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12 Law Tchr. 1 (2004-2005)

handle is hein.journals/lawteaer12 and id is 1 raw text is: GONZAGA UNIVERSITY Institute for Law School Teaching - Promoting the science and art of teaching - Fall 2004 iagramming crimes By Kevin C. McMunigal I my Criminal Law class, I routinely diagram crimes to help students grasp their elements and master the skill of legal analysis. The technique is reminiscent of diagramming sentences, once a staple of grammar school English classes. A criminal offense diagram doesn't look like a sentence diagram. But each is useful in breaking down a criminal statute or a sentence to identify and understand its component parts. A word of caution at the outset: Diagramming is a tool to help extract from a statute or an opinion and clearly state the elements of an offense. It is not alchemy. It cannot, for example, transform an ambiguous statute into a clear one. But it can help students spot ambiguity in the definition of an offense and respond by developing and deploying statutory interpretation skills. The instructor can construct offense diagrams prior to class using PowerPoint or drawing them by hand, photocopying them onto transparencies, and showing them on an overhead projector. I prefer, though, to recruit students to help create diagrams during class using a dry erase or chalk board. Collaborative construction gives students an active role and challenges them to discover the architecture underlying a criminal offense. Diagramming Basics Each offense element gets a box. The boxes are stacked in two adjacent columns with the non-mental elements on the right and the mental elements on the left. I start with the non-mental elements. I typically place the conduct element at the top and put other non-mental elements, such as a result or circumstance, directly below the conduct box. The non-mental column for a hypothetical statute penalizing the transportation of stolen archaeological artifacts would look like this: NON-MENTAL transport stolen artifacts The mental state boxes come next. I draw an empty box to the immediate left of each non-mental element box: MENTAL NON-MENTAL transport stolen artifacts Each empty box provides space for filling in any required mental state regarding the non-mental element to its immediate right. Understanding Mental States Mental state is a challenge for criminal law students and instructors. Simply drawing a column of empty mental state boxes helps students grasp several important points about mental state. First, it helps students distinguish mental from non-mental elements. Second, it demonstrates that criminal statutes may and often do require more than one mental state for conviction. The stolen artifacts statute, for example, might require purpose to transport, knowledge that the transported objects are stolen, but only recklessness that the objects are archaeological artifacts. Failure to distinguish clearly among mental states is a common problem in the criminal law's treatment of mental state. Diagramming also reveals that mental state is relational. A person at any one time has many mental states regarding many different things. In order to speak and think clearly about mental state, it helps to clarify the reference point for the mental state in question. If one were to ask, for example, What was the mental state of the defendant? in a case arising under the stolen artifacts statute, it would be impossible to answer the question clearly without specifying the reference point for the mental state-the act of transporting the artifacts, their status as stolen, or their status as artifacts. Because a crime may require and a criminal may possess more than one mental state, it is critical to specify a reference point for mental state to avoid confusion. Because mental state is relational, it helps to begin an offense diagram by constructing the non-mental element boxes before constructing the mental state boxes to clarify the reference points for the mental states. Having shown the students that a number of mental state boxes need to be Continued on page 2 Inside Spring conference........... ..............8 Teaching through art..................12 Exam preparation experts...............15 Why I teach...........................16

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