ANNE COUGHLIN:
When I was starting to get ready for this
session, I realized it's really useful for me-- I'm going to just talk to you
a little bit preliminarily. It's almost difficult
for me to figure out how to read a case
anymore because I'm so used to teaching cases. And I think I'm so
used to reading cases in the way in which
I want you to learn to read cases that it's almost
like second nature to me. So it's kind of difficult
to unpack it clearly. And yet it was an incredibly
useful exercise for me to do. So I will try. I promise. I will try not to flip
over into teaching you this case as opposed to
reading this case with you. But I probably won't be
able to resist a little bit. So I don't know if
you all had a chance to read the case that we're
going to read together. It is a very interesting
criminal law case. It is in the criminal
law case book that I co-authored with
Richard Bonnie, John Jeffries, and Peter Lowe. Not all of you will
be using that book. But some of you will. So for those of you
who are using the book, I'm assuming you haven't
got to the case yet. So it'll be helpful
to read it today. And then for those of you
who are not using that book, it's still a great case to
tackle for these purposes. It's a really interesting case. And it requires close reading. And that close reading
really pays off. That's one of the reasons
why I wanted to use the case. It's a difficult case. But close reading will really
get you where you want to go. And then like all interesting
and difficult cases, its meaning is still
a little bit elusive. And so that's the
other thing that you're going to learn here, is
that, even though you'll be able with close
reading to take away the doctrinal
content of the case, you're still going to be
left to wonder a little bit, do I really have it right? And how could it possibly
be deployed in future cases? So just to step
back for a minute, one question that I
suggest you ask yourself-- certainly as law students, but
you're going to ask yourself this question later when
you're practicing lawyers-- just a basic question, why
am I reading this case? And I don't mean that in
some sort of existential way like, why am I here? And why am I forced to
be reading these cases? And shouldn't I go back
and, you know, do the things that I really enjoy? No, no, no, no, you just
want to ask yourself, why am I reading this case? In the sort of
workmanlike question, what's the point
of the exercise? What is this case
designed to teach me? What am I supposed
to be taking away from this case in terms of
its legal content in terms of the doctrine
that it spells out? So just, what's the
purpose of the exercise? What is the case
designed to teach? When you're in law school,
that's a question-- again, I recommend that
you ask yourself that question explicitly. Why am I reading this case? What place does it occupy
in the course curriculum? Why did the professor
or the casebook think it was a good idea for
me to be reading this case? What's the case of
vehicle for teaching me? And when you're in
law school, it's going to be pretty
easy for you to answer that question at least if
you do a little bit of work. Sometimes you'll still
wonder, why this case? Couldn't they have come up
with something different? And you may decide
it's not really the best case for its purpose. But you just want to take
a look at your syllabus. You want to take a
look at your casebook. You want to look at
the casebook notes. And when you do that, you'll
very quickly, hopefully pretty quickly, be able to
figure out, oh, this case is here to teach me
this legal principle. Or it's here to teach me
this doctrinal rule, right? And so when you encounter
the case that I've given you, which is People versus Bowen. You'll be reading it in the
backdrop of a criminal law course. You have been told there are
two basic elements of crimes. We have actus reus, conduct. We have mens rea. We have mental state. So you've already
learned that you have these two basic
doctrinal ingredients that have to be satisfied. And this time, you are
looking at those ingredients-- what is actus reus? What is mens rea-- in the context of attempt
crimes or inchoate crimes because we don't just punish
people for completing crimes. We're so criminalization
happy that we also punish the people who
try to commit crimes or attempt to commit crimes. So again, it's just a, why
am I reading this case? [INAUDIBLE] read the
little set of notes. If you look at the chapter
heading in the syllabus, you'll discover,
oh, this case is a principal vehicle
for teaching me what is the actus
reus for attempt. How do the courts define
the actus reus of attempt? When you're a
lawyer in practice, if you're lucky enough
to litigate an attempt case in criminal law, you'll
read cases for the same reason. If you're litigating
an attempt case, you're going to have to
know, how does the law define the actus reus of attempt? And so you're going to
have to go out and find a bunch of cases that teach
you here is how my stake, here is the courts in my
jurisdiction define the actus reus of attempt. And you'll pretty quickly
realized, oh, this case isn't about that. And you'll toss it to the side. And you'll try to isolate
the cases that actually are teaching you
that precise thing that you're trying to learn. So again, what we're
doing in law school is teaching you the
way you are going to do research later when
you get to your law firms, your government jobs,
your clerkships, wherever it is that you're working,
the public defender's office, or the
prosecutor's office, or private defense
in criminal law land. So why are you reading the case? What's the point
of the exercise? What is it that you're trying
to take away from the case? And so just always be asking
yourself that question. And always ask yourself
that question in law school. And if the professor gets fuzzy
about that, which we sometimes do, you'll make sure that
you take a step back and ask yourself, OK, why are
we reading this case? And I try to constantly do that,
particularly in my first year classes, is to remind
myself to be very clear-- while we are looking
at this case today, here is where it fits into the
architecture of the course-- and take it from there. So what I thought I
would do now is just-- how many of you have had a
chance to look at the case? Have some of you read-- I'm not going to
call on anybody. So you're not in any risk. Have you read the case? Nobody's read the case. Nobody wants to admit that
they've read the case. Well, then we're just going
to go through and read it together. I could tell you to read it now. And then we'll come back. But I'm not going to do that. We're almost going to go
paragraph by paragraph but not quite that slowly. But why not, right? I think that's why you're here
because, even though you didn't read the case, you clearly think
you're going to get something out of this session. So let's L this
that's what my plan. So and again, my
advice is obviously going to be tailored
to this case. It's a criminal law case to
identifying the kinds of things that you'll be getting out
of the reading of this case. But you're going to be able
to generalize because you're going to be asking similar
questions in contracts and in torts and whatever
that other classes you take called civil procedure. And you'll be doing
that thereafter. So the basic kinds
of points, questions, things you're reading for,
you're going to continue to do. So the obvious
basic place to start is with the very top of the
case, where you have the case name, the court, and the date. And I can't give you too much
generalization about case names whether the appellant
goes first or second and how all this works out. But here, you can just tell
it's People versus [INAUDIBLE],, so you know that this is a
case that was brought on behalf of the people, the sovereign. It clues you in pretty
quickly, oh, this is likely to be a criminal case. And of course, that's true. The next thing, of course, you
want to notice and remark-- and this is
something that you're going to do in law
school, but you're really going to do it in your own
practices-- what's the court. And here it's the Court
of Appeals of Michigan. And that's not the
highest court in Michigan. Michigan has a
Supreme Court, which is styled the Supreme
Court of Michigan. Sometimes the highest court
will be called the New York Court of Appeals. That's the Supreme Court
in the state of New York, so you need to be careful
about the court designation. But you're going to come to read
these things so automatically. But clearly you want to know
what court because that's going to tell you something
about the precedential value of the case, right? Is it the highest
court in the state? If not, you're going to want to
be thoughtful, potential even dubious, about the
precedential value of the case. And then you're going to
want to look at the date. Now, this case-- is it '68? Is that right? Do I have that right? Yes, sorry. My eyes are bad. So it's 1968. And you're going to
look at the date, too, because the date will
also tell you something about precedential value. Obviously, a fresh precedent
that's right on point for you is really great. But sometimes the grandmother
case is really old. You just want to notice
when was this case decided. And so those are things
that are important. You don't need to
worry about all of that so much when you're just
breaking into your first year reading. But these are things that
you're going to remark and you're going to notice. And you're going to
wonder about, 1968? Why are they giving
me a case from 1968? I don't think you
were born then. This is ancient history. Presumably the
casebook editors think it's good ancient history. You'll want to notice that. OK, so then, when
I'm approaching a case in criminal
law and I'm thinking that this is going to be
a very similar question in other courses as well, is
you immediately want to know, I'm going to call it
the cause of action. And then you want to know the
procedural posture of the case. You want to know, why
is this case at court? What was the legal issue that
brought people into court? What are they
litigating over exactly? Is it a tort that fell apart
or a contract that fell apart or a civil procedure rule
that blew up on somebody? Just joking, I don't
how you'd describe that. But what is the matter
that they're litigating? And then you also want
to know, where are you in the court process? Where are you
procedurally in the case? And what's great about
this case is the court tells you in the very first
sentence what you need to know. So the court tells you
the name of the crime, that he's been convicted. So we know that these characters
were convicted for attempted larceny in a building. So that tells you conviction. There's been a jury trial. They've been convicted. And the reason that
they were litigating was someone accused them
of attempted larceny in a building. And now they're on appeal. And that's just something
that's important to know. You want to know where
are we in the litigation. The fact that they've
been convicted turns out to be really
important when you're approaching the standard
of appellate review and so on and so forth. You just want to know,
has there been a trial? Has the jury answered the
basic guilt innocence question? If not, if it's a motion
to dismiss an indictment, if it's some other kind of
interlocutory appeal, that's important for you to know,
where are we in the litigation and how that's going to
affect the way in which you read the case. So the next thing that happens
in this case, the next, I think, seven
paragraphs or so-- and here's where it's
a ton of fun and one of the reasons why
cases are so much fun-- is the court gives you what
we call the facts of the case. And of course, you can
instantly see that these facts are a narrative. It's a story. So you're getting a
little slice of reality. And what the court is describing
for you here is here's the stuff that happened
that caused these people to be in court litigating
over the attempted larceny in a building. So the court just
instantly jumps into a recitation of the facts. And what's fun here is
they give that to you right at the beginning of the case. Now, typically, I
think what you'll do is you'll end up having
to reread the facts. You want to read them
once pretty closely and then go on and read the
legal analysis that follows. But the point is that you can't
be sure at the outset which of these facts are
important until you know what the legal issues are. Now, clearly the court
is selecting, as I said, a portion of the facts. They're not telling
you everything that went down that day. They're not telling
you what clothing the defendants are wearing. They're not telling
you if there were flies buzzing around
the house or if there was a cat in the corner. They're just giving you a
very concise description of the facts that the
court thinks are essential. So again, notice it's a
very pared down narrative. But even with that,
you just can't be sure which of these facts matter
or which of these facts are the most crucial in terms
of sorting out the result later. So I always-- and particularly
if you're writing a brief or doing a close analysis
of a case of the sort that we do when we
are teaching you-- you'll end up having
to reread the facts. So you'll go through them
once, give it a good job. Then you'll go off. And you'll read though
the legal analysis that follows and probably have
to go back and go, ah, now I get why they were talking
about those facts. And I know this sounds
like a ton of work. Yep, it's some work. It's slow. But again, the thing that I
find so engaging about law and litigation is that you just
get these really crazy stories. It's just people, the things
that people get up to. And obviously,
criminal law is often very sad as well as crazy. The other thing I think
that's fun for you to remark is just sort of the rhetoric
that the court is here in creating the facts
because, of course, you're going to want to start
thinking about your own writing style. So one thing that I recommend
that you do as young readers is to start to try to
absorb some of the rhetoric that the court is using. And obviously, the
court is speaking in an institutional voice. It has the power
and the authority to decide this is the
way it is and this is what the result should be. When you're a lawyer,
you'll be using different kinds of voices. You'll be more
argumentative, perhaps. And different lawyers have
different styles of writing. But you're going to want
to be thinking about that or at least open yourself
up to absorbing it because you guys are
going to be law clerks. Four years from
now, you're going to be writing these things. And we're going to be
writing about the things that you're writing
for your judges. But notice what's fun,
a neighbor believing the defendants to have
designs upon her property. They apparently engaged
with her in conversation. And then the house is
in a state of disarray. In Bowen's helper--
this is on page 261-- generally helped
himself to things that belonged to
her and so forth. So you just know
that the court is sort of playing a little
bit with the language. You could say, the
house was a mess, believing the defendants were
there to steal her property, generally stole things
from her, and so forth the court is just
sort of there's a little bit of
playfulness in the rhetoric and of a deft touch,
a kind of dressing up of what was going
on, which creates a little distance between the
court and these facts, I think. So you'll want to remark
what the rhetoric looks like. And did you get what
the basic story is here? So you haven't
read the case yet. And so I'm going to
have to tell you. So what will happen
when you get to class-- I'm not sure what will
happen when you get to class. I think that, if I were
teaching the case this year, I would ask the
students to recite the facts because the facts
end up being pretty important. And so you're just going to
want to know what happened. These two guys show up at this
old woman's home pretty late at night. They have two female
companions with them. The two men had, or
at least one of them, had done some work
for the old lady. From time to time, he'd gone and
done some handy work for her, so he'd been there before. He's not a complete
stranger to the household. So a neighbor sees that he's
arrived, sees the car there, and calls the police because
she's worried that the guy is there to steal from the woman. And the police
come and burst in. And I'm not sure they burst in. I made that up. The police come and go in. And they discover that the
house is in a state of disarray and that the woman is sitting
on the couch, apparently engaged in conversation with
the female companions. And then they discover
the two men sort of hiding in the stairs
going down to the basement. L They call the two
men up, bring them in. And they sit down on the couch. And then sometime
subsequently they discover jewelry, the
old woman's jewelry, is hidden under the TV and
is hidden behind the couch cushions and so forth. So they arrest the guys
for larceny in a building and of the jewelry. And then there's his
testimony about the fact that the men had come
there before and so forth. So I think that your
professor will ask you, tell me the facts of the case. And you're just going
to want to have, again, a concise description
of what happened. These two men come to the house. They are then
discovered in this way. So there is the story. And that's great. And now what? Stories are fun. But the court's not
telling the story just for the sake of
telling the story. They're telling the
story to set the stage for the legal arguments that
they are about to evaluate. So once you get
a sense of here's what the litigation was about. We were litigating attempted
larceny in a building. And here was the facts. Here's a quick look at what
the facts are that supported these [INAUDIBLE] actions. OK, now what? Courts don't jump into
cases unless they're asked by appellants to do
so or litigants to do so, here appellants. So you need to figure out
what are the legal arguments that the appellants are making. Why do the appellants
believe their convictions should be set aside? You need to identify
precisely what is the basis for the appeal. And what's interesting
about Bowen and Rouse is that the court doesn't
tell you this directly. The court doesn't give
you a nice little list. The defendants there,
the appellants. The appellants are arguing ABC. The court just instantly
jumps into the arguments. And every year I find that
my first year students miss the fact, or many of
them miss the fact, that there are two
claims that are evaluated on appeal because understandably
students get engaged with the second of the
two arguments, which is the question of what is
the actus reus for attempt. And so they tend to jump over
the first argument altogether. And try as I might, at the
end of the year during exams, I'm always getting the
impression that some students never were able
to reread the case and understand there
were two arguments. And it's very important to
understand the two arguments. And as I said, here's where
the close reading is important. The court doesn't tell you
what the arguments are. You need to figure them out. And it's not that difficult
to do once you have practice and once you know that the court
isn't going to necessarily tell you. You need to figure it out. So it turns out
here that they're making two separate
arguments on appeal. They have two
claims for why they say their convictions
should be set aside. The first claim is known as an
insufficiency of the evidence argument. On that claim, they
lose very swiftly. The second claim is the jury
instructions contained an error with respect to that
crucial element, the actus reus of attempt. On that claim, they win. So they lose on number one. They win on number two. And what's important about
reading number one, the-- I'm sorry. And again, here you
can see it's divided into nice little pieces. Number one is the
first argument. Number two is the
second argument. But notice how the court
starts the beginning of the paragraph that is
contained under Roman numeral 1. The court says there
was sufficient evidence to support the defendant's
conviction of attempt to commit larceny. And so why is the
court saying that? You look at that
sentence, you go, OK. OK, why are you saying that? Courts don't just
offer observations. They answer questions
that are brought to them. So you can immediately infer
correctly that the defendant-- I'm sorry, that the court
is offering this sentence to reject the
defendant's argument. The defendants were saying
the evidence was insufficient. And the court is
saying, no, it's not. There was sufficient evidence. So that's claim number one. And the court rejects
the claim, says there is sufficient evidence. And then the court goes
ahead and gives you a very quick, very
quick, description of why the evidence is sufficient. And I really had fun
reading this this time because I found
myself wondering-- I've read this case for years. It's a great case. And it shows you
all the shortcuts that legal minds make. I'm thinking, what
possible argument could they have had to claim that
the evidence was insufficient? And so that's the other
thing that a careful reader wants to do. When the court says to you,
the evidence is insufficient, you think, oh, that's easy. The evidence is insufficient. The court tells you. The jury could infer that
both elements of the crime are satisfied. And you just immediately
accept it without questioning. And what I would urge you to
do, certainly in law school, is to really push
hard and to say, well, what would the defendant
have been arguing? You want to open your
mind to the possibility that there is a
non-frivolous argument there because, in fact,
appellate opinions don't get written unless there
are non-frivolous arguments. So you really want to push
yourself to think, well, what could the claim
possibly have been? The court slam dunk, you lose,
and this is a general point. Sometimes students will come
and say, oh, shouldn't I'd be reading lots of
other cases so that I can practice making arguments? And my answer, when
you're in your first year, absolutely not unless you are a
much quicker reader than I was. The most important
thing to do is to read the cases you're
given and to use those cases as the vehicle for practicing. What if you are the lawyer
for these appellants and you were required to
stand on your feet and to say, here's why the evidence
was insufficient? It looks silly to my eyes,
after reading this case. But at the time, I take it
there was a live issue there. And I'm assuming that their
point was to then, hey, no one saw us take the rings. No one saw us take the necklace. True, the necklace
and the rings happened to turn up in this apartment. But there was no direct evidence
that we ransacked the place. And who's to know how
those things got there? And the court explains
to you, eh, no. And again, it's a
common sense reading based on the testimony
we got about the way in which she
generally kept house and what was going
on that evening. It was proper for the jury to
infer that you did this, even though no one saw you do it. But so that's another thing. Really push yourself,
what would I argue? And the careful
reader, then you're able to figure out what
the arguments were. And it gives you a wealth
of material to work with. So the first
argument-- so again, you have to figure out what
are these defendants arguing. And you can only figure that
out by reading the arguments that the court's rejecting. The court doesn't state
[INAUDIBLE] of what the defendants are claiming. It just quickly tells
you, no, that's stupid. And you have to then
figure out, oh, here's what they were arguing. The other thing
that's quite important in this first paragraph,
though, is the court tells you, at the bottom of
261 to the top of 262, what the elements are of
attempted larceny. And of course, you know because
you answered that question that I told you to ask yourself. The question I told
you to ask yourself was, why am I reading this case? You know that you're
reading this case to learn about at least one
of the elements of attempt, whether it be larceny
or anything else. So in here the court is
beginning that discussion. It tells you. And so that's something
that's quite important. The court is telling you
here are the elements of the crime we call attempt. The elements are
a felonious intent to commit larceny
and an overt act going beyond mere preparation. So those are the two elements. You have to prove the felonious
intent and the overt act that goes beyond preparation. And the court says,
at least in so far as the insufficiency of
the evidence claim goes, the conviction is solid. There was sufficient evidence
from which a jury could infer both the felonious intent--
that's intent to steal the rings and the jewelry-- both the intent and
a sufficient act. So they've lost on that ground. So then now the plot thickens. And now you're right. And now you're
moving to the point where the court
starts to discuss in detail the issue
that you care about, the case as a
vehicle to teach you what's the actus
reus of attempt. And the argument that appears
under Roman numeral two-- or I'm sorry, the
discussion that appears under Roman
numeral two goes to that. And it's here that things
get really interesting. So again, notice the
court doesn't tell you the appellants are making a
jury instruction argument, that the appellants are
arguing that the trial judge's instructions to the
jury were erroneous. The court doesn't tell you
that's what they're arguing. But you can infer it
because the court says, we do find error
in the jury charge. And the error is that
the court, the judge, failed properly to charge
the jury on the necessity of finding the overt act. So with respect to this crucial
element, the one that you're trying to figure
out what does it mean, how do the
courts define it, what is the doctrine when it
comes to actus reus of attempt, here you are. The court is now about to
launch that discussion. So one thing that I want
to stop here and say is, make no mistake about
the significance of jury instructions in criminal cases. Last year or the year before,
a couple of my colleagues and I were marveling
over a student who said, why do I need to care
about the jury instructions? And we were like, oh. They're the law. The jury instructions contain
a concise and, one hopes, clear description
of the criminal law that applies to the case you
are describing for the jury. In order to convict this
person of this crime, here's the law you
have to follow. So the jury instructions
crystallize the law. And they are a great place
to look to figure out what the law really is. And they are also a
great place to look to practice your close reading. Can you understand
what the trial judge is telling your jury? Frequently, you
won't be able to. It's just blah, blah, blah. And it's so it's deeply painful
if we are giving instructions to juries that we as
lawyers experience as a cloud of abstract
words that makes no sense. This is kind of worrisome. So one great device
to use in criminal law is always ask yourself, what
do the jury instructions say? Are they accurate? Can I embody the legal
doctrine more clearly as a writer and potential
consumer of these texts? So jury instructions
describe the law. And if the judge gets the
jury instructions wrong, if the judge gives an
erroneous legal instruction, you're going to get a new trial. So it's a place where you
really need to read carefully. So the court does exactly
what courts do in these cases. It then gives you
a little excerpt of the jury instructions. And again, you can begin
here, again, as new readers and close readers. You can start to understand
the complex kinds of texts that interact in
creating a legal outcome. So at one point in time, a
jury hears all this evidence. And then the judge
reads them instructions. And we assume they
heard those instructions and acted on them appropriately. And if there is an error
in the instruction, we got to go back and fix it and
give them a new text to read. So you're going to
have to read the jury instructions carefully. And again, here the court
gives you the excerpt for the jury instruction. And frequently,
sometimes you have to read a lot more than
they're giving you here. And you have to figure
out, what's wrong with it? Now, the court's going to
tell you what's wrong with it. But sometimes you can't tell
on the first go through. So again, as I mentioned
with the facts, you may have to read it
twice or even three times. You read it once, you
go, makes no sense to me. And don't worry. It doesn't. You can only make sense of
it when you subsequently read the court's analysis. But what's great
about this case is that the appellate court,
the Court of Appeals, italicizes for you the portions
of the jury instructions that are in error. So bless them. And when you all become
judges, you do that, too. It's just incredibly helpful
for readers to be told, here's the stuff that
you should be reading. This is the material that's
going to be criticized and evaluated coming forward. So again, the
question in the case is, what is an overt act for
purposes of attempt liability? And what the court
tells you is that there are two problems with the
trial judge's instructions on overt act. And remember, an erroneous
instruction on overt act is just absolutely going
to be reversible error. How do you know? Because you already know
from your first couple days or weeks of crem that actus
reus is a fundamental element of the crime. If actus reus fails,
no conviction. So you've got to get
the law right on that. You have to give the
jury good instructions. And the court
tells you there are two problems with
the instructions that the trial judge gave. First, the trial judge didn't
give any instruction at all on the separate
element of overt act. He never separately highlighted,
you must find overt act and you must find intent. So he never gave that separate
instruction on overt act. And then the few things
that he said along the way about the overt act were wrong. So again, you've
got to infer, well, he never gave a general
instruction about overt act. The instructions
that he does give were embedded, you can infer,
in his instructions on intent. So he does give
instructions on intent. The court tells you that. And those instructions
were acceptable. And presumably, the
jury followed them. We always assume the
jury followed them. He didn't give a separate
instruction on overt act. What did he say about overt act? And do you know what
overt act is by now? It's conduct. You know that. And conduct is-- well, I'm not
going to start slapping people, certainly not when I'm on tape. Oh my gosh, I can't
believe I said it. So can we cut that out? OK. I wouldn't even touch anybody. But my point is-- what
am I talking about? An overt act is that. It's the mind moving the body,
some kind of volitional mind moving the body thing. So you've got to
have some conduct. You have to have something
more than thoughts. Words can count. But we don't punish
people for just thinking. We require conduct. In addition to them wanting
to steal, intending to steal, having their
objective to steal, we need to see sufficient
conduct that will support that conviction,
certainly for completed larceny but also for intent. So you're looking for some
kind of conduct, conduct that falls short of
the completed crime but conduct that is
sufficiently substantial to be the basis for
criminal liability. Obviously, now I'm getting
into normative questions. And I'm trying not to do that. I'm trying to just stay at
the level of the disruptive [INAUDIBLE] the doctrine. So we're looking for conduct. What did the trial judge say
would be sufficient conduct? This is what you want
to identify here. What did the trial
judge say would suffice? And what the trial judge
says is, coming to the house. Entering the house. Going into the house. Coming into the house. That's the conduct that
the judge isolates. Now, notice, the judge says
entering the house with intent to steal, coming to the
house with intent to steal, entering or coming into the
house with intent to steal. But with intent to steal,
that's the mens rea. So the conduct part is coming to
the house, going to the house. And what the judge
tells you is-- I'm sorry, what the
Court of Appeals tells you is that's wrong. Coming to the house,
entering the house, going into the house,
is insufficient conduct. It's just not enough conduct. OK, good. That's great. But now, of course, you need
to figure out, well, why? You need to know what's the
rule that makes that so. What is the definition
of actus reus under which coming to a house, going to
a house, with intent to steal is insufficient? And so, of course, that's the
burden of the rest of the case. The court then explains to
you here is the doctrine. Here is how our state Supreme
Court, Michigan's Supreme Court, defines actus reus. And now we can figure out
why coming to the house, going into the house, doesn't
satisfy that definition. So what the court
does is it starts as a lower court of
appeals would naturally do. This is at the top of page 263. It immediately cites
People versus Coleman, which is a fairly recent-- not too recent,
but at that time. Obviously, for you, it's
really ancient history by then. It starts with a prominent
state Supreme Court case binding precedent. And it tells you, look, Coleman. Coleman is the
case that lays down the law on actus
reus of attempt. Coleman is the case
that we will apply. And so then your
task is going to read what the Court of Appeals
tells you about Coleman. And again, you have this
wonderful little excerpt. And it describes for you here's
how the state of Michigan defines actus reus
for attempt purposes. And so you want to figure
out what is that test. The close reader has to
read that little excerpt and say, oh my gosh, OK. Coming into the house isn't
enough to satisfy the test. But now I have to state the test
in some kind of general terms, right? What is the general
description of the test? And it's here that
things get so much fun. This is the best case. But so too are many, many cases. You're in for a huge treat if
you like reading cases that is. If you don't, well, sorry. Then you're not going to
have as much fun as I did. But so what the court
does is describe for you the Coleman case and describes
for you the tests laid down in the Coleman case. And your job, your professor
is going to ask you, what is the test that the Court
of Appeals derives from Coleman and applies in this case? And what we call it is the
res ipsa loquitur test. We call it the acts must
speak for themselves test. And you got to read that
paragraph and wrestle with it. And you may not get fully
educated on this issue until you read some of
the notes subsequently. But again, if you read
the excerpt from Coleman, you can see the court said-- the court in-- interesting
because what the court does in Coleman, of course,
is to cite Turner, which is this law review article. The acts must be unequivocally
referable to the commission of the crime. They must speak for themselves. That's res ipsa. So you're looking for conduct
that speaks for itself. And then what's really wonderful
here, and, again, to the extent you guys find this
particular exercise useful, when you become judges, do this. The more help you can
give to your trial attorneys and your trial
judges, instruct them on how to apply the test. The court goes on and
instructs you in that excerpt how to apply the test. So I mean, again,
if I were you, I'd be reading res ipsa loquitur,
like what does that mean? Conduct speaks for itself. What does that mean? How do I decide if
conduct speaks for itself? And the first thing that
I want to tell you, again, if you're being a careful
reader, you'll know conduct doesn't speak for itself. Lawyers speak for it, right? We speak for it. That's why you get paid. So conduct does not
speak for itself. You've got to figure out what
speech, what the story is. But nonetheless,
this is the locution. The conduct is unequivocally
referral to the commission of the crime. And then the court tells you
what you're supposed to do, how you're supposed to decide. It says if-- they call
it a cinematographic, but I think of it
as a silent movie. It's as if you're
watching a silent movie. And notice the move here. This is very important. All you have seen in the silent
movie is evidence of conduct. All you've seen are acts
committed by the defendant. You haven't learned anything
about intent or mental state. And you're supposed
to look at the acts and ask yourself do
they unequivocally refer to the crime? If I'm looking at this
conduct by itself, does it speak for itself? Does it speak for
attempted larceny? So that's what you're supposed
to do according to this court. You're supposed
to imagine all I-- again, remember when
evaluating actus reus, you're supposed to imagine
all I can see, all I can think about
right now is the conduct. Does it speak for itself, OK? Now before we go on
and then apply that, the court tells you in
the very next sentence it has been suggested that the
basic function of the overt act is to corroborate intent. Who suggests that? AUDIENCE: The trial court? ANNE COUGHLIN: Who? AUDIENCE: The trial court? ANNE COUGHLIN: Good for
you, the trial court. They may have the
trial court in mind there because it certainly
seems like that if they came with intent, right? So it seems like that could
be what the trial court-- so they're getting
it from somewhere. So again, as I said, they
don't just say random thing-- I mean, they do
say random things. But typically, in the casebook,
we edit out the random things. And this is an example
of a non-random thing. They're clearly
responding to an argument that's been made somewhere. And I'm assuming the prosecution
made the argument because the-- good for you. Because the trial
judge's instructions, I think, support the
inference that, wait a minute, you don't have to look for
conduct that speaks for itself, unequivocally speaks for itself. Instead, what you're
looking for is conduct that corroborates
the felonious intent or the criminal intent. And the court says it's been--
this has been suggested, but we reject that claim. We don't think that's correct. And then the court goes on and
explains a couple of things. It explains first of all why
the act of coming to the house, entering the house,
is insufficient, why it doesn't speak
for itself as a matter of factual analysis. But then the court also
goes on and tells you why it thinks this
is a good rule. And that's another reason
why I like this case. You don't always
get that in cases. Judges will just apply the
rule and give you the result. And they don't give you
the value judgments that are animating their decisions. I think when you get to read
this case, you'll be really-- you may be quite conflicted
about the value judgment here. And in fact, if my experience is
any guide, I think many of you will think the court
might well be wrong. But this represents
a robust body of law. And so it's important for
you to take account of it. So first of all, why did the
act of coming to the house not speak for itself? AUDIENCE: When you
come to the house, you can have the intent to do
a bunch of different things. ANNE COUGHLIN: Right, so there
you could have the intent to do a whole bunch of things. It's late at night. It's this group of people. She's old. That still doesn't
do it for you, right? So one thing is they
came to a house. They entered a house. It could mean anything. I mean, they're just going
in for a cup of lemonade or something or they're-- whatever. So right, the conduct itself. But what else does
the court say? One of the things that the
court also-- so you're right. Just on the face
of it, the court also says-- you guys haven't
read the opinion yet. They've been there before. And in the past, they were
there for lawful reasons. In the past, she willingly
admitted them, right? There was no suggestion that
they had busted in before. So their mere act of coming
to the house, as you said, the act of coming
to the house is hard to see it ever
speaking for itself. I guess going into a house
could speak for felonious intent in what kind of case? AUDIENCE: In a burglary case? ANNE COUGHLIN: Yeah, yeah,
yeah, yeah, right, right, right. Baseball bat to the
windows, like, OK, that's telling me
what I need to know. I can arrest you right
now because that's the other thing you all
want to be thinking about. I'm teaching the
case now, sorry. Teaching, teaching,
not reading, but oh, no, no, no,
when you're reading, you want to be thinking about
who's this case for, right? It's obviously for trial judges
and prosecutors and defenders to know. But it's also for
police officers, right? Police officers are watching
a course of conduct. And they're
thinking, oh my gosh, I think that guy's
about to rob a bank. In fact, the guy told me
I'm about to rob that bank. Can I arrest him right now? You need to know. But you're right, baseball bat. Does he have to hit the window? Anyway, those are questions. So in any event, the court says,
it's insufficient evidence. Going to a house, coming into
a house, entering a house, it just doesn't speak for
larceny particularly here when they've been there before. They're not strangers. And then the court
tells you, we believe it's important to
bifurcate, if you will. We think it's
important that we have a rule that requires
you to consider the acts by themselves, do
the acts speak for themselves, as opposed to the rule either
embodied in the trial judge's instructions or suggested
by the prosecutor where actus reus is supposed
to corroborate intent. And as you're going to discover
when you get into the notes later, there's a strong
school of thought that agrees with the
prosecutor's argument. The function of
actus reus should be to corroborate perhaps
strongly felonious intent. And the court then tells
you why in its view the value judgment
should require you to have very strict
separation between act evidence and intent evidence. And again, if you
haven't read the opinion, you don't know this language. But your professor will
surely ask about it. And the court says something
like, we have faith in the ability of people
to change their minds. The devil may lose the contest
albeit late in the hour. So the idea is we want to
give people a lot of room to conduct, conduct, conduct. The criminal law
shouldn't intervene until we're sure that the devil
is going to lose the contest and you're going to
go ahead and do it. And that's the
function of actus reus. And that's why they're
enacting an actus reus test that's so strict, OK? So so far, so good. You have a description of the
State Supreme Court's case. You've got to read that
description carefully to figure out here's the general rule. In our state, actus
reus endorses-- actus reus for attempt
endorses the res ipsa test. I have to be able to persuade
the jury the conduct speaks for itself, right? Here-- and then the
court explains to you, this conduct doesn't
speak for itself. Here's why. And then the court
also gives you what you might call
as policy judgment. The reason why, the value
judgment, the reason why we want to have the test this
way as opposed to the other way is because we're trying
to protect people from the long arm of the state. We're trying to give
people some room to breathe and live and even act
and do potentially silly things before we put them in jail. Then the court goes on and
describes three more cases. And again, this is
why the casebook-- when I suggest that you
don't go off and read lots of additional cases,
you'll frequently find embedded in your
cases additional cases that you can play with. And the question now
becomes, what rule can you deduce from those cases? What rule can you pull
out of those cases? So what the court does
is it gives you Coleman. And it could have stopped the
discussion right there easily, right? But instead, it says-- this is on page 264. Oh, the devil language
is at the top of 264. Underline it. Your professor is definitely
going to ask you about that. OK, so the third full paragraph
on 264, the court says, attempt patterns vary widely. No rule can be laid down
applicable to all cases. Most cases will, in the end,
turn on their own facts. And then the court discusses the
Peaslee case, Pippin, and Young as additional examples of how
the actus reus test works. And what you're
going to want to do is to try to read the little,
very short descriptions of those cases and figure out
what rule is the court applying in those cases? And then the other thing
that you want to notice is this very peculiar sentence. I mean, didn't this
strike you-- well, it will strike you really weird. Attempt patterns vary widely. No rule can be laid down
applicable to all cases. Most cases will turn
on their own facts. I mean, that's very scary. I mean, we think we
have a rule of law that tells us on these
facts, you convict him. And on these facts, you don't. And suddenly, we're being told,
oh, there's not really a rule. And it's just very odd because
you're faulting a trial judge for not embodying the correct
rule in his jury instructions. And you're saying, well,
it's all fact-based. So it's a very odd sentence
and one that makes you-- should make you really
a little worried. But then the next
set of questions for you is the cases that
follow, Peaslee, Pippin, and Young, are they
res ipsa cases? And you haven't read
the notes, I'm assuming, if you haven't had a
chance to read the case. But notice when you get to the
little excerpt from Peaslee, and this is Justice Holmes when
he was on the Massachusetts Supreme Court. It is a question of degree. The degree of proximity
held sufficient may vary with the
circumstances, including the amount of apprehension
that the case creates. And there he uses
the word proximity. And by the time you get
to the end of the unit, and you've read
the notes, you'll realize that res ipsa
tests and proximity tests are separate and different. They have a different focus. They have a different
application. And so the use-- again, for the careful
reader, you go, wait a minute. We've moved from a
res ipsa-based test to a proximity-based test. The courts telling
me they're the same. Are they really the same? And oh my gosh, what is
the holding of this case? Now again, I believe
the holding is we apply res ipsa approach in Michigan. And under the res
ipsa approach, there is insufficient evidence, OK? I'm sorry. No, no, no, no, under
the res ipsa approach, the trial judge's
instructions were wrong. I need to go back
and clarify that. But the court muddies
the water by bringing in a proximity test. And you suddenly have to
push yourself to say, well, are they the same? And it gives you the chance as
the careful reader once you've gotten through the
notes to really think that question through
if you're applying a proximity approach as
opposed to a res ipsa approach. See, and it's here where
the classroom discussion will get into hypotheticals. What if Michigan used
a proximity approach? What would the result be on the
facts of Bowen and Rouse, OK? So that's what you're
being invited to do there. And again, that word
proximity, it's a term of art. It's something you
don't know yet. But you're about to learn it. And that should clue
you into, gee, there's something funny going on here. And then the other
thing that you want to do as careful
readers is, and I really invite you to do
this, is to focus on the facts of
these cases and think about what judgments you
would make as a lawyer, you are now in the legal
profession, about these cases. So look at the facts. Each of these is held to
not constitute an attempt. And ask yourself
whether you think that that's a just outcome,
whether you think that that's an outcome that is
supported by value judgments about the criminal
justice system, by value judgments that you've
already learned, I hope, about some of the
purposes of it. So look at what
happened in Peaslee. The defendant arranged
combustibles in a building. He left the building. Later he set out
for the building with the intention of
lighting it, changed his mind and turned back. Not an attempt. You just want to stop
and ask yourself, is that a good result? Under what test is that
the appropriate result? Is it a good result? And again, why? And then the next one, Pippin. Defendant has been convicted
of gross indecency. He invites a 13-year-old boy
to enter his vehicle, his car. And the Supreme Court,
again, is looking at whether he
commits an overt act. And so just to walk
you through how you're going to want to read this. You want to stop and really
think about that question. What's the conduct this
man has been charged with? Inviting a 13-year-old
boy to get in his car. The court assumes that there's
sufficient evidence that he intends to abuse the child, OK? So the assumption is yep,
there is sufficient evidence of intent to abuse the child. But the act of inviting
him into the car doesn't speak for itself. I guess you can invite people
into cars for lots of reasons. But you should immediately
start thinking about, hmm, what is the function of actus reus? Should it be to
corroborate intent? Like suddenly, that test
starts looking attractive, at least to me. If I was worried about
protecting my youngsters, which I am, I would think, well, if
I could prove that this man did possess mens rea,
his purpose was to molest the child,
that might do it for me, inviting him into
the automobile. And if it's not enough,
how much more do you need? How much more do you
look for when you're constructing your stories? And then the next one,
likewise, once again, People v. Young, this
might be my favorite. The defendant arms
himself with a revolver, buys cartridges, obtains
an armed accomplice, carries slippers to perpetrate
a silent entry of his victim's house, buys chloroform
to knock the victim out, and has set out for the
selected scene of the crime. He's going to murder somebody. He's on his way to the crime. Not enough of conduct. It's just interesting, right? So you-- don't read
this stuff mechanically. Put yourself there. And if you'd like to, read
like a police officer. What would you do if you
were a police officer and, like, someone
has told you, Young is going to go kill somebody? And you corroborate
he's got cartridges. Oh my god, his wife is with him. And she's carrying a gun too. They've got slippers
and chloroform. And they're on their
way to the house. Good police work. You pulled the guy before
he got there and-- right? So really put yourself
into these cases. Bring them to life. These are real, real people. Do the math. I mean, Young is dead by now. But some of these
people are still alive. They're on the planet. They're walking and
talking and doing things. And so bring it to life. And then ask yourself,
is that a good result? Because we think the devil's
going to lose the contest? That's what the court told you. We think the devil
will lose the contest. Albeit it late in
the hour, we're going to give you more time. And that may be a perfectly
wise and a sound value judgment. On the other hand,
it's certainly one that you'd want to question. The other thing that I'm going
to say here about this case that's very tricky, and it
requires extremely close reading, and I know
we're going over, but I cannot leave you
until I tell you this, is that one of the
difficulties with this case is the interaction between
the first argument, the evidence is insufficient,
and the second argument, the jury instructions
are erroneous. And what students
frequently do, not just students, lots of
readers frequently do, they get very bewildered
about the second holding. How could you say that there was
an insufficient overt act here? Because they came to the house. They went in there. There's plenty of
evidence that suggests that they ransacked
the house and actually removed her jewelry
from her wherever it was stored, her jewelry box. And they put it
in their pockets. And they were
getting ready to go. And then they dump it
and hide it, right? How could that not speak for
itself under the silent movie? Again, this time--
and you don't just see them coming to
the door going, right? That doesn't speak
for itself, right? That doesn't speak for-- but certainly, once they go
in, and their two accomplices distract Ms. Gatzmeyer. And then the two of
them run to the-- I mean, that's the silent movie
that the jury actually saw, right? Do you see what I'm saying? OK, the point is that the jury
instructions artificially cut short or had the potential
of artificially cutting short the jury's deliberation on
all of that additional evidence and whether that
additional evidence would satisfy overt act. Again, this is why
you have to come back to the jury instruction and
read it again carefully. The trial judge
says, if you find they came to the house with
the intention to steal, you've satisfied overt act. The prosecution has
satisfied over act. And you can convict. And the concern is
that the jury might have listened to
that instruction and followed it faithfully
and didn't consider the subsequent evidence. So that's why we need to send it
back and have a new trial where the jury is told, when you're
deciding if the conduct speaks for itself, you must consider
the entire course of conduct up till the point where
they discover them in the house having ransacked
it and so forth, right? But because of the way the
jury instruction was given, it's as if the trial judge
artificially cut short or had the effect, the potential, to
artificially cut short, right? Because remember, there's
sufficient evidence to convict these guys. It's just that the
jury wasn't instructed you have to consider the entire
course of conduct, including the things that happened
after they entered. There's a whole lot more to be
said about this case, things that I would be
noticing if I were you. But I deliberately
didn't mention them because they are things that
are not answered by this case. So you're going to be,
when you're reading, you're going to be having
lots of great questions. Let me tell you this. And I won't tell you what
they are because then we'll go off on those tangents. But when I'm reading, I'm going,
oh, why does he get to do that? Oh, what's that about? And when I'm actually
trying to read the case as a reader and
not as a teacher and-- but I'm not going to
mention any of those things because they're really outside
the four corners of the case. Those questions
that you have may become live litigated questions
in other cases, but not here. So what you want to do is just
to be patient and set-- or ask your professor after class. But try to stay within the
four corners of this case. Why am I reading this case? What is it a vehicle
to teach me, right? What's the rule that this case
is going to teach me either so I can understand what
criminal law is about, or so that I can make a
good argument for my client and explain to the court, right? And then you really want to put
the flesh on that litigation by thinking about the facts
and sort of picturing them. That's why I like
this case so much. It tells you, do
the movie thing. Run it-- visualize it. What does it look like? What does it feel like? Armed accomplice,
I mean, it's just-- so don't read them as flat. They were real. And when you're in
them as lawyers, you're going to
experience it that way. So really spend some
time on the facts. You'll have to go back to the
facts and figure out later which ones mattered
and which one don't. And then really say to
yourself, what precisely is the appellant arguing here? What is the precise
legal argument? And as concisely as
you can, describe that. And then see what
the court says. And here what's great is they
not just give you the holding, they describe the abstract rule
and then the reasons for it and then these
other cases, which really give you the opportunity
to question the rationale. So I am happy to stop
and take questions. I am sure that you want to
leave, and that's fine with me too. AUDIENCE: As far as
when exam time comes, what information
should I be retaining? Because I think
I'm kind of getting weeded in the facts
instead of [INAUDIBLE].. ANNE COUGHLIN: So
the problem right now is that you gotta learn to read
in this kind of holistic way and-- because it's very
hard to know what you have to retain for
the exam until you go through this osmosis process. And this is not me trying to
create extra work for you. It's just that's why I say
being a careful reader, it's hard work in the beginning. I underlined everything
in my cases like-- like everything
seemed important. So I think what you need to
do in the first month, four or five weeks, is just be
patient with that feeling of being overwhelmed
and drowning in detail and drowning in questions
that may or may not be answered by the case. You're definitely going
to want to take away the doctrinal
holding of the case. So what does this case
teach you about the meaning of actus reus? Criminal law requires conduct. It requires mental state. That's true for any crime,
including attempt crimes. An attempt happens to be
the area where there is a lot of action on this front. With completed crimes, it's
usually not a problem, usually don't litigate that actus reus
question as heavily if it all turns on mens rea. Attempt, I don't want to
say it's all actus reus, but there's a lot. How much is enough? So this case is
presenting to you one body of law on the
meaning of actus reus. And you absolutely want to
have that for the exam, right? Under one line of
cases, actus reus is not satisfied, unless the
conduct speaks for itself, unless the conduct
unequivocally refers to the commission of the crime. And then you'll absolutely
want to know something about the facts
of the cases that fall short where the defendants
are winning on appeal, right? Because that way,
you're going to be able to compare that you might
be given on an exam or a case that you might encounter
in real life, right? Some of us will practice in some
of these areas you're learning. And you'll want to
stop and think, well, is this case like Bowen? Is this case like Peaslee? Because of course,
as you can imagine, the narratives in these cases
tend to get stylized, right? And it's true that there
are always new facts but. So you definitely want to
have that core holding. You definitely want to
know the fact patterns that you're given that
don't satisfy that holding. And then I also
believe that you'll want to have a brief
little statement of the normative ground. Why does the court think
this is a good rule? Because as you're
going to discover when you get into the notes,
a bunch of smart people think it's a silly rule, right? And a bunch of smart people
think that the NPC approach is the better rule. And under the NPC, the
function of actus reus is to corroborate
mens rea or intent. So it's important to keep in
mind, OK, here's the rule. Here are facts that were held
to satisfy or not the rule. And then why does the court
think it's a good rule? And that's the devil
may lose the contest idea, the idea that the
state's power should be limited to intervene in our
lives until we've really done something bad. And entering a house
just doesn't cut it.
