How to Read a Case
This is about a case where close reading pays off. Even with a close reading, the doctrinal content of the case is still somewhat elusive.
Step 1 when reading a case in law school: ask yourself what legal content this case is supposed to teach. What place in the course curriculum does it occupy. What was the professor or the case book trying to get across.
The case is People vs Bowen and Rouse. It will be taught in a criminal law course, where you’ll know there are two basic elements doctrinally required to make up a criminal act: actus reus (conduct), mens rea (mental state). And here we are looking at those ingredients in the context of attempted crimes/inchoate crimes. So this case as a learning vehicle is meant to teach, what is the actus reus for an attempted crime.
As a practicing lawyer, if you end up trying a case of an attempted crime, you’ll need to know how to do research on what comprises actus reus in the relevant jurisdiction.
[7:20]
The court really matters. Here it’s the Court of Appeals of Michigan, not the highest court in the state (the Supreme Court of Michigan). That tells you about the precedential status of the case.
The date also tells you about precedential value.
You want to know the “cause of action” and the procedural posture of the case. Procedural posture: what exactly is being litigated over here? Where are you in the court process?
The first sentence gives you both of these.
The next seven paragraphs give the facts of the case, as a narrative. You’d want to read them once to understand the gist, but you won’t understand which of these facts are relevant until you understand the legal issues at play.
It’s good to pay attention to style and voice. Here, the court is writing the facts, and is using an institutional voice which carries a lot of authority. As a practicing lawyer, you’d probably use different styles.
[16:49]
Typically in a law school course, the professor would ask you to recite the facts of the case.
For this case:
- Bowen had done work before for this old lady, so had been inside her house.
- One night Bowen, 1 other male, and 2 females, went into the lady’s house
- The neighbor saw Bowen’s car outside, was suspicious, and called the cops
- The cops arrive and come in
- The place was a mess.
- They see the old lady is engaged in conversation with the two women
- The cops find Bowen and the other man hiding in the stairs going down to the basement
- The police get the men to sit on the couch
- Sometime after that, the police find the old lady’s jewelry hidden in various spots: under the TV, behind couch cushions
- The police arrest the four for larceny
After you know the facts, you want to know what are the legal issues the litigant (or in this case, appellant) are making. Since they are appellants in a criminal case, they want their convictions to be set aside.
[21:00]
It turns out in this case there are two arguments the appeal is making, and the court is not telling you these arguments–you have to surmise what the arguments are.
The first claim is that there is not enough evidence for conviction, which they lose very swiftly. The second claim is that jury instructions contained an error about actus reus, and on that one the appellants win.
The court dismisses the first claim right away, with “there was sufficient evidence to support the defendants' conviction of attempt to commit larceny”. Why would the court say that?
Courts don’t just offer observations, they answer questions that are brought to them.
The court is only saying this in response to a claim from appellants.
The court then gives a really short description of why the evidence is sufficient. You have to realize, as a careful reader: just because the court says the evidence is insufficient do
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”, right, “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 wanna 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 wanna push yourself to think, well, what could the claim possibly have been?
So, in law school, students often ask, can I read lots of other cases to practice making arguments, and the argument for first-years is absolutely not–focus on reading the cases you’re given and use them as the vehicle for practicing. Imagine you are the lawyer appealing this–what substantive argument might have been available to you? Presumably “there was no direct evidence that it was us who took the jewelry, that it was us who ransacked the place.”. And that’s rejected on the grounds of how the lady usually kept house.
[25:55]
Here, the court also states outright the elements of attempted larceny. Felonious intent to commit larceny, and an overt act going beyond mere preparation.
Then the court discusses the actus reus of attempt. The court never tells you that appellants argued the jury instructions were wrong, but you can infer it, because the court says that the judge did not inform the jury that is was necessary to find the overt act.
Do not underestimate the importance of jury instructions in criminal cases.
The jury instructions contain 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’re a great place to look to figure out what the law really is, and they’re 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 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 did the jury instructions say? Are they accurate? Can I embody the legal doctrine more clearly as a writer and potential consumer of these texts?”.
In this case, the jury instructions are reproduced and the court tells you what is wrong with them. In other cases, or when you’re a practicing lawyer, you need to read super carefully to find if something’s wrong in there.
One of the things that makes this a good case for learning is that the appellate court italicizes the parts of the jury instructions that are in error.
So the question here is, what is an overt act for the purposes of attempt liability?
The court identifies two problems with the trial judge’s instructions.
The trial judge didn’t give any instruction at all on the requirement to find overt act (separately from intent)
Any instructions related to overt act were embedded/hidden inside instructions on intent. But even those that were embedded in this way were wrong. Overt act is some kind of conduct. It can be words but usually some physical act.
The trial judge said that coming to the house and entering the house count as sufficient conduct. And the court of appeals says, that is not sufficient conduct.
As a reader, we have to figure out why entering the house is not sufficient for actus reus.
The court cites People vs Coleman, a state supreme court case, that lays down the precedent on actus reus of attempt. From that citation, you need to understand what test this precedent has set.
[39:25]
This is the res ipsa loquitur test–the “the acts must speak for themselves” test:
The acts must be unequivocally referrable to the commission of the crime. They must speak for themselves.
The court also instructs, within that excerpt, how to apply the test.
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.
The court then tells you:
It has been suggested that the basic function of the overt act is to corroborate intent.
Then immediately rejects it. Again, the court is not telling you who has argued this, only refutes it.
This court not only explains why entering the house doesn’t pass the test, but also explains why they think this test is a good rule.
Why did the act of coming to the house not speaking for itself? One, they could have entered the house for anything. Two, they’ve been there before, for lawful reasons.
When could the act of going into a house qualify for felonious intent? When you’re entering in a sketchy way–breaking in, picking locks, etc.–it can support burglary.
So who is this case being written for, really? Trial judges, prosecutors, defenders, and also police officers. Because police officers also need to know what counts as an overt act.
The court defends that you should be required to have evidence of act and evidence of intent. The argument goes that the court has “faith in the ability of people to change their minds. The devil may lose the contest, albeit late in the hour.” So conduct evidence is the proof needed that the devil has won.
Then the court describes 3 other cases. As a reader, you need to deduce some rule out of why these are being included.
[51:26]
The court prefaces these by saying that no one rule is applicable to all cases of intent.
This is a bit weird, given how this appellate court is saying that the trial judge gave bad instructions. It is muddying the waters by challenging the limits of the test it is applying.
But it then goes on to discuss the Peaslee case, Pippin, and Youngs, as a additional cases of the actus reus test.
In the Peaslee case, a proximity-based test was applied, which has a different focus and application from a res ipsa test.
In Peaslee:
- the defendant arranged combustibles in a building
- he left the building
- he later headed back toward the building with intent to light it
- he changed his mind and turned back
- this was not counted as an attempt
In Pippin
- defendant convicted of gross indecency
- invites a 13 year old boy to enter his vehicle
- supreme court tried to determine if he committed an overt act
- court assumed sufficient evidence of intent
In Youngs
- defendant arms himself with a revolver, buys cartridges, gets an armed accomplice
- defendant carries slippers to pull off silent entry to his victim’s house
- defendant buys chloroform to knock the victim out
- defendant sets out to the selected scene of the crime
- this was ruled as not enough conduct
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 […]. Really put yourself into these cases. Bring them to life. These are real–real people. Do the math. I mean, Youngs 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?
One of the difficulties in this case is the interaction between the first argument and the second argument. Lots of readers–students alike–get confused about how there might be insufficient evidence of overt act. And that’s not the issue at stake. The issue at stake is that–no matter how strong the evidence, the erroneous jury instruction might have made the jury come to a conclusion based on an insufficient subset of a sufficient body of evidence. The second argument is purely procedural.
[1:05:05]
Q: From a case like this, what should be retained for law school exams?
- Definitely retain the doctrinal holding of the case
- what does this case teach you about the meaning of actus reus
- any crime, including attempt crimes, requires conduct and mental state. It just so happens that for attempt crime, conduct is much subtler and more difficult to argue than with completed crimes.
- This case is presenting you one body of law on actus reus, the res ipsa test
- You’ll want to know fact patterns of cases where the doctrinal holding is not satisfied, so you can apply future cases to these patterns.
- You’ll want to have a brief statement of the normative grounds: why does the court think this is a good rule
- Because of course, lots of smart people think this rule is bad
- Lots of smart people think the NPC rule is better, in which case the function of the overt act is to corroborate intent.