Overdue Progress Report

Did I say "biweekly"? Apparently, I meant "bimonthly."

The Spring semester is now virtually over, with only 2.5 weeks remaining before the reading period, and all I can think to say is, boy, it's nothing like last semester at this time, at least as far as I can recall. I'm not sure how to characterize the difference generally. Maybe it's just that I feel like I've been a bit less . . . diligent? I don't know. I do know that just today I started seriously trying to outline my courses, which I know I put off last semester, too, but I don't think I waited quite this long. And for one of my courses -- Contracts -- I'm really hoping the outlining process will be what makes it all come together, because right now, I feel like I just know a bunch of random tidbits with only the most tenuous of connections between them. I certainly do not feel remotely prepared to be tested on any of it. So yeah, I'm hoping the next few weeks are very productive.


But enough about Contracts. Criminal Law is a different story. I still love it and find it endlessly fascinating. I'm equally behind in my outlining, but feel more like all the pieces and connections really are there in my head, and even in a somewhat organized way. The only issue I really have with the class -- and it's a good issue to have -- is that I never feel like I'm quite grasping it with the depth my professor would like, or at least not before he explains it all for me. Like I say, I think this is a good thing. I'd much rather a professor who makes me work for depth of comprehension than one who, say, acts like this is all easy-breezy so I feel like my shallow understanding is actually sufficient. But enough about Contracts.

Anyway... Before I try to sum up Criminal Law Thus Far, which I suspect many will skim or skip, I thought I'd mention that I participated in the Student Trial Lawyers Association's Spring competition a week or so ago. It consisted basically of me and three teammates receiving a packet containing a plaintiff's complaint, the defendant's answer, several witness depositions, and a bunch of exhibits (documents that might be entered as evidence); then preparing for a week or so, without ever having taken any courses in trial practice or the rules of evidence; then engaging in a sort of mini mock trial. Between the four of us, we had to prepare an opening statement, two direct examinations (of our own witnesses), two cross examinations (of the plaintiff's witnesses), and a closing argument. I myself did a cross and the closing. Long story short, it was a little haphazard and hectic, but it was really a great experience, and very much reaffirmed for me my desire to litigate -- something I did not come into law school expecting ever to do, let alone enjoy.

On to Crim Law: We started the semester covering some very broad concepts, like what constitutes a felony, how we justify punishment, plea bargains, burden of proof -- that sort of thing. One of the more interesting facts I learned here is that it is perfectly legitimate for a jury to decide to do whatever the hell it wants, regardless of any and all instructions from the judge, no matter the facts of the case or the applicable law. Even more interestingly, though it is constitutional for them to do this, it is not constitutional to tell them they can do this; in fact, it is OK to tell them that they can't do it, even though that's a lie. Fascinating, eh?

We then talked about some issues of "legality," such as the requirement that there be fair notice of what the law is before you punish someone for breaking it, that you can't make something illegal and then punish someone for doing it back when it was legal, and that when a statute is ambiguous the court will interpret it in the way most favorable to the accused. (Important Note: It has to be ambiguous to the court. Your own confusion isn't good enough.)

Then we got into the real nitty gritty. That's right: we started using Latin. Specifically, the terms "actus reus" and "mens rea."

Actus reus just means an act that brought about the illegal event or situation. To be convicted of a crime, you have to have done something voluntarily that brought it about. "Voluntary" is defined pretty broadly -- it's basically anything you do apart from seizures, convulsions, sleepwalking, under hypnosis, or pure physical reflex. Oh, and not doing something counts, if you had a legal duty to do it (e.g., refraining from saving a person from drowning when you're the one who knocked him into the water) (interesting side note: if you had nothing to do with him falling in the water, it is actually OK to just sit there and watch him drown). Importantly, the actus reus requirement is satisfied whenever you do something that results in the alleged crime, even if you didn't want it to happen, didn't know it would or could happen, and no reasonable person could have expected it to happen. If you shoot someone and they die, that's actus reus for murder, whether you intended it or not, whether it was self defense or not. It doesn't make you guilty, though. For that you need mens rea.

Mens rea literally means "guilty mind." It's the mental state required for conviction of a crime. Very importantly, the required mens rea must coincide at some point with the actus reus. If you have been thinking about killing me for months, then one day accidentally knock me into the water (and then sit there and watch me drown, as is your legal right), you aren't really guilty of murder. You had the mens rea (wanting me to die) and you had the actus reus (knocking me into the water), but you didn't have them at the same time. (Good luck getting a jury to believe it, though.)

Mens rea gets pretty tricky pretty quickly. One crime can require a different mens rea for different elements of that crime (e.g., you had to "know" something was likely to occur but only had to be "reckless" as to the particular circumstances); many statutes don't bother to tell you what mens rea is required, so you have to figure it out; defendants can claim -- sometimes successfully, sometimes not -- that they lacked mens rea because they were mistaken as to the law or as to certain facts; and sometimes, no mens rea is required at all, i.e., it's a strict liability crime and if you did the act, you're guilty, no matter what your mental state (think traffic violations, for a simple example). Philosophically, it's all very interesting; but more importantly (and this applies to the whole course), it all feels so real. I know people have real contract problems and real tort problems, and that those are valid and important, but somehow when the question is whether or not someone is a criminal, whether or not he is going to jail -- somehow that just hooks me like nothing else has done so far. I'll say it again: I just love it.

That was the end of the abstract focus of the course, and we then proceeded to consider specific crimes of a particularly thorny nature, starting with rape, which I'm not going to go into here because, unsurprisingly, it's just not any fun to talk about at all. Somehow, though, I'm far less squeamish about homicide, which we're discussing now. As we're still in the middle of it, and as this is getting pretty long, I'll wait on the summary till later, but like everything else, it's fascinating.

That's it for now. Maybe next time I will have outlined my Contracts course and will feel competent to do a summary. Or maybe not. Regardless, I'll try to do at least one more update before finals get here. As always, of course: no promises.

Thanks for reading. Till next time.