Frequently Asked Questions
Why are we focusing so much on statutes?
This course is unlike your other 1L courses. It is a course about statutes and statutory interpretation. Statutes are boring, technical, and precise, but it is critical that you learn the skills of reading, interpreting, and analyzing them. Make a “no skimming statutes” rule for yourself.
Statutes are tricky to read, and in legal practice you will be wise to get a second set of eyes on any issue of statutory interpretation upon which you are relying for an argument. Everyone makes mistakes. I will make mistakes as we read through statutes together in this course.
The skill of statutory interpretation will look deceptively easy, but it is not. Here is what one former student wrote reflecting back on the course: “Interpretation is really half the battle in many cases and it really takes practice. I thought of it as made up stuff that I could just make up as I went along and that interpretations would normally be obvious. That was not the case.” And here are some similar thoughts from another former student: “I would recommend as much practice as possible. I would recommend reading statutes in cases before reading the opinion and trying to interpret it yourself. When you read the opinion it is easy to adopt the view of the court and you don’t gain the skill to perform this task yourself as is necessary on an exam. This really must be an individual effort because our classes usually critique the judge’s argument or only put one person on the spot to interpret. As someone who struggled with this concept, others would always come up with an interpretation before me when we did this in-class. I would just emphasize that this is a vital concept and if you don’t put the effort forth to do this throughout the semester, either the last weeks will be very hard or you will not do well in the course.”
What is the Model Penal Code, and how does it relate to the common law?
The Model Penal Code (MPC) lays the foundation for the majority of modern state criminal codes. It grew out of a large project in the 1950s that sought to codify the theory and doctrine that had evolved in the common law. The MPC is not perfect, but it represents a major milestone in the development of American criminal law.
The MPC is a model code such that no state or jurisdiction is governed completely and only by the MPC. Instead, many states have incorporated portions or versions of the MPC into their criminal code, alongside other legislative statutes and principles developed under common law judicial decisions.
We will often discuss the contrast between “the MPC” and “the common law.” Those are shorthand references to a statute or principle of criminal law that generally follow either the newer MPC approach or the older common law approach. Within a given topic, an “MPC jurisdiction” has adopted something like the MPC approach, and a “common law jurisdiction” has adopted something like the common law approach. Do not be too rigid or formulaic in these descriptions—they serve mostly as organizational aids.
We’re spending the first few classes on theories of culpability and punishment. Is this introductory fluff that I can blow off and not worry about again?
This question is best answered by these comments from a former student: “Most students thought of the first few classes as just interesting background information until the first review session. When we had to think of how we would prosecute someone or interpret statutes based upon theories of punishment, it struck people that this was actually something we needed to know.”
What are standards of review, and why do they matter?
Standards of review establish the level of deference an appellate court gives to the court below in reviewing an issue on appeal. Standards of review are crucial to the actual practice of law, and they factor into every one of your first-year classes. However, many casebook editors delete them from edited opinions, and some professors choose not to cover them. You will be expected to know them for this class and be able to spot them in the cases we read. Standards of review will vary by jurisdiction, but here are some general rules of thumb (taken loosely from federal appellate standards of review):
Findings of fact by a jury are entitled to the most deference by an appellate court. They must be “arbitrary and capricious” and have no reasonable basis in fact in order to be altered.
Findings of fact by a judge are also entitled to significant deference. They are reviewed for “plain error” or under a “clearly erroneous” standard.
Discretionary decisions by a judge (e.g., motions to admit evidence) are usually reviewed for abuse of discretion. They must be wholly unsupported by the evidence or illegal in order for an appellate court to overturn them.
Finally, questions of law are entitled to no deference by the reviewing court. They are reviewed de novo.
You should think of standards of review as loose boundaries on an appellate court’s discretionary authority. They are not black and white standards—consider, for example, that it is not always easy to determine whether an issue on appeal is a question of law or a question of fact. But standards of review establish some outside constraints—they make it easier for an appellate court to correct an error of law (an area of relative strength by the appellate judge) and more difficult for an appellate court to correct a factual determination like the credibility of a witness (for which the trial judge or jury are usually best situated to determine).
One key point here is that the appellate court is generally not reviewing facts de novo. In the case of a criminal trial (which is appealable after a conviction but not an acquittal), the question for the appellate court is whether any rational factfinder could have found the essential elements of the crime proven beyond a reasonable doubt. That’s an incredibly high standard to meet. A criminal defendant who challenges the sufficiency of the evidence on appeal faces an uphill climb. The standard of review is also incredibly high for a special kind of post-conviction appeal called a collateral or habeas appeal.
The bottom line is that you don’t get a second bite at most of the facts, so the factual work at trial and before trial is critical.
How should I read the cases in this course?
Most of the cases we read have no precedential effect outside of a single jurisdiction (and some of the cases that we read will not even be good law anymore). We’ll use cases in this class as examples of particular fact situations that raise legal issues and that offer analysis of those issues. For most cases we’ll discuss, you should focus on understanding the legal issues and the court’s analysis of them, not on memorizing case names and facts.
A few of the cases in this course have become synonymous with important legal principles. A few other cases are United States Supreme Court decisions that resolve constitutional questions related to criminal law. You’ll want to recognize the significance of these cases.
How should I outline this course?
Use whatever system works for you. The most important qualifier to this general advice is that you should bear in mind that the law in this course comes primarily from statutes, not cases. Do not try to “outline” statutes. You risk changing the meaning of a statute when you paraphrase. You might cut-and-paste the relevant statutory language into relevant sections of your outline, and then add your own explanatory notes. But you can also just flip back-and-forth to the relevant statutes during your study and while taking the exam. (Because the final exam is open book, you do not have to focus your time on memorizing the entire text of the statutes that we discuss.)
Some of you might be wondering whether you even need to outline or even read in light of the website summaries. Here are some thoughts from two former students (both of whom did very well on my exam):
“The website summaries were so thorough that you could probably not do the reading and just read the website for the class and know what was going on. However, they were not specific enough when studying for the exam, and re-reading Dressler was often the better way to understand a topic. I’m assuming this was your intention, to give a good synopsis without just repeating all the details. I think it might make it easier for students who are less likely to do the reading to get by during the semester, only to realize how much they’ve missed at the end.”
“If anything, the website summaries may have been too beneficial. Some students stopped reading Dressler or, at the very least, they read it with much less attention. That was a mistake.”
Note also that the review questions in the website summaries are study aids for you to consider in advance of class. I will occasionally ask these questions during our class. I will not provide answers to every question. If you work through a question and are not sure about the answer, you can schedule a time to seek clarification.
What will be on the exam?
You will see longer versions of the kinds of problems we will discuss in class. The main difference between class hypos and exam questions is that the former will usually be limited to single issues, and you will be focused on those issues by the readings and the natural organization of the course. Exam questions will have multiple issues that will require you to identify and disaggregate them without the benefit of knowing the “topic of the day.”
[The above guidance applies to the essay portion of the exam.]
Why aren’t we covering the death penalty?
I have omitted the death penalty because it has such a specialized and extensive body of law. That law relates largely to criminal procedure rather than substantive criminal law. The death penalty raises some of the most important philosophical and policy questions related to punishment, but these particular questions do not fit well with the rest of the course.
Why are we covering rape?
The choice of whether to cover rape in first-year criminal law is much debated for reasons that are probably apparent to most of you. On the one hand, it is an important topic that raises significant questions about mental state and fault. On the other hand, there is a statistical probability that some of you have had personal experiences that will make this a very difficult subject to study. If you feel that you are unable to participate in the discussion of this material, please come see me before we address it. You can also speak with one of my research assistants to learn more about how we cover this topic.
Why isn’t this class more like Law and Order?
Substantive criminal law is only the starting point for criminal cases. The criminal process is dominated by procedural rules, personalities, evidence, case-specific facts, race, money, and lots of other things. Those of you who decide to practice criminal law (or who really like crime dramas) will want to explore other courses like criminal procedure, evidence, trial practice, clinics, and seminars.
Most of you will not practice criminal law. But there are at least three reasons why this course is important for your education as lawyers. First, it introduces you to statutory law. You’ll need that skill in many upper-level courses, and almost all of you will need it in practice as well. Second, it lays a foundation for understanding the criminal process, and you ought to know something about that as a lawyer. Third, this course raises some of the most fundamental questions about the law (why we punish, what constitutes harm, what constitutes excuse). Those questions will arise in different forms in many other classes, areas of practice, and areas of life.
Why are you making me visit a courtroom?
The courtroom visit serves at least two purposes. First, it is a contemporaneous reminder that our readings and class discussions involve real issues that affect real people. Second, it provides an opportunity for you to get a sense of the community in which you currently live and study law. (For both of these reasons, past visits or visits outside of the St. Louis area do not satisfy the requirement.)
The only content requirement of the courtroom visit is that you observe a criminal (rather than a civil) courtroom for at least thirty minutes. If you end up observing a civil courtroom, your visit will not count for purposes of this requirement.
As far as particulars, use common sense. You should look presentable (business casual is a good rule of thumb). Don’t bring food or drink into the courthouse. I would suggest keeping any groups small in size so that you don’t draw undue attention. Don’t talk in the courtrooms unless it is clear that it is okay to do so. Listen to the people with the guns and the robes if they tell you to do something. I am intentionally giving you very little other information.
I do not add this requirement lightly or without a great deal of thought. I want you to experience the awkwardness of going to an unfamiliar courthouse on your own (or with a small group of your classmates). Navigating awkwardness and unfamiliarity (including buildings and institutions and authority figures) is part of being a lawyer. Your experiences will range from the extremely gratifying to the extremely frustrating. I want to encourage you to reflect on the experience even if it falls short of your expectations — this is the nature of courts, secrecy, information problems, bureaucrats and government workers, litigation, settlements and pleas, cancellations, and all kinds of other contingencies. I want, at a minimum, for you to experience something of what it is like for ordinary people to struggle with something as basic as watching a criminal proceeding or getting into a courtroom (or a police car). Your experience will of course differ from that of actual defendants who, among other things, have other people (usually with guns) directing their actions (on the threat of using those guns). But many of the friends and family members of these people — or of victims or witnesses — will be experiencing frustrations similar to the ones that you may encounter.
I know that time is limited, especially in the midst of your 1L year. And I know that many of you will never take another course in criminal law or practice in this area. I don’t typically teach or write in the area of criminal law outside of this class. But I also feel that part of my obligation — to you and to the community that surrounds us — is to have us think more deeply about these issues, and I hope that these courtroom visits work to that end in some small way.