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12 Law Tchr. 1 (2004-2005)

handle is hein.journals/lawteaer12 and id is 1 raw text is: GONZAGA

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:
The mental state boxes come next. I draw an empty box
to the immediate left of each non-mental element box:

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
Spring conference...........       ..............8
Teaching through art..................12
Exam preparation experts...............15
Why I teach...........................16

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