Ch03 Legal Analysis.docx

Chapter Three Legal Analysis I. Sample Test Questions Note to Instructors: Chapter Three consists largely of examples illustrating legal analysis. Therefore, rather than providing objective test questions, this chapter of the test bank provides several questions that can be used to test students’ legal analysis skills. Legal Analysis Questions 1. While working for Smith Ford, Bill was asked by his employer to move one of the customer’s cars from parking place #417 to parking place #419. At the precise moment that Bill was moving the car, another customer pulled around the corner and smashed directly into the car being driven by Bill. Bill’s license had recently been suspended. When the police arrived at the scene, Bill was arrested for violating State Statute 561.124 which states that “Anyone who is driving on any public thoroughfare while his or her license is currently suspended shall be guilty of a first degree misdemeanor?” Please discuss whether Bill is or is not likely to be convicted of violating State Statute 561.124. 2. After having six beers at a local restaurant, Cindy gets on her bicycle and heads home. Because of her intoxication, she ends up running into a pedestrian with her bicycle, seriously injuring him. When the police arrive at the scene of the accident, Cindy is given a breathalyser test, and she is found to have an alcohol level well above the legal limit. Cindy has been arrested and convicted twice before of driving under the influence. She is charged with violating State Statute 551.29, which states that “Anyone operating a vehicle under the influence of alcohol is guilty of a second degree misdemeanor punishable by a maximum of 60 days in jail and/or a $500 fine. Anyone convicted three times under this statute shall receive a minimum of six months in jail.” Please discuss whether Cindy is or is not likely to be convicted of violating State Statute 551.29. 3. Barney points a pistol at Susan and demands all of her money. The pistol is actually a fairly realistic but harmless plastic toy. Barney is charged with violating State Statute 56.92, which states that “Anyone placing another in reasonable apprehension of an immediate battery is guilty of a first degree misdemeanor?” Please discuss whether Barney is or is not likely to be convicted of violating State Statute 56.92. 4. Bob and Sue have been separated for two years although they remain technically married, and Bob has been living in an apartment during the two-year period. Sue has remained at the marital home. Their relationship is extremely strained. In order to terrify his wife, Bob sets fire to a wooden shed on the property where his wife continues to live. Bob is charged with violation of State Statute 686.08, which states that “Anyone who willfully and maliciously burns the building or structure of another is guilty of first degree arson?” Please discuss whether Bob is or is not likely to be convicted of violating State Statute 686.08. 5. Karl is arrested for violating the state marijuana statute (State Statute 292.09), which states that it is unlawful to “possess, transport, sell, or distribute Cannabis Sativa”. Cannabis Sativa is a scientific term for marijuana. Karl’s attorney hires an independent chemist to analyze the marijuana that Karl had in his possession at the time of his arrest. The chemist determines that the sample is in fact marijuana, but that it is Cannabis Indica, a different strain of marijuana. Please discuss whether Karl is or is not likely to be convicted of violating State Statute 292.09. II. Answers to the Sample Test Questions Note to Instructors: Student answers will vary, but listed below are some tips on the key issue to be addressed in each answer. 1. Bill did in fact have a suspended license and was evidently driving the car, but he was not doing so on a “public thoroughfare” and would therefore probably not be convicted of violating this statute. 2. The main issue is whether a bicycle is a “vehicle” within the meaning of the statute, because if it is not, Cindy is not guilty of violating the statute. If the bicycle is regarded as a “vehicle,” then it would appear that she could be sentenced to the minimum six- month jail term. 3. The main issue is whether it can be said that Susan was placed “in reasonable apprehension of an immediate battery.” There is no indication in the statutory language that the person has to actually carry out the battery or be capable of ultimately doing so. Whether Barney will be convicted will depend upon whether reasonable apprehension would be created with the toy gun. That would in turn depend upon how realistic the gun was. More information is needed. 4. The main issue in this case is whether the burned property is the property “of another.” It is possible that Bob and Sue are the joint owners of the property and that the answer would therefore be “No.” In that event, he might have committed some other criminal law violation, but Bob would not be guilty of violating the arson statute. 5. In this case, Karl will probably be found not guilty. The statute does not prohibit the possession, etc., of marijuana, but rather the possession of Cannabis Sativa. The only argument that the prosecution may have would be if it could establish with its own experts that Cannabis Indica was in fact a different name for (but the same thing as) Cannabis Sativa. III. Answers to the Review Questions in the Text Note to Instructors: All of the factual situations and the statutes in the following questions are fictitious. The statutes have been intentionally designed to use vague language so that the opportunities for analysis are enhanced. The students should understand that real statutes are hopefully less ambiguous than the ones that follow. The Analysis section of each memorandum has been broken down into two subsections (Subdivision of the Statute into Elements, and Analysis of the Individual Elements) so that it is absolutely clear to the students that no analysis of the elements can be conducted until the components of the statute are indicated. It should be emphasized to the students that all of the elements must be shown in order for the defendant to be found guilty. However, when the word “or” appears in the statutory language, it indicates that only one of two or more options need be proven in order to establish guilt. In these situations, both options must appear as a single element in the Analysis section. The instructor should be somewhat flexible with regard to the grading of these questions. It is possible for two people to draw different conclusions based upon the same factual situation. The students should realize that with these questions as in real life situations, answers may not be right or wrong per se. It is to be assumed with regard to all of the following questions that the facts as given are provable in a court of law. The following questions are based upon fictitious statutes and facts, and are used for instructional purposes only. 1. A. Statute: State Statute Sec. 321.5 states that “any person willfully and maliciously burning the dwelling house of another shall be punished by a period of incarceration not greater than five years and/or a fine of not more than $5,000.” B. Facts: The police are summoned to Harry’s property on the basis of a reported trespass. As the police pull up, Harry’s property is on fire, and Ann is seen on the property with a gasoline can in her possession. C. Question: Is Ann likely to be convicted of violating State Statute Sec. 321.5? D. Analysis: 1. Subdivision of the statute into elements a. any person b. willfully c. maliciously d. burning e. dwelling house f. of another 2. Analysis of the Individual Elements a. any person Clearly established b. willfully Probably established, but need more information. While it is not conclusive, Ann's possession of the gas can is highly suspect. The subsequent investigation may show, however, that the fire was not even due to arson. More information is needed. c. maliciously Probably established, but need more information for the same reasons as in “b.” above d. burning Clearly established e. dwelling house Need more information. The facts do not indicate that the property was a dwelling house, a structure of another nature such as a warehouse or office building, or an unimproved piece of property. f. of another Clearly established E. Conclusion: If the cause of the fire is ultimately established as arson, the presence of “willfulness” and “maliciousness” will be strongly implied. Even if it is shown that the fire was caused by arson, the defendant will have a strong defense to this particular crime if he can show that the property is not a dwelling house. 2. Note to instructors: The students should be made aware that in this particular set of facts, several of the elements of the offense tie in together. For example, it need not be shown in this case that violence is imminent. It need only be shown that the act created a well-founded fear in the other person that violence was imminent. Consequently, it is best to list the elements to this brief as they are below with the material in the parentheses. A. Statute: State Statute Sec. 975.31 states that an assault is “an intentional threat by word or act to do violence to another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” B. Facts: Bob, who is in his apartment on the second floor of the building, gets into an oral argument with his neighbor, who is on the sidewalk 100 yards from his window. Both of them are using obscene language. Bob threatens to throw a potted plant at his neighbor, and Bob actually picks it up, making gestures that indicate that he is about to throw it (although he never does). C. Question: Is Bob likely to be convicted of violating State Statute Sec. 975.31? D. Analysis: 1. Subdivision of the Statute into Elements a. intentional b. threat c. by word or act d. to do violence e. to another f. coupled with an apparent ability to do so g. doing some act h.. (the act creates) a well-founded fear in another person i. (the act creates the well-founded fear in another person) that violence is imminent 2. Analysis of the Individual Elements a. intentional Clearly established. There was nothing about Bob's conduct in this case that suggests that it was accidental. b. threat Clearly established c. by word or act 1) by word Clearly established or 2) by act Debatable. It could be argued that the act of picking up the potted plant, while intended to be a threat, did not constitute an actual threat because of the distance from the defendant to the victim. d. (threat) to do violence Clearly established. It is possibly arguable that this element is debatable for the same reasons as those given in element c.2) above. e. to another Clearly established f. coupled with an apparent ability to do so Clearly not established. It is extremely unlikely that the defendant can throw a potted plant 100 yards, which is the entire length of a football field. g. doing some act Clearly established. He picked up the potted plant. h. (the act creates) a well-founded fear in another person Debatable on the basis of the arguments made in element f. above. If it is improbable that the defendant could throw the plant 100 yards, one cannot persuasively argue that the victim had a well-founded fear that he was going to be hit by the plant. i. (the act creates the well-founded fear in another person) that violence is imminent Debatable on the basis of the arguments made in element f. above. E. Conclusion: Because of the fact that the defendant did not have the apparent ability to commit the violent act, nor could the victim have a well-founded fear that violence was imminent, the defendant is not likely to be convicted of violating State Statute Sec. 975.31. 3. Note to instructors: The students may be interested to know that at common law, one element of burglary was in fact "in the nighttime." Daytime break-ins could result in a conviction for other crimes, such as larceny, provided that the elements for that crime were present, but the defendant could not be convicted of burglary. A. Statute: State Statute Sec. 123.678 states that “any person breaking and entering the dwelling house of another during the nighttime shall be punished by a period of not greater than five years and/or a fine of not more than $5,000.” B. Facts: John decides to burglarize Mary’s condominium by entering through some sliding glass doors. When he breaks the glass around the door handle and sticks his finger through the hole to undo the latch, an alarm goes off, and John flees. C. Question: Is John likely to be convicted of violating State Statute Sec. 123.678? D. Analysis: 1. Subdivision of the Statute into Elements a. any person b. breaking c. entering d. the dwelling house e. of another f. during the nighttime 2. Analysis of the Individual Elements a. any person Clearly established b. breaking Probably established, since he did break the glass around the door handle. Nevertheless, one might wish to verify the meaning of the term “breaking” by doing some research. c. entering Debatable. In order to enter the premises, does a person’s entire body have to be inside the building, or is it only necessary to show that some part of the body was inside? Research is needed. d. the dwelling house Probably established, but possibly debatable. While a condominium is clearly a dwelling, it could be argued that it is not a “house.” Research is needed. e. of another Clearly established. The condominium clearly belonged to Mary. f. during the nighttime More information is needed. The facts do not indicate whether the incident took place during the nighttime or during the daytime. E. Conclusion: While the defendant’s attorney may find through research that possible defenses exist with regard to the elements of “breaking” and “dwelling house,” there are two defenses that appear to be more promising. First, the defendant only entered the premises with part of his body. Research may reveal that his entire body must be inside in order to constitute an “entering.” Second, more information is needed to determine whether the incident took place during the nighttime. If it did not, the defendant has an absolute defense to this particular charge. 4. A. Statute: State Statute Sec. 987.65 states that it is unlawful “to either import for sale or use, or release within the state, any fish of any species without first obtaining a permit from the Fish and Game Commission.” B. Facts: Lucy was recently on a fishing trip to the Bahamas. When she docked back at Port Everglades, she found that she had accidentally picked up an eel in her nets along with a catch of more than 800 fish. She ended up throwing out the eel into the Intercoastal Waterway. Lucy had no permit. C. Question: Is Lucy likely to be convicted of violating State Statute Sec. 987.65? D. Analysis: 1. Subdivision of the Statute into Elements a. import for sale or use or release within the state b. any fish of any species c. without first obtaining a permit from the Fish and Game Commission 2. Analysis of the Individual Elements (with regard to the fish) a. import for sale or use 1) for sale Probably established. The fact that she caught 800 fish suggests that she was probably intending to sell the fish. One might also want to verify through research that bringing in fish caught in the ocean constitutes “importing.” or 2) for use Probably established, although one might wish to verify the meaning of the term through research OR release within the state Clearly not established b. any fish of any species Clearly established c. without first obtaining a permit from the Fish and Game Commission Clearly established 3. Analysis of the Individual Elements (with regard to the eel) a. import for sale or use 1) for sale Clearly not established or 2) for use Clearly not established OR release within the state Debatable. Was the release of the eel into the Intercoastal Waterway “within the state”? Research or more information is required. b. any fish of any species Debatable. Is an eel a “fish”? Research or more information is needed. c. without first obtaining a permit from the Fish and Game Commission Clearly established. E. Conclusion: The defendant is likely to be convicted of the charge of importing the fish. As to the release of the eel into the Intercoastal Waterway, it is much less likely that she will be convicted of violating the statute. First, it is unclear whether the release of the eel was technically “within the state.” Second, it is debatable whether an eel qualifies as a fish within the meaning of this statute. 5. A. Statute: State Statute Sec. 14.82 states that it is unlawful “for any person to intentionally injure or kill any animal native to Florida in a state-designated game preserve area.” B. Facts: Harry is hunting in the Everglades. He shoots at what he believes to be a quail, but instead, he hits and kills a Florida panther. Quail hunting is permissible in the Everglades. C. Question: Is Harry likely to be convicted of violating State Statute Sec. 14.82? D. Analysis: 1. Subdivision of the Statute into Elements a. any person b. intentionally c. injure or kill d. any animal e. (any animal) that is native to Florida f. in a state-designated game preserve area 2. Analysis of the Individual Elements a. any person Clearly established b. intentionally Debatable. While it is clear that Harry intentionally shot at something, is it necessary that it be proven that there was intent to injure or kill the particular type of animal that this statute is attempting to protect? Research is needed. c. injure Clearly established or kill Clearly established d. any animal Clearly established e. (any animal) that is native to Florida More information is needed. Simply because the animal is called the Florida panther does not mean that it is native to Florida. f. in a state-designated game preserve area More information is needed. Are the Everglades a “state-designated game preserve area” as opposed to a national park, or is it both. E. Conclusion: Harry may be able to avoid conviction if it can be shown that the Florida panther is not native to Florida or that the Everglades is not a state-designated game preserve area. More information is needed. Furthermore, Harry may be able to establish lack of intent on the theory that he was not shooting at the animal that this statute is designed to protect. 6. Note to instructors: The students should be sure to note who the party being charged is in any particular factual situation. In the present question, for example, it is Saunders and Sons and not the individuals that is being charged. A. Statute: State Statute Sec. 135.79 states that it is unlawful “for any person or corporation to dump hazardous waste materials within 250 feet of a municipal water processing plant. Those in violation of this statute shall be punishable by a fine not exceeding an amount of $1,000.” B. Facts: Saunders and Sons, a business that is involved in the purification of sulfur products, owns a factory next door to the Paxton water processing plant. The enterprise routinely emits small amounts of zinc oxide into the atmosphere. C. Question: Is Saunders and Sons likely to be convicted of violating State Statute Sec. 135.79? D. Analysis: 1. Subdivision of the Statute into Elements a. any person or corporation b. to dump c. hazardous waste materials d. within 250 feet e. of a municipal water processing plant 2. Analysis of the Individual Elements a. any person Clearly not established. It is the business rather than the individuals who have been charged in this case. or corporation More information needed. While it is clear that Saunders and Sons is a business, it is not clear whether it has been incorporated. b. to dump Debatable. Does this term apply to emissions into the atmosphere, or does it only apply to ground and water pollution? Research is needed. c. hazardous waste materials Debatable. Is zinc oxide a hazardous waste material? Research is required. d. within 250 feet More information is needed. e. of a municipal water processing plant More information is needed. While Paxton is a water processing plant, it is unclear whether it is city-owned. E. Conclusion: The defendant may possibly avoid conviction on any one of a number of grounds: 1. the business may not be incorporated, 2. the use of the statutory term “dump” may not include atmospheric pollution, 3. zinc oxide may not even be a hazardous waste material, 4. the defendant’s factory may not be within 250 feet of the Paxton plant, and 5. Paxton may not be a city-owned water processing plant. Either more information or more research is needed on all of these issues. 7. Note to instructors: The students should be sure to note who the party being charged is in any particular factual situation. In the present question, for example, it is the racing group that is being charged and not the individual members. A. Statute: State Statute Sec. 864.20 states that “it is unlawful for any person or corporation to contemptuously abuse or defile a flag or emblem representing the state.” B. Facts: Bobby Randall is a professional stock car driver from Lancaster, Pennsylvania. He uses a picture of the Confederate flag with a giant “X” through it on the hood of his car in order to display his displeasure in general with the South and in particular with his two primary competitors, both of whom are Southerners. While in the South for the Mayville 400 stock car race, he is charged with State Statute Sec. 864.20. C. Question: Is the Randall racing group likely to be convicted of violating State Statute Sec. 864.20? D. Analysis: 1. Subdivision of the Statute into Elements a. any person or corporation b. contemptuously c. abuse or defile d. flag or emblem e. representing the state 2. Analysis of the Individual Elements a. any person Clearly not established. The Randall racing group, and not the individual members, was charged with the offense. or corporation Need more information and/or research. While the group was charged, there is insufficient information to determine whether the group had gone through the formal process of incorporation. b. contemptuously Probably established. Drawing an “X” through any symbol is generally understood to imply contempt for the symbol. c. abuse Probably not established. One does not normally consider this kind of conduct abusing the flag or emblem, although research might provide a clear definition. or defile Probably established, although research may be helpful in providing a definition for the term. d. flag Debatable. Does a picture of a flag constitute a flag? Research is required. or emblem Probably established. e. representing the state Probably not established. The Confederate flag does not currently represent any state per se. Furthermore, it could be argued that it represented a number of states rather than just one exclusively. E. Conclusion: Whether the Randall racing group will be convicted is likely to turn on two issues: 1. whether the group has ever been incorporated, and 2. whether the picture of the Confederate flag on the hood of the car constituted a flag or emblem within the meaning of this statute. More information is needed as to the first issue, and research must be conducted with regard to the second.