Approaches and Sample Lesson Modules for Criminal Law

The following is a listing, with explanations, of various lesson modules for practical problem solving that the members of this panel use in their criminal law classes. There are headings for each one, with the professor who submitted it in parenthesis. The list is in roughly the order that a Criminal Law professor might organize the class (so the introductory materials are at the beginning, the more complicated homicide exercises towards the end).

Introduction to Criminal Law by Using Guest Speakers: (Donna Shestowsky)

Organizing a panel of guests for one class session. When space permits, I also open up the class session to other students who wish to sit in. A combination of defense attorneys/PDs, and prosecutors, and sometimes a judge as well. I ask them to describe their practice (the aspects they like best and least), how they got into the field, and to discuss the role of plea bargaining in their work. It is not enough to organize a voluntary lunch-time panel, as such panels often “preach to the choir” and the opportunity to educate the student body at-large is lost.

Introduction to Criminal Law: (Tamara Rice Lave)

On the first day of class, I always provide an overview of the criminal justice system. I do this in both criminal law and criminal procedure. I use Al Blumstein's famous diagram http://bjs.ojp.usdoj.gov/content/largechart.cfm. I also use an excel diagram that I created which is simpler and easier to follow.

Introduction to Criminal Law/Principles of Punishment (Kami Chavis Simmons)

The first three to four classes of my Criminal Law class are devoted to the principles of punishment- deterrence, incapacitation, rehabilitation, and retribution. On the first day of class in Criminal Law, I have the students read a real news story about a crime that has been committed. I sometimes use recent local stories, but I have also used famous international news stories. As long as the story provides some background about the offense and any special characteristics related to the defendant, or about any possible defense (including, but not limited to insanity or self-defense), it will be useful for the exercise. Stories involving multiple defendants also work well because they allow us to separate the acts of each of the offenders and categorize them in terms of culpability.

I start by asking the class if any crime was committed and if so, why would we punish the particular behavior. This allows us to discuss the importance of defining criminal behavior, and it also allows us to begin a discussion about deterrence and other principles of punishment. I then have the students make arguments as to what type/length of punishment they think is appropriate given the crime and any special circumstance involving this particular defendant. This gives students an idea of the types of factors sentencing judges may consider, and we see that this decision process is based upon the principles of punishment. I ask what goals are served by punishing this person or this behavior. If multiple offenders are involved, we can talk about why we might want to punish someone who merely assisted in the crime or directed others to complete the crime. This, of course, is an introduction to the principles of complicity and conspiracy.

I have found this exercise useful because it allows students to take much of what they already know about criminal law and analyze it using some of the concepts that we will explore for the rest of the semester. By the end of the hour, we have foreshadowed much of what we will cover during the class- the principles of punishment, defenses, and issues associated with group liability. Throughout the semester, we refer to our scenario repeatedly as we cover the concepts.

In addition to the exercise above, I would also recommend providing students with a criminal justice flow chart, available at: http://bjs.ojp.usdoj.gov/content/largechart.cfm

I also have a criminal defense attorney and a prosecutor visit class, preferably on the same day, and they can discuss various issues from their particular perspective.

Rethinking Sentencing - Students as Punishers (Steve Friedland)

This exercise places students in the role of legislators developing a sentencing scheme for crimes. Students are given a list of four crimes and asked to rank them from most heinous to least heinous. The four crimes used are generally perjury, adultery, possession of cocaine, and river pollution (not defined further). Other crimes can be added or substituted for these four. Students are then asked to assign a penalty in terms of maximum imprisonment for each, and also whether they would sanction caning (hitting with a cane) as part of the penalty. The students are then asked to collaborate in groups of four or five to agree on a rank and ordering of the crimes and penalties. I poll the groups for their results and tally how students concluded, writing the conclusions on the board. As an addendum, students can be asked whether they would like any sanctions to be broadcast on television or YouTube.

Theories of Punishment: (Tamara Rice Lave)

On the first day of class in criminal law, we also discuss theories of punishment. I have found it to be effective to present an actual recent case for them to discuss to apply the different theories that they have learned. One particularly effective teaching tool was the recent plea by Susan Atkins to be paroled because she was dying of brain cancer.

http://latimesblogs.latimes.com/lanow/2009/06/a-manson-followers-final-a...

http://www.laobserved.com/archive/2008/06/susan_atkins_considered_f.php

Field Trip to Jail: (Tamara Rice Lave)

Last year, I arranged for the students in my substantive criminal law class to visit one of the local jails. I felt (and they agreed) that this was an effective way for them to get a taste of what was at stake in the criminal justice system. Although we discussed their experiences in class, in the future, I will have my students write a reflection piece. To arrange such a visit, I would suggest contacting the Director of Communications at the local jail. Depending on the size of the class, it is likely that you will need to arrange multiple visits on different days and then have the students sign up for whichever date best accommodates their schedule.

The Mountaineers - An exercise in Moral Blameworthiness and Affirmative Defenses (Steve Friedland)

Students are told to assume they are mountain climbers and are climbing in South America on a 20,000 foot peak with the person in the world who is closest to them. The two are roped together. The other person slips and falls over a ledge. The student is still on the mountain, but the hold is tenuous. If the student holding onto the mountain does not cut the rope with a knife in the student's pocket, both will die. I ask the students if they would cut the rope. Before answering, students are asked to first discuss this in small groups. We then talk about it in the whole class. Students get to observe the moral geography underlying other students' decisions, and how values and differences in approaches exist. The discussion also provides a different window into what motivates people. The significance of values is particularly apparent when the hypo is shifted and the student is now the one dangling on the bottom end of the rope. At the end of the discussion, students are informed that this hypo is based on a real-world problem involving two mountain-climbers on a tall peak in South America. In that situation, subsequently made into a film, the climber cut the rope. Happily, the climber who fell survived.

Voir Dire Exercise (Steve Friedland)

This exercise is designed to illuminate the attorney's role, the importance of who actually sits on a jury, and the significance of questioning skills. The time allotted to the exercise can vary, but it can be as short as fifteen minutes, or easily twice that. The exercise is appended to a case in the text that the students are assigned to read. Three or four students are asked several days before class to play potential jurors in the assigned case. These students are briefed in advance and given special backgrounds, including prior convictions, certain levels of education, jobs, biases for/against police and more. The remaining students are divided into two groups during the class discussion of the case -- prosecutors and defense attorneys. The students are each asked to write down questions they would like to ask in a voir dire of the prospective jurors, who are now standing before the class, playing their roles. The catch is that one of the groups -- prosecutors or defense counsel -- are allowed to ask only six advocacy, or leading, questions. The other group is allowed to ask only three inquiry, or non-leading, questions. After each student writes down a list of questions, they are asked to confer in groups of five or six to combine questions. The voir dire then takes place, with each group asking one or two of their top questions. The parties are permitted to decide who to strike. At the conclusion of the exercise, any information not elicited from the prospective jurors is presented to the class along with the question, Would that information now disclosed have caused you to make a different decision? Further discussion can occur about inquiry and advocacy question types and the voir dire process.

Plea Bargaining: (Donna Shestowsky)

Having students conduct two in-class plea bargaining simulations. In preparation, I have them read a chapter on how to prepare for negotiations. For example: http://www.negotiations.com/book-reviews/heart-mind/ or http://www.amazon.com/Dispute-Resolution-Abridged-American-Casebooks/dp/.... I also assign the following excellent article on the plea bargaining: Rebecca Hollander-Blumoff, Getting to "Guilty": Plea. Bargaining as Negotiation, 2 Harv. Negot. L. Rev. 115, 121-25 (1997). During the post-simulation debrief, we discuss the outcomes, what the underlying goals of each party were, and the role of power in such negotiations. I also ask the prosecutors to explain who they regarded as their “client,” and why. I also discuss some of the psychological research on negotiation strategies.

Plea Bargaining Exercise for Accomplice Liability: (Cynthia Alkon)

I do this plea bargaining exercise early in the semester, after we have covered accomplice liability. It is a three defendant drug case. I divide the students into 5-person teams (two prosecutors, one defense lawyer for each defendant). One of the defendants is the “heavy” and the exercise is a clear prisoner’s dilemma. It is based on materials I adapted from the National Institute of Trial Advocacy (unfortunately, no link to the exercise itself). I distribute the materials and give students a week to conduct their plea bargain negotiations outside of class. They have to turn in their outcomes before class so I can consolidate them before the class discussion and not spend class time discovering what happened. Virtually all of the groups reach agreement, some with all three defendants, and most with some other combination. There are always some groups where the “heavy” is unable to reach agreement and sometimes one or more group with defendants who will not “snitch” no matter how much time they might get and since some prosecutors will condition the deal on this, they do not settle the case. I devote one class period to discussing the plea bargain. This particular exercise helps to reinforce the reality that being equally criminally liable does not mean that each defendant will get the same sentence. It also helps students to see how vastly different their outcomes are while working with the same set of facts. If anyone is interested in the power point presentation that I use for the debriefing (discussion) of this plea bargaining exercise, please just send me an email.

Arguing about Attempt: (Cynthia Alkon)

After we have gone over the section on Attempt, I have the students do an in-class exercise to prepare and deliver a closing argument in an attempted robbery case. I read the facts (below) to the class and emphasize that they will not get it in writing and will need to listen closely. I explain that I do this because in trial the testimony is oral and as trial lawyers they would need to have good listening skills. They are told they will need to prepare a closing argument for the prosecution and defense. I allow approximately 20 minutes for in-class preparation, in their study groups. I then call on three students: one gives the prosecution opening closing, one the defense closing, and one the prosecution final closing (explaining that the prosecution has the burden of proof and this is why they get one more opportunity to convince the jury). I tell the rest of the class that they are now jurors and will have to vote on the case after all of the closing arguments. The vote is never unanimous, so it is always a hung jury.

The facts are based on a case I tried as a Deputy Public Defender in Los Angeles:

The prosecution put on three witnesses. The first, a young woman named Judy, testified that she was working in a Jack in the Box, when the defendant walked into the restaurant. She was the only person working at the counter, at the register. He walked up to the counter, placed a gun on the counter just a few inches from her and said to her “hey, check this out.” Judy testified that she became hysterical with fear and starting screaming and yelling, and turned and ran out of the Jack in the Box. On cross examination Judy said that the defendant placed the gun on the counter and was not holding it or touching it after he did that. The second witness was a customer in the store who testified that after Judy ran out of the restaurant the defendant picked up the gun, put it in his pocket and walked out of the Jack in the Box. The third witness was a police officer who testified that he responded to the call, saw defendant walking out of the parking lot of the Jack in the Box, detained him because he fit the description, and when he searched him he found the handgun. Both Witness 1 and 2 stated that the gun recovered was the gun they saw. Defendant is on trial, charged with Attempted Robbery.

If you would like to tell the students what actually happened on this case, please send me an email and I will send that information along.

Insanity Defense with a Video: (Donna Shestowsky)

Having students watch video-clips that bring the real-world to the classroom. For example, for our class session on the insanity defense, we watch a clip from: http://shop.history.com/untying-the-strait-jacket-dvd/detail.php?p=66907. It is one of the best documentaries I have seen.

Insanity Defense with a Video: (Tamara Rice Lave)

I always require students to see one documentary outside of class as a supplement to our reading. In criminal law, I have used A Crime of Insanity which recounts the true story of a paranoid schizophrenic man named Ralph Tortorici who faces serious charges related to taking a class of students at SUNY-Albany hostage. The movie gives a powerful account of the politics involved in prosecuting high profile cases, the difficulty mounting a not guilty by reason of insanity defense, and the inability of the criminal justice system to fairly handle the severely mentally ill. http://www.pbs.org/wgbh/pages/frontline/shows/crime/

Illustrating Innocence with a Video: (Tamara Rice Lave)

I have also found the movie, Murder on A Sunday Morning to be extremely effective. Murder on a Sunday Morning documents the pre-trial investigation and jury trial of a young man who was falsely accused of murder. It won an Academy Award for Best Documentary Feature. http://www.amazon.com/Murder-Sunday-Morning-Jean-Xavier-Lestrade/dp/B000...

Bringing it to Life: (Tamara Rice Lave)

I also frequently supplement my discussion with documentary photographs, clips of documentary films, and background information on cases from newspaper articles. I have found these to be extremely effective in making cases come to life.

I give my students a copy of a My Turn column published in Newsweek that I wrote about being a public defender. http://www.law.miami.edu/facadmin/pdf/tlave/EqualBeforetheLaw_Newsweek.pdf

Homicide Exercise: Motion for Jury Instructions—is it Murder? (Cynthia Alkon)

After we have covered homicide, I give students this exercise. I read the facts in class and then hand it out several days before the in-class oral arguments. This exercise is a good review of homicide in a degrees jurisdiction (the case comes out of a degree state, California, and is based on a case I handled when I was a Deputy Public Defender in Los Angeles). I explain when motions for jury instructions are made, and that they can be both oral and written. In this class, they will be oral and I will act as the judge deciding what instructions to give. I tell the students that I will call on several to give their oral motions in class and they need to prepare to make both the defense and the prosecution motions. I find I need to call on more than just two students to get better arguments—and I will suggest (through questions from “the bench”) some directions they might want to go in with their arguments. I allow assistance from co-counsel (their study groups). I distribute the following before the class:

You should be prepared for two oral arguments in class on _____:

1. As a defense lawyer, decide if you want to make a motion for jury instructions for second degree murder, voluntary manslaughter, involuntary manslaughter, or all of these offenses.
2. As a prosecutor, assume that the defense lawyer will argue for all three additional instructions. You should be prepared to respond to those arguments and request the court to give just the first degree murder instruction without any additional instructions.
The facts (as stated in class):

The charge is first degree murder.

According to testimony at trial the defendant, a 68 year old Chinese immigrant, shot the victim several times. The shooting was in a “social club” in Chinatown in downtown Los Angeles. There are over 25 witnesses to the shooting. After the shooting the defendant put down his gun and waited for the police to arrive. The defendant worked at the social club and the victim was one of the members.

The defendant has no prior record.

Through the trial testimonial evidence was admitted that:

The victim regularly “harassed” the defendant at work. He would insult the defendant and threaten him. He made a point of yelling at the defendant in front of other members of the social club on multiple occasions. He threatened that he would do to the defendant what the Red Guard did to other members of his family in China. The victim boasted about his time as a member of the Red Guard.

An expert testified about the Red Guard: a group in China during the Cultural Revolution (under Mao’s leadership) who took charge of enforcing their perception of what communism should be. People were routinely beaten, arrested, tortured, and forced to make public confessions of their “wrongs” in workplace and neighborhood meetings. A common punishment that the Red Guard used was to march people through the town wearing signs stating their misdeeds such as “I am a capitalist lacky.” The Red Guard was also responsible for the imprisonment and internal exile of numerous Chinese. The defendant’s family included people who were arrested, harassed, exiled, and killed by the Red Guard. The defendant was never a direct target, but spent all the years of the Cultural Revolution in fear that he would be next.

In response to these threats the defendant decided to get a gun and keep it at the club for self-defense. He hid the gun in a small linen closet.

On the day of the shooting he was working at the social club. The defendant served tea to the victim. The victim started yelling at the defendant saying he was a failure and could do nothing right. Then, for the first time, the victim threatened the defendant’s family. The victim said he would do to the defendant’s wife and adult daughter what the Red Guard did to the defendant’s family in China. The defendant testified that he got scared for his wife and daughter and went and got his gun from the linen closet and shot the victim several times.

The defendant’s wife and daughter were not at the social club and according to testimony never went to the social club.

The applicable sections of the California Penal Code are attached.

As this was a real case, please email me if you would like to know the outcome.

Plea Bargaining Exercise for Homicide, Attempt, Justifications, and Excuses: (Cynthia Alkon)

I do this plea bargaining exercise towards the end of the semester and it requires students to review the law of homicide, defenses and justifications. It also provides a nice review of the theories of punishment and some interesting ethical issues regarding disclosure of information (from both sides). It is an attempted murder case. I divide the students into two person negotiating teams (one prosecutor and one defense lawyer) and distribute the general and confidential facts and give the students a week or so to conduct the negotiation outside of class. As with the first plea bargain exercise they are required to turn in their outcomes in advance so that I can consolidate those before the class discussion. I spend a class period debriefing this plea bargain exercise.

The general facts that I distribute are:

People v. Adams -- General Facts:

JoAnna Adams, 19 years old, got into a fight with her older sister, Susanna Adams. The fight started with yelling in Susanna’s apartment, it escalated and JoAnna ran out of the apartment, down the stairs and to her car. Susanna followed. Multiple witnesses saw both sisters running and heard them yelling at each other, but could not distinguish what was actually said until JoAnna reached her car, opened the door and pulled out a gun. She yelled “I’m going to kill you” and shot her sister from a distance of 20 feet. The four witnesses all said they clearly heard the threat. Susanna was shot in the leg. The police were called and JoAnna was arrested at the scene. Susanna was taken to the hospital and is expected to make a full recovery. JoAnna has no previous criminal record. She is charged with Attempted First Degree Murder. This offense carries a life sentence in this state (this means if convicted of this offense the judge can only sentence to life in prison, this offense is parole eligible, in this state, which means the parole board will consider granting parole after the defendant has served 22 years). This jurisdiction also has the charges of assault, assault with a deadly weapon, and assault causing great bodily injury. The maximum for each of those offenses is 5 years, 10 years, and 20 years, respectively.

The police report includes interviews with all the witnesses, a medical report about Susanna’s injury (stating it was not life threatening and that she is expected to make a full recovery) and a statement from Susanna saying that she and her sister are always fighting and “I thought she was gonna kill me when I saw that gun.” There is no indication that any of the witnesses, including Susanna will be unwilling to testify.

The case has already been arraigned. The prosecutor and defense attorney are meeting for the first time to discuss whether to plea bargain the case. If there is no deal, the case will be set for trial in 45 days.

There are also confidential facts for both sides that I can send to anyone who is interested. I can also send the power point that I use to guide the class discussion when we debrief this exercise. Since this exercise is based on a case that I handled when I was a Deputy Public Defender in Los Angeles, just let me know if you would like to know what happened on the case.

Incorporating Legal Writing Exercises: (Sherri Lee Keene)

At Maryland we teach legal writing in conjunction with a doctrinal area of law. For the past several years I have taught legal writing and Criminal Law to first year students in the fall semester. The assignment I am discussing here can be a legal writing problem or other practicum. While I used a high-profile Baltimore case, other similar cases could also be used. Indeed, I think that students are most interested in this type of project if you use a real and recent criminal law situation.

To begin this problem, I have my students read articles about an incident that occurred a few years ago in Baltimore; the incident involved a Johns Hopkins student. The student killed an unarmed “intruder” who entered his backyard late at night with a samurai sword, arguably in a high crime area. The big question in the news at the time of the incident was whether the student would be charged with homicide. Ultimately, he was not. I provide my students with assignment guidelines, news articles, Maryland professional code sections regarding the special role of the prosecutor, ABA rules concerning same, homicide statutes, and relevant homicide and various defense cases (including cases that address self-defense, defense of property, defense of habitation, and the castle doctrine).

One article can be found at http://articles.baltimoresun.com/2009-09-16/news/0909150076_1_samurai-sw.... Problem documents are available here [LINK to Office Memorandum Exercise – Prosecutor]. I have not included all of the Maryland cases, but have included a few cases here as examples.

For this assignment, students are placed in the role of prosecutors and are asked to make a charging decision. The entire project takes approximately 3 weeks. Students do some work in class, but a significant part of the work is done outside of class. (I assign this problem at the end of the semester.) Students tend not to complain because in completing this assignment students are also reviewing and gaining a better understanding of criminal law topics that may be on the criminal law final exam. Students work in pairs to analyze the problem. Students engage in an oral reporting conference together and organize their arguments together for this presentation, but write their final memos independently.

For this assignment students are to consider the ethical rules, statutes, and cases provided. Students work through the problem collaboratively with guidance from me. As part of the assignment, students are tasked with (1) sending a professional memo to me (in the role of senior prosecutor) requesting a meeting to discuss their (the junior prosecutors’) charging decision , (2) participate in an meeting (oral reporting conference) with me to discuss their charging decision (again in role), and (3) submit a memo discussing the law and explaining their charging decision. In reading the Maryland cases and statutes, students gain a more in depth understanding of topics covered in their criminal law class and included in their criminal law textbook. The students also learn about the state law on the topic. Through this process, students gain a better understanding of how they use the (more general) substantive knowledge of the law learned in their doctrinal class to help them get started, and then how additional cases and statutes from the jurisdiction help them to answer a specific legal question. Students also learn a bit about ethics and professionalism, and the role of the prosecutor, and have an opportunity to work collaboratively with a peer. In addition, students have an opportunity to work on developing their oral and written communication skills.

Drafting a Memo from the Perspective of the Prosecutor: (Sherri Lee Keene)
This is an exercise where students draft an office memorandum from the perspective of the prosecutor. The attachments contain detailed requirements for the assignment and learning goals. Additional materials are also available in separate documents (caselaw, statutes and codes).

AttachmentSize
Keene Assignment 3 Memo.doc37.5 KB
Keene Braboy.doc209.5 KB
Keene Glenn.doc258 KB
Keene Homicide Statutes.doc28 KB
Keene Law.doc299.5 KB
Keene Prosecutor code.doc35.5 KB