Criminal Law, Cases and Materials

Cynthia Lee, George Washington University Law School

Angela P. Harris, University of CA-Davis School of Law

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Table of Contents

Teacher's Manual

2023 Mid-Term Rubric

2023 Mid-Term

Counterman Exercise Redacted

Sample Syllabus – Criminal Law (Spring 23)

Sample Syllabus – Advanced Criminal Law (Fall 22)

Sample Syllabus – Criminal Law (Fall 23)

Sample Syllabus – Criminal Law (Fall 21)

Chapter 1 (Basic Principles) is basically the same. We did edit some of the text for clarity. We also expanded the note following the Haven or Hell excerpt by Robert Blecker to inform the reader that Lorton Prison is now closed and has been turned into residential apartments.

Chapter 2 (Constitutional Limitations) – We moved the Jerry Kang article on implicit bias from this chapter to Chapter 14. We replaced Chicago v. Morales with Sessions v. Dimaya, a 2018 Supreme Court case on the void for vagueness doctrine. We also added an excerpt from Devon Carbado’s recently published article, Predatory Policing.

Chapter 3 (Actus Reus) remains pretty much the same as it was in the last edition. We did some light editing of the cases and excerpts for clarity. We also added an author footnote in the Decina case to tell students what happened to Mr. Decina (the charges against Mr. Decina were ultimately dismissed).

Chapter 4 (Mens Rea) also remains pretty much the same as it was in the previous edition except we added a 2015 Supreme Court case, Elonis v. United States, after Morissette. In Elonis, the Court has to decide whether the federal statute on making threats includes a scienter requirement.

Chapter 5 (Mistakes of Fact and Law) remains basically the same, but we made some light edits to the introductory text and the note on Regina v. Prince for clarity. We also revised the note preceding Marrero to more clearly explain the defense of official interpretation of the law. We also added some information about what happened to Mr. Marrero after this case was decided in the note following Marrero.

Chapter 6 (Causation and Concurrence) remains basically the same, except for light editing of the introductory text.

Chapter 7 (Homicide) remains basically the same. We did edit text and notes throughout the chapter and can share a 3 page single-spaced list of the specific changes that we made upon request.

Chapter 8 (Sexual Offenses) - We added reference to the fact that the ALI is in the process of revising the Model Penal Code’s section on sexual offenses. We edited the introductory text on the element of force preceding Rusk to provide more clarity on the force element. We also added an excerpt from Jeannie Suk’s book chapter on the Rusk case from Criminal Law Stories. We added information after the Antioch Policy about California becoming the first state in the nation to pass legislation requiring colleges and universities receiving state funds to adopt a sexual assault policy requiring affirmative consent. We deleted the subheading in front of the Anderson excerpt. We rephrased the title and introduction to former section 4, Non-Forcible Rape, to “Beyond the Common Law Model of Forcible Rape.” We replaced the material in former section 5, “Race and Rape,” with a new section called “Rape and Social Identity,” and added excerpts from articles by Francine Banner and Donna Coker to this new section.

Chapter 9 (Theft Offenses) remains basically the same.

Chapter 10 (Defenses) – In the self-defense section of this chapter, we replaced the excerpt on the Yoshihiro Hattori case with an excerpt on shooter bias. We consolidated the note on the duty to retreat and the note on stand your ground laws and put these notes into a new section 2. We also revised the text in this section to clarify that a majority of states today do not impose a duty to retreat. We added reference to the ABA report on SYG laws. We added an excerpt from Aya Gruber’s article, Race to Incarcerate. This article examines Florida’s Stand Your Ground law and points out that contrary to conventional wisdom, it was not a radical departure from traditional self-defense law. Gruber also informs the reader about racial disparities in the application of self-defense doctrine regardless of whether the state in question has a stand your ground law. We deleted Jenkins v. State, a 2006 Florida case, since the court in that case applies the duty to retreat rule, which is no longer good law in Florida. We also deleted the Christian Science article by Patrik Jonsson on the Trayvon Martin case. A description of the Trayvon Martin shooting is provided in an author footnote in the new Lee excerpt on shooter bias and in the revised note on retreat rules. In State v. Stewart, we added an author footnote, letting the reader know that the referenced North Carolina Court of Appeals decision in State v. Norman was reversed by the North Carolina Supreme Court. We edited the dissenting opinion in State v. Stewart in an effort to shorten this very long case. In the section on the necessity defense, we deleted two paragraphs in Hutchins where the court references two cases (Thurber and Iglesia) because students reading this might get confused and think there is a surrender to authority requirement in the necessity defense. We added a note following Hutchins to let the reader know that as recently as January 2018, the Department of Veterans Affairs continues to refuse to allow research into whether medical marijuana can benefit veterans suffering from PTSD and chronic pain. In the section on duress, we added the words “or suffer imminent death or serious bodily harm” after “The key difference between necessity and duress is that conduct under duress is a response to a threat from a specific individual to commit the acts that constitute the crime” in the introductory note on the duress defense. In State v. Hunter, we added an author footnote, letting the student reader know that compulsion is just another name for duress since several 1L students in Prof. Lee’s Fall 2017 criminal law class said they were confused when they were reading Hunter and didn’t realize until they got to class that “compulsion” was just another name for “duress.” In the note following Hunter, we added some information about what happened to Daniel Remeta. He received life for the killings of Glenn Moore and Rick Shroeder, but got the death penalty for another killing in Florida, and was electrocuted in 1998 for that crime. In the section on the insanity defense, we modified the language in this introductory text to make clear that the M’Naghten Test is currently the leading test for insanity. We also deleted some text in this section that was redundant of text found in the Freeman case. We also added language letting the students know that duress is sometimes called coercion or compulsion. We also moved some language in the introductory text to keep all the material about the common law together and all the material about the MPC together.

Chapter 11 (Attempts). In State v. Hinkhouse, we deleted all references to the attempted assault charges and intent to commit serious physical injury so students would not get confused and think intent to commit serious bodily harm is sufficient for attempted murder. We added an author footnote on HIV and AIDS. We added a note following Hinkhouse talking about the fact that an effective treatment for HIV/AIDS was not available until 1996 and that today, people who are diagnosed with HIV and undergo antiretroviral therapy or ART treatment on a daily basis can greatly lower their chance of developing AIDS as well as the risk of infecting others with the HIV virus. The note also discusses Kim Shayo Buchanan’s 2015 Minnesota Law Review article When is HIV a Crime? Sexuality, Gender and Consent. We added a note preceding United States v. Thomas, explaining that at common law, courts recognized four types of impossibility, explaining these different types of impossibility and giving examples of each type. We also added a new author footnote explaining the term “attendant circumstance.” In United States v. Thomas, we added a reference to Joshua Dressler's Understanding Criminal Law in author footnote a where we explain that there are two types of legal impossibility: pure legal impossibility and hybrid legal impossibility. We also added a new author footnote c to explain that an overt act by any member of the conspiracy is sufficient to satisfy the overt act requirement for all members of the conspiracy. We added a note following the Thomas case, showing that even in MPC jurisdictions, questions of impossibility can still arise and be recognized.

Chapter 12 (Accomplice Liability). In the introductory text, we added a note that causation is not a required element for accomplice liability. The prosecution does not have to show that but for the accomplice’s assistance, the principal in the first degree would not have committed the crime in question. In Wilson v. People, added a note after the words “animus furandi” to explain that this means the intent to steal. We deleted two paragraphs from the Wilson case to try to trim the chapter. In Roy v. United States, added back in one of the charges that we’d deleted because the court references this charge as PFCV (possession of a firearm during the commission of a crime of violence) later in the case and it was easier to reinsert the charge than to delete that reference.

Chapter 13 (Conspiracy). We made some light edits to the introductory text, including clarification that most jurisdictions today require proof of some overt act in furtherance of the conspiracy by any member of the conspiracy. We also added a note in the introductory text that the trial of a conspiracy case may be held either in the jurisdiction where the agreement was formed or in any locale where any overt act by any of the conspirators took place. We deleted some text in People v. Lauria to try to trim the case. We also lightly edited the note following Lauria on the mens rea with respect to attendant circumstances. We also edited the description of the Pinkerton case in the note on the Pinkerton rule. The main change to this chapter was that we deleted Sections E and F (the last four cases in this chapter) since neither author assigns these cases.

Chapter 14 (Crime and Punishment). We changed the section titles slightly and moved some of the articles accordingly. Section A reviews the history of punishment. We kept the articles by David Rothman, The Crime of Punishment, and David Cole, Turning the Corner on Mass Incarceration, in this section. In the Cole excerpt, we added some author footnotes, noting that California and other jurisdictions have recently legalized marijuana. We moved the Alexandra Natapoff article from Section A to Section B. Section B (Contemporary Institutional Issues in Criminal Law) covers institutional issues such as overcriminalization, misdemeanors, collateral consequences, implicit bias, and the underfunding of public defense. In this new Section B, we added an article by Erik Luna, The Overcriminalization Phenomenon, 54 Am. U. L. Rev. 703 (2005). We moved the Michael Pinard article, Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity, from the old Section C (Legal and Social Contexts of Punishment) to the new Section B. As noted above, we moved the Alexandra Natapoff article on Misdemeanors from Section A to Section B. We inserted an article by Jerry Kang and others on Implicit Bias in the Courtroom that was previously in Chapter 2 into Section B. We also trimmed down the article by Mary Sue Backus & Paul Marcus, The Right to Counsel in Criminal Cases: A National Crisis, previously in our old Section C, which was almost 16 pages long in the previous edition of the casebook, and moved it to the new Section B. We also moved the Markus Dirk Dubber article on possession crimes to this section on institutional issues. We deleted the materials on juvenile justice, the Cynthia Ward article, Punishing Children in the Criminal Law, and the Carrie Hollister article, The Impossible Predicament of Gina Grant, that were previously in the old Section B (Punishment as a Cultural Practice) to make room for new material on drug crimes in our new Section C. Section C is now called Current Controversies in Criminalization: Drug Crimes. This new section focuses on drug crimes in response to the request of at least one casebook user. In this section, we added an article by Erik Luna, Our Vietnam: The Prohibition Apocalypse, 46 DePaul L. Rev. 483 (1997), and an article by Seema Mohapatra, Unshackling Addiction: A Public Health Approach to Drug Use During Pregnancy, 26 Wis. J.L. Gender & Soc’y 241 (2011). Section D, as before, introduces students to alternatives to conventional criminal punishment: problem-solving courts and restorative justice. We deleted the Paul Holland article, Lawyering and Learning in Problem-Solving Courts and replaced it with a newer article on problem-solving courts by Richard C. Boldt, Problem-Solving Courts and Pragmatism, 73 Md. L. Rev. 1120 (2014), in Section D. We kept the article by Mark Umbreit and others on restorative justice.

Learn more about this series.