CRIM LAW OUTLINE Chris Gaspard Juries decide guilt….court determines sentence. -Except in Death Penalty cases (bifurcated trial) Premeditation -Reflecting on the consequences of the decision to take another person’s life. Murder 2 1. Specific intent to kill-------------------Voluntary Manslaughter 2. Specific intent to injure GBI-----------------Voluntary manslaughter 3. Willful and wanton disregard---------Involuntary manslaughter (reckless) 4. Felony Murder (death in commission of a crime) Murder 1 1. Specific intent to kill w/premeditation 2. Felony murder enumerated Death Penalty – Specific intent to kill with special circumstances Manslaughter -The unlawful killing of another human being without malice aforethought. 1. Killing that could otherwise be murder 2. Subjective throws of passion? 3. Objective test? TARP be in throws of passion o Mental peculiarities not factored although physical stature could be considered (ex. Berry) Provocation (to mitigate 2nd degree murder to manslaughter) Rules of Provocation 1. There must have been adequate provocation; 2. The killing must have been in the heat of passion; 3. It must have been a sudden heat of passion – that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool; 4. There must have been a causal connection between the provocation, the passion, and the fatal act. -A provocation period can span a long period of time…but the ∆ must still be in heat of passion and uncontrollable rage. People v. Berry Involuntary manslaughter is proved by showing that the death resulted from wanton or willful conduct is intentional conduct, by way either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another. (Nightclub owner’s wanton or willful disregard for the safety of patrons…breached duty to maintain adequate fire exits. Commonwealth v. Welansky) HYPOS: Between Barstow and Baker …..guy pulls out rifle and shoots moving train. Bullet strikes some guy and kills him. Specific intent to kill? No Specific intent for GBI? No Felony Murder? No Willful and Wanton disregard? Yes Result: Murder 2 #2 Guy driving from Malibu to Agora Speeding thru canyon Comes up to big truck moving slowly Passes on double yellow around curve Hits car head on kills other driver? Result: Involuntary Manslaughter *Jury instructions for Murder 2 and Involuntary Manslaughter would be given in both scenarios. WILLFUL AND WANTON – More than gross negligence, it is gross negligence plus high degree of awareness the high potential for death together with a don’t care attitude or a hint of viciousness 1. Gross Negligence plus a high degree of awareness of the high potential for death 2. High probability of death 3. No social utility 4. Requisite don’t care attitude CAUSATION: The cause which through its natural and foreseeable consequence, unbroken by any sufficient intervening cause, produces the injury which would not have occurred but for that cause. -Negligence of the victim, or another, which contributes to the harm is not generally superseding, thereby not cutting off responsibility. Such negligence is superceding only if it is the sole cause of the harm. -Generally, ∆’s liability is cut off where the injury arose from the operation of an unforeseeable, independent intervening act. -What is intervening? A force that followed the original act and significantly contributed to the result. o Dependent Intervening: The intervening force was acting as a result of or as a response to the action of the accused. (It probably would not have happened but for the conduct of the accused.) Generally speaking, will not cut off liability unless unforeseeable. o Independent Intervening: The intervening force was merely coincidental to the act of the accused. (A free agent.) Generally cuts off liability unless foreseeable. HYPO: ∆, with the intent to murder the baby, gave the nurse a baby bottle containing poison. ∆ told the nurse that it was medicine. The nurse didn’t think baby needed medicine, so she put the bottle on the shelf near the back. She left the scene. The baby’s big brother, 5yrs old, gave the baby the same bottle…from top shelf. Baby dies. Intervening…dependant...independent? LIABILITY is cut off unless it is foreseeable (even if it’s dependant) Felony Murder – Inherently dangerous….by definition. Common law (inherently dangerous)…but not limited to: 1. Murder (another person) 2. Manslaughter 3. Arson 4. Rape 5. Robbery 6. Burglary 7. Mayhem 8. Forcible sodomy Assault ATTEMPTED BATTERY THEORY -Specific intent to commit battery -Substantial step towards completion ASSAULT BY PLACING ONE IN FEAR -Specific intent to cause apprehension -Victim must be aware of defendant’s act -Victim’s apprehension must be reasonable Battery is the unlawful application of force to another or objects closely associated with the body. -General Intent… intention to do the act that resulted in the battery. o Gross deviation from care. o Don’t need actual harm…only need to show unlawful touching. Unjustified, Un-consented, Unexcused, Or Offensive A completed assault merges into a battery. Rape -Unlawful act of sexual intercourse with a woman without consent. -General intent crime: Would the Average Reasonable Male under the same or similar circumstances believe that his conduct would rise to force or the threat of force in the mind of the average reasonable woman? Two types of rape: -Who done it? -Alleged consent case? (Tough ones to figure out) o Do I have something that will help bolster credibility of victim? Burden of prosecution: -Showing that act was against the will of the woman. -Not lack of consent…forced either bodily or through threats. -Gross deviation from standard of care of recognizing that this was against the will of the woman. -Proof BRD that male was criminally negligent in not realizing that his conduct was threatening to the woman. Most jurisdictions strict liability on statutory rape…automatic (can’t use she looked like she wanted it) Genuine but Unreasonable fear in the woman? -No. It must be TARW standard. Was the man criminally negligent in figuring out if he had consent of the woman? She has to be able to be aware that she is consenting (not if passed out drunk). Rape Trauma Syndrome (typical of women who were raped) -Usually the relationship she is in ends (even marriage) -Woman is employed or student is usually affected (drops out, quits, etc.) -Fear of sex -Depression Rape Shield Laws -Can’t admit sex history of victim in trial o Except past sex history with defendant -If defendant attempted crime in past but was not convicted, it may be admissible (M.O.)….not to show propensity but that he acted pursuant to particular scheme. False Imprisonment Specific intent to confine within boundaries. Kidnapping Forcibly and unlawfully moving a person to another place. 1. Confinement. 2. Specific intent to confine and move. 3. Actually need sufficient movement (asportation). o Substantially increases the harm that the imprisoned person is exposed to (beyond any other crime being committed). Puts victim in more vulnerable position (Ex. Dragging woman into alley to rape her). o Not if just incidental to other crime being committed. Mayhem Permanently maim, disfigure, or dismember (or substantial loss of use). -Not a specific intent crime…gross negligence suffices. Larceny (**There will be a larceny on the test.) Specific intent to deprive the owner of property or substantial risk of permanent loss to the owner. 1. Trespassory taking (crime against possession) 2. And carrying away 3. Personal property of another 4. With the intent to steal/permanently deprive owner Taking – Exercising dominion and control. Carrying Away – Removed or severed from owner’s possession. With the Intent to Steal – Requisite specific intent to permanently deprive. Preparatory or carrying away act? -Rolling up the hose…slightest act of furtherance is carrying away. -Taking it off shelf at store carrying away? Yes. o Limiting access to others. o It can be larceny before suspect leaves store. What about intangibles? -Probably not trade secrets. -Electricity and gas OK. This is crime against possession, so a guy could steal his own coat from the dry cleaners. HYPO: ∆ took bike of another thinking it was his own and sold it. -Not larceny...No specific intent. Same hypo, but ∆ realized its not his bike then sells it anyways. -Immediate trespass (suspended)….intent formed when he makes the decision to keep it. Kid takes another’s bike and joyrides it and dumps it off a block away? -Probably not larceny…no intent to permanently deprive. Same but dumps bike off 10 miles away? -Probably larceny. Larceny by Trick – Fraud vitiates consent. Embezzlement – Fraudulent conversion of the property of another by one who is already in possession. Trusted v. Ordinary Employee -A trusted employee has a fiduciary/significant relationship with employer. Ex. Stockbroker, Financial Planner, etc. o Often handles money (unless closely monitored) -Ordinary employee: Wal-Mart, McDonald’s, etc. Ordinary Employer-Employee relationship puts us in quirky box: Custody – ordinary employee who receives property from his employer for some purpose for the employer only has custody not possession. • If a person has custody, he can only commit larceny. Possession – An employee who receives property from a 3rd person on behalf of his employer has possession, therefore cannot commit larceny…he commits embezzlement. Ryan’s rule: When the ordinary employee places in receptacle, not for employer, but for temporary purpose (lock box), possession doesn’t pass to employer as long as employee retains actual control of money. o In other words, if the employee has possession but puts it in a container for employee’s benefit intending to come back later to steal it, employee still has possession ipso facto embezzlement. Ex. Cash drawers. HYPOS: A liquor store accepted payment and dropped it in the safe. Later, he stole the money out of the safe. -Possession passed back to the owner when the money was put in the safe. -Taking it back is larceny (not embezzlement). -However, Ryan’s rule may apply (then it would be embezzlement). The boss gives his suit to employee (who intends to steal) to take to dry cleaners? -Larceny Employee received suit w/innocent intent but decided on way to cleaners decided to steal? -Larceny Same but employee arrived at cleaners to pick up with the intent to steal? -Embezzlement…possession because he received from 3rd party. Same but employee received w/innocent intent from cleaners and then stole? -Embezzlement …intent is irrelevant. Same but employee formed the intent to steal then put the suit back in the closet…left it just for a moment then returned it to steal it? -Ryan’s rule applies so embezzlement…(here, intent matters….just put it back for a few moments with intent to take it back). • If employer hands over money to employee that would be possession…if u rip it off at that point, embezzlement. • Giving a car to valet would be giving possession (we are out of normal employee-employer relationship) Valet takes car for his own….then embezzlement. • Valet dumps the car to steal another but steals owner’s clubs out of the trunk…car has been embezzled but clubs? Larceny Breaking the Bolt: When you give over the container you only give possession of the actual container. -Bailee is guilty of trespass at the moment he breaks the bolt (breaks into container). -If he proceeds to carry contents away, it is a larceny. Lost v. Abandoned Property: -No owner of abandoned property…it cannot be subject to larceny or embezzlement. Lost property? Yes, still subject…. Guy picks up Rolex and sticks it in his pocket…larceny by trick. Owner retains constructive possession of property. Becomes larceny if: 1. ∆ knew who owner was, or thru reasonable efforts could have found the owner OR 2. ∆ must have intent when he finds property to take possession. False Pretenses – Obtaining title and possession to property by means of a material false representation with intent to defraud the victim. 1. Did title pass? a. Documents, intent of person giving up title (Victim) i. Did the victim intend to pass title? b. When did title pass? 2. Possession a. Did possession change hands? 3. Intent to defraud victim a. ∆ must know statement is false or have a don’t care attitude as to its truth or falsehood & b. ∆ must actually intend to defraud c. False representation must be a lie rather than opinion or speculation and the material misrepresentation must be past or existing. d. Misrepresentation must concern a material fact. Majority rule: Lie is material if it is the controlling main inducement for victim turning over the property Must be actual reliance victim Not only are we tricking victim into possession but title as well -As opposed to Larceny by trick… o Rents car w/intent to keep it (larceny by trick) o Writes a back check to purchase car (false pretenses) Receiving Stolen Property – Buying, having, or receiving a good which has been stolen or feloniously taken having known the same to have been taken or feloniously taken. -Title passes -seller’s intent. -Burglary and Receiving Stolen Property OFTEN filed together. HYPO: What if the police had furnished the stolen goods (not actually stolen) but the fence thought it had been stolen? -Probably an Attempted Receiving Stolen Property Robbery – (aggravated larceny) requires elements of larceny and: 1. Property must be taken from person or person’ presence 2. Taking must be accomplished through force or intimidation Robby is an always a felony. How much force? -Even in the act of active opposition, if the article is so attached to the person or clothing of the person as to create resistance, however slight, or if there is a struggle to keep it, the taking is robbery. o Could the person have done something about it? If by intimidation, the intimidation must be sufficient for person to part with property against his will. Presence means “within the victim’s control as such he could have prevented the taking but for the force or fear.” or Presence is close enough to the victim to prevent the taking were there not threats or force. HYPO: Purse-snatch of old lady where purse gets hung up on her sleeve, she falls hits her head and 2 days later dies of blood clot caused by fall. Felony Murder? BURGLARY – (Common law) Nighttime breaking an entering of the dwelling house of another with the intent to commit a theft or felony therein. o Dwelling house – (common law) the last dweller intends to return and live there. Not applicable if owner moves out and is waiting for renter to move in. o Curtilage – the area of land occupied by a dwelling and its yard and outbuildings, actually enclosed or considered as enclosure. Breaking the curtilage does not constitute entry Entry into any building or structure (like shed) in this area with the intent to steal constitutes burglary if inhabited. Immediately adjacent part of yard where occupants go about their regular lives (fenced in 5 acres would all be covered) o Nightime – usually statutory….hour before or after sunset/sunrise. In absence of statute, use COMMON LAW: Can we distinguish a person’s facial features. o Protect against “midnight terror.” Crime against person? Per policy, yes? o Live in servant would not be occupier of dwelling if he’s stealing from owner. An employee or guest who has restricted authority of the dwelling is guilty of burglary if he or she exceeds that authority with respect to the time or the part of the building. o Invite will vitiate break-in No break-in at a department store during business hours Except when exceeds scope…like different part of house for guest. o Entry without any force is no “breaking an entering” Must have some force (even slight) like pushing something up or breaking something • Ex. Bumping window open as your crawling through it. o Opening fence gate? No. Must break into part of residence. o Porch door? Yes. o All doors open except ∆ opened floor safe door inside? Burglary. o Breaking personal property doesn’t apply….so opening a pantry doesn’t apply. o For entry, must break the plane of building surface Tools can constitute entry • Can be a tool if tool to consummate not to facilitate. o Using the tool to commit the theft (fishing out jewels) YES o If using tools to facilitate a later entry then NO HYPO: ∆ opens house door and an axe falls out. ∆ takes axe. -Breaking but no entry – larceny of axe. Bullet through a window and hits someone….Open window? No breaking….Is bullet tool? Homeless guy opens the window of a house at night. He sleeps, wakes up at 2AM and sees a coat he likes. He takes coat and leaves. Burglary? -No. It would be because of theft but not here because no intent prior to entry. FOR EXAM: -If no statute given then use common law definition of burglary. o If statute given it may delete some of the requirements (use it). Does being drunk vitiate INTENT for burglary? -Prosecutor would argue that he had his facilities to do certain other things. -Defense would argue that he was too drunk to understand what he was doing. o But even voluntary intoxication can be argued by defense. ATTEMPTS -The specific intent to commit an act which, if successful, would be a crime in conjunction with a perpetrating act done pursuant to that intent. 1. Specific intent 2. Substantial act in furtherance of crime Why have attempts? Because the ∆ is already blameworthy regardless of completion. Public policy: We shouldn’t punish cops cause they’re efficient. So even if it’s a general intent crime, you must show specific intent for attempt (ex. Battery). -A ∆ can have the specific intent to be incredibly reckless which results in death. o People v. Thomas – Attempted Reckless Manslaughter affirmed for vigilante ∆ who shot suspect that had just raped ∆’s girlfriend. Attempt is typically punished with half of the penalty as the completed crime. HYPO: ∆ buys a book on poison. He then buys poison. He sneaks into victim’s office and steals victim’s coffee cup. ∆ puts the poison in the cup while still in ∆’s office. ∆ returns cup to victim’s office. -At what point is attempt complete? Three Approaches (Run thru any 2 on exam): 1. Preparation v. Perpetration a. Preparation – devising or arranging measure necessary to commence offense b. Perpetration – direct movement toward offense 2. Proximity/Blameworthy Test a. Was it wrong all by itself? b. Too remote to be considered? 3. (Model Penal Code) Substantial Step a. Act must constitute substantial step to i. Lying in Wait ii. Enticing or seeking to entice victim to where crime can be more easily committed iii. Unlawfully entering structure or vehicle where crime would be committed. iv. Possessing materials to be used to commit crime if materials are specifically designed for illegal use and can serve no lawful purpose. v. Possessing materials to use in commission of crime at or near scene where crime is to be committed where serves no lawful purpose for ∆. What if ∆ washes out cup and decides not to do it? Has he committed crime? -It doesn’t matter. ∆ can’t abandon it. o However, Model Penal Code allows defense in certain cases: Must be voluntary abandonment…not because the crime is going to be more difficult or because ∆ realizes he may get caught. There is no such crime as attempt by itself. It must be tied to a crime (attempted murder, attempted rape, etc.) HYPO: What if we can’t show specific intent to kill, but a victim contracts disease and dies? -For felony murder: hard to show res gestate. -Is the underlying felony inherently dangerous? o If it is having indiscriminate sex, probably not. o If it’s rape, probably so. Is it independent of assault-like crime? • Good for Cal Bar and exam. Suppose goes to victim’s house, shoots at bed, victim is in another room? -Shot into empty bed (blameworthy). Sting: Attempt of receiving stolen property: factual possibility, legal impossibility. Uncover agent, bring in hot equipment, and sells to fence. 1) Legal impossibility: its not stolen, character of property not stolen, how do you convict? 2) Factual Possibility: couldn’t kill someone no matter what you did If it were a factual possibility, it’s still an attempt. If it’s a legal impossibility then it’s not an attempt. Why do we treat one considerably different? -Common Law: Legal fiction: it isn’t stolen property Apparent possibility is good enough for our purposes. The reason for the “attempts” is to blame blameworthy conduct, even if it falls short of consummation. Solicitation – (Common Law) The is guilty of solicitation if he counsels, incites, or induces another to commit or to join in the consummation of any offense. -Specific intent to commit the target offense. -The only act required is the request. -Words can be sufficient for the crime of solicitation (pamphlets, etc.). -Limited to serious crimes (murder, rape, arson, burglary). The relationship to other crimes: -Can we have an attempt to solicitation? It would be tough to get there. -Look at crimes that are not consummated: Evaluate as attempt or solicitation. o A person who commits solicitation and then attempts: The solicitation will merge into attempt. o If we have an attempt but we complete the crime: attempt merge into completed offense. If we have a solicitation that moves toward attempt or conspiracy: if the greater crime has actually happened, focus on greater crime. -If target offense is completed, the can be committed of solicitation and targeted offense (ex. Murder). Conspiracy – An agreement for unlawful purposes. -Agreement -Involves more than one purpose. -Unlawful -Unlawful acts or crimes, or lawful acts accomplished by unlawful means. Specific intent to combine with another or others AND specific intent to perform unlawful purpose. You can file conspiracy even if you have consummation because conspiracy is more inherently dangerous with the combined forces. HYPO: Caldwell convinces Caleb to beat up Tim. Can you file conspiracy and committed battery? -You can file both, conspiracy is independent crime (requires the “combining”). -Conspiracy is more punishable than the battery. What if adultery was criminal? A man, in his car, on the way to motel to meet mistress. -Why no conspiracy? Adultery requires two in the first place. What if boss brought in administrative assistant made arrangements for adulterous event? -Conspiracy…someone non essential added so we have all 3 in conspiracy. Because of the combination of people we have additional danger and bigger problem for the community. At common law, no act was required in specific intent… Most contemporary statutory acts require some overt act in furtherance of the conspiracy. -Probably evidentiary concern. o Exception to hearsay rule are statements made in furtherance of conspiracy. -Not language…not if he asks her to do it….some sort of physical overt act -FOR FINAL o Do not follow common rule Show OVERT ACT in FURTHERANCE Each member of the conspiracy is liable for those crimes committed by all other members which were a reasonably foreseeable result of the conspiracy and done in furtherance of it. Specific intent to combine to have target offense consummated. -∆ does not necessarily also be there (present at scene) committing crime. HYPO: Guy sold gun to man who shot his wife….knowing he was going to use it for that. What if clerk is at Victoria Secret knows customer is a prostitute and sells her an outfit knowing she’s gonna use it to pick up Johns? -Probably not…consider gravity of the crime. o In cases of lesser crimes, we generally do not use conspiracy charges. Typically, once a conspiracy is completed, you cannot withdraw from it. Typically, where there is communication by ∆ to co-conspirators prior to the target offense (backing out)…no criminal liability for target offense. SPLIT OF AUTHORITY Some Jurisdictions say you can get out of liability for conspiracy prior to crime if: 1. Free and Voluntary Action 2. No outside influence 3. No one is harmed or endangered Self Defense -Privilege to use such force as appears to be reasonably appears necessary to defend against apparent threat of unlawful and imminent violence from another. -Deadly force can only be used if ∆ reasonably believed that the other person was about to inflict death or serious bodily injury and the deadly force was necessary to prevent the harm. SPLIT: Does immediate threat have to be Death OR is threat of GBI sufficient? MAJORITY: GBI is sufficient (Rape is included). -Imminent – Immediate danger that must be instantly met, such as cannot be guarded against by calling for the assistance of others or the protection of the law. Hypo: Dad is an elderly doctor who shoots his adult son at home after argument about legalizing drugs. His son is a drugee who advocates the use of drugs while dad is obviously opposed. Dad feels stressed with heart condition and goes upstairs to get his handgun. Dad comes down with gun and son says, “If you don’t use that gun, I’m gonna shove it up your ass.” They’re sitting 6 feet apart facing each other. Son starts to get up and dad shoots son in the chest. Self defense? -Specific Intent to Kill? Probably. -Premeditation? Maybe…but there is a problem with it. He put the gun in his pocket and sat down. -Placement of bullet in chest and getting the gun is a good case for premeditation. -Subjectively in throws of passion? Yeah during argument. -Informational words can be sufficient (But not approprious words). -Defense: Voluntary Manslaughter or Self-defense? o TARP in Dr.’s position have felt as he felt? o Stress of fight could give him heart attack. o Son could overpower him and take gun to shoot him with. Self Defense RULE: 1. Did Dr. have believe that son would kill him? (subjective) 2. Was the belief reasonable? (objective) 3. Was harm inflicted IMMEDIATELY? 4. No more force than necessary to prevent harm. (proportional force) Jonathan (the son) cannot use force to defend himself. -He began altercation and is precluded from self defense claim. What if Jonathan provoked and now approached Dr. with club. As he gets close he drops club and begins walking away….Dr. shoots him in the back. No self defense claim,…see above rule #4. What about defense of another? 1. ∆ stands in place of person being assisted (then 3rd party has right). 2. If party assisted has no right then neither does person assisting. a. (SPLIT) It need not be actual threat but can be perceived threat. Intoxication – Voluntary intoxication is never a defense based on acts committed while so intoxicated. -However, it can be an obstacle for the prosecutor to overcome to prove elements of her case. o Even then, the person must show the level of intoxication prostrated the senses. Duress – A person of reasonable courage having no reasonable alternatives must be facing an immediate threat of death or GBI by 3rd person accused to the accused or her family. -Duress can never be a defense in a homicide. -If duress is proven, it is a complete defense. Necessity – A necessity defense can be brought if there is an immediate threat of death or GBI brought on by extreme circumstances that compel one to act in a way in which he would not normally act. -Not a complete defense. -What are extreme circumstances? And viewed by whom? o Jury determines. Insanity – Purpose to punish blameworthy conduct (pg. 533). M’Naghten Rule (know the name): 1. At the time of the act as a result of mental disorder or defect the accused is unable to appreciate the wrongfulness of the conduct. o Due to defect, unable to reason. 2. His condition prevented him from knowing and understanding the nature and quality of his act or that his act was wrong. o Distorted view of reality. If I shoot Regan, Jody Foster will love me. Legally or morally wrong? No consensus. Irresistible Impulse Rule: -Whether or not the mental disease impairs the person’s self control. -Can he control his own actions? -Still have to show disease. -But second part, person didn’t have capacity to exercise self control that a sane person would. ** If you see an insanity issue…….run it through BOTH tests. Model Penal Code Test: If at the time of such conduct and as a result of mental disease or defect, the ∆ lacks substantial capacity to either appreciate wrongfulness of conduct or to conform his conduct to law. -Only requires substantial capacity…..reduces burden on prosecutor. Not Guilty by Reason of Insanity is an affirmative defense and the defense has to plead and prove it. -So as a prosecutor, describe all of the normal things ∆ did surrounding the crime. -How long are they committed? They’re evaluated every year to determine sanity. Mens Rea PREPARING FOR THE FINAL EXAM The FINAL: will be a racehorse exam -One portion will be racehorse o What crimes are included? -Other portion will be a fact pattern o What would a reasonable prosecutor file? o Then make closing arguments -All multiple choice questions will be based on our class discussions. Nature of Closing Arguments 1. Grab (first words out of mouth must get attention) 2. The Law (2 or 3 critical pieces and explain what they mean/make accessible) o Use examples (reasonable doubt) o Explain what isn’t…Ex. Why this is murder NOT MANSLAUGHTER... 3. Facts of the trial 4. Rebut…tell why the defense doesn’t work 5. Conclusion…tell jurors precisely what you want them to do. COME UP WITH REASONABLE DOUBT STORIES -Pricking boils…bring up issues before opposing counsel does. No opinions in closing argument….reason with the jury. Lead them to the conclusion. Begin by asking the questions: -First, do we have gross negligence with an awareness… -Second, etc… FOR TESTING: 1. Analysis for testing…always force yourself to take the other side. 2. Turn analysis upside down. Pose question…Ex. was her conduct criminally negligent? 3. Don’t try to force conclusion…get natural resistance. REASON WITH AUDIENCE. a. Perhaps start with question. b. Come to conclusion together. 4. All facts are included in exam for a reason. Try to figure out why.