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I have a criminal law exam coming up, and looking over some of the past exams a recurring question form has come up. It basically gives a fact pattern, but instead of asking to discuss liability or defenses, it asks you to play the role of judge/legislature. So, for instance, it'll give a weird situation about assault or self-defense, and then say 'You are a judge, describe the instructions you will give the jury and explain them'. Or, 'You are assigned to draft a statute that will define a murder conviction in the state.'

So the question is, how should I approach drafting something like this? Is it better to just mimic the MPC or a state statute, or to create your own?

JohnnyLaw wrote:I have a criminal law exam coming up, and looking over some of the past exams a recurring question form has come up. It basically gives a fact pattern, but instead of asking to discuss liability or defenses, it asks you to play the role of judge/legislature. So, for instance, it'll give a weird situation about assault or self-defense, and then say 'You are a judge, describe the instructions you will give the jury and explain them'. Or, 'You are assigned to draft a statute that will define a murder conviction in the state.'

So the question is, how should I approach drafting something like this? Is it better to just mimic the MPC or a state statute, or to create your own?

I had an exam like this. You should try look at the state-by-state Jury Instruction database on Westlaw. Gives you an idea of how its a mix of statutory law, case law, and any procedural/evidentiary stuff.

It's just an issue spotter, IRAC problem, but only IRA. Read the facts, identify the issues, then draft your "rule" statement as your jury instruction. Jury instructions are like explaining legal rules to eighth graders.

The defendant is charged with battery. Battery is blah blah blha. If you find that X, then Y. But if not X, then Z.

The defendant says he acted in self defense. A person may use non-leathal force to defend if bla blah blah. If you find that A, then B. But if not A, then C.

Etc.

And drafting a statute is similar. Define the rule and break out the rule's elements into subsections. Like,

Self Defense Using Lethal Force. A person is privileged to use lethal force in self defense if that person (1) had an immenent fear of (A) great bodily harm, or (B) death, or (C) sexual assualt.

It should be Issue, rule, explanation, apply. So I would tell the jury the rule, break it down for them so they can understand it and then apply it to the facts. The application would be like, "if you find that the state failed to prove beyond a reasonable doubt that the defendant purposely wanted to kill big john you must find for the defendant...etc."