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1. This exam is open book, open notes. You may bring in the following
(a) Your textbook
(b) Your class notes
(c) Any outline that you played a substantial role in preparing.
2. You may not bring into the exam any treatises (including Dressler), or any canned or commercial outlines, briefs, nutshells, Gilberts, Emmanuels, Legalines or their equivalent.
3. Three hours will be allotted for the examination. Blue books will not be passed out for the first half hour (30 minutes). This time should be spent reading and thinking about the questions before you begin writing your responses. You may use scratch paper to begin outlining your answers during this initial thirty minute period.
4. There will be three essay questions on the final examination.
5. Do not cite a case or a provision of the Model Penal Code without further discussion! There is no presumption that use of a case name or code section results from knowledge of its contents. Discuss, analyze and apply any cases or code provisions for which you wish to receive credit in your answer.
6. Please write on only one side of each page in the blue books.
DO YOUR BEST TO WRITE LEGIBLY. FAILURE TO WRITE LEGIBLY WILL RESULT IN AN IRATE GRADER READING YOUR EXAMINATION.
Dave Defendant knocked on Jane Doe's door one Saturday morning, claiming to be a TV repairman. Once inside the apartment, he removed his clothing and instructed her to remove hers, saying: "You know what I want." Jane asked him to leave, but was too frightened to offer physical resistance. She said: "Will you let me go if I do what you want?" and Dave said that he would. Dave and Sue then engaged in sexual foreplay, stopping short of intercourse as defined by MPC 213.0(2).
After this, Jane again asked Dave to leave, and Dave refused to do so. Jane then began to panic, and told him: "I am a diabetic. I have to get my insulin." Dave laughed and said, "I don't believe you." He pushed her back on the bed when she tried to get up, and Jane passed out. Dave then panicked, and ran from the apartment. Jane Doe went into a diabetic coma and died.
Discuss Dave Defendant's criminal culpability. If there are multiple theories under which his culpability could be determined, discuss each theory. Also discuss any defenses that Dave might wish to raise on these facts. Assume that the apartment is located in a jurisdiction that has adopted the Model Penal Code.
Two brothers, Al and Bert Smith, seized Pamela Williams from the playground of the East Street Elementary School. They brought Pamela to the house of their sister, Chrissie. When they arrived, Chrissie said to them: "What took you so long? I called her parents and they will have the ransom money ready by 6:00 tonight."
That evening, Al went out to collect the money, while Chrissie and Bert stayed at the house and watched Pamela. Al brought the ransom money back to the house. While Al and Chrissie were sitting at the kitchen table counting the money, they heard a gunshot. They ran into the next room and saw Bert standing over Pamela's prone and bleeding body. Chrissie yelled: "What have you done, idiot?" Bert replied: "I've been waiting for years to get even with her father. He fired me from the best job I ever had."
The kidnapping statute in this jurisdiction provides as follows: "The taking and carrying away of a person without consent is a felony." Assume further that the jurisdiction has the same degrees of homicide as the MPC, but that their murder statute omits the last sentence in MPC 210.2(1)(b). Discuss the criminal culpability of Bert and Chrissie in this jurisdiction.
The Ohio Legislature, determined to win points with voters and limit accidents resulting from intoxicated drivers on the road, enacted the following statute:
The Bureau of Motor Vehicles shall maintain a Prescribed List containing the names of persons who have been convicted of homicide resulting from driving under the influence of alcohol and who, subsequent to the homicide conviction, have been convicted of additional D.W.I. offenses, driving without a valid license, or driving while under suspension. The Prescribed List shall be published monthly and distributed to each alcoholic beverage licensee in the state. The Prescribed List shall be posted conspicuously in each establishment having a license to dispense alcoholic beverages.
No person operating or working in a tavern or restaurant where alcoholic beverages are sold shall serve alcoholic beverages to any person whose name appears on the Prescribed List.
Any person who shall violate this statute by serving an alcoholic beverage to a person whose name appears on the Prescribed List is guilty of a misdemeanor, punishable by a jail sentence of thirty (30) days and/ or a fine of $200.
The defendant, Art Austin III is a law student who has been partially defraying the costs of his education by tending bar in the Regal Beagle. He is aware of the law, and conscientiously checks each patron's name against the names on the Prescribed List.
Last week, Art was working behind the bar when Bud Weiser came into the Beagle and ordered a draft. Art checked the list and did not find Weiser's name. In fact, Weiser's name appeared on the new list, dated May 1, which had been received at the tavern that day, but inadvertently not posted by the Beagle's manager, who had been called away on a family emergency. Weiser's name had not previously appeared on any monthly list prior to May 1.
Weiser purchased and consumed several beers and left the Beagle an hour later, announcing that he had achieved "the appropriate buzz." On the way home, Weiser drove his car into a telephone pole and died.
Discuss all the issues relevant to a determination of Austin's liability in both an MPC and a common-law jurisdiction.
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