How to Brief a Criminal Law Case

Criminal law is statutory. The court is almost never announcing a freestanding rule; it is construing a homicide statute, a theft statute, or a definition of "maliciously," and applying it to a jury verdict. So your brief should quote or paraphrase the operative statutory language, with its date, before you write anything about the court's reasoning. Regina v. Cunningham (1957) makes no sense unless your brief records that the statute punished whoever "unlawfully and maliciously" administered a noxious thing, and that the trial judge told the jury "malicious" meant "wicked."

Second, criminal law runs on two parallel tracks. Your casebook will pair a common law case with the corresponding Model Penal Code provision, and your exam will ask you to resolve the same facts under both. Build a two-column habit now: note what the common law rule is and what the MPC does with the same problem. Depraved-heart murder at common law becomes recklessness "under circumstances manifesting extreme indifference to the value of human life" under MPC § 210.2(1)(b). Provocation manslaughter becomes extreme mental or emotional disturbance under § 210.3(1)(b). If your brief of Girouard v. State does not note how MPC § 210.3 would treat the same facts, the brief is only half done.

Third, the burden of proof is a live doctrinal issue, not background. In re Winship, 397 U.S. 358 (1970), requires the prosecution to prove every element beyond a reasonable doubt, and the line between an element and an affirmative defense—compare Mullaney v. Wilbur, 421 U.S. 684 (1975), with Patterson v. New York, 432 U.S. 197 (1977)—decides real cases. Record who bore which burden.

Keep it to one page. The value is in the compression, not the transcription.

For facts, write only the conduct the prosecution had to prove, in chronological order, plus any fact the court leans on in its reasoning. Two to four sentences. Include the defendant's stated purpose or awareness if mens rea is at issue, because that is the fact the appellate court is testing.

Do not write "the defendant needed intent." Write which mental state attaches to which element. That is the entire lesson of MPC § 2.02(4), which presumes a single stated culpability term applies to every material element unless a contrary purpose plainly appears, and of § 2.02(3), which supplies recklessness by default when a statute is silent. It is also the lesson of United States v. X-Citement Video, Inc., 513 U.S. 64 (1994), where the Court read "knowingly" past the verb to reach the age-of-performer element.

For common law cases, note whether the court is using a general-intent or specific-intent framework, and whether it is applying transferred intent or the older "malice" formulations. Cunningham and Regina v. Faulkner are the standard pairing on whether wickedness in general substitutes for foresight of the particular harm; the answer is no. For strict liability and mistake, record the presumption Morissette v. United States, 342 U.S. 246 (1952), and Staples v. United States, 511 U.S. 600 (1994), apply against dispensing with mens rea, and the narrow exception Cheek v. United States, 498 U.S. 192 (1991), recognizes for tax offenses where "willfully" imports knowledge of the legal duty.

One line in every brief should read: "Mens rea required: ___ as to ___; ___ as to ___." If you cannot fill it in, you have not understood the case.

The posture tells you what the court is allowed to do, and it changes the meaning of the holding. A sufficiency-of-the-evidence challenge is reviewed under Jackson v. Virginia, 443 U.S. 307 (1979): the evidence is viewed in the light most favorable to the prosecution, and reversal means the defendant cannot be retried. An instructional-error appeal is different—the court is deciding what the law is in the abstract, and reversal ordinarily produces a new trial with a corrected charge. Students constantly write that a defendant "won" when the court merely remanded.

Note also who is appealing. A defense appeal from conviction produces a holding that narrows liability; an appeal from a dismissal or a directed verdict produces a holding that expands it. And watch for cases where the appellate court reduces the degree of the offense rather than reversing outright, which is common in premeditation cases like State v. Guthrie and People v. Anderson.

Add a one-line "So what" note: "Rule announced applies at the instruction stage; jury still free to acquit on remand."

For justification and excuse cases, your brief needs three extra lines. First, is the standard objective, subjective, or a hybrid? People v. Goetz, 68 N.Y.2d 96 (1986), is famous precisely because it read "reasonably believes" as importing an objective standard onto the defendant's actual circumstances. Second, who bears the burden of production and the burden of persuasion, and by what standard? Jurisdictions split, and Patterson permits states to place persuasion on the defendant for true affirmative defenses. Third, is the defense complete or imperfect—does it acquit, or merely mitigate murder to manslaughter?

Also record the defense's threshold triggers, because they are where cases are won: imminence and proportionality for self-defense, the availability of a lawful alternative for necessity under MPC § 3.02, and the categorical refusal to allow necessity as a defense to intentional homicide in Regina v. Dudley and Stephens (1884). For insanity, note which test the jurisdiction uses—M'Naghten, the MPC § 4.01 formulation, or a volitional-prong variant—since the same facts flip outcomes across tests.

Use full Bluebook Rule 10 form the first time and short form after. Criminal case names have a specific quirk: under Rule 10.2.1(f), you omit "State of," "Commonwealth of," and "People of" and use only the state's name—except when you are writing for a court of that same state, where you use just "State," "Commonwealth," or "People." For a memo in a New York court, it is People v. Goetz; in a brief filed elsewhere, New York v. Goetz.

Cite the Model Penal Code under Rule 12.9.5, not as a statute: Model Penal Code § 2.02 (Am. L. Inst. 1985), with the abbreviation of the institute varying by Bluebook edition ("Am. Law Inst." in the 20th, "Am. L. Inst." in the 21st). Check your school's required edition. Cite state criminal codes by Rule 12 with the code name and year of the compilation you used.

For English cases in the casebook, keep the reporter your casebook supplies and do not invent one. Writing "Regina v. Cunningham (1957)" with the casebook page is fine for a personal brief; a graded document needs the real citation.

Commonwealth v. Malone, 47 A.2d 445 (Pa. 1946). Charge: second-degree murder, requiring malice. Facts: the teenage defendant loaded one cartridge in a revolver and, in a game with a friend, pulled the trigger three times; the third pull fired and killed the friend. Defendant testified he did not intend to kill. Posture: convicted of second-degree murder after a bench trial; defendant appealed, arguing malice required intent to kill.

Issue: whether malice sufficient for murder can be found absent any intent to kill. Holding and disposition: yes—malice exists where the actor's conduct shows a wickedness of disposition and hardness of heart, and where the actor consciously disregards an unjustified and extremely high risk of death; conviction affirmed. Reasoning: malice at common law was never limited to intent to kill; the gross recklessness of firing a partly loaded revolver at another person supplies it.

MPC comparison: § 210.2(1)(b)—recklessness manifesting extreme indifference to the value of human life; same result, but the MPC requires actual conscious awareness of the risk rather than a moral characterization of the defendant's disposition. Exam note: this is the depraved-heart case; contrast with recklessness sufficient only for manslaughter under § 210.3(1)(a).