Criminal Law Section B

Spring 2021—Dean Michael Simons

Syllabus

Welcome to your (final!) pandemic semester. I am looking forward to making our way through the semester together, learning Criminal Law, continuing your training as lawyers, and generally getting to know each other. I am acutely aware of how difficult this pandemic has been on everyone, and I will approach this semester with deep reserves of understanding and empathy for the various challenges that you are facing. At the same time, I’m also determined to keep your training on track so that you will be ready to graduate, take the bar exam, and join the legal profession on schedule in 2023. We will get through this together!

The remainder of this page lays out the basic information for the “syllabus.” Please read this in conjunction with two other important pages:

• Introduction to the Course
• Class Assignments
  
  

Class Meetings

• Tuesdays and Thursdays, 9:30 a.m. – 10:55 a.m.
•  Moot Courtroom (B1) and Room 1-15 (B2)
  
  

My Contact Information

• Email:      simonsm@stjohns.edu
• Phone:     (718) 990-6601
• Twitter/Instagram: @deanmikesimons
• Assistant: Luisa Asaro, asarol@stjohns.edu, (718) 990- 6602
  
  

Office Hours

• Tuesdays, 1:30 – 3:30 p.m. For the foreseeable future, office hours will be virtual. Go to https://sju.webex.com/meet/simonsm
  
  

Teaching Fellows

Four Teaching Fellows will be assisting us in the course. Their responsibilities will include managing WebEx during class, giving feedback on practice exams and other assignments, and being available for one-on-one tutoring and other academic support. They are:

• 3L Edward Belotte: edward.belotte18@my.stjohns.edu
• 2L Julia Haghighi: julia.haghighi19@my.stjohns.edu
• 2L Stephani Lemerce: stephanie.lamerce19@my.stjohns.edu
• 2L Anahí Tapia: anahi.tapia19@my.stjohns.edu
  
  

Course Description

An introductory study of the law of crimes and the administration of criminal justice, including general principles of criminal liability and defenses. Topics considered include the criminal act and mental elements in crime, causation, mistake, excuse and justification defenses, the law of homicide, and the inchoate offenses such as attempt and solicitation. These topics are examined under the common law, the Model Penal Code, and the New York Penal Law to give the student a historical as well as modern perspective on the criminal law and its objectives. (A more detailed description of the course appears in the “Introduction to the Course” below).

Course Goals

My primary goals for the course are to help you develop:

• Knowledge of basic criminal law doctrine;
• Skill in analyzing complex criminal law problems, with a particular focus on the elements of crimes and defenses;
• Skill in reading statutes, especially comprehensive codes like the New York Penal Law;
• Knowledge of the theoretical principles underlying criminal law doctrine and policy;
• Skill in articulating persuasive arguments for and against particular doctrines, policies, and results; and
• Skill in thinking critically about criminal law and justice, including how the substantive criminal law has been shaped by and continues to intersect with race, gender, and class.

There are also a number of secondary course goals, which are summarized in the “Introduction to the Course.”

Textbooks

• Required: Simons & Haghighi, Criminal Law (2021). This opensource casebook is available at: https://opencasebook.org/casebooks/2259-criminal-law-simons/.
• Why an open source casebook?: For the past 22 years, I have been teaching out of Prof. Joshua Dressler’s popular casebook. When I started with the Second Edition in 1999, the book cost about $50. Now in its Eighth Edition, the book costs almost $300; the Ninth Edition, due out soon, will cost even more. So my primary motivation for switching to an open source casebook is simply to save you money. My secondary motivation is to make better use of a variety of digital tools to enhance your learning. The book is a work in progress, and we’ll all need to be patient as we work out the kinks. While I expect there will be some bumps in the road with the new book, I’m excited to take this foray into the future of course materials.
• Optional/Recommended: Dressler, Understanding Criminal Law (LexisNexis, 8th ed. 2018) ISBN: 978151007928 [I encourage you to use an older edition, which you can find on the used-book market. The changes are minor.]
  
  

Assessment

Your grade will be based on the following: class participation (10%); in-semester assignments (10%); and a final exam (80%).

• Final Exam: The final exam will be an open-book, limited-time, take-home exam. The final is scheduled for Thursday, May 6.
• Practice exams and other assignments: You will have several in-semester assignments, which will help you prepare for the final exam, give you incentive to review regularly, and allow us to gauge whether we are meeting the course goals. These assignments, some of which will involve group work, will be graded on a credit/no credit basis. Each assignment will be worth two points. If you complete an assignment by the due date, you will receive full credit. If you complete an assignment late (but before April 30), you will receive half credit.
• Class Participation & Quizzes: Class participation includes coming to class, being prepared when you are cold-called, volunteering during class discussion, and participating in the in-class polls and quizzes. More details about my approach to class participation are in the “Introduction to the Course.”
  
  

Remote Classes

For the first two weeks of the semester, we will be conducting class online through WebEx. For those classes (and for any other classes that we have to do online, please keep the following in mind:

• We will use the same link for each of the first four classes. Here it is: https://sju.webex.com/sju/j.php?MTID=m7e2b782c49de6f25e4b4a055de211ca3. The password is CrimSectionB.
• Even though they are remote, our online classes are shared and collaborative learning experience. So, live attendance at the synchronous class session is still required. Although the online classes will be recorded, watching the recording does not count as attendance without special permission.
• For the same reasons, please keep your cameras on as much as possible during the online classes. I recognize that connection issues may make that difficult, but the learning experience will be better for everyone if we can all see each other.
  
  

Attendance in a Pandemic

In-person attendance is an important part of our shared enterprise this semester—we will be learning together. Of course, if you are sick, have any COVID symptoms, or have any reason to quarantine, you should not come to class in person. All COVID-related absences are excused. So are absences for job interviews, other professional appointments, unavoidable family obligations, and the like. School policy permits four unexcused absences—but I really don’t expect anyone to miss class without an excuse. (If you are absent without excuse for more than four classes, you will not be able to sit for the final exam without my permission.) If you do need to miss an in-person class, please let me know by email—before class if possible. I view each class meeting as a professional appointment. And so, if you are not able to keep that appointment, please let me know.

Classroom Recordings

All classes will be recorded on WebEx. You will be able to access the recordings via Canvas. As noted above, watching the recording does not count as attendance without special permission. That being said, if you do need to miss class, you should certainly be sure to watch the recording.

Laptops and Note Taking

Although I have taught in a laptop-free classroom for many years, our switch to an electronic casebook makes that impractical. But I strongly encourage you to take notes in class by hand. There is much empirical evidence supporting the pedagogical benefits of handwritten notes, but the basic idea is this: it encourages active learning. (For more on my philosophy of active learning, see “Getting the Most out of This Course” in the Course Introduction.)

Social Media and Class Discussion

I will, on occasion, use Twitter to call your attention to items in the news that are relevant to our study of Criminal Law. (I also use Twitter to publicize news about the Law School.) I encourage you to follow me on Twitter (@DeanMikeSimons) and to participate in the conversation using #CrimSectionB.

Criminal Law Section B
Spring 2021—Dean Michael Simons
 
Introduction to the Course

 
I.  WHAT THIS COURSE IS ALL ABOUT

A.  Crime and Punishment

Consider the following scenarios: Are these people guilty of crimes? If so, of what crimes are they guilty? How severely should they be punished?
 
A mental patient pushes a woman in front of an onrushing subway train. A wife shoots her abusive husband while he is sleeping. A police officer shoots and kills a boy that he mistakenly believed was armed. A mother does nothing while her boyfriend beats her child to death. A 21-year-old woman has consensual sex with a 16-year-old boy. An epileptic has a seizure while driving and strikes and kills a mother and her two small children. A man punches his pregnant wife in the abdomen, killing her unborn child. A man on the subway shoots and seriously wounds four unarmed youths because he thought they were going to rob him. Sailors on a rickety lifeboat throw several passengers overboard to prevent the boat from sinking. A bank robber's gun accidentally discharges, killing a teller. A doctor removes the feeding tube from a patient in a permanent vegetative state. A mob of youths chases a man onto a highway where he is struck and killed by a car. A heroin addict gives opioids to a friend, who overdoses and dies. A husband helps his terminally ill wife commit suicide. A mother, suffering from post-partum depression, drowns her five young children in the bathtub. A bishop allows a priest with a history of pedophilia to work with children. A chief executive lies in a civil deposition about his sexual affair with one of his employees. Two very drunk college students have sex; neither remembers anything about it, including whether they consented or whether both were conscious. A politician gropes a woman while posing for a photo.
 
Each of you should have a gut feeling about whether the conduct in the above examples is a crime and, if so, how deserving of punishment it is. This course will give you the analytical skills and the vocabulary to articulate and to defend (or perhaps to change) your gut feeling. More importantly, it will give you the practical ability to answers those questions under existing law.

B.  How the Course is Organized

Our main task this semester will be to learn how to analyze criminal law problems by identifying the elements of crimes (and defenses) and then determining whether those elements are satisfied by the facts. We will work on this skill throughout the semester because it is our main learning objective and the main thing you will be tested on.
 
Although our continuous focus will be on elements and analysis, our opensource casebook is organized based on the general principles of criminal law. And that is how we will proceed, in this order:

1. First, we will consider the purposes of the criminal law: Why do we punish? What, if anything, do we hope to accomplish through punishment? What are the principles that guide our punishment decisions? (Principles of Punishment, Legality, Classes ##1-3).
2. Second, we will examine the various elements that make conduct criminal: a voluntary act (Actus Reus, Class #4), a bad intent (Mens Rea, Classes ##5-10), and a harmful result (Causation, Classes ##11-12). We will examine the interplay of these elements in a variety of crimes, including battery/assault, larceny/robbery, arson, and burglary, with a particular focus on homicide (Classes ##13-18) and rape (Classes #19-21).
3. Third, we will consider those circumstances in which conduct that leads to harmful results may not be criminal at all (Defenses, Classes ##22-24).

Finally, we will consider those circumstances in which conduct that doesn’t lead to harm might still be criminal (Attempts, Classes ##25-26).

C.  Sources of Law (or “Where do the ‘elements’ come from?”)

We will study three main sources of criminal law. First, we will study the common law of crimes. Though now largely superseded by statute, the common law remains the basic jurisprudence of the criminal law. It is the backdrop against which statutes are written and the foundation for all thinking about the criminal law.
 
We will also spend considerable time examining various criminal statutes, particularly the Model Penal Code and the New York Penal Law. Notwithstanding all the time you spend reading common law judicial opinions in Contracts, Property, and Torts, you cannot begin to practice law if you cannot read, interpret, and apply statutes. 

D.  What this Course Is Not

This is not a course in criminal procedure. We will not cover police practices, warrants, searches, confessions, interrogations, suppression of evidence, and the like. (You all should take Criminal Procedure: Investigations). We also will not spend any time on arrests, indictments, grand jury proceedings, bail, plea bargaining, double jeopardy, and the like. (Anyone interested in practicing criminal law should take New York Criminal Practice and/or Criminal Procedure: Adjudication). Nor will we learn about criminal trials. (You all should take Evidence; and future prosecutors and defense attorneys should also take Trial Advocacy). All of that is procedure. We will spend our time on the general principles of the substantive criminal law—in other words, what conduct warrants punishment and why.
 
Similarly, this is not a course in New York Criminal Practice. (That separate course will be of great interest to future prosecutors and defense attorneys). In this class, we will touch on several New York criminal statutes (including assault, larceny, arson, burglary, rape, and homicide), but you will learn very little about the many other crimes that fill the dockets of the criminal courts in New York: fraud, forgery, false statements, perjury, drug dealing, bribery, blackmail, extortion, prostitution, child neglect, gun possession, money laundering, insider trading, driving while intoxicated, disorderly conduct, harassment, criminal mischief, destruction of property, and so on. But, by the end of this course, you should be able to pick up the New York Penal Law, look up any one of those crimes, and instantly discern the elements of the offense (indeed, you will be required to do just that on the exam).

II.  LEARNING OBJECTIVES 

I have six primary learning objectives for this course.

1. First, we will learn basic criminal law doctrine, most notably, the elements of various crimes and defenses.  For many crimes and defenses, we will cover the common law, Model Penal Code, and New York versions; for others, we will learn how to read an unfamiliar statute and figure it out. We will also spend time learning general principles like the act requirement, the rules governing mental states, and the requirement of causation.
2. Second, we will continue to develop your skills in legal analysis. In Criminal Law, legal analysis involves taking a factual scenario, identifying applicable crimes and defenses, explaining the elements of those crimes and defenses, and analyzing whether those elements are satisfied under the particular facts. This is the basic skill that you will need on the bar exam and the main skill that will be tested on your final exam.
3. Third, we will continue to develop your skill at reading statutes. Although its roots are in the common law, criminal law is now almost completely statutory. In this respect, the law of crimes is different from the law of contracts, property, or torts; but it is similar to most of the other areas of law that you will study after your first year. As a result, the Criminal Law course provides a vital introduction to a skill that is essential for law students and lawyers.
4. Fourth, we will learn the theoretical principles underlying criminal law doctrine, namely utilitarian and retributive theories. To philosophers, these theories are important for their own sake. But for lawyers, they are important not as theories, but as rationales—as arguments to be used to shape criminal law doctrine.
5. Fifth, we will continue to develop your skills at legal argumentation and persuasion. The point of learning utilitarian and retributive theories is not so that you can critique the theories, but rather so that you can make arguments (e.g., that particular conduct should or should not be criminal, that a particular crime should be defined one way or another, that a particular defendant should be punished more or less). The theories will give us a shared vocabulary that will enable us to practice persuasive argumentation, a skill that will be essential regardless of your area of practice.
6. Sixth, we will think critically about criminal law and justice, including how the substantive criminal law has been shaped by and continues to intersect with race, gender, and class.

I have other, secondary, objectives: (1) to continue developing your case-reading skills; (2) to develop your oral presentation skills through class participation; (3) to give you a taste of what it is like to practice criminal law; (4) to develop your ability to function appropriately in a professional environment; and (5) to have fun. These objectives, however, are secondary. It is the six primary objectives—learning doctrine and theory and developing skills in legal analysis, statute reading, legal argumentation, and critical thinking—that will determine what we study, how we study it, what I expect you to learn, and how you will be assessed.
 
III.  GETTING THE MOST OUT OF THIS COURSE
 
The key to learning—in general and in this class—is to be active. You must do much more than listen; you must read, write, discuss, argue, test yourself, and be engaged in solving problems. Three aspects of the course organization are designed to foster active learning.
 
A.  Active Class Preparation
 
Briefing: As you presumably know by now, passively reading cases is not a great way to prepare for class. That is why law students brief cases. Briefing involves mental reorganizing and the physical act of writing—both of which are key active learning strategies. You should brief all cases. And, in general (at least for those cases involving legal doctrine), you should be able to answer these questions:

1. Who is the defendant?
2. What crime is the defendant charged with?
   (Identify the statute and the precise definition of the crime.)
3. What are the elements of the crime?
4. What is the defense?
5. What happened?
6. Are the elements of the crime satisfied? Which element is at issue?
7. Analyze.
8. Consider the policy implications of your analysis.

Indeed, when I cold-call on you in class, I would like you to be able to present the case by running through the above questions without me having to ask you anything.
 
Class Preparation Questions: Your casebook includes questions for each assignment to help guide your preparation. You should read and think about the questions before class and be prepared to answer them in class. The questions provide a roadmap for how we will cover the material in class, and so they also provide a roadmap for how you should engage with the material to prepare for class. If you are diligent about using these questions, your class preparation time will be much more efficient and effective (and active).
 
B.  Active Class Participation
 
Although there are approximately 65 students in the class, I will make every effort to keep each of you active during the 90 minutes that we are in class—even those of you in the remote room. That is the point of cold-calling. That is also the point of the Socratic method (the idea being that all students are following along, in part because they never know when the professor will jump to the next Socratic victim). That is also the point of many other things we will do in class: quizzes, polling, policy discussions, active questioning by students, small group work, break out discussions, and so on. It is also the reason why I recommend that you take notes by hand.
 
That is also why class participation is part of the grade for the class. As noted in the syllabus, class participation has several components: being present, being prepared, and being an active participant. Our is a shared learning exercise.
 
C.  Active Exam Preparation

As you presumably also know by now, effective exam preparation must be active. That is why outlining is such a central part of law school learning. It is also why the most successful law students also make effective use of practice exams. Over the course of the semester, you will do four practice assignments of increasing complexity. The first will take place after assignment #4 and will include simple-short answer essays and one longer policy essay. The second, which will take place after assignment #9, will be a legal analysis essay with a policy component. The third, which will take place after assignment #12, will include 10 short answer questions and legal analysis essays. And the fourth (“the midterm”) will take place after assignment #18; that assignment will be 90 minutes long and will include 20 short answer questions, plus legal analysis essays.

Most of these exercises will be similar in format to the final exam. The purpose is two-fold: (1) to help you prepare for the final exam, both by giving you a good sense of what the final exam will be like and by giving you an incentive to engage in thorough review regularly throughout the semester; and (2) to provide you with meaningful assessments that will enable us to gauge whether we are fulfilling the learning objectives outlined above. These assignments will be graded pass/fail (in other words, this 10% of your final grade will be based upon successful and timely completion of the assignments). In the language of learning, these assignments are “formative assessments” (designed to help you learn), while the final exam is a “summative assessment” (designed to measure your progress and assign a grade). Of course, the formative assessments will be most effective if you treat them as if they were summative assessments.
 
IV.  CONCLUSION
 
I will generally begin each class by giving you a “Professionalism Tip of the Day.” Here is a one to keep in mind throughout the semester: Have fun! You will learn more—and learn better—if you are enjoying yourself.

HOMICIDE

Class #14: 5.1  Common Law Approaches to Intentional Murder

• Treatise: 31.01-31.04

Class #15: 5.2  MPC/NYPL Approaches to Homicide

• Treatise: 31.10
• MPC: Art. 201
• NYPL: 125.00-125.27

Class #16: 5.3  Intentional Manslaughter—Heat of Passion (Common Law)

• Treatise: 31.07

Class #17: 5.4  Intentional Manslaughter—Extreme  Emotional Disturbance (MPC/NYPL)

• Treatise: 31.10[3]
• MPC: 210.3
• NYPL: 125.25(1)(a)

Class #18: 5.5  Unintentional Killings—Recklessness  and Negligence

• Treatise: 31.05, 31.08
• MPC: 210.2(1)(b), 210.4
• NYPL: 125.25(2), 125.15, 125.10

Class #19: 5.6  Unintentional Killings—Felony Murder

• Treatise: 31.06
• MPC: 210.2(1)(b)
• NYPL: 125.25(3)

Practice Exam #4

• Will be posted on Canvas

Class #20: 5.7  The Death Penalty

• Treatise: 6.05[B]
• NYPL 125.27

Online Session: Practice Exam #4 Review

• TBA

FORCIBLE RAPE

Class #21:  Rape, Resistance, and Reform

• Treatise: 33.01-33.05
• MPC: 213.0-213.6
• NYPL: 130.00-130.85

DEFENSES

Class #22: 7.1  Self-Defense—Elements

• Treatise: 18.01-18.06
• MPC: 1.12, 1.13(9), 3.04, 3.09, 3.11
• NYPL: 25.00, 35.00, 35.15, 10.00(11)

Class #23: 7.2  Self-Defense—Reasonable Belief

• Treatise: 18.05

INCHOATE OFFENSES

Class #24: 8.1  Conspiracy & Insurrection

• Treatise: Ch. 29
• MPC: 5.03, 5.05(1)
• NYPL: Art. 105

Class #25; 8.2  Attempt--Elements

• Treatise: 27.01-27.06, 27.09
• MPC: 5.01
• NYPL: 110.00, 110.05

Class #25: 8.3  Attempt—Defenses  (Abandonment, Impossibility)

• Treatise: 27.07-27.08
• MPC: 5.01(4), 2.04
• NYPL: 110.10, 40.10(3), 40.10(5)

Online Review Session

• Tuesday, May 4, 9:30 a.m.

Final Exam

• Thursday, May 6

Throughout the semester, we will refer to three main sources of criminal law: (1) the common law; (2) the Model Penal Codel; and (3) the New York Penal Law. 

The Model Penal Code is a product of the American Law Institute, the same body behind the Restatements, the Uniform Commerical Code, and other law-reform efforts. The MPC is not actually the law anywhere. Instead, it is a "model," drafted with considerable care by experts for the benefit of state legislatures looking to modernize their criminal codes. Since the MPC was completed in the 1960s, it has been enormously influential. Many states (including New York) have substantially revised their criminal law along the lines sugested by the MPC. Other states have adopted individual provisions of the MPC (especially the provisions regarding mental states for crimes). A few states--most notably California--have not been particularly influenced by the MPC, instead leaving their criminal codes to mostly track the common law definitions of crimes.

The entire Model Penal Code is available here: https://heinonline-org.jerome.stjohns.edu/HOL/Page?handle=hein.ali/mpc1050&id=21&collection=ali&index= 

The entire New York Penal Law is available here: http://ypdcrime.com/penal.law/ 

The most relevant provisions of the MPC and NYPL for our purposes are posted on Canvas here: MPC, NYPL.