion or fire is
caused by an explosive; or when such explosion or fire either (i) causes serious physical
injury to another person other than a participant, or (ii) the explosion or fire was caused
with the expectation or receipt of financial advantage or pecuniary profit by the actor;
and when (b) another person who is not a participant in the crime is present in such
building or motor vehicle at the time; and (c) the defendant knows that fact or the
circumstances are such as to render the presence of such person therein a reasonable
possibility. 2. As used in this section, "incendiary device" means a breakable container
designed to explode or produce uncontained combustion upon impact, containing
flammable liquid and having a wick or a similar device capable of being ignited.
-CONTINUED ON NEXT PAGE5
Arson in the second degree. A person is guilty of arson in the second degree when he
intentionally damages a building or motor vehicle by starting a fire, and when (a) another
person who is not a participant in the crime is present in such building or motor vehicle at
the time, and (b) the defendant knows that fact or the circumstances are such as to render
the presence of such a person therein a reasonable possibility. Arson in the second
degree is a class B felony.
Arson in the third degree. 1. A person is guilty of arson in the third degree when he
intentionally damages a building or motor vehicle by starting a fire or causing an
explosion. 2. In any prosecution under this section, it is an affirmative defense that (a) no
person other than the defendant had a possessory or proprietary interest in the building or
motor vehicle, or if other persons had such interests, all of them consented to the
defendant's conduct, and (b) the defendant's sole intent was to destroy or damage the
building or motor vehicle for a lawful and proper purpose, and (c) the defendant had no
reasonable ground to believe that his conduct might endanger the life or safety of another
person or damage another building or motor vehicle.
Arson in the fourth degree. A person is guilty of arson in fourth degree when he
recklessly damages a building or motor vehicle by intentionally starting a fire or causing
an explosion.
What crimes and defenses that we studied are possible in this scenario under the
Model Penal Code and the common law (non-Model Penal Code)? Please be sure to include
crimes and defenses that we studied that may not be listed in the Fordham state statutes
provided above, if they are relevant.
In People v. Medinas, a recent Fordham state law case, the defendant was charged with
criminal diversion of prescription medications and prescriptions in the third degree.
Medinas attorneys filed a motion for dismissal or reduction of the charges.
The relevant Fordham state statute, Article 178 of the Penal Law, was as follows:
Article 178 of the Penal Law deals with the unauthorized sale or purchase of
prescription medications and prescriptions. Every offense under Article 178
includes a criminal diversion act, a term defined in Penal Law 178.00(3):
Criminal diversion act means an act or acts in which a person knowingly:
(a) transfers or delivers, in exchange for anything of pecuniary value, a
prescription medication or device with knowledge or reasonable grounds to know
that the recipient has no medical need for it; or
(b) receives, in exchange for anything of pecuniary value, a prescription
medication or device with knowledge or reasonable grounds to know that the
seller or transferor is not authorized by law to sell or transfer such prescription
medication or device; or
(c) transfers or delivers a prescription in exchange for anything of pecuniary
value; or
(d) receives a prescription in exchange for anything of pecuniary value.
According to the commentaries on Article 178, the primary force behind [Article 178 of
the Penal Law] appears to have been the desire to create penalties for, and to make more
effective the prosecution of, those involved in the thriving but illicit business of trading in
Medicaid prescriptions and medications for reasons of monetary profit, not health.
The evidence before the grand jury shows that an undercover investigator working for the
Medicaid Fraud Control Unit of the state of Fordham went to a video store with two hundred
(200) 90 mg. tablets of a prescription medication known as Procardia XL, and thirty (30) 200mg. tablets of a prescription medication called Diflucan. These drugs had been provided by the
manufacturers in sealed containers, and a special investigator in the Medicaid Fraud Control Unit
had put the pills in plastic vials and had given them to the undercover agent to sell at the video
store.
The undercover investigator spoke briefly with the defendant, who was operating the
store. Although the defendant initially said that he was not interested in buying anything
because he had no money, the undercover agent handed the defendant a bag containing the 230
tablets. After further conversation, the defendant took the bag to the rear of the store. The
defendant then returned without the tablets and handed the undercover agent $115 in cash.
Six days later, the undercover investigator returned to the video store with three hundred
(300) 60-mg. tablets of Procardia XL and gave them to the defendant, who bought them for $120
in cash. A senior special auditor investigator for Medicaid fraud employed by the Attorney
Generals Office testified that according to the schedule of Medicaid- reimbursement prices for
the tablets involved in this case, the total value of all the tablets sold to the defendant was
$1,389.19.
Please answer the following three questions (a)-(c), addressing each question in
terms of the outcome under the Model Penal Code and the common law (non-Model Penal
Code). Take note that each question can be answered relatively briefly. I am looking for
key issues, not a lengthy analysis.
(a) On what basis might the defendant have filed his motion for dismissal or
reduction of the charges?
(b) Discuss the validity of the claim you proposed in question (a), and
present arguments that either side could make in support or opposition.
(c) If the charge is reduced rather than dismissed, with what offense might
the defendant be charged instead?
- END OF EXAM -
Student Answer to Fall 2003 Criminal Law Exam
MODEL ANSWER
QUESTION 1
Zane may be liable for Marybeths death under the common law. He did not have
express malice or kill her deliberately and with premeditation during the course of an
enumerated felony. So a conviction for murder 1st is not likely. The state could argue that his
driving 60 MPH + in a residential neighborhood was extreme indifference and recklessness.
Zane is a but for and probably the proximate cause of Marybeths death. He could argue that he
didnt manifest the extreme indifference required to imply malice, and thus mitigate the charge
to involuntary manslaughter (criminally negligent killing). As he was aware of or should have
been aware of the risk of killing a pedestrian, he would likely be liable on the involuntary
manslaughter charge.
Zane could also raise a provocation defense based on Olgas threat, but that threat and
Zanes subsequent actions dont suggest a sudden uncontrollable passion caused him to race.
The same defense based on Jaymes provocation is unlikely to succeed for the same reasons
not sufficiently serious, doesnt appear to be a heat of passion. There was no threat of physical
harm to Zane, at least from a reasonable persons standpoint, so no CL self defense is available.
Perhaps he could try to argue insanity or diminished capacity based on the threat to his strong
attachment to Igor, but this seems unlikely to succeed.
Under the MPC, it is not likely that Zane purposely and knowingly killed Marybeth with
his car. He was not committing one of the MPC enumerated felonies for felony murder, but
again, the state could try for murder under the MPC based on his extreme indifference to the
value of human life if that can be proven. He could also raise an EMED defense to try to
mitigate the charges down to a voluntary manslaughter. Zane arguably demonstrated a nonextreme reckless killing of another with depraved indifference and because her death was
foreseeable based on Zanes recklessness, he could be guilty of manslaughter. If Zane raises a
successful defense to manslaughter under the MPC, he is probably also liable for negligent
homicide under 210.4. If Zane was mostly attempting to just get Igor to the hospital, he might
be able to argue for the justification defense of necessity. His interactions with Jayme suggest
that Zanes main intent was not to cause the harm of preventing Igor from being at his daughters
birth, if that were even considered a harm at all. Necessity is unlikely to succeed as a defense to
Marybeths death, especially in a jurisdiction that might not allow such a defense in a homicide
case.
Zane might also be liable for crimes committed by Olga as discussed later via some sort
of accomplice liability, but this seems unlikely to succeed under CL or MPC because he only
incited Olga he didnt take any steps to help her commit a crime against Butch.
Igor could be charged with some sort of accomplice or conspiratorial liability with
regards to Marybeths death. One could argue that Igor incited Zane to drive recklessly or drag
race Jayme, or even suggesting that it was a drag race in the first place. There seems to be some
agreement which could be a conspiracy. Under the MPC, though, there was no overt act by Igor,
although if it were a first/second degree felony, this would be waved. The real problem though
10
is what target offense they were conspiring to commit speeding or reckless endangerment,
perhaps, but probably not murder. There might be a case against Igor for murder or lesser
included charges, but it would be based on an omission, and there seems to be no legal duty for
Igor to prevent Zanes actions. A duty could arise once they hit Marybeth, because they put
Marybeth into peril and took her into the car together, and decided to drive her to the hospital
instead of calling paramedics; this could be an omission that could serve as the actus reus for
murder and lesser charges.
There is also a possibility that Zane and Igor could be charged with the felony of
unlawful imprisonment by taking Marybeth into their car. For this to be a predicate for felony
murder even though it is not enumerated (unless it was considered kidnapping), one would need
to consider whether this felony would be excluded on an inherently dangerous or merger basis,
or whether it falls outside the causation or time-frame of the felony.
Jayme, since he raced with Zanes car, might be held accountable for Marybeths death
for similar reasons to Igor under an accomplice or conspiracy charge. He was probably not the
proximate cause of her death at common law, but might be a but for cause and guilty under MPC
because it was a foreseeable risk at his reckless behavior, so he could be guilty of MPC
manslaughter. He could argue provocation as a defense.
Jaymes liability for Annies death would likely be based on some sort of felony murder
premise. He did not kill her purposely and knowingly under the MPC, nor did he kill her with the
required premeditation and deliberation under the CL statute. He could be charged with murder
second under an extreme indifference model. To convict under CL felony murder, one would try
to use the predicate felony of arson as provided in the statute. First, is Jayme guilty of arson and
to what degree? He saw all three people get out of the car, so the attendant circumstance that a
nonparticipant be in the car would not actually exist, although it could be a reasonable
possibility. Otherwise, he has the mens rea and actus reus for arson first. The problem with
arson first through third degree is that Annie isnt actually in the car at any point. It could be
proven there was a reasonable possibility to convict him of arson second (that someone would be
in the car). Under arson 3, Jaymes best defense would be that he had no reasonable ground to
believe he was endangering someone. This would be tough to prove given that he blew up a car
next to a bus stop with a bus arriving. A conviction for arson 3 or 4 and possibly arson 2 is
likely, and if these convictions are felony convictions, it could be good for a felony-murder
charge under CL or MPC.
Jayme also might be guilty of attempted 1st degree arson which would be enough for a
felony murder charge. Arson is likely to be an inherently dangerous felony under any approach
and besides, its enacted. It seems independent enough of Annies death to avoid the merger
rule. There are no causation problems. He could raise a defense that his act of arson was
provoked by Zanes driving, but this seems unlikely to be considered serious provocation.
You could also charge him with conspiracy with his mom Fenelda to blow up the car.
If Jayme was in flight from an enumerated felony, he could be held accountable for
Officer Ks death at common law if the state adopts a proximate cause approach rather than an
agency approach. At the very least, Jayme destroyed property, so hed be liable for felonious
destruction, but that felony might not be a suitable predicate or he might have reached apparent
11
safety by driving away. By instructing his mom to go steal another car, Jayme might be held
liable for theft and the attacks on Butch and Angelina under a conspiracy model. At CL, it could
depend on whether hed be held accountable under the Pinkerton doctrine. The handover of the
club could be enough of an overt act under MPC, but there would be a question of whether the
killing of Butch and Angelina was within the scope of the crime. He has no clear defense. He
may need to be charged directly for these deaths.
With regard to Jaymes mother, he did not purposely intend to kill her under MPC or CL
murder, but perhaps negligent homicide (MPC or CL), or manslaughter, or possibly felony
murder although she would still be a co-felon (and its not necessarily a felony murder when a
co-felon is killed). It isnt known whether Fenelda committed the actus reus of killing Butch and
Angelina. If she did, probably murder by felony murder or intent to inflict grievous bodily harm
(CL) or at least manslaughter (MPC).
Olga might have committed attempted assault against Zane but this charge would
probably merge with regard to her killing Gilda which most likely would have resulted in
manslaughter or perhaps extreme indifference murder. Could argue EMED under MPC or
provocation under CL. As regards Butch, if he wouldnt have died as he did when he did but for
Olgas actions, she could be a proximate cause under CL and if charged with manslaughter under
MPC, the oxygen tank hitting someone was within a recklessness scope. Her actions were an
accelerating cause. [NOTE: THIS STUDENTS ANALYSIS OF OLGAS POSSIBLE CRIMES
WAS TRUNCATED. THE STUDENT COULD HAVE MORE FULLY DISCUSSED
GILDAS DEATH IN TERMS OF INVOLUNTARY MANSLAUGHTER (CL) OR
CRIMINAL NEGLIGENCE (MPC), AS WELL AS THE TESTS FOR ATTEMPT AT THEY
APPLIED TO THE ATTEMPTED ASSAULT OR MURDER OF ZANE AND THE
TRANSFERRED INTENT FROM ZANE TO BUTCH. NONETHELESS, MOST MAJOR
POINTS WERE MADE.]
QUESTION 2
This offense would probably be specific intent under CL. [NOTE: THE STUDENTS
QUALIFIER OF PROBABLY IS APPROPRIATE SINCE THE WORDING IS NOT AS
CLEAR AS THE SPECIFIC INTENT STATUTES WE ENCOUNTERED IN CLASS AND
SOME OF YOU SAID THAT IT COULD HAVE BEEN GENERAL INTENT, WHICH WAS
APPROPRIATE.] Possible arguments for D are that he might not have known they were
prescription drugs, assuming that knowingly applies to the attendant circumstance that they are
prescription drugs. If not, what mens rea applies to prescription drugs? The MPC would apply
purposeful, knowing, or reckless, and D was probably at least reckless to as to the possibility. At
CL, examining commentaries, they want to discourage prescription drug traffic, so it would
probably require at least that D should have known of the risk that he was buying prescription
drugs. Mistake of law is no defense here.
12
The statute might also require D to know that the seller wasnt authorized to sell these
drugs. Even under a negligence analysis, a reasonable person would probably know there was a
chance the random guy in the store wasnt authorized to sell drugs. Even if he had a medical
need, this would only affect whether the seller committed a crime under this section. One might
argue that as an undercover law officer, the agent was technically legally authorized to sell the
drugs and that this, an element of the crime, is missing entirely. As far as the actus reus goes, D
did in fact commit the prohibited conduct on two occasions.
D might get the charges dropped to an attempt. Under CL, wed look to see if he had the
specific intent he probably did, despite his verbal protest. He took all the possible steps in that
he actually wouldve committed the crime but for fact that it was a law enforcement official.
Under the MPC, D is guilty of attempt under 3 different provisions engaged in conduct that
could be a crime, does an act to cause crime without further steps, and takes a substantial step. In
most jurisdictions, D would not have a legal impossibility defense under CL and factual
impossibility is no defense. D did not in any way abandon the attempt under the MPC so no
defense there.
One could charge D with conspiracy to commit this offense. Under the CL, the problem
would be that there was no real meeting of minds because his partner was actually a cop. This
wouldnt be a problem under the MPCs unilateral conspiracy approach. He took an overt step
and had the proper mens rea for an MPC conspiracy conviction which would merge if he were
actually convicted of target the offense.
D could also be guilty of being an accomplice to the cops apparent violation of a c of
Article 178. Under the CL, D had the intent to assist, probably knowledge required by the
offense and belief in the attendant circumstance. The problem is that 2nd party cop, must actually
intend the crime and the cop isnt guilty. Under the MPC, it doesnt matter if assistance fails
because D acted with the purpose of assisting in the crime and MPC accomplice liability is nonderivative. In this case, there is no abandonment (MPC) or legal impossibility (CL it was a
cop) defense (in most jurisdictions).
THIS STUDENT PROVIDED AN EXCELLENT ANSWER TO QUESTION TWO OF YOUR
EXAM.
HOWEVER, GIVEN THE TIME LIMITATIONS OF THE EXAM, I AM
PROVIDING BELOW AN ANSWER THAT DIRECTLY QUOTES PORTIONS OF THE
COURT CASE SO THAT YOU CAN SEE AN ADDITIONAL (FULLER) ANALYSIS.
AN ANSWER THAT RELIES ON THE MEDINA COURTS ANALYSIS
(a) On what basis might the defendant have filed his motion for dismissal or reduction of
the charges?
Defendant can raise an impossibility defense, because the seller was an undercover investigator,
and therefore authorized by law to sell prescription medications to defendant, precluding
conviction under statute barring purchase of prescription medications from a person who is not
authorized by law to sell them.
13
(b) Discuss the validity of this claim, and present arguments that either side could make in
support or opposition.
The Courts analysis:
The charge must be reduced from the completed crime of criminal diversion of prescription
medications and prescriptions in the third degree to an attempt to commit that crime.
One of the elements of the completed crime is that the offender receive the prescription
medication from a person who is not authorized by law to sell it. The Attorney General takes
the position that when an undercover agent sells prescription medications, his conduct is not
authorized by law. This is incorrect. The Attorney Generals undercover agent who sold the
medications to the defendant was authorized by law to sell them. The agent carried out those
sales as part of his lawful duties as a public officer enforcing the Penal Law, by specific
assignment of the Attorney Generals designated officials, and pursuant to the agents implicit
powers. For the same reasons, undercover narcotics police officers who buy or transfer
controlled substances in their official capacity of enforcing Penal Law Article 220 are not guilty
of criminal possession or sale of a controlled substance.
Although there is no specific statutory authorization for undercover investigators to sell or
receive prescription medications, as there is for undercover investigators to sell or receive
controlled substances, no such statute is necessary. Authorization is implicit in the functions of
undercover investigators.
Moreover, contrary to the Attorney Generals argument, there is statutory authorization, albeit
not specific to enforcers of Penal Law Article 178, for the kind of operation that was conducted
in this case. Use of undercover officers in buying or selling prescription medications, controlled
substances, stolen property, firearms, pornography, or other contraband in order to detect and
prosecute offenders is authorized . . . These operatives are almost always acting undercover, and
they typically receive or transfer contraband whose possession by a private citizen is a crime.
The Legislature must have been aware of this when it enacted [Article 178].
The Attorney Generals contention therefore entails results not intended by the Legislature, or
even by the Attorney General: (1) If the undercover agents conduct in this case was not
authorized by law, he was guilty of a criminal diversion act, a crime . . . ; (2) the Attorney
Generals special investigator who gave the pills to the undercover agent was guilty as an
accomplice, as was everyone up the chain of command in the Office of Medicaid Fraud who
ordered or intentionally aided the sting operation; (3) enforcement of Article 178 would be
impaired, because use of undercover agents, authorized for all other criminal investigations,
would be effectively outlawed[.] (citations omitted)
14
(c) If the charge is reduced rather than dismissed, with what offense might the defendant
be charged instead?
The Courts analysis:
The evidence before the grand jury shows, however, that the defendant believed that the seller
was an illegal marketer, not a public officer enforcing the law. The evidence therefore supports
a lesser-included charge of an attempt to commit the crime charged. Penal Law 110.10
provides that an attempt to commit a crime occurs if the completed crime is impossible but could
have been committed if the circumstances had been as the defendant believed them to be. Penal
Law 110.10 applies when, as here, a person mistakenly believes that another participant in a
criminal transaction is acting as a criminal, not as an undercover officer, and the crime is
impossible according to its statutory definition because the other participant is an undercover
officer. In such cases a charge of a completed crime must be reduced to an attempt to commit
the crime. By contrast, sale of a controlled substance to an undercover officer, or its possession
after a purchase from an undercover officer, is a completed crime, not an attempted crime. That
is because the crimes of unlawful possession of a controlled substance and unlawful sale of a
controlled substance, as those crimes are defined by statute, are possible even if an undercover
officer is involved in the transaction. (citations omitted)
15
SPRING 2004 CRIMINAL LAW EXAM
16

Examination in Criminal Law: Sections 11 and 12
May 13, 2004
PLEASE NOTE:
1.
is open book, thereby enabling you to have any materials you want with you. Part II
follows Part I, a one-hour, closed-book, multiple choice examination.
2.
examination. However, you will not be able to write in your bluebooks for the first halfhour of your two-hour exam although you will be able to write on the exam pages
3.
Part II consists of two questions and five pages. After the half-hour you have spent
reading the exam, I recommend spending the remaining hour-and-a-half (90 minutes) in
the following way: 45 minutes to complete the first question and 45 minutes to complete
the second question (which has three sub-questions). These time recommendations
reflect the relative weight I will give each question in grading.
4.
5.
3.
6.
7.

8.
Good luck!
Lustin Timberflake and Janut Jinxson, two adult celebrities, were hired to sing a duet
during the half-time show of the Blooper Bowl, an extremely important football game aired on
television nationwide.
EmpTeeVee, the television station sponsoring the half-time
entertainment, played daily commercials hyping the Lustin-Janut performance for weeks prior to
the actual date of the football game. The commercials assured viewers that Lustin and Januts
song would be memorable, and that the viewers would fall out of their seats at the shows
shocking conclusion.
On the day of the Blooper Bowl, millions of viewers tuned in to watch the game and the
half-time performance. Lustin and Janut, dressed in leather outfits that left little to viewers
imaginations, mounted the stage and began to sing a slow, steamy rendition of Bony Greats hit,
Lets Give Them Something to Squawk About. The couple danced and gyrated as they sang,
staring seductively at each other and making suggestive body gestures.
As the song concluded, the tempo suddenly picked up, and Lustin reached over and
grabbed at the neckline of Januts leather bustier, ripping it off to reveal her uncovered bosom.
Janut grabbed the torn material and clutched it to her chest in a seemingly coquettish manner.
She and Lustin smiled and waved at the crowd, but as boos and hisses reached their ears, their
smiles faded.
Next, Lustin turned to Janut and began to move toward her, apparently according to their
pre-arranged dance routine. In light of the growing sounds of boos and hisses from the crowd,
however, Janut aggressively pushed Lustin away. She then grabbed her microphone stand and
threw it in his direction. Lustin ducked, and the microphone stand hit the stage manager, SM,
who was working on the stage directly behind Lustin. SM stumbled sideways, tripped over some
electrical cords, and fell off of the stage.
Janut then ran down the steps off the stage, with Lustin in close pursuit. In their haste,
however, they collided with the sound system engineer, SE, who was rushing to the aid of SM.
SE fell backwards into the sound system equipment.
Lustin and Januts performance instigated a torrent of public outrage. In an interview the
next morning, Lustin apologized for offending viewers, and said that EmpTeeVee had staged the
whole affair as a cheap publicity stunt. Janut, on the other hand, insisted that she had no idea
that Lustin planned to tear off her clothes. She claimed to be as horrified and offended as her
audience, and said that she only waved at the crowd because she wanted to get off the stage and
away from Lustin as quickly as possible. Lustin was infuriated at Januts story. Cry me a
river!, he sneered, She knew all about it. Now shes just concerned that the negative publicity
will kick her career even further downhill.
Meanwhile, Lustins ex-girlfriend, Bratney Leers, also a singing celebrity, tuned in to

watch her former love perform. When Bratney saw Lustin and Janut engaged in their steamy
duet, she was overcome by a fit of jealous anger. How could he go from Lustin & Leers to
Lustin & Janut?, she cried. There is no rhyme or reason 4 it.
To lift her spirits, she quickly arranged for ten of her best friends to fly up from her
hometown for a weekend of revelry. When her friends arrived, the entire group left immediately
to begin club-hopping. Many hours and many drinks later, they found themselves on the steps of
a church.
Several members of the group passed out, but Bratney and her high school boyfriend,
Hasten Ah-letspander, began an impassioned conversation. Hasten told Bratney that he still
loved her and wanted to marry her. Bratney, gleefully imagining Lustins face when he learned
that she had a husband, suggested that they marry immediately. Hasten eagerly agreed.
The only people inside the church at that late hour were the cleaning staff, but they
recognized Bratney and saw an opportunity to make some fast money. It was easy to convince
the apparently inebriated couple that one of the janitors was a religious official. Another janitor
videotaped the ceremony. The happy couple then led the procession out the church steps,
where they stopped and hastily proceeded to consummate the marriage by engaging in vaginal
intercourse whereby Hasten inserted his penis into Bratneys vagina. Bratney then passed out on
the steps.
The next morning, the janitors videotape appeared on the same morning talk show that
featured Lustin and Januts post-Blooper Bowl interview. Bratney was glued to the television
coverage. The moment Bratney discovered that Lustin and Janut were not an item, she screamed
Oops!, having realized her mistake in quickly marrying Hasten. To her great relief, Bratney
then learned that the marriage was not legal. However, Bratney knew that her reputation would
still be tarnished due to her act of sexual intercourse with Hasten on the front steps of the church
following the wedding.
As Bratney reflected on the situation, she became convinced that Hasten had taken
advantage of her vulnerability. After all, she exclaimed, Im not a girl, but not yet a woman!
I was intoxicated and he should have known better.
Hasten was devastated when Bratney informed him that their marriage was not legal. In
his hometown, marriages without waiting periods were permitted, and he had genuinely believed
that he was Bratneys husband. He received a second shock when he learned that Bratney had
accused him of rape. She agreed to everything! he cried.
At trial, medical testimony revealed that the stage manager, SM, had died immediately
upon hitting the ground, which was concrete and full of sharp-edged electrical equipment.
19
The sound engineer, SE, also died, but in a more circuitous way. After SE fell backwards
into the sound system equipment, the equipments wires became exposed and inflicted third
degree burns over 50 percent of SEs body. SE was rushed to Xenox Hospital for care. At
Xenox, SE was in critical condition for three months until she ended her life when, because of
severe depression, she pulled the intravenous tube feeding her out of her arm. SEs family is
suing Xenox Hospital for the Hospitals failure to notice that the intravenous tube had been out
of SEs arm for over two days.
All of these events took place in the state of Fordham. What crimes, if any, are possible
for Lustin, Janut, Bratney, and Hasten under the Model Penal Code and under the
common law (non-Model Penal Code)? What defenses are there? Lustin, Janut, Bratney,
and Hasten are all age 25.
Olga has accused her boyfriend Igor of rape. They are both age 25. The police
questioned both of them, and their individual sides of the story are presented below.
Olgas story
Igor, my boyfriend, and I live together in our house. But, Igor is a rough guy hes
shoved me around since the day we met. Usually I just tell myself thats what I get for being
with a competitive weightlifter. But it made me mad that he treated me that way, so I tried to
make him jealous by sleeping around and making sure he knew about it. The night he raped me,
Id been at this other guys apartment my new friend Scott. I was walking into Igors and my
house, through the back door, when I heard Igor yelling into the phone, sounding madder than
Ive ever heard him. He said something like, If she cheats again, Ill kill her! I got freaked out
hes never talked that way before, and hes at least twice my size. I tried to sneak into bed
without him seeing me, but he came in the bedroom as I was taking off my shorts, which were
actually Scotts boxers. Id put them on as a joke when I left Scotts apartment I didnt think
Igor would be home when I got back. Anyway, Igor stared at the shorts, and I went pale, waiting
for him to explode. But he just looked at me sort of strangely and said, Nice shorts, babe,
which really scared me. He never acts like that, I had no idea what was going on in his head. I
thought maybe he really was going to kill me, and thats why he was so calm. When we both got
into bed, he reached out to me, which is yet another thing he never does. That was the final
straw I was sure he was going to do something awful to me that night, so I decided to just go
along with him until I could escape. Besides, I didnt have a choice hes so big that when he
gets on top of me Im totally pinned down. I didnt say anything when he started having sex
with me and putting his penis into my vagina, because Ive never been so scared in my life.
Finally I couldnt take it anymore - I told him to get off of me. Just as I feared, he went nuts. He
screamed that hed get off me when he was good and ready, so I just shut my eyes and prayed
until he rolled off after a minute or two. The next day I charged him with rape.
20
Igors story
I push Olga around sometimes, but shes not scared of me. She just laughs and says she
gets all the romance she needs from other guys. She cheats on me all the time and doesnt even
try to hide it. On the night she says I raped her, Id had a really bad day. I lost a weightlifting
championship, and whats worse, I lost to a woman. This chick was an Amazon theres no
way she could be that built without taking steroids. When I got home, I called my buddy and
blew off some steam, said if I ever caught that Amazon cheating with steroids, Id kill her.
While I was on the phone, I heard Olga come in the door but she went straight into the bedroom.
I thought she didnt want to interrupt my phone conversation. Then I went into the bedroom too
just to see whether her day was going better than mine. Olga was wearing a pair of shorts that
were way too big for her, and she looked so little and feminine. Suddenly I felt really lucky to
have someone like her, instead of that freak at the gym. I wanted us to start over, but I was
afraid shed laugh at me. So I decided to show her how I felt when we got into bed together. I
reached out for her, and we started making love, and it was really nice. I had put on a condom to
make sure I didnt get her pregnant and to show how sensitive a guy I could be. Then, out of
nowhere, she tells me to get off of her. I had no idea what she was talking about. I didnt
understand what was going on until I looked at the shorts she had been wearing which she had
removed and were now on the floor. I saw that they were some other guys underwear! Thats
what really set me off. I felt like an idiot for putting myself out there, and I freaked. I told her I
was her man, and Id get off of her when I was good and ready. But my heart wasnt in it
anymore if she didnt want me, I didnt want her either. So after a few seconds I rolled over
and went to sleep. The next day she accused me of rape.
Please answer the following three questions (A)-(C), addressing each question in terms of the
outcome under the Model Penal Code and the common law (non-Model Penal Code). Note that
questions (B) and (C) refer to the italicized portions of Igors and Olgas respective accounts.
(A)
Was Olga raped? Address both sides of this question.
(B)
What would Igor have been charged with if the scenario had been exactly the same but
the italicized portion of his account was substituted with the following: I grabbed Olgas
neck and strangled her until she stopped breathing. I totally lost control. I can barely
remember what I did. Im so sorry. What defenses might he offer?
(C)
What would Olga have been charged with if the scenario had been exactly the same but
the italicized portion of her account was substituted with the following: So I grabbed the
gun I had hidden in the mattress for protection for times when Igor was out of town and I
was alone. I shot him in the neck. Immediately, he stopped breathing. I totally lost
control. I can barely remember what I did. Im so sorry. What defenses might she
offer?
- END OF EXAM -
21
Student Answers to Spring 2004 Criminal Law Exam
22
Question 1
Janut (J) may be charged with conspiracy to exposing herself under an indecency
crime, if one exists in Fordham. At Common Law (CL), J must possess the intent to agree
with Lustin (L) and intend that the object be achieved, her nudity. Based on the advertising
allusions of a shocking conclusion, J appears to have known and intended this conclusory act.
Under the CL, a conspiracy is possible for an unlawful act, even if public indecency is not a
felony or malum in se crime. However, under the MPC, J and L cannot conspire unless the
exposure of her breast is a crime. J & Ls pre-arranged, choreographed dance routine suggests
a prior agreement. Js mens rea is important however since under CL, a conspiracy charge
cannot be upheld unless the plurality requirement is met. J denies knowledge of the exposure
but her credibility is a jury issue, which weighs heavily against her based on her coquettish
manner immediately after the exposure occurred. The CL is split on whether Js knowledge
would be enough for a conspiracy charge. Therefore, even if she was substantially aware that
the exposure would happen, she may not be able to be convicted for conspiracy absent her intent
or conscious objective. Indecent exposure is not a serious enough crime, in all likelihood, for a
court to convict her of conspiracy if she only had knowledge. However, one could argue that she
expected to benefit from the exposure in publicity, etc.
Under the MPC, the overt act element is met when J danced and allowed her breast to be
revealed. But, she would only be convicted of conspiracy under the MPC if the target offense
was a crime.
J could be convicted of the murder of SM under CL, if when she threw the microphone
stand, she intended to inflict grievous bodily injury on L; her intent would be transferred from L
to SM. Her intent to inflict grievous bodily injury would meet the CL malice aforethought
requirement. J would claim that the boos and hisses and/or her shock (if true) about her
exposure was provocation for her acts.
Under CL if a Fordham court finds that the provocation was adequate Js charge may be
knocked down to voluntary manslaughter However, typically a court would not find mere words
(crowd noise) to be adequate; yet Ls violation of her bodily integrity may be adequate. Under
MPC, J would want to argue EMED. Subjectively, she was suffering from a disturbance, she
would likely say so. She meets this part of the test. The jury would have to decide if getting that
upset over her exposure was objectively reasonable to enable her to apply this defense to get
manslaughter under the MPC.
Note: There was no mention of J & L helping SM or SE. This would constitute an
omission if they had the duty to help them after putting them at risk. Also, there is no evidence
suggesting that the whole scenario throwing the stand, etc., was not choreographed. If thats
the case, then the events were foreseeable and they meet the probable consequences doctrine
under the CL.
23
At CL, if Fordham recognizes unlawful act or misdemeanor manslaughter, J could

receive this, if indecency is a misdemeanor which it likely is. Felony-murder is not likely since
the nudity would not be on felony. Certainly not an inherently dangerous one! Abstract or not!
If charged with conspiracy, under the Pinkerton CL doctrine, J could be convicted of all
crimes within the scope of the agreement. Its not likely that murder/manslaughter was within
the scope of exposing herself. It was also not a probable /foreseeable consequence.
In regard to the death of SE, J was perhaps criminally negligent and would be charged
with involuntary manslaughter at CL. If the prosecution can use misdemeanor-manslaughter or
felony-murder, J could be strictly liable for this death as a but for cause but not likely. J would
still bring up a provocation defense and EMED under MPC. There is also a causation problem
since SE died from pulling a feeding tube out. Its doubtful that this was foreseeable; it is
distinguishable from medical malpractice.
Lustin would be convicted of the conspiracy under the MPC, which only requires a
requisite intent on his part. He voluntarily (via willed muscular contraction) ripped Js outfit
off and he admitted to the pre-planning stunt on Emptee Vees part.
L could be an accomplice to Js crimes but likely to fail under the natural and probable
consequences doctrine. There is no conspiracy under the CL if J didnt have intent. If she did, J
& L both fall under the CL Pinkerton doctrine.
Both Hasten and Bratney (H & B) were voluntarily intoxicated so this is generally not an
excuse under CL, only under the MPC if it negates an element of the crime. Hs rape charge is
typically a general intent offense at CL. Intoxication is only a defense to specific intent crimes.
At CL, rape is nonconsensual intercourse with a woman, not ones wife. H thought B was his
wife. He has a mistake of fact defense which, if reasonable could (unsure if believing a janitor at
a church at a late hour has power to officially bind a couple in holy matrimony - probably not!)
negate the attendant circumstance of not ones wife. However, a court applying the moral
wrong doctrine may have an issue with the sexual intercourse taking place in an inebriated state
in front of a church, in which case he could still be convicted. Hs mistake of fact about Bs
consent may also be reasonable. He claims that she agreed to everything. However, some CL
jurisdictions do not recognize a mistake of fact defense in rape trials. Under the MPC, Hs
mistake(s) of fact about consent and marital status may be a defense if they negate the mens rea
of the rape. Arguably, even if applying MPC 2.02(3) to the rape statute, which requires
reckless or above to the consent, Hs mistake appears reasonable. However, he was at least
reckless, took an unjustifiable risk when he believed their marriage would be legal.
B passed out on the steps after the sex, so H would likely not be guilty of 2nd degree rape
under the MPC. However, if B was unconscious at the time of the intercourse, he would be
guilty of it.
At CL, if Fordham required victims to resist, H would not get rape. B does not appear to
be guilty of any crime but could use provocation or EMED (MPC) or diminished capacity (CL)
if she was possibly intoxicated.
Question 2
24
A.
At CL, Olga may have been raped if the jury believes that she did not consent to
intercourse. If the court requires resistance on her part, especially resistance to the utmost, she
may not have been raped. The court may look at her relationship with Igor and whether she had
permitted him sexual liberties in the past. If O was a voluntary social companion and had sex
with I in the past, he would not be convicted of rape. The MPC does not require force or
resistance so non-consent is enough. In both the MPC and CL, Is mistake, if reasonable, could
negate his mens rea and acquit him. The reasonableness of Os fear is also an issue. At CL,
most courts held that the fear must be reasonable. The facts here suggest that her fear may not
have been objectively reasonable in light of Is statement. O made plenty of assumptions and
seemed to overreact. However, if I knew that O was unreasonably scared and took advantage, he
would still be guilty.
However, Os fear may have been reasonable in light of Is size, strength, and demeanor
and made her submit. O may want to bring up a diminished capacity defense at CL due to his
anger about his weightlifting loss.
Yet, in the end, she told I to get off of her and both statements seem to corroborate that he
at least was on top of her for a few seconds, after she told him to stop. Assuming he was still
penetrating her, he may be guilty if (1) in a state like Illinois where the female can change her
mind if O did in fact consent; (2) the only force required is the actual penetration (for example,
MTS); (3) Os fear was reasonable (for example, Rusk). (However, she was in their own home so
this is different from Rusk.)
B. At CL, there would be voluntary manslaughter if the provocation was adequate. Likely not just words alone. Therefore, murder depending on whether he intended to inflict grievous bodily
injury. Choking someone usually infers this intent. Under the MPC, using EMED if objectively
reasonable assuming it passes the subjectivity test (which it likely would), he would get
manslaughter.
At CL, felony-murder may apply. Rape is one of the enumerated felonies. Rape in the
abstract is likely inherently dangerous and considering the particular fact of the case (probably
not). Rape is independent enough so that there is no merger. The proximate cause is close
enough. The causation may have been interrupted by her telling him to get off but not likely.
Under MPC, felony murder variant is likely also because rape is enumerated.
C.
Self-defense and deadly force

MPC - reasonable or unreasonable
CL - castle exception
CL - perhaps premeditated murder because it only requires an instant. Plus, she shot him
in the neck; it shows her malice.
25
Provocation - likely more than adequate - CL - voluntary manslaughter. MPC - EMED manslaughter.
Insanity? - didnt know what shed done - cognitive didnt appreciate criminality - ?
Irresistible impulse.
Necessity - if not just a natural event -lesser of two evils. I was the aggressor but was he
deadly? She subjectively thought so.
Likely voluntary manslaughter.
26
FALL 2006 CRIMINAL LAW EXAM
27

Examination in Criminal Law: Sections 5 and 6
December 20, 2006
PLEASE NOTE:
1.
is closed book. Part II follows Part I, a one-hour, closed-book, multiple choice
examination.
2.
examination. However, you will not be able to write in your bluebooks for the first halfhour of your two-hour exam although you will be able to write on the exam pages
3.
Part II consists of two questions and six pages (including a blank last page that you can
use for outlining). After the half-hour you have spent reading the exam, I recommend
spending the remaining hour-and-a-half (90 minutes) in the following way: 55 minutes to
complete the first question and 35 minutes to complete the second question. These time
recommendations reflect the relative weight I will give each question in grading.
4.
5.
3.
6.
7.

8.
Good luck!
28
Igor and Olga needed some quick cash, and Igor suggested that they rob an electronics
retail store. Olga was uneasy with the idea, so she told Igor that they should spend a few days
checking out the store first. Olga hoped that by stalling Igor, shed have time to come up with an
alternative suggestion for getting some money. Igor agreed but, sensing Olgas reluctance, he
insisted that Olga prove her commitment to the plan by recruiting a third person to serve as a
look-out. Olga suggested her younger brother, Zippo. Yet, she told Zippo to just pretend to be
the look-out, instructing him that he should not actually do anything other than stand in front of
the store.
Igor and Olga visited the store twice pretending to be customers, without incident. A
week after their second visit, Igor told Olga that it was time to do the real deal. In an effort to
buy more time, Olga asked for one more practice run. Igor agreed, but said that Zippo should
stand guard so that Zippo could practice as well.
With Zippo stationed right outside the door, Igor and Olga entered the store. The store
manager, Cosmo, was at the front counter completing a sale. His customer, Petunia, had just
purchased a mini television as a surprise gift for her husband, Kingsfield, who was browsing in
the back of the store.
Much to Olgas shock, Igor walked up to the front counter and pulled out two loaded
guns. He tossed one gun to Olga, who caught it reflexively. Igor then pointed the other gun at
Cosmo. Cosmo grabbed Igors arm, and Igor and Cosmo began to struggle. Petunia ran out the
door. In her haste, Petunia dropped the mini television on the floor near the door.
As Igor and Cosmo continued to wrestle for the gun, Olga herded the other customers
and salespeople to the back of the store to get them away from Igor and his gun. A few
customers resisted, but Olga waved her gun at them and said, Im not going to hurt you, but
youre safer back here.
Agatha, however, was a particularly nervous customer. Frozen with fear, she simply
could not move. Rather, she cried and resisted Olga to the extent that Olga became concerned
that everyone would be put at harm, including herself. As a result, Olga had to punch Agatha in
the face to get her to comply with Olgas request to move to the back of the store.
Meanwhile, Officer Krupke, an off-duty police sergeant, approached the store, still
wearing his uniform. Zippo saw Officer Krupke but, recalling Olgas instructions, did nothing.
Seeing the robbery in progress, Officer Krupke announced himself as a police officer and drew
his gun. Igor exchanged gunshots with Krupke, while yelling to Olga, What happened to our
man out front? Olga screamed back that she had been hit by a bullet. In response, Igor fled the
store.
29
Officer Krupke immediately pointed his gun at Olga and told her not to move. He then
instructed the customers to exit the store. Petunias husband, Kingsfield, was the first to reach
the front door. As Kingsfield approached the door, he noticed a mini television lying nearby on
the floor. Realizing that it was the exact model he had been coveting for months, he scooped it
up and shoved it under his jacket as he left the store, telling himself that he deserved it after what
he had just been through.
Zippo, hearing the gunshots and seeing panicked customers running out of the store,
rushed into the store to find Olga. Zippo was horrified to see Olga on the floor bleeding from the
stomach, and Officer Krupke aiming his gun at her. Dont shoot her! Zippo yelled. As Zippo
ran towards Officer Krupke, Zippo accidentally bumped into a display of stereo equipment and
dislodged one of the lower boxes. The entire display began to tumble down, and several of the
heavy boxes hit Officer Krupke. The officer stumbled backwards, his gun discharging as he fell.
The bullet hit and immediately killed Customer, a fleeing customer.
Cosmo observed Officer Krupke and Customer fall, and grabbed Officer Krupkes gun,
which Cosmo pointed at Zippo. At least one of you is going down, Cosmo said. Olga
screamed, No, he didnt do anything! It was me, shoot me! Cosmo looked at Olga and, now
pointing the gun at Olga, cocked the hammer (a hammer being the part of the gun that causes the
discharge of a bullet). Olga then fired her own gun at Cosmo. As Cosmo fell, Zippo picked
Olga up and ran from the store with her.
Later information revealed that Cosmo died immediately from the gunshot wound.
Officer Krupke suffered a broken arm and bruises, but no other injuries. Olgas stomach wound
healed nicely after a lodged bullet was removed. However, Olgas punch had broken Agathas
nose. Not only that but, contrary to Olgas impression, Agatha was not an adult but rather a
mature-looking twelve-year-old, who had accompanied her mother to the bank that day.
All of these events took place in the state of Fordham. What crimes, if any, are
possible for any or all parties under the Model Penal Code and under the common law
(non-Model Penal Code)? What defenses are there? Note that in the state of Fordham,
aggravated assault of a minor (any person under age eighteen) is punishable as a felony,
whereas aggravated assault of an adult is punishable as a misdemeanor.
Maddox was hosting a 30th birthday party for his best friend, Zed. Maddox asked his
friend, Franny, to get the party started by kidnapping Zed and bringing him to a local bar.
Franny had never met Zed, but Maddox assured her that Zed would think it was a great joke, so
she agreed. After all, Maddox had told Franny a great deal about Zed and had suggested many
times that Franny and Zed had an enormous amount in common. If you two met, it would be
love at first sight, no question about it, Maddox explained. I mean, in no time, youd be
sending out wedding invitations. Zeds an honorable dude.
30
When Zed first moved into his apartment, he gave Maddox his extra set of keys in case
Zed ever got locked out. Maddox gave those keys to Franny, and she used them to let herself in
to Zeds apartment on the night of the party. As Franny entered the apartment, she saw Zed
sitting at a desk with his back to her, wearing headphones and working on his computer.
Grabbing a blanket from a nearby couch, she crept up behind him, threw the blanket over his
head, and said, Youre coming with me!
Zed made unintelligible noises as Franny dragged him out the door and into her car,
where she strapped the seat belt across his chest with his arms pressed against his torso and the
blanket still over his head. Zed continued to speak, but Franny couldnt understand his words.
I just love the way he squirms, she thought to herself.
When Franny arrived at the bar, she left Zed in the unlocked car while she ran inside,
found the private room where the party was being held, and told Maddox, Zeds in my car
you take it from here! She then went to the bar in the main room, where she had arranged to
meet her friend Gilda, and Franny and Gilda began drinking.
Before long, a guy standing at the bar introduced himself as Rooster, and said that he was
a law school student. Gilda responded that she was a high school teacher. In the noisy bar,
however, Rooster misunderstood Gilda to say that she was a high school junior. He began to
regale her with tales of his wild and crazy high school days. Gilda realized Roosters mistake,
but she was amused at his efforts to impress her, so she did not correct him. After a while, she
asked Rooster to dance with her, and he agreed.
With Rooster and Gilda gone, Franny looked around the bar for someone to talk to. She
saw Maddox walk by and asked him how the party was going. Zeds having a great time!
Maddox said. But he wants to meet you, face-to-face. As Ive said before, I think you two
would fall in love -- instantly. Franny happily agreed to meet Zed in the hallway outside of the
private party room in ten minutes. She went to the restroom to check her makeup but the door
was locked. She later learned that Gilda and Rooster were inside, having sex.
Back at the party, Maddox was telling Zed that he had set up a meeting between Zed and
Franny. Ludwig, a bar patron who had crashed the party, overheard Maddox describing Franny
as really hot, and decided that he would like to meet her himself. As Zed started to leave the
room, Ludwig approached him and said, Dude, some of your buddies over in the corner look
like theyre about to kill each other youd better go check it out. Zed agreed to intervene, and
Ludwig quickly went to meet Franny.
When Ludwig entered the hallway, he saw Franny leaning against the wall and said,
Hey, Im the one for you. Franny responded by giving him a hug and a big smile. Ludwig
then offered to buy her a drink at the main bar. For the next hour, they drank and held hands in
the crowded room.
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Franny then asked Ludwig whether hed like to go out to her car for some privacy. They
walked out to the parking lot and ended up having sex in the back seat of Frannys car. Just as
Ludwig and Franny were exchanging phone numbers, Maddox stormed out of the bar and
approached Frannys car. Seeing her partially undressed in the backseat, Maddox opened the
door and yelled, Where have you been? Zed told me that you never showed up at his place or
in the hallway to meet him. Ive been looking for you everywhere! Franny looked puzzled.
What do you mean? she asked. Im with Zed. At this, Maddox grabbed Ludwig by the
collar, and jerked him forward for a better look at his face. This isnt Zed! Maddox cried.
Ive never seen this guy before in my life! As Maddox drew back his fist, Franny cried,
Dont hit him! Whoever he is, I really like him!
Hearing this, Maddox turned to Franny and said, Then you must be drunk, because
having sex with strangers isnt something you would ever do. Franny became offended and
said, Well, I only talked to him in the first place because I thought he was your friend and
maybe even my future husband! Then as Franny started pondering more about the situation, she
began to think Maddox was right. And, looking now at Ludwig and realizing that so much of
his so-called appeal was based upon Maddoxs stories about Zed and all that Franny and Zed
had in common, Ludwig was now totally repulsive to her. What had she done? she thought to
herself. She had no idea who Ludwig was!
Ludwig wrenched free from Maddoxs grasp and ran off, calling over his shoulder to
Franny, Ill call you sometime when your bodyguard isnt around! Maddox grabbed the
blanket that Franny had used to cover Zeds head, and commented, who did you really kidnap
tonight?
The next day it was discovered that Zed had left for Maddoxs party even before Franny
had arrived. When Maddox saw Zed arrive at his party, he simply assumed that Zed had gotten
out of Frannys car on his own. In fact, Franny had actually grabbed and kidnapped Barton,
Zeds roommate and a hemophiliac. Barton was discovered dead the next day, two blocks away
from Frannys car. Evidence revealed that after Barton had worked his way out of Frannys car,
he bled to death from a cut he suffered after he fell on a broken bottle in the street. He was
trying to hail a cab in order to return home.
All of these events took place in the state of Fordham. What crimes, if any, are
possible for any or all parties under the Model Penal Code and under the common law
(non-Model Penal Code)? What defenses are there?
Take note that in the state of Fordham, kidnapping is a felony, defined as follows:
A person who willfully: 1. Seizes, confines, inveigles, or kidnaps another, with intent to
cause him, without authority of law, to be confined or imprisoned within this state . . .
against his will . . . is guilty of kidnapping.
- END OF EXAM -
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Student Answers to Fall 2006 Criminal Law Exam
33

Model Answer for the Examination in Criminal Law: Sections 5 and 6
QUESTION 1
Robbery - Igor
CL - Under the common law Igor can be charged with robbery, or alternately armed
robbery of his attempt to rob the electronics store. Igor committed the act of entering the store
with a gun and had the intent to actually remove money or property from the store. Because Igor
was unable to actually succeed at this crime, he can instead be charged with attempted robbery.
Igor needed to possess the intent to commit the armed robbery and the further intent that he
succeed. From Igors stated need for money, his several visits to the store with Olga to scope it
out, his obtaining of a look-out and his entering the store with a gun and pointing the gun at
Cosmo, he clearly possessed the required mens rea for the initial attempt and the further mens
rea for success.
Igor must also have taken some action to corroborate his intent. The common law uses
several different tests: Last Act - Igor was in the store, had a gun pointed at Cosmo, the
prosecution would argue that this was the last act. Igor will argue, asking for or taking money
would be the last act; physical proximity - again Igor was in the store and had a gun - met;
Dangerous Proximity - again, in the store with a gun - met; Indispensable Element - Igor was in
the store and with a gun, all the tools he needed for the crime; Probable Desistance - Igor was
already well into the crime, hed been planning it for sometime, it is unlikely he would abandon
it now; Unequivocally - Igors actions of entering the store with a gun and his planning with
Olga meet this standard. Therefore, Igor is likely to be found guilty of attempted robbery under
the CL.
MPC - Igor will likely also be found guilty of attempted robbery under the MPC. The
MPC requires the actor to take a substantial step that shows his intent to commit the act and see
its success. Looking at the CL analysis, Igors acts clearly form a substantial step.
Defenses - Igor will try and claim necessity under the CL and under the MPC. However
this defense will not work in either because his need for money is not a lesser evil to robbing
anothers store, especially in the manner in which it angered the general public. Igor can also try
and claim abandonment to his attempt. The CL does not always accept this defense for attempts,
and under the MPC he will fail because his renunciation was not voluntary, it was a result of the
difficulty of completion, and he did not attempt to stop the crime from occurring.
Conspiracy - Igor
CL - Igor can also be charged with conspiracy for robbery. However, under the CL, a
conspiracy requires a plurality, and if Olga and Zippo did not possess the further intent for the
robbery to succeed, Igor will not be found guilty. However, if they ever did agree with him and
have that intent, then Igor can be found guilty of conspiracy because the agreement was formed
and not abandoned until after its commission took place.
MPC - Igor will more likely be found guilty of conspiracy under the MPC, which does
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not have a plurality requirement. Therefore even if Olga and Zippo did not in fact agree, Igor
still did and can be charged if an overt act was committed, which is met by their scoping the
store and the actual attempted commission. However, under the MPC, this would merge with
the target offense.
Complicity - Olga
CL - Olga can be charged as Igors accomplice to the attempted armed robbery. In this
case Olga did help plan the attempted robbery with Igor, however, she did not actually intend for
Igor to be successful, therefore she will not meet the mens rea requirement.
MPC - Olga will have a similar analysis under the MPC because again she did not have
the intent for the further act to be consummated.
Conspiracy - Olga
CL - Olga did not have the further intent to agree that the act actually take place,
therefore, she will not be convicted of conspiracy. (Nor will Zippo; he did not even have the
initial intent to agree with Olga and Igor.) If its found under the CL that Olga agreed to an
unlawful act, she could be convicted. However, this will not work under the MPC, so she will
likely not face conviction under either for conspiracy. This is important because it prevents the
Pinkerton doctrine from offering Olga and Zippo; however Olga can still under the CL be held
accountable for the acts of Zippo and Igor that were the foreseeable consequences of their
conspiracy.
Felony Murder - I
CL - Igor can be charged with felony-murder for the killing of Cosmo during the
attempted robbery. Igor will claim that the felony was already completed or desisted from by the
time this death occurred. The prosecution will push because they can infer his intent from his
robbery to show malice aforethought. Because Igor considered Zippo to be one of his co-felons
or accomplices, his acts could be imputed to Igor as a killing by a felon under either the agency
theory or the proximate cause theory.
MPC - Under the MPC, Igor can be charged with extreme reckless disregard for human
life while in the attempted commission of one of the enumerated theories, robbery. Here again
Zippos acts can be placed on Igor. However, here causation will be easier to plan because it is
only but for, and clearly if Igor had not come in with the guns, attempting the robbery, Cosmo
would not have died. Under the CL, causation may be more difficult because of proximate
causation, but Cosmo pointing a gun at Olga and Zippo was not gross or bizarre, so it will fail.
Igors best defense will be to make a res gestae argument that the felony was already over and
he had left the scene and quit his purpose. However, if the prosecution can prove the felony was
still going or that Igor had not reached a safe haven, even though he was not present, under both
the CL and MPC he can still be held liable for Cosmos death.
Felony Murder - Olga
CL - As discussed earlier, Olga may not be held to be an accomplice to the attempted
35
robbery. However, Olga did punch Agatha in the face, which could convict Olga for aggravated
assault of a minor since Agatha was only 12. Olga has met the actus reas by punching Agatha,
she had the intent to do so to calm her down; however Olga thought Agatha was an adult, which
would make her act a misdemeanor. Olga can claim that she was not reckless as to the age since
she was acting in an emergency; however, if age is held to be a negligent or strict liability
attendant circumstance, then Olga will still be guilty. This analysis is the same under the MPC.
Olga can try and claim a mistake of just defense regarding Agathas age; however, again this
will depend on the mens rea. Alternatively, Olga can claim necessity, that she had to hit Agatha
in order to prevent the greater evil of someone being shot. Under the MPC, this would be a good
defense; however the CL usually only allows this defense for natural forces.
Olga can finally claim as a defense that the causation is too skewed for her to be liable in
the death of Cosmo because of the punching of Agatha. Under both the MPC and CL this seems
a stronger and more successful argument. For the death of the Customer, this also seems too
attenuated to hold Olga liable.
NOTE FROM THE PROFESSOR: This students answer to the discussion of the legal
wrong doctrine and felony murder liability for Olga was not the strongest part of the exam
answer. A number of exams provided a fuller account of how legal wrong doctrine would
work and also a more expanded, two-sided, analysis of Olgas felony murder liability. For
that reason, I have inserted at the end of this exam excerpts from another exam which,
while relatively weaker in some areas, provides a more appropriate response for the issues
that were just pinpointed here. In a nutshell, however, under the legal wrong doctrine, the
common law would view Olgas liability as though she were committing the more serious
offense (aggravated assault of a minor) while the MPC would view her liability in terms of
what she intended, not what she actually did, therefore possibly finding her liable of the
less serious offense (aggravated assault of an adult). Regardless, if she were convicted
under the common law of aggravated assault of an adult (a misdemeanor), that could
possibly kick in a misdemeanor manslaughter conviction if the court did not view the
killings that occurred as causally remote from the assault of Agatha. Alternatively, if Olga
were convicted under the common law of aggravated assault of a minor (a felony), that
could possibly kick in a felony murder conviction. However, such a conviction would
depend on whether or not aggravated assault merged into murder, which it probably
would, even though the offense is inherently dangerous. If aggravated assault did merge,
Olga could then be liable for felony murder under the attempted robbery predicate felony
if she were found to be a co-felon. She could also be liable for the murder of Cosmo, if not
the felony murder of him.
36
Felony Murder - Igor

CL - Igor might be found guilty for the death of the Customer who was shot by Officer
Krupkes gun discharging. A Customer being shot seems to be foreseeable; the main issue will
be that Officer Krupke was a non-felon. Therefore only under a proximate cause theory could
Igor be liable. Igor cannot be under the MPC because they only apply the agency theory.
[NOTE FROM THE PROFESSOR: This last comment about the MPC is an unknown; its
not quite clear what the circumstances are with the MPC given the Codes unique
approach to this area.] This felony is inherently dangerous and does not merge under the
independent purpose or the ad hoc approaches to felony murder.
Attempted Murder
CL - Igor can be charged for the attempted murder of Office Krupke. He can be charged
for showing extreme reckless disregard for the value of human life by aiming a gun, a deadly
weapon at his body. Under the MPC., this analysis applies as well.
Murder - Olga
CL - Olga can alternatively be charged for the murder of Cosmo by her purposely or
knowingly shooting at him with a gun; this can be either the intent to kill or the infliction of
serious bodily injury. Olgas bullet did kill Cosmo, so causation and result are preset. However,
Olga can raise self-defense, that she feared for her life and it was an objectively reasonable fear
since Cosmo had a gun pointed at her and said he was going to make someone pay, which shows
its immanency as he had the gun cocked. However, Olga could have aimed so as to not kill
Cosmo, and she can be found to be the initial aggressor since she entered with Igor who intended
to rob.
MPC - Under the MPC, Olga can be charged with murder for extreme restlessness.
Again she will raise self-defense; here she only needs to have a subjective belief, which again
seems met for fear of immediate death or bodily harm. Olga can also raise a necessity defense,
that she had to die or Cosmo, but this would be weak if she was convicted as a co-felon.
Therefore, if Olga raises a defense of others, protecting Zippo and thus trying to claim necessity,
this may be stronger. Olga can also claim diminished capacity, that she was so upset at this point
given her being shot and could claim this defense to lower her charge to manslaughter. This
could also work for provocation or EMED (M.PC) since she was upset at the prospect of her
brother being killed.
37
NOTE FROM THE PROFESSOR: Again, the student could have more thoroughly
discussed the potential of Olgas felony murder liability as a result of her possibly being
considered a co-felon of both Igor and Zippo. The felony murder analysis of Igors acts
could have been applied to Olga (with the appropriate variations for her particular
situation).
Zippo - Murder
CL - Z will likely not be found guilty of Cosmos murder, due to causation, lack of act
and intent. Zippo never conspired or attempted to aid knowingly in Igors robbery, so he would
not be guilty, same under the MPC. Further, for the Customers death, Zippo did not intend to
make the boxes fall and thus was not foreseeable; even if he was reckless about the boxes, the
following events seem too gross and bizarre for Zippo to be held liable.
Zippo - Aggravated Assault
Zippo will also not be found guilty of the aggravated assault of Officer Krupke, since
Zippo did not intend to inflict bodily injury. Likewise, he cannot be held liable for the
misdemeanor manslaughter of the Customer or of Cosmo. Since all people died instantly, by
fleeing, Zippo did not fail to act in assisting them.
NOTE FROM THE PROFESSOR: As mentioned, the misdemeanor manslaughter issue
could also come up in the context of Olgas assault of Agatha. If the aggravated assault of
Agatha was considered a felony, it could kick in a felony-murder conviction for Olga; if the
aggravated assault was considered a misdemeanor, however, it could possibility kick in a
misdemeanor-manslaughter conviction for Olga if the appropriate causal link was
accepted.
Kingsfield - Theft
MPC - Petunias husband, Kingsfield, can be found guilty for stealing the mini-tv. Under
the MPC, factual impossibility and hybrid impossibility are not defenses. Since Kingsfield took
the tv thinking he stole it he would be guilty.
Under the CL - Kingsfield has the chance of claiming hybrid impossibility since he was
mistaken as to a fact that made his act not criminal. He can claim the defense of diminished
capacity since he was so upset by the events that took place.
Defenses - Olga
Olga can also claim duress for all of her acts in the robbery, since she was under the
command of Igor. This may be a better claim for necessity since O was trying to prevent people
from being injured at the time. The fact that Olga was shocked by Igor having guns shows her
lack of intent for the robbery. Zippos horror at seeing Olga shot also shows that he may claim
diminished capacity for any acts that he could be charged with.
QUESTION 2
38
Conspiracy - Franny and Maddox

CL - Franny can be charged with conspiracy to kidnap for her agreement with Maddox to
kidnap Zed. There was no agreement between more than one person and they both intended it to
occur. Under the MPC, they took the overt act of Franny moving and picking up Zed.
Maddox will be held liable under the same analysis, that under the Pinkerton doctrine, their acts
in furtherance of the conspiracy can be imputed to each other.
Felony Murder - Franny and Maddox
CL - If Franny is guilty of the kidnaping or attempted kidnaping of Barton, she may be
held liable for felony murder. Franny met the act of seizing Barton by removing him from his
apartment. Franny also appears to possess the specific intent to cause Zed, Barton to be
confined. Franny may claim that she did not intend for it to be against his will, since Maddox
said Zed would think this was a joke and probably like it and she further may not have intended
it to be without authority of law since Maddox made it seem okay and accepted because it was
his old friend. If intent is applied to these attendant circumstances, Franny may not be liable.
However, usually recklessly is implied.
MPC - similar analysis to the CL, but willfully could equal with knowledge and that term
could be applied across until intent using an offense analysis, or recklessly if using an element
analysis.
Defenses - Franny can first try and claim, mistake of fact, that she thought she was
kidnaping Zed not Barton. However through transferred intent shell still be guilty. Franny can
try and claim mistake of different law, she thought she had a legal right to kidnap Zed; again this
approach seems very weak. Because Franny is likely to be found guilty of the kidnaping of
Barton, Maddox will also be found guilty under the CL via the Pinkerton doctrine. Under the
MPC - Maddox can still be liable for Frannys kidnaping as her accomplice since he assisted her
and also solicited her in committing the crime and had the intent for her to succeed and gave her
the keys and address to complete it. This would also be enough to hold Maddox as an
accomplice under the CL.
Therefore, both Franny and Maddox can be charged with felony murder since this death
of Barton occurred during the commission of their kidnaping. Also, kidnaping is inherently
dangerous and has an independent purpose under the CL. In addition, kidnaping is enumerated
under the MPC. The main issue will be time-framing and res gestae, as well as causation, if
Bartons getting out of the car and falling on glass while trying to hail a cab, was gross and
bizarre, then they will not be liable. It seems that scenario is highly unusual and will defeat the
Stamp standard - Take your victim as you find him doctrine. The duty to rescue Barton can be
defended against via intoxication.
39
Ludwig - Rape
CL - L can be charged with rape under the CL for having sex with Franny, a woman, not
his wife, through fraud. Ludwig can claim that there was no force, no resistance, and Franny
consented. Franny can argue that Ludwig used fraud-in-the inducement to get her to consent;
however, that is not a crime. If Franny can prove fraud-in-the-factum, then Ludwig could be
found guilty. Or if she could prove that she was so intoxicated that it caused her to have a
mental defect or be unconscious, he would be guilty although this scenario seems unlikely.
MPC - Gross Sexual Imposition - Seduction - Sexual Assault
Under the MPC, Franny has a better chance, or under the CLs equivalent lesser charges,
for gross sexual imposition. Franny will face the same defenses from Ludwig that the act was
only fraud in the inducement. Ludwig can use the defense of mistake of fact, he thought she
consented; however, he cant raise the defense of intoxication because these are all general
intent crimes under the CL.
The crime of seduction is Frannys best claim because she was only having sex with
Zed because she thought they would get married and Ludwig seemed to be aware of this fact.
Because Franny did consent to the act, unless she was unconsciously drunk, she doesnt have an
excuse.
Rooster - Attempted seduction - Corruption of Minors
Rooster can be charged with attempted corruption of minors under the MPC because he
thought that Gilda was only 16. Under the MPC, this claim is stronger since for attempt because
the defendant can be charged for the circumstances as he believed them to be. Rooster cannot
claim intoxication because this is a general intent offense under the CL and it is difficult to claim
under the MPC. Rooster also can claim through pure legal impossibility that no crime did occur
since there was only consent between adults, so he should get off.
NOTE FROM THE PROFESSOR: Students addressed Roosters acts in various ways
depending on how they viewed the age of Gilda and a states statutory rape laws. The
model answer isnt particularly strong here and there were stronger answers available.
40
INSERTED BELOW IS ANOTHER STUDENTS ANSWER TO THE EXAM

QUESTION 1
Igors liability
Igor could first be guilty of conspiracy to commit the robbery as he agreed with Olga to
commit the robbery and clearly intended it to occur. Under the common law this might not hold
up because Olga did not intend to agree and the common law has a plurality requirement. This
requirement does not exist in the MPC so Igor could be guilty of conspiracy, though this offense
would likely merge with attempted robbery.
Igor is guilty of attempted robbery as his holding up the store satisfied the intent to
commit the robbery and satisfies the MPC test of substantial step and likely the most prodefendant last act test as holding up the store is the last act; the other tests namely physical
proximity is certainly satisfied. [NOTE FROM THE PROFESSOR: This analysis would be
better if it were less definitive and rather more tempered, a comment that I would apply to
the entire exam answer.]
Igor is also guilty of the attempted murder of Officer Krupke. Clearly pulling the trigger
is enough to constitute enough of an actus reus for the attempt under the MPC or common law.
Igor might claim self-defense. This will not work because, as the robber in the store, he is the
initial deadly aggressor and he did not retreat. So he cannot claim self-defense under the MPC
or common law. Even if the officer shot first as a police officer his act was lawful, so a shooting
response makes him again the initial deadly aggressor.
Igor may also be guilty of felony murder based on the predicate of the attempted
robbery. This liability is subject to several limitations. Under the inherent dangerous limitation
robbery certainly fulfills that category. Igors best defense to a felony murder conviction is the
res gestae requirement. Igor fled before any killing. If he had reached safety his liability for
felony murder may have ended. Under the agency theory he is liable for any killings of his
accomplice Olga. However, he could claim her killing was not in furtherance of the crime.
Under a proximate cause theory he could be liable for both the killing of Customer and Cosmo,
again subject to res gestae.
Igor could also be liable for murder. Since he is an accomplice of Olga, if she is
convicted of the murder of Cosmo Igor could be derivatively liable for the murder. He could
defend on abandonment saying that he ran out of the store. Under MPC and common law
abandonment is a defense to accomplice liability, but the accomplice must renounce and make an
effort to neutralize his aid. Igor does not.
Also under the Pinkerton Doctrine and probable consequences doctrine Igor could be
liable for the murder as murder was a possible consequence of the conspiracy and could be
viewed as in furtherance. The MPC rejects these citations.
41
Olgas liability
Olga could be guilty of conspiracy to commit robbery. She can defend though by
claiming she did not intend to agree nor intend that the robbery occur. However her causing the
scene could make her an accessory before the fact.
Olga could also be guilty as an accomplice to attempted robbery and attempted murder.
Under the common law, Olga must have actually aided Igor, which may not have occurred.
Under the MPC only attempted aid is required. Because she helped create the situation and she
had a gun, she may have had a duty to stop. She can defend accomplice liability on grounds of a
theory of abandonment that whatever aid she rendered she neutralized by getting people out to
safety.
Olga could also be guilty of murder. Her shooting of Cosmo under the common law
deadly weapon rule could show express malice and likely make her liable for second degree
murder and she did not premeditate. Also under the MPC shooting someone and killing them
certainly satisfies at least extreme recklessness which is good enough for homicide.
Olga has several defenses. She could claim self-defense as Cosmo had pointed a gun at
her. This defense is unlikely to work since both common law and MPC do not allow the initial
deadly aggressor to use self-defense. As a robber with a gun both common law and MPC will
hold her to be the initial deadly aggressor. Olga could also claim adequate provocation under the
common law citing Cosmos threat to kill. This might mitigate murder to manslaughter.
Similarly under the MPC Olga could claim EMED from the same situation. Se could also claim
diminished capacity as a result of the situation which under the common law can mitigate to
manslaughter.
A less likely claim is duress as Cosmo threatened her brother. This does not work under
the CL because duress is not a defense to homicide and Cosmo did not force her.
She also can claim defense of others to protect Zippo. This could be more successful
under the MPC and CL because Zippo is less likely to be seen as an initial aggressor and under
the MPC if he would be justified in shooting Cosmo so is Olga in defense of him.
Olga, lastly could be guilty of felony murder. There are a number of predicate felonies.
First the attempted robbery: while this satisfies the inherently dangerous requirement it is
certainly successful because if the successfully abandoned the attempt then the robbery wont be
available. Another felony could be the assault on the minor. Aggravated assault is clearly
dangerous under an abstract approach. Under a relevant facts approach it might not be
dangerous as it was committed to help Agatha. With respect to this felony, Olga could claim that
felony had ended and her killing Cosmo did not rise out of it.
42
Second, Olga could claim mistake of fault. However, this crime (aggravated assault) is
general intent so her mistake would have to be reasonable under the common law, which it
appears it might be. [NOTE FROM THE PROFESSOR: Not all courts would view an
aggravated assault as general intent but this students assessment is fine.] The court could
in order to protect minors say age is a strict liability attendant circumstance in which case she is
still on the hook. Also under a moral wrong or legal wrong approach Olga could still be guilty
because hitting a person is morally and legally wrong. Under the MPC she would be guilty of
the lesser offense but under the common law, she would be guilty of the greater offense.
She could defend this crime also by pleading necessity under the MPC or CL, saying that
hitting Agatha was the only way to get her in the back of the store and being hit was a lesser evil
than being in a dangerous situation. If necessity is limited to natural forces she cannot use it. It
may also be unavailable because Olga has unclean hands. Under the common law this is a
complete bar and under the MPC she was negligent in putting her self in the situation.
Zippos liability
Zippo could be guilty of conspiracy. However, like Olga he may not have intended to
agree, which would negate his liability for lack of mens rea.
Zippo could also be guilty of being an accomplice to the robbery as he was the lookout.
Under common law he may be absolved if he did not actually aid. Under the MPC he could be
absolved because he never intended to aid he just did what Olga said. If she is feigning, mens
rea cannot be imputed to him.
Under the MPC and common law, Zippo could also be guilty of involuntary
manslaughter/negligent homicide if the court finds he acted negligently when he knocked over
the boxes. He could defend on diminished capacity based on hearing the screams of his sister.
Zippo could also be liable for the murder with Cosmo as an accomplice to his sister.
Lastly if he is guilty as of attempted robbery he could be guilty of felony murder as the
robbery is inherently dangerous and the killing of Cosmo was a likely event causing liability
under a proximate cause theory and his sister, his accomplice killed Cosmo attaching liability
under an agency theory.
Zippo could also be liable for felony murder for Customer who died as a result of Zippo
pushing Officer Krupke. Either the battery of the officer or the attempted robbery serve as the
underlying predicate felonies. Zippo could assert causation as a defense saying that was not a
foreseeable result of him knocking over the officer.
Kingsfield could be guilty of attempted robbery for taking the TV. He could claim
impossibility because his wife bought it. This might work as a defense under the common law
but not the MPC because hybrid impossibility is not a defense.
43
Olga could perhaps use duress as a defense claiming that Zippo forced her to commit the
robbery. This would not work under the CL because the threat was not imminent and she could
have abandoned the plot. Under the MPC, like with battered womens syndrome duress claims
might work because the immanency requirement is relaxed and so is the threat of force.
However, there is no evidence of force or threat of force from Igor.
QUESTION 2
Maddox could be guilty of conspiracy to commit kidnaping. Since he agreed with
Franny to do it, this agreement satisfies both the MPC and CL. He is also guilty as an
accomplice for kidnaping as an accessory before the fact since he provided the keys. While his
intent was the kidnaping of Zed the intent transfers to the intent to kidnap Barton. He cannot be
guilty of conspiracy to kill since that was not part of the agreement.
Under the Pinkerton doctrine he could be liable for the murder as it stems from the
conspiracy as well as under the probable consequences doctrine. The MPC rejected this
doctrine. Finally, Maddox could be guilty of felony murder since he was an accomplice to the
kidnaping . (I will discuss felony murder with respect to Franny).
Franny could be guilty of the conspiracy to commit kidnaping based on the agreement
with Maddox. This would not matter under the MPC because it would merge. Franny could
claim though that she was an innocent instrumentality and lacked the mens rea for the kidnaping.
If Franny is liable for kidnaping she could also be guilty of felony murder or extreme
recklessness under the MPC as kidnaping is enmeshed in the MPC.
Under the common law, a felony murder conviction from kidnaping is subject to a
number of limitations. First is it inherently dangerous? Under an abstract approach kidnaping
can occur non-violently so it may not be inherently dangerous. Under a particular facts of the
case approach kidnaping for a birthday party by a non-criminal suggests it was not dangerous.
Further, Franny would have a causation argument. While felony murder is a strict liability
offense it needs to have a causal relationship to the felony. Here, Barton escaped from the
kidnaping and died as a result of falling on a bottle. The question is was this foreseeable. A
court is likely to find that once Barton escaped he was a free actor breaking the chain of
causation. His fall had nothing to do with the kidnaping. Had he cut himself escaping that could
be different then he would still not be responsible for his actions.
The fact that his hemophilia made him die is not relevant to causation with the eggshell
skull rule. Perhaps one could claim Franny omitted to check on Barton and had the duty to do so
as she isolated him, but duty to aid only arises if the actor is aware. Since Zed was inside she
saw no reason to check on the person she kidnapped. If Franny is not guilty of felony murder or
reckless murder it is doubtful if Maddox as her accomplice would be liable for any homicide
under the common law or M.PC.
44
Ludwig could potentially be accused of rape - or gross sexual imposition - under the
MPC as he pretended to be Zed. This claim has little merit as fraud in the inducement does not
lead to a crime under the common law or the MPC. Franny consented to sex.
Ludwig could also perhaps be charged with rape under the CL and MPC because Franny
was drunk. However there is no evidence that Franny was unconscious or that Ludwig
administered the intoxicants to Franny, which could lead to a rape conviction under the MPC and
common law. Ludwig is unlikely to be guilty of anything since Franny consented and there was
no evidence of force. If he was convicted he could defend on intoxication, but this would not
help us as rape is general intent crime under the common law and intoxication is not a defense.
Under the MPC, rape could be a crime of intent or recklessness, depending on the
circumstances, and success with an intoxication defense would be very difficult.
Rooster could be guilty of attempted statutory rape as he engaged in sex with someone he
thought was a minor assuming high school juniors are minors. He would defend on
impossibility saying Gilder was of age. This defense could work under the common law which
sometimes recognizes hybrid impossibility as a defense. Under the MPC, Rooster could be
guilty as the MPC does not recognize this defense. [NOTE FROM THE PROFESSOR:
Because statutory rape under the MPC pertains only to females under age 10, Rooster
could possibly have a defense if what he thought he was doing was in fact not a crime. This
approach depends of course on exactly how young he believed Gilda to be.]
45
46

Examination in Criminal Law: Sections 7 & 8
December 11, 2007
INSTRUCTIONS
1.
is open book, meaning you may bring written materials of any kind with you. Part II
follows Part I, a one-hour, open-book, multiple choice examination.
2.
This instruction page pertains to students who are typing with securexam or handwriting
with bluebooks. Regardless of which technique you choose, please read all the
instructions.
3.
If you are handwriting, the proctors will distribute bluebooks to you when they give you
Part II of your examination. However, you will not be able to write in your bluebooks
or to type using securexam for the first half-hour of your two-hour exam. You will be
able to write on the exam pages themselves. I want you to spend the first half-hour
reading your exam very carefully and making an outline of what you want to discuss.
4.
Part II consists of three questions and eleven pages (including a blank last page that you
can use for outlining). After the half-hour you have spent reading the exam, I
recommend spending the remaining hour-and-a-half (90 minutes) answering the three
questions in the following time frame: Question 1 (30 minutes), Question 2 (30 minutes),
and Question 3 (30 minutes). These time recommendations reflect the relative weight I
will give the questions in grading. Take note that each question has specified sub-parts
of varying weights.
5.
If you are handwriting, write your identification number, class section, and my name on
each bluebook. Please number each bluebook sequentially. For example, if you have
three bluebooks, number the first bluebook 1 of 3, the second bluebook 2 of 3, etc. Write
legibly. Use every other line and every other page.
6.
For both typists and handwriters, please present your answers in the order in which they
are asked in the exam even if you do not personally answer them in that order. (Your
answer to Question 1 should come first, your answer to Question 2 should come second,
etc.)
7.
When appropriate, assume for each question that the governing law is the law of
Fordham, a hypothetical jurisdiction in the United States. Therefore, the cases and
materials that we covered in criminal law class are relevant, but not controlling, for the
state of Fordham.
Good luck!
QUESTION 1 (30 minutes)

Please note that Question 1 consists of seven (7) sub-parts, (a) through (g)
In the case of United States v. Frank, the defendant has been charged in a grand jury
indictment with violating 18 U.S.C. 2422(b), which provides criminal liability for knowingly
persuad[ing], induc[ing], entic[ing], or coerc[ing] any individual who has not attained the age of
18 years, to engage in . . . any sexual activity for which any person can be charged with a
criminal offense, or attempt[ing] to do so. In 1998, Congress failed to adopt a legislative
proposal to amend 2422(b) that would have explicitly criminalized conduct with individuals
who represent themselves as being minors. The facts of the Frank case are as follows:
From January to March, 2006, Frank corresponded with two individuals he believed to be
13-year-old girls over the internet via chat rooms,* electronic messages and emails. [* Here, the
term chat room refers to part of an online service that provides internet users with a venue to
communicate with one another over the internet in real time.] This correspondence included 15
sexually explicit electronic conversations and approximately 50 emails. In the course of their
correspondence, Frank also exchanged photographs with the purported teenagers. When
communicating with Frank, the girls identified themselves using the screen names
HiSkool_Sweetheart and 2_Young_4_U. Unknown to Frank, one of the girls was actually
an FBI agent, and the other was an adult who poses as a teenager in chat rooms and passes the
information she gleans from that activity on to the Federal Bureau of Investigation (FBI).
On March 24, 2006, in an electronic communication that we will refer to as the
invitation, Frank suggested that the girls meet with him in person, and described sexual acts
that he wished to perform with them. On March 26, 2006, in a subsequent electronic
communication which we will refer to as the confirmation, Frank wrote to the girls to confirm
their plans to meet. The confirmation message, in its entirety, read as follows: I will meet you
tomorrow at 3:30 at the fountain in front of Lincoln Center. The following day, March 27,
Frank drove from Brooklyn to Manhattan and presented himself at the meeting place and time he
had suggested. There were two condoms and a Viagra pill in his car when he arrived there.
The following two (2) sub-parts (a & b) are short answer. Each answer carries equal
weight, and you should spend 10 minutes on each answer. You can rely on both the Model
Penal Code and the common law (non-Model Penal Code) for your answers.
(a) The government proffers evidence of the above facts. On what grounds, if any,
might Frank move to dismiss the indictment? What is the likelihood this motion would be
successful?
(b) Assuming the case goes to trial, what would be the result if it is discovered that
at the time of his meeting with the girls, Frank wrongly believed that he had AIDS?
48
The following five (5) sub-parts, ( c ) through ( g ), are fill-in-the-blank. For each sub-part,
please select one (1) answer from the five (5) choices below and write or type it in your exam
book or typing sheet. Each potential answer may be used more than once or not at all. Each
answer carries equal weight, and you should spend two minutes on each answer.
The following five answer (*) choices for Question 1 , (d), (e), (f) and (g) derive
from your Handout 15 on Clarifying the Mistake and Impossibility Defenses:
*Mistake of pure law (mistake of same law)
*Mistake of pure fact
*Mistake of mixed law & fact (mistake of different law)
*Pure legal impossibility
*Pure factual impossibility/Mixed legal & factual impossibility
For purposes of sub-part only, assume that when Frank attempted to send the
invitation message to HiSkool_Sweetheart and 2_Young_4_U, he accidentally selected the
wrong e-mail address from his online address book. Instead of sending the message to the
girls, he sent it to his ten-year-old niece. FBI agents showed up at Lincoln Center to arrest
Frank based on the information he provided in the confirmation message, which was the only
one of the two messages that the girls had received.
What doctrine might be invoked under these circumstances?
For purposes of sub-parts (d), (e), (f) and (g), assume that the case goes to trial and
Frank submits as evidence numerous e-mails sent to him by online friends who recognized his
correspondents screen names and told Frank that the girls were really adults. Frank states that
this assertion was supported by the facts that the photographs looked like they had been copied
from a magazine, and in several messages he exchanged with the girls, they used expressions
and cultural references that seemed unlikely to come from teenagers.
Franks brother also testified that he and Frank had frequently discussed the fact that
Frank was exchanging e-mails with two adults pretending to be girls. Frank had explained to his
brother that he enjoyed the correspondence, so he wanted to see how far they would go with
their pretense and didnt admit to the girls that he knew the truth. (At no point did he suspect
them of being law enforcement agents.)
(d) What doctrine might be invoked if:
Frank believed the girls were actually adults, and
he only engaged in sexually explicit communications with them after
coming to this belief?
49
(e) What doctrine might be invoked if:

Frank believed his correspondents were actually adults,
coming to this belief,
but in fact his correspondents were teenage girls?
In other words, Franks online friends were wrong, and his suspicions
regarding the photographs, etc. were unfounded.
(f) What doctrine might be invoked if:
Frank believed the girls were actually adults,
the girls were in fact adults,
but when sending the invitation message, Frank accidentally selected the
wrong e-mail address from his online address book, and sent the message to
his ten-year-old niece instead of the girls?
(g) What doctrine might be invoked if:
Frank believed his correspondents were actually adults,
his correspondents were in fact teenage girls,
but when sending the invitation message, Frank accidentally selected the
wrong e-mail address from his online address book, and sent the message to
his
ten-year-old
niece
instead
of
HiSkool_Sweetheart
and
2_Young_4_U?

Please note that Question 2 consists of five (5) sub-parts, (a) through (e). However,
YOU NEED ONLY ANSWER (3) OF THE FIVE (5) SUBPARTS. Each answer carries
equal weight, and you may select any three (3) sub-parts. You should spend no more than 10
minutes on each of your three answers.
The state of Fordham finds itself in the difficult position of having adopted two
inconsistent approaches to the felony murder rule. On the one hand, the state has adopted Model
Penal Code 2.02, which mandates the assignment of a mens rea term (purpose, knowledge,
recklessness or negligence) to each material element of an offense, and assigns a default
mental state when one is not explicitly prescribed by law. Below is an excerpt of the relevant
parts of Model Penal Code 2.02.
50
Model Penal Code 2.02 (in relevant part)

(1) Minimum Requirements of Culpability. . . . [A] person is not guilty of
an offense unless he acted purposely, knowingly, recklessly or
negligently, as the law may require, with respect to each material element
of the offense.
(3)
Culpability Required Unless Otherwise Provided. When the
culpability sufficient to establish a material element of an offense is not
prescribed by law, such element is established if a person acts purposely,
knowingly or recklessly with respect thereto.
(4) Prescribed Culpability Requirement Applies to All Material Elements.
When the law defining an offense prescribes the kind of culpability that is
sufficient for the commission of an offense, without distinguishing among
the material elements thereof, such provision shall apply to all the material
elements of the offense, unless a contrary purpose plainly appears.
Explanatory Note From the Model Penal Code Commentaries:
Model Penal Code 2.02 (1) articulates the Code's insistence that an
element of culpability is requisite for any valid criminal conviction and
that the concepts of purpose, knowledge, recklessness and negligence
suffice to delineate the kinds of culpability that may be called for in the
definition of specific crimes . . .
On the other hand, the state of Fordham has retained its own statutory definition of felony
murder, Fordham Penal Law 125.25(3), which does not specify any mental element. Here is
Fordham Penal Law 125.25(3).
Fordham Penal Law 125.25(3) Murder in the second degree.
A person is guilty of murder in the second degree when: . . . 3. Acting
either alone or with one or more other persons, he commits or attempts to
commit robbery, burglary, kidnapping, arson, rape in the first degree,
sodomy in the first degree, sexual abuse in the first degree, aggravated
sexual abuse, escape in the first degree, or escape in the second degree,
and, in the course of and in furtherance of such crime or of immediate
flight therefrom, he, or another participant, if there be any, causes the
death of a person other than one of the participants; except that in any
prosecution under this subdivision, in which the defendant was not the
only participant in the underlying crime, it is an affirmative defense that
the defendant: (a) Did not commit the homicidal act or in any way solicit,
request, command, importune, cause or aid the
Fordham Penal Law 125.25(3) (cont.)

commission thereof; and (b) Was not armed with a deadly weapon, or any
instrument, article or substance readily capable of causing death or serious
physical injury and of a sort not ordinarily carried in public places by lawabiding persons; and Had no reasonable ground to believe that any
other participant was armed with such a weapon, instrument, article or
substance; and (d) Had no reasonable ground to believe that any other
participant intended to engage in conduct likely to result in death or
serious physical injury; . . .
In practice, Fordham courts have traditionally interpreted felony murder as a strict
liability offense (killings that occur in the course of committing a felony are punished as murder,
regardless of mental culpability). By adopting Model Penal Code 2.02, the state has arguably
reformed its law of felony murder by introducing mental elements. Yet Fordhams state court
judges do not want to apply the Model Penal Codes approach. They want to find a way to read
the states felony murder statute as specifying or implying a culpable mental state, so they can
plausibly argue that its felony murder rule is exempt from the Model Penal Codes default
culpability scheme according to the unless otherwise provided clause in Model Penal Code
2.02(3).
You were recently hired as a judicial clerk, and your first assignment is to evaluate
various strategies that have been suggested to accomplish this goal.
(a) One form of the implied culpability strategy might involve the common law
felony murder rationale of transferred intent. You point out that the idea of transferred
intent is antithetical to the Model Penal Codes goal of assigning each act, circumstance
and result its own culpable mental state. Explain why. Use any case law we studied to
assist you with your reasoning.
(b) You then suggest that Fordham Penal Law 15.15 might provide grounds for an
argument that it is not necessary to separately find a culpable mental state with respect to
the risk of death in a felony murder case. Here is Fordham Penal Law 15.15.
Fordham Penal Law 15.15(1-2)
Construction of statutes with respect to culpability requirements:
(1) When the commission of an offense defined in this chapter, or some
element of an offense, requires a particular culpable mental state, such
mental state is ordinarily designated in the statute.... When one and only
one such term appears in a statute defining an offense, it is presumed to
apply to every element of the offense unless an intent to limit its
application clearly appears.
Fordham Penal Law 15.15(1-2)

(2) Although no culpable mental state is expressly designated in a statute
defining an offense, a culpable mental state may nevertheless be required
for the commission of such offense, or with respect to some or all material
elements thereof, if the proscribed conduct necessarily involves such
culpable mental state. A statute defining a crime, unless clearly indicating
a legislative intent to impose strict liability, should be construed as
defining a crime of mental culpability....
Explain why Fordham Penal Law 15.15 might provide grounds for an argument
that it is not necessary to separately find a culpable mental state with respect to the risk of
death in a felony murder case. Hint: To make this argument, you also refer to Fordham
Penal Law 125.25(3).
However, you then acknowledge that Fordham Penal Law 15.15 could also be
interpreted as implying that a particular mental state is presupposed. Explain why. Hint:
You again refer to Fordham Penal Law 125.25(3), provided above, as well as case law
indicating that causation of death requires foreseeability in the context of felony murder.
(d) One judge asks you whether theres any way that Fordham courts can claim
there is a legislative intent to impose strict liability rather than a default culpable mental
state? You answer in the affirmative, citing Fordham Penal Law 15.15 and 125.25(3).
Explain why. Hint: The affirmative defense for accomplices specified in 125.25(3) plays an
important part in your answer.
(e) Another judge wants to get a better understanding of the Model Penal Codes
culpability rules. She asks you what the minimum culpable mental state for felony murder
would be if the state were to adopt and adhere to 2.02(1) and 210.1(1) of the Model
Penal Code, but not 2.02(3). State your answer and explain your reasoning. Model Penal
Code 210.1(1) is as follows:
Model Penal Code 210.1(1)
(1) A person is guilty of criminal homicide if he purposely, knowingly, recklessly, or
negligently causes the death of another human being.
53

Please note that Question 3 consists of three (3) sub-parts, (a) through
The following is an excerpt from a recent law review article:
It has been frequently noted that most American courts have
omitted mens rea from their definitions of rape; indeed, the
overwhelming majority of rape statutes do not expressly state any
generally applicable mental state. Some state statutes define rape
with a nonconsent or coerced consent requirement, either expressly
or by implication, but with no specification of culpable mental
state in the statute. Case law may or may not clearly supply the
missing required mens rea for the nonconsent element. In these
jurisdictions, courts often seem to treat the nonconsent element as
one of strict liability, requiring no mens rea for conviction; several
states do not delineate a particular mens rea with regard to
nonconsent either in the relevant statutes or in the case law, nor do
they indicate that none is required. Other rape statutes specify a
culpable mental state in conjunction with the act of intercourse, but
do not include any mental state specifically with regard to an
express or implied nonconsent element. In these jurisdictions, the
specified mens rea might or might not carry over to the element of
nonconsent, and case law may or may not clarify the matter. In yet
other jurisdictions, rape is so defined that consent does not appear
to be an element. Finally, some jurisdictions delineate a mens rea
with regard to nonconsent, either statutorily or through case law,
but then have a separate rule allowing for a mistake of fact
defense. Among the jurisdictions that do specify a culpable mental
state for rape, mens rea requirements range from knowledge to
recklessness to negligence and, in one state, purpose.
(a) In jurisdictions that define rape in such a way that consent does not appear to
be an element, how might consent (and any accompanying mens rea) nonetheless be
relevant? You should spend no more than 5 minutes on this answer.
A recent law review article proposed that the New York statute for rape (N.Y. Penal Law
130.35) should be revised to explicitly include a mens rea element of negligence, as well as an
explanation that a reasonable mistake of fact is a defense to the crime.
54
Here is an excerpt from that article:

The [New York statute for rape] should expressly allow the
defendant to raise the defense of a reasonable mistake as to the
victim's willingness, thereby negating the mens rea. New York
courts need to focus their attention on the culpable mental state of
the defendant and not on the victims conduct. While it is
important to reduce sexual assaults, there are countervailing
interests. The rape statute in New York should be designed to
produce successful convictions when the defendant had the
requisite state of mind to commit the crime, not just when there
was force used. In addition, a clear distinction needs to be drawn
between the actus reus element, forcible compulsion, and the mens
rea element.
New York Penal Law 130.35
Rape in the first degree. A person is guilty of rape in the first degree when he or
she engages in sexual intercourse with another person:
1. By forcible compulsion; or
2. Who is incapable of consent by reason of being physically helpless; or
3. Who is less than eleven years old; or
4. Who is less than thirteen years old and the actor is eighteen years old or more.
Rape in the first degree is a class B felony.
(b) Evaluate this law review articles proposal. Explain why you agree or disagree
with the authors suggested revisions. You may wish to propose your own revisions, based
on the above description of other jurisdictions statutes. You should also consider in your
answer the following three models relevant to the defense of mistake of fact as to consent
(the three models are depicted through quoted excerpts from a recent law review article).
You should spend 20 minutes on this answer.
Model 1: Strict liability
Just as the common law crime of rape was a general intent crime, courts typically give
this characterization as well to rape statutes. This characterization usually means that when
prosecuting the crime of rape, there is no issue regarding the defendant's perception of the
requisite attendant circumstances (e.g., whether or not the woman had given consent). Thus,
courts explain that this general intent is sufficiently evidenced "by the doing of the acts
constituting the offense," that the prosecution need only "prove that the defendant voluntarily
committed an act of sexual intercourse," that the defendant has the requisite general intent if he
"intended to place his penis in the victim's vagina," and that consequently whether the defendant
"thought the victim consented . . . is irrelevant."
55
Model 2: Mayberry objective test defendants mistaken belief that the victim has
consented bars conviction unless negligently held
In Mayberry, the complainant testified that defendant repeatedly resorted to force and
threats of force prior to the intercourse, while defendant stated that there had been no force or
threats and that she had voluntarily accompanied him to his apartment and then willingly
engaged in intercourse with him. On appeal from his conviction, the California high court ruled
that on these facts defendant was entitled to a mistake of fact jury instruction regarding the
victim's consent. While the applicable statutory provisions said nothing one way or the other on
this point, the court reasoned: The severe penalties imposed for those offenses . . . and the
serious loss of reputation following conviction make it extremely unlikely that the Legislature
intended to exclude as to those offenses the element of wrongful intent. If a defendant entertains
a reasonable and bona fide belief that a prosecutrix voluntarily consented to accompany him
and to engage in sexual intercourse, it is apparent he does not possess the wrongful intent that is
a prerequisite . . . to a conviction of . . . rape by means of force or threat. This position was later
taken by courts in a few other jurisdictions as well.
Model 3: Morgan subjective test - defendants mistaken belief that the victim has
consented bars conviction unless recklessly held
Morgan is an English case in which three men had forcible intercourse with a woman;
according to the men, the husband had told them that she had "kinky" sex habits and would
welcome their advances even though she might appear to resist and struggle. Following
conviction of the men for rape, the certified question was: "Whether in rape the defendant can
properly be convicted, notwithstanding that he in fact believed that the woman consented, if such
belief was not based on reasonable grounds." A majority answered in the negative, because "the
mental element in rape is not knowledge but intent, to insist that a belief must be reasonable to
excuse it is to insist that either the accused is to be found guilty of intending to do that which in
truth he did not intend to do, or that his state of mind, though innocent of evil intent, can convict
him if it be honest but not rational." Morgan thus rejected a Mayberry-style objective negligence
test in favor of a subjective test interpreted to mean "that recklessness regarding consent is the
mens rea required to support a rape conviction," a position thereafter taken by a few American
courts, and codified in England's Sex Offences Act of 1976 with a proviso that the presence or
absence of reasonable grounds for the belief has evidentiary significance.
How might the Mayberry objective test be argued to effectively reinstate the
resistance requirement (requiring that a woman strongly resist a man's sexual advances to
prove that she was raped)? You should spend no more than 5 minutes on this answer.
- END OF EXAM -
56
57
FIRST STUDENT ANSWER

QUESTION 1
A.
Frank could move to dismiss the indictment of the target offense on the grounds that he only
attempted the crime and did not complete the target offense.
Frank had the requisite mens rea, he intentionally committed the actus reus by persuading or
enticing the "girls" with the purpose of engaging in sexual activity with them and he believed
them to be under 18. His attempt would satisfy. He could raise the issue that his actions didn't
come close enough to fulfilling the physical proximity test because he was arrested before
anything could be done. Prosecutors could argue that he satisfied the dangerous proximity test
because he was dangerously close to committing the crime if the girls had been there.
At common law Frank could argue hybrid legal impossibility as a defense. Frank's goal was
illegal however it was impossible for the actions to be illegal because the two "girls" were not
under 18. At common law Frank could use this as a defense. However, the prosecution could
argue that Frank's defense was really factual impossibility and therefore not a defense to his
actions. The government could argue that Frank was simply mistaken as to the facts and the
factual situation as Frank believed it to be was that the girls were under 18 and he was going to
be committing the offense.
Under the MPC Frank could probably not have the indictment dismissed. Under the MPC
there is no impossibility defense except true legal impossibility which is not applicable here
because the result of Frank's actions would have been illegal.
Frank could try and argue that he was only an accomplice but it would fail because the
"girls" could not be charged with a crime they are victims of.
B.
If Frank (F) wrongly believed he had aids he could be charged with attempted murder. At
common law it would have to be shown that F had the purpose to commit the murders by
engaging in sexual intercourse with the "girls" thinking he had AIDS. It would be hard for the
prosecution to get this conviction because of the mens rea requirements for attempt. Showing
that F had the purpose to kill would be unlikely.
In the cases we discussed the way a defendant with AIDS was indicted for attempted murder
was when there was specific evidence that he tricked the victims into sex and that he knew AIDS
could be transmitted through sexual intercourse. In the case where the rape was forcible there
could be no attempted murder charge because the intent was not to kill, but to rape.
In the present case, F did not have the intent to kill nor are there any facts that imply that he
was engaging in the sex with the girls for the specific purpose of killing them. It does not appear
58
that he tricked them into sex, however there could be a stricter penalty because of their status as
minors. Nevertheless, in all likelihood there would need to be more information to prove at CL
that F intended to kill based on his belief that he had AIDS. Also, F had condoms in his car, so
he could argue that even if he knew he had AIDS he was taking the requisite steps to engage in
safe sex and not transmit the disease which would probably be enough to show he didnt have a
specific purpose to kill.
Under the MPC the prosecution might have better luck at indicting F for attempted murder.
The MPC mens rea requirement for attempt is more flexible than the CL and requires F only to
have had the belief that his conduct would cause death. This would be an easier mental state to
show, as F could reasonably know that AIDS causes death and it is a sexually transmitted
disease. It would appear as if F took a substantial step by driving to the meeting place, however
he brought condoms which appear that he was planning on having safe sex, and not trying to
transmit the disease which would probably be enough to show that he didn't even have the belief
his activity would kill the girls.
Frank could raise a factual impossiblity defense because he actually did not have AIDS,
however this would not be accepted at either CL or MPC
[NOTE FROM THE
PROFESSOR: THE SMALLWOOD CASE IS MOST APPLICABLE HERE BUT EVEN
THE DEFENDANT IN SMALLWOOD, WHO KNEW HE WAS HIV-POSITIVE AND
ACTUALLY HAD SEXUAL INTERCOURSE WITH HIS RAPE VICTIMS, WAS NOT
SUCCESSFULLY CONVICTED OF ATTEMPTED MURDER BECAUSE OF THE
STRINGENT INTENT REQUIREMENT FOR ATTEMPTED CRIMES.]
C.
D.
E.
F.
G.
Pure factual impossibility/Mixed legal and factual impossibility

Pure legal impossibility
Mistake of Fact
Mistake of Fact
Mistake of Fact
QUESTION 2
A.
Transferred intent doctrine is aimed for proportionality and to not let defendants off the hook
for "bad aim." In felony murder, the murder isn't committed due to bad aim or the like, it is
usually unintended and not what the felon's wanted or expected. Applying transferred intent to
the felony murder doctrine would in effect be saying that the intent to commit a felony is the
equivalent of the intent to kill (murder) which is incorrect. [FROM THE PROFESSOR:
INCORRECT IS NOT THE RIGHT WORD HERE; IT SEEMS THAT THE STUDENT
MEANS INJUSTICE OR UNFAIR BECAUSE THE TRANSFERRED INTENT
DOCTRINE IS TECHNICALLY ACCEPTABLE UNDER THE MPC.] The intent to kill
for murder purposes is not [OR SHOULD NOT BE] the same as the intent to commit a felony,
especially one that would not merge with the homicide.
The transferred intent doctrine is applied to acts with the same social harm - transferring the
social harm from one act to another as to not let the actor ecape liability. In felony murder,
59
applying the transferred intent doctrine is tantamount to applying D's intent to one social harm
(which is usually a lesser social harm) to a greater social harm. The MPC requires a separate
mental state for each result, and applying the mental state for one lesser harm to a greater harm
based on transferred intent doesn't equate with the MPC's notions of evenly and fairly punishing
defendants based on their requisite mental states for each act.
The MPC assigns each act circumstance and result its own mental state, and simply
transferring one mental state to another circumstance, act, or result doesn't mesh with what 2.02
stands for. Using the transferred doctrine to justify felony murder is the same as saying that D is
culpable for an action that he really had no mental culpability for, the MPC is all about the
opposite of this result and making sure that D had the required mental state before holding him
culpable.
C.
Under Fordham Penal Law 15.15(1) if there is one mental state proscribed it can apply to all
the elements in the offense and the MPC 2.02 approach will not have to be adopted.
Furthermore, Fordham PL 15.15(2) states that even if there is no culpable mens rea state in a
statute one may be required if the conduct requires a mental state. Applying these two
provisions together if there is a mental state inferred based on 15.15(2) it may applied throughout
the statute based on 15.15(1)
There is no legislative intent in Fordham to read the statute as strict liability - only judicial
intent - so it could be argued that the legislature did not want such a serious offense to be strict
liability as such SL offenses are typically only violations punishable by a fine and no social
stigma attached.
Applying 15.15(2) it could be argued that FPL 125.25(3) requires at least the requisite mens
rea requirement of all the enumerated felonies in the statute (let's assume them to recklessness or
above). Further applying 15.15(1) you could argue that this mens rea requirement as to the
enumerated felonies in the offense also applies to the killing during the course, in the furtherance
of, and in flight from such enumerated felonies.
This reading would require a recklessness or above with respect to the enumerated felonies
and the fact that the ensuing deaths would have to be foreseeable, because how if one was
reckless as to the felony he is disregarding a substantial and unjustifiable risk that something
could happen and proceeding anyway.
D.
The argument could be made that there was legislative intent for the crime of felony murder
to be strict liability based on the enumerated affirmative defenses. If the legislature required a
specific mental state as to felony murder, one could assume they would include it in the statute
instead of providing for the affirmative defenses. The affirmative defenses allow a lot of wiggle
room for defendants charged with felony murder to absolve themselves of liability.
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The fact that D's can use defenses like such speak to the possibility that the legislature
intended for anyone without such a reasonable defense to be convicted no matter what strict
liability. The affirmative defenses also cover most (if not all) situations where the defendant
would be able to argue that he did not have the requisite mens rea for the offense if one was
provided anyway, seemingly getting rid of the need for the mens rea requirement at all.
Also, 15.15(1) explicitly states that if a mental state is required for a crime or element of a
crime it will be expressly designated within the statute. If the legislature did not place a mens
rea term within the statute, it can be inferred that they did not feel a mens rea term was needed
for the offense which would make it again to be inferred that the legislature intended the offense
to be strict liability.
Last, 15.15(2) does not require that a mens rea term be implied for every element or crime,
only that it can be if it appears necessary. Inferring from the fact that the legislature did not
place a mens rea term in the statute one could make the logical assumption that they did not feel
one was needed, and the courts had interpreted the intent as such. Finally, the legislature would
have had ample opportunity to amend the statute if the judiciary was traditionally interpreting the
statute as strict liability - and the legislature did not do so.
QUESTION 3
A.
Consent and the accompanying mens rea may still be relevant to rape prosecutions and
defenses even if they are not defined as an element for evidentiary purposes. Prosecutors can
use the lack of consent and D's mens rea to show that he intended to rape making for a stronger
case. Lack of consent can be used to show why a victim resisted.
B.
The proposed revisions could be considered both to be a good idea and bad idea in rape
statutes. Proponents of strict liability would want no negligence requirement and no mistake of
fact. Proponents of this model #1 feel that the only thing that should matter in rape prosecutions
is a woman's consent (implicitly or explicitly) and it doesn't matter what the defendant believed
if the woman did not want the sex. These advocates of SL feel that rape is primarily a violation
of a woman's autonomy and that the focus should be on her.
However, strict liability crimes are classically only violations and crimes that have little or
no social stigma attached to them. Rape is clearly not such a crime, by not allowing a reasonable
mistake of fact or minimum mens rea of negligence as to the crime the legislature is effectively
making rape - a crime with serious social stigma and imprisonment implications - a strict
liability offense.
In crimes of this nature the focus should be on the defendant's mens rea as the author points
out. While protecting women's autonomy is a paramount concern, a defendant who shows that
61
he made a reasonable and honest mistake of fact as to whether or not the victim consented does
not have the requisite mens rea for the offense of rape and should not be convicted.
The pros of the Model 2 are significant. An objective test that the defendant honestly and
reasonably believed the woman consented to intercourse would appear to be a good direction to
head in. The test would be objective - whether a reasonable person would have held the same
belief - which would eliminate concerns of how much of the defendant's personality and
circumstances would factor into the equation.
Using an objective test could balance womens interests along with defendants.
Women could rest assured that defendants would not be able to introduce subjective
information to show why in their own special circumstances they believed the victim consentedthus, eliminating some concern over fabricating stories and introducing extremely individualized
circumstances to the analysis. On the flip side the reasonable person standard could vary from
jury to jury and there has traditionally been a lot of "blaming the victim" done in our culture
when it comes to rape cases.
Defendant's interests could be protected in the fact that they too could rest assured that if
they truly and reasonably believed a woman consented, they would not be guilty of rape - and
therefore would not have to tread lightly every time they talked to an unknown woman in a
situation that could lead to sex. Our society is not one where people go out and affirmatively
give consent for sex, and asking men to do just that seems wrong. On the other side defendants
would still have to worry that what they believed to be "reasonable" might not be reasonable to a
jury.
Defendant's would likely want a standard similar to that imposed in Model 3 where their
belief would be acceptable as to consent as long as it was reasonable held. Such a Morgan test
would be unacceptable to many proponents of the strict liability model - and the negligence
standard would be a more acceptable compromise. Because it disregards times where a
defendant should have known that the victim did not consent, this standard of Model 3 could
leave open the possibility for defendant's to argue that they truly didn't know the woman had not
consented and still be able to be acquitted even if a reasonable man should have known.
Applying a subjective test allows the possibility of more defendant's being exonerated based on
their individualized notions of what consent is and isn't and such notions may to an ordinary
person not be reasonable. However, the jury would still have to buy D's arguments in all cases.
The best way to accommodate all of the ideas proposed by the author would be to apply a
Model 2 standard allowing for an honest and reasonable mistake of fact to be determined on an
objective basis by the factfinder, and a negligence standard of mens rea in regards to this holding
D guilty if he should have known (a reasonable man should have known) the victim was not
consenting. This would protect "no mean no" and allow women in such situations to make their
lack of consent perfectly clear and not give defendants any wiggle room to escape liability when
the victim says no. In those trickier situations where there is no explicit consent or lack there of
given, D's would be able to introduce evidence as to why they though there was consent, and if a
62
factfinder determines such a belief was objectively honest and reasonable D should not be
punished because he did not have the requisite mens rea for the offense.
C.
The Mayberry objective test could be argued to reinstate the resistance requirement because
one could argue a man could think a woman consented as long as she didn't resist his advances.
In situations where a woman was passive and simply allowed the rape to happen without saying
anything, how would a man reasonably know that a woman was not consenting...in other words
he could always argue that she never said no and he reasonably believed this to mean consent.
However the standard would be objective as to these mistakes of fact and in situations where to a
reasonable person there would not be consent a defendant could still be convicted. Also, one
could argue that requiring a woman to simply say no, is not making her resist, she is just making
sure the defendant knows there is no consent. Once a woman says no it has been held that a
defendant continues recklessly at his own risk.
SECOND STUDENT ANSWER

QUESTION 1
A.
The statute has a mens rea term of knowingly as to the conduct of persuading coercing etc,
and there is no mens rea term as to the attendant circumstance of age under the CL. Under MPC,
the prosecutor would have to prove that Frank acted at least knowingly or purposely with regard
to the conduct and at least recklessly with regard to the attendant circumstances. Frank did act
knowingly with regard to both the conduct and the attendant circumstances. He exchanged 50 emails with the "girls", which indicates he really intended to meet them, and the e-mails were
sexual in nature, so he was trying to get them to have sexual activity, and the volume of the emails also indicate that he was at least reckless with regard to the fact that they were underage.
The girls also told him they were underage. Under the CL, the attendant circumstance as to the
girls age could be strict liability, but Frank had a higher mens rea, so it will probably not be a
problem to convict him.
Defenses: Frank can offer two reasons to dismiss the indictment:
1) He can claim impossibility. He can say that since the girls were actually adults and it is
not illegal to solicit adults to have sex, he did nothing wrong and therefore is not guilty.
Unfortunately for Frank, this will probably not work under the MPC or the CL because factual
impossibility is not a defense. If the circumstances were as he had supposed them to be, he
would have been guilty, and he will probably be charged for at least attempt. [NOTE FROM
THE PROFESSOR: THE STUDENT COULD HAVE MORE FULLY DISCUSSED AN
ATTEMPT TO TRY A HYBRID LEGAL IMPOSSIBILITY DEFENSE UNDER THE
COMMON LAW.]
63
2) He can claim that the entire indictment is illegitimate because he was entrapped into the
situation by police officers. This might be a defense, depending on which test the jurisdiction
uses. However, it seems by the volume of his responses and by the fact, that Frank was
"entrapped" by two different people who were not working together, a police officer, and a
woman who poses as a teenager in chat rooms, he had a propensity for such crimes, and the court
will not look favorably upon this.
B.
If Frank wrongly believed that he had AIDS the result would not change. First, the
prosecutor might try to add an attempted murder charge. However, under the CL attempt
requires intent as to the conduct and intent as to the result. There is nothing in the fact pattern
that indicates that Frank intended to kill the "girls" by sleeping with them. Moreover, it might
not even be likely that he could have. Under MPC, the same will be true. Thus, if Frank
mistakenly believed he had AIDS, nothing would change. [NOTE FROM THE PROFESSOR:
THE STUDENT COULD HAVE DISCUSSED AND COMPARED THE SMALLWOOD
CASE.]
C. Mixed legal and factual impossibility.
D. Pure legal impossibility.
E. Mistake of pure fact.
F. Mistake of pure fact.
G. Mistake of pure fact.
QUESTION 2
A naked statute requires the consideration of several factors.
1) the nature of the crime for which the defendant is being prosecuted
2) the court's use of, or opportunities to use, judicial discretion
3) the court's approach to statutory interpretation, including its use of legislative history
4) the court's reliance on a philosophy of assumption of risk
5) the court's enforcement of morals or of what it considers to be acceptable policy
D.
Statute 15.15 provides that "A statute defining a crime, unless clearly indicating a legislative
intent to impose strict liability, should be construed as defining a crime of mental culpability".
However, Fordham Penal law 125.25(3) strongly suggests that there is legislative intent to
impose strict liability. One of the reasons for this is the affirmative defenses to criminals who
commit a crime during the commission of which there is a murder. The affirmative defenses
indicate that the legislative wanted to deter criminals from being armed and had a real purpose in
64
doing so by providing an affirmative defense. The legislature also seemed to want to deter the
participation of criminals in violent acts. The affirmative defenses include a) not being an
accomplice, b) not being armed with a deadly weapon c) not believing that someone else was
armed d) not knowing that anyone else wanted to engage in serious physical injury. These
considerations as defenses seem to have been so strong in the crafting of the statute, that the
legislature was ready to hold someone who did not have one of these defenses as strictly liable.
If this was not the legislature's intent, it's difficult to see why they would separately craft
these defenses in order to help exonerate the criminal.
C.
It is also possible to interpret 15.15 to imply the mental state of recklessness into the statute.
The statute says that if there is no mental state expressly designated in a statute defining an
offense, a culpable mental state may nevertheless be required for the commission of such an
offense. There are two indications that the legislature wants there to be an implied mental state
of recklessness. First, the crimes it lists as the underlying felonies are probably inherently
dangerous. they are, robbery, burglary, kidnaping, arson, rape in the first degree, sodomy in the
first degree, sexual abuse and escape in the first degree. Thus, if you are engaging in these
crimes, it seems that you can presume from the get-go that the criminal is at least reckless. Also,
the fact that again, the legislature seems to provide defenses for conducting the crimes in a nonviolent manner, meaning without the intent to help someone commit murder and conducting the
crime unarmed, this suggests that if the crimes are conducted in a manner which is not reckless
or dangerous or violent, then the person will be exonerated. So one can assume that there is a
mental state of recklessness the court implies. Also, the fact that the felonies that are enumerated
are dangerous speaks to the fact that felony murder is concerned with deaths that are foreseeable.
Thus, there are excuses in the common law for deaths that are unforeseeable. For example, in
Heinlein vs. the United States, the co-felons were excused when one of the felons unexpectedly
stabbed the victim in the middle of a rape. Other crimes, where deaths are foreseeable usually
get a the felony murder charge, these are crimes like robbery. The statute seems in line with
these goals, by encouraging criminals not to bring weapons, and not to participate in violence,
any death that occurs thereafter, would arguably not have been foreseeable, and thus not be a
source of blame.
E.
If the state were to adopt 2.02 (1) and 210.1 (1), then the minimum mental state for felony
murder would be negligence. 2.02 (3) requires that the criminal be at least reckless with regard to
each element of the material offense. But if the state does not adopt this requirement then 2.02
(1) says that "a person is not guilty of an offense unless he acted purposely, knowingly,
recklessly or negligently as the law may require, with regard to each material element of the
offense." Thus, the relevant statute would become 210.1 (1). Under this statute a person is guilty
of criminal homicide if he "purposely, knowingly, recklessly, or negligently causes the death of
another human being." Negligence is the lowest requirement. Of course, if this were the felony
murder rule, (210.1 (1)), it is then debatable what "causes" really means, and whether or not a
felon can be held liable for a murder perpetrated by his accomplice. However, in not adopting
65
2.02 (3), the bar is lowered, and it only has to be negligence that is proved for a person to be
charged with a homicide. It is likely that it is almost always easy to prove at least negligence in
a felony murder situation. [NOTE FROM THE PROFESSOR: ALWAYS EASY TO
PROVE AT LEAST NEGLIGENCE IS A BIT OF A LEAP IN LANGUAGE; THE
MORE QUALIFIED LANGUAGE OF IT IS SUBSTANTIALLY EASIER TO PROVE
NEGLIGENCE RATHER THAN RECKLESSNESS WOULD BE MORE ON POINT.]
QUESTION 3
A.
Jurisdictions that do not define rape in terms of the females consent but have a mens rea for
the perpetrator basically act like the MPC in shifting the attention to the male's acts of aggression
or over reaching instead of the female's lack of consent. The point is to avoid the common law's
emphasis on objective proof of the female's resistance. Since these jurisdictions do not require
proof of the female's resistance, then it's probably true that in these jurisdictions, the mens rea
requirement for rape is higher, being at least reckless, or knowing or purposeful. It would be
unfair not to require any sign of non-consent and at the same time also to hold the actor strictly
liable for rape. Thus consent and mens rea need to be balanced.
B.
First, let's interpret the statute as it is now: The New York statute seems, like the MPC to
focus on the aggression of the rapist and not on the victim's consent, thus correspondingly it
seems to require some proof of force or some other circumstance in which sex becomes criminal.
The statute mirrors the MPC version, except for the fact that instead of requiring "force, threat of
imminent death, serious bodily injury, extreme pain or kidnaping to be inflicted on
anyone".....the statute simply provides for sex by "forcible compulsion" which seems to be a
more open category of force, and when not grouped with serious threats like "threat of death"
seems more open to interpretation. Also, this statute is gender neutral, unlike the MPC statute.
Thus, here the focus is on the aggression of the male. There is no mens rea term anywhere in the
statute. However, given the fact that the crime is serious and hurts the reputation, it is doubtful
that rape under the New York statute is strict liability, but it could be, like in Sherry. Instead,
given the fact that there is no mens rea term and not a focus on the person's consent, I would
venture to guess, that this statute should be read like the MPC and should require, purpose, or
knowledge with regards to the act being a rape, in order for the statute to be fair. Since the
statute is almost identical to the MPC statute, except it changes the fact that the woman has to be
under 10 years old to that the person has to be under 11 years old, and a few other minor
changes.
The Proposed Changes: First the article says that the New York statute needs to focus on
the culpable mental state of the defendant and not on the victim's conduct. It already does this by
focusing on the defendant's aggression and use of force. Second, if the statute is revised to
explicitly include negligence as an element of mens rea, then it will be an unbalanced statute
because it will not require any need for the victim to resist at all, but it will also have negligence
as the requirement. However, it's possible that the mistake of fact defense takes care of this
66
concern. Right now , the statute as it stands is probably similar to Model 3, which is Morgan's
Test, that requires intent to commit the rape. This is probably the least victim friendly test and
has its problems because it even permits an unreasonable belief in terms of the victim's consent.
If the recommendation is incorporated, and the test becomes more of a negligence test, like the
Mayberry, objective test, then it will basically re-incorporate resistance into the standard (to be
discussed in part c). This will make it harder to prosecute people than in a strict liability
situation, but easier to prosecute than in the Morgan situation. The statute is naked, so it could be
strict liability as in Model 1, but probably not. Model 1 seems to focus on the act of sex itself
being immoral, and to rely too heavily on the moral wrong doctrine. Model 1, seems to want
people to be prosecuted if they engaged in sex, and it doesn't focus on the mens rea of the
perpetrator. This is probably the most victim friendly test (making it the easiest to prosecute),
and the least defendant friendly test. Thus, the state should probably incorporate the negligence
requirement, and the mistake of fact requirement because this balances the needs of both the
victim and the perpetrator (so he should be alert), but then the statute will basically have to reincorporate the resistance requirement (which it does through the mistake of fact defense) and it
will probably also have to lower the amount of force that is necessary in order for the crime to be
a rape, . Thus any sort of compulsion should be a rape, if the victim's consent or non-consent is
now considered in the prosecution of the crime.
C.
The Mayberry objective test reinstates the resistance requirement because it re-focuses attention
on the victim's conduct. The Mayberry test, basically asks "would an ordinary man, in these
circumstances have reasonably believed that the victim was consenting?". Thus, in asking this
question, the court will have to evaluate the circumstances, and probably the victim's behavior
instead of the consciousness of the rapist. The court will ask itself, did anything the victim do,
indicate to the rapist that she did not want sex, in such a way that an ordinary man would have
been aware of it? The victim's behavior will also be on trial, but it will be easier to prosecute
than under the MPC standard, which seems to be the NY standard now.
67
Helpful Hints for Exam Taking

1. Always argue both sides; please don't tell me what you think I want to read.
2. Remember to use the facts to illustrate the rules of law. Many students forget to do this and
this is what usually separates an average exam from an excellent one.
3. Make sure you are conscious of time. Exams can entail a time crunch and a beautiful answer
on the first question will not compensate for having slighted the last question.
4. Temper your language; there is very little that is clear, certain, or definite in the law.
5. It is a good idea to skip lines and write on every other page; when you forget things you can
always go back and insert them.
6. Do not write conclusory answers. Your analysis of facts and law are most important.
7. It might be helpful to create some sort of checklist of how to approach the question, elements
of the crime, defenses, etc. . . . so that you don't forget anything. This will also help you spot
issues.
8. Make sure to get a good night's sleep and to eat a healthy breakfast.
9. Do not commit a crime of violence either before, during, or after taking the exam.
68

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HANDBOOK ON

CRIMINAL LAW EXAMS

FALL 2003 CRIMINAL LAW EXAM

FORDHAM UNIVERSITY SCHOOL OF LAW

If you think it is necessary, state assumptions or additional assumptions of fact not

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Student Answer to Fall 2003 Criminal Law Exam

SPRING 2004 CRIMINAL LAW EXAM

FORDHAM UNIVERSITY SCHOOL OF LAW

If you think it is necessary, state assumptions or additional assumptions of fact not

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Meanwhile, Lustins ex-girlfriend, Bratney Leers, also a singing celebrity, tuned in to

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Was Olga raped? Address both sides of this question.

Student Answers to Spring 2004 Criminal Law Exam

At CL, if Fordham recognizes unlawful act or misdemeanor manslaughter, J could

Self-defense and deadly force

FALL 2006 CRIMINAL LAW EXAM

FORDHAM UNIVERSITY SCHOOL OF LAW

If you think it is necessary, state assumptions or additional assumptions of fact not

Student Answers to Fall 2006 Criminal Law Exam

FORDHAM UNIVERSITY SCHOOL OF LAW

Felony Murder - Igor

Conspiracy - Franny and Maddox

INSERTED BELOW IS ANOTHER STUDENTS ANSWER TO THE EXAM

Student Answers to Fall 2006 Criminal Law Exam

FORDHAM UNIVERSITY SCHOOL OF LAW

QUESTION 1 (30 minutes)

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(e) What doctrine might be invoked if:

QUESTION 2 (30 minutes)

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Model Penal Code 2.02 (in relevant part)

Fordham Penal Law 125.25(3) (cont.)

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Fordham Penal Law 15.15(1-2)

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QUESTION 3 (30 minutes)

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Here is an excerpt from that article:

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Student Answers to Fall 2006 Criminal Law Exam

FIRST STUDENT ANSWER

Pure factual impossibility/Mixed legal and factual impossibility

SECOND STUDENT ANSWER

Helpful Hints for Exam Taking

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