Hypothetical question

Hypothetical question

At 10:00 p.m., while Geraldine Johnson was at the movies, Jessica Brown climbed the high fence surrounding Geraldine’s home and entered the porch through an unlocked porch door. She then loaded all of the porch furniture onto the back of her pickup truck. While on the porch, she noticed that one of the windows to the living room was open. She could see an expensive TV and VCR, which she decided to take. She climbed through the window, but heard a noise and left hurriedly instead.

Student Response

GIVEN LAW: Burglary is the breaking and entering of a dwelling of another at night with the intent to commit larceny.


Breaking = Force, however slight, must be used in entering.

Entering = Some part of the body must enter, or an implement which is then used to effect the entry enters. The entry must be without consent of the occupant.

Dwelling = Someone must live therein or have lived there and intended to return.

Nighttime = After sunset and before sunrise.

Intent = Required mental state. Remember, intent can be proven through circumstantial evidence.

Larceny = The taking and carrying away of the personal property of another with the intent to permanently deprive the owner.

The general issue is whether Jessica Brown (JB) may be guilty of burglary. At common law, a person commits burglary if she:

1. breaks or enters

2. the dwelling of another

3. at nighttime

4. with the intent to commit larceny.


The first issue is whether JB committed a breaking. To constitute a breaking, some amount of force, however slight, must be used in entering. JB met the element of breaking by using force in climbing over the high fence and entering through the unlocked porch door. It is common knowledge that the fence and the door serve as boundaries to separate the homeowner’s private life from the public. Thus, JB’s conduct of breaking across the boundary satisfies the element of breaking.


JB also satisfies the second element, entering. Entering is established where some part of the body of the D enters, or an implement that is used to effect the entry must enter. Additionally, the entry must be without the consent of the occupant. Furthermore, entering is also proved where JB climbed though the window in an attempt to take the TV and VCR. The element of entering is further established when JB entered the porch without Geraldine Johnson’s (GJ) consent. GJ did not give JB consent to enter because GJ was at the movies.


The third issue is whether the porch is a dwelling. Someone must live therein or have lived there and intend to return for a place to be considered a dwelling. Based on the facts, it is not clear whether the porch was used as a dwelling. Generally, a dwelling is established where the occupant performs her daily duties. Examples of daily duties are cooking, use of the bathroom and sleeping. The facts do not state that any one of these duties was performed on the porch.

However, the concept of “curtilage” has developed to protect the areas of the home that are not used to perform daily duties. Curtilage is defined as areas not used as living quarters but which are within the fenced-in area. The porch is considered part of the dwelling because the facts state that JB had to climb over a high fence before she entered the porch. Thus, the porch is within the fenced-in area and establishes that the porch is part of the dwelling. Additionally, it is common knowledge that a fence serves as a boundary between the dwellings of neighbors. The fence also helps protect the homeowner’s private life. The element of dwelling is met because GJ lived there and she intended to return because she was at the movies.


Next is the issue of nighttime. Nighttime is defined as the time just after sunset and just before sunrise. The rationale of this element is to protect homeowners when they are the most vulnerable. The majority of the public sleeps during the nighttime. Knowing this fact, criminals seek to take advantage of homeowners by committing burglary at night. The facts state the chain of events took place at 10:00 PM. This is a time when most people are asleep. Thus, the element of nighttime has been met.

Intent to commit larceny.

Lastly, the issue is whether JB had the intent to commit larceny. Larceny is defined as the taking and carrying away of the personal property of another with the intent to permanently deprive the owner. JB met the element of intent to commit larceny when she took and carried away the porch furniture. Furthermore, the fact that JB loaded the furniture onto the back of her pickup truck establishes her intent to permanently deprive GJ of her personal property. Based the facts given, the intent to commit larceny has been met.

Intent to commit larceny not found.

However, the defense will argue that JB did not form the intent to commit larceny at the time of her entry. Based on the facts given, it is difficult to prove if JB had intent to commit larceny when she first climbed the fence. The facts also state that it was not until JB was inside the porch when she fully formed the intent to steal the TV and VCR. She was already in the dwelling when the intent was formed. The intent to steal the TV and VCR was formed after the entry. Because JB’s intent to commit larceny was formed after the entry, the defense will argue that intent element had not been satisfied.


In conclusion, a court will most likely find that JB is guilty of common law burglary. JB satisfied the breaking and entering elements by climbing the fence and entering through the door of the porch. The dwelling house element has been met from the idea of curtilage. The fact that JB’s actions took place at 10:00PM satisfies the nighttime requirement. The only element that may be problematic is the intent to commit larceny. Although the defense has a valid argument, the court will probably infer from the circumstantial evidence that intent was fully formed at the time of the entry. Additionally, because of policy concerns behind common law burglary, JB will probably be found guilty.

Law Preview’s Critique

Below is our assessment of how you structured your analysis. Since your professor will be the one grading your exam, you should check with him or her to discuss whether your understanding of the rule(s) is sound.

I believe that you have supplied an answer that could result in a “B” had this been an actual exam. However, by employing just a few of the strategies we cover during our exam-taking workshop, you can significantly improve your response.

You start out your answer by stating one dispute: “Whether JB may be guilty of a burglary?” By framing your answer in such broad terms, you struggled to make your analysis coherent. Remember, you want to draft answers that are easy to read. Your professor should be able to quickly determine whether you know the law and, just as importantly, see whether you are able to identify the arguments both parties to the dispute will make in support of their positions. To do this you need to draft concise answers. Law school exams are time-pressured and, consequently, those students who attack problems efficiently usually receive the best grades.

When you examine any exam hypothetical — especially complex fact patterns with many actors — always try to structure your answer by dispute. The hypo you sent along has only two parties: the State and the defendant, Jessica Brown; however, I would say that there are two (maybe three) disputes that need to be resolved between these parties.

For example, you might consider responding as follows:

DISPUTE #1: Whether the State can find JB guilty of burglary under the common law when she entered the porch area of GJ’s home and removed the furniture contained therein?

Rule: At common law a person commits a burglary when: (a)__________, 
(b)__________, (c)_________ , and (d)________________.

Arguments: First set forth the the factual arguments both parties will make to achieve their goals (e.g., the State’s goal to convict JB and JB’s goal to avoid criminal liability). Because elements are simply factual circumstances that, combined, establish a legal rule or theory, you must identify the facts that the State will rely on when arguing that JB committed burglary of the porch area. Conversely, because a case must be dismissed as a matter of law if the prosecutor cannot establish its prima facie case, the JB’s best defense is to make factual arguments that show how the State cannot establish every element of its theory.

Next, in a separate paragraph, identify the legal arguments both sides will make in support of their positions. To help courts objectively determine whether an element can in fact be established, the law has created tests. You should note that many of the “definitions” you supplied (above) are actually legal tests for establishing elements. Using these tests, argue (for and against) the existence of each element. Again, because a defendant’s best chance to avoid liability is by showing that one (or more) of the elements of a charge cannot be satisfied, it is during the application of these tests that the parties do battle most – the prosecutor arguing that a particular element has been satisfied and the defendant asserting arguments to the contrary. So, for example, JB will argue that the porch does not constitute a “dwelling” as defined by the law; the State on the other hand will employ the doctrine of “curtilage” (another legal test) to show that the porch area does in fact constitute a dwelling.

Legal arguments can also stem from splits in the law (i.e., when competing legal theories coexist that are equally valid). The factual and legal arguments (above) are narrowly tailored to address the probable outcome under the common law. However, since the hypothetical does not provide what type of jurisdiction you are in (e.g., common law vs. Model Penal Code jurisdiction), include a short paragraph that describes how the outcome would be resolved in a Model Penal Code jurisdiction. This demonstrates to your professor: (a) you learned the Model Penal Code and (b) you understand how it sometimes differs from the common law.

Finally, in another paragraph set forth the policy arguments, if any, that either side can assert. A way that top students often distinguish their answers from those of their classmates, is by pointing out the policy reasons for a rule, the policy reasons for changing the rule, and/or the positive (or negative) impact a finding in favor of one party may have on future cases.

Although it does not seem to be present in this hypo, after you have addressed all the factual, legal, and policy arguments for (and against) the application of the legal theory asserted by the prosecutor, discuss any defenses (i.e., counter theories) the defendant might assert to excuse her otherwise unlawful conduct. Defenses, like causes of action, are comprised of factual elements. Since the defendant asserts the defense, however, it is the defendant who has the burden of proving that those elements exist. So, as with your analysis of the prosecutor’s original theory, identify the factual, legal, and/or policy arguments the parties will make in support of (or against) the application of the proffered defense.

Conclusion: Pick who has the stronger argument(s) and conclude.

* * * * * * * * * * * * * * * * *

DISPUTE #2:Whether the State can find JB guilty of burglary under the common law when she entered the open window of GJ’s home?

Rule: At common law a person commits a burglary when: (a)__________, (b)__________, (c)_________ , and (d)________________.

Arguments: Once again, identify all the factual, legal, and policy arguments regarding JB’s entry into the house (e.g., was there requisite intent to commit larceny, when was that intent formed, whether there was a “breaking” since the window was already open, etc.) Remember to also, include a short paragraph explaining why your analysis of this issue would be different (or the same) had this been a Model Penal Code Jurisdiction. Also, if JB has a defense she can assert, you would want to include that as well.

Conclusion: Pick who has the stronger argument(s) and conclude.

Here’s another little hint: whenever analyzing a Criminal Law hypothetical question, always break out each specific crime and then ask yourself, “if the Defendant is successful in her argument(s) — and is not convicted of the crime — could she be successfully prosecuted for an ‘attempt’ of that offense?” That is why I mentioned earlier that there might be a third dispute you can analyze on these facts — whether JB can be convicted of attempted burglary or attempted larceny.

I’m sure that 90% of the people who analyzed this question would see and address the first two issues I laid out above in some form. But you want to be among those other 10% who saw both the issues you identified as well as any other legal theories that could throw JB behind bars. Remember, when a prosecutor charges a person with a crime, they usually charge them with counts of all the offenses they think they committed — as well as any lesser included offenses in case the main charges don’t stick.

Even if you miss the “attempt” charge, by following our advice your professor will better see the steps in your analysis — hopefully resulting in a higher grade than the rest of your classmates who discussed the same issues in a much less structured format.