UNDERSTANDING CRIMINAL LAW SEVENTH EDITION

Transcription

1 UNDERSTANDING CRIMINAL LAW SEVENTH EDITION

2 LexisNexis Law School Publishing Advisory Board Paul Caron Professor of Law Pepperdine University School of Law Bridgette Carr Clinical Professor of Law University of Michigan Law School Steven I. Friedland Professor of Law and Senior Scholar Elon University School of Law Carole Goldberg Jonathan D. Varat Distinguished Professor of Law UCLA School of Law Oliver Goodenough Professor of Law Vermont Law School John Sprankling Distinguished Professor of Law McGeorge School of Law

3 UNDERSTANDING CRIMINAL LAW SEVENTH EDITION Joshua Dressler Distinguished University Professor Frank R. Strong Chair in Law Michael E. Moritz College of Law The Ohio State University

4 ISBN: (Print) Library of Congress Cataloging-in-Publication Data Dressler, Joshua, author. Understanding criminal law / Joshua Dressler, Distinguished University Professor, Frank R. Strong Chair in Law, Michael E. Moritz College of Law, The Ohio State University. Seventh edition. pages cm Includes index. ISBN (softbound) 1. Criminal law United States. I. Title. KF9219.D dc This publication is designed to provide authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Matthew Bender and the Matthew Bender Flame Design are registered trademarks of Matthew Bender Properties Inc. Copyright 2015 Matthew Bender & Company, Inc., a member of LexisNexis. All Rights Reserved. No copyright is claimed by LexisNexis or Matthew Bender & Company, Inc., in the text of statutes, regulations, and excerpts from court opinions quoted within this work. Permission to copy material may be licensed for a fee from the Copyright Clearance Center, 222 Rosewood Drive, Danvers, Mass , telephone (978) NOTE TO USERS To ensure that you are using the latest materials available in this area, please be sure to periodically check the LexisNexis Law School web site for downloadable updates and supplements at Editorial Offices 630 Central Ave., New Providence, NJ (908) Mission St., San Francisco, CA (415) (2015 Pub.789)

5 To Dottie, David, Jessica, Lucy Belle, Maya Shoshana, and Gideon Jacob: You give my life meaning and pleasure. iii

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7 Preface to the Seventh Edition This text is primarily designed for use by law students enrolled in a course in Criminal Law. It also has served successfully in undergraduate courses covering substantive criminal law. As well, based on comments I have received from practicing attorneys, judges, and scholars (and citations to this text in judicial opinions and scholarly works), this text should be helpful to anyone looking for a survey of American criminal law substance and theory. The text considers common law doctrine, statutory reform (with particular emphasis on the Model Penal Code), and constitutional law affecting the substantive criminal law. This edition has undergone the most substantial revisions and updating since the original publication. I am gratified by the extremely favorable response UNDERSTANDING CRIMINAL LAW has received over the years. Therefore, I have avoided the temptation to unnecessarily tinker. As before, I have included citations to new scholarship in the field in the hope that users will look to some of these sources for additional insights into the various topics. I believe each chapter has been improved overall. Gender policy of the text. For most of Anglo-American legal history men monopolized the critical roles in the system of criminal justice. With only a few exceptions, lawyers, judges, legislators, jurors, and criminals were men. The only place for a woman in the system was as a crime victim. Such inequality, of course, is changing. As an author of a book that will be read and used by readers of both sexes I wanted to make sure that the text recognized the increasing importance of women in the law. Therefore, when discussing hypothetical defendants and victims, and when writing in general terms about other parties in the legal system e.g., lawyers, judges, and legislators I have balanced the account between male and female parties. In odd-numbered chapters the parties are female; in the even-numbered chapters males get equal time. I diverge from this approach only when the gender policy would distort history (e.g., there were no female property-holders in 16th century England), prove inaccurate as a principle of law, or confuse the reader. Although I received some criticism of this style with the first edition, I am gratified that this approach is no longer viewed as particularly noteworthy. v

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9 Acknowledgments A book of this length is not possible without help from many people. I wrote the first edition while I was on the faculty at Wayne State University. My colleague there, LeRoy Lamborn, read the first, and often the second, draft of every chapter of the first edition. He provided remarkably helpful editorial and substantive suggestions and encouragement. Many readers have assisted me over the years in improving the text. I have been blessed with many messages, letters (remember those?), and telephone calls from professors (here and in Europe, Australia, and New Zealand!), judges, practitioners, and law students, all providing advice, corrections, and citations to lesser-known sources of knowledge. I thank all of you. I thank Dean Alan C. Michaels for the support he has provided over the years. And that support goes well beyond the ordinary scholarly assistance that any fine law school, such as ours, offers its faculty. I received help on this edition from past and present Research Assistants at my law school. They include Sierra Cooper, Gregory Djordjevic, and Allison Meena. Very special thanks goes to graduated Moritz student, Lisa Herman, who provided incredibly thoughtful research on a number of topics, which were incorporated into this edition. Finally, I thank my extended family my wife Dottie; my son, David; my daughterin-law Jessica; my granddaughters Lisa Belle and Maya Shoshana; and my brand new grandson Gideon Jacob for being there for me. Joshua Dressler May 2015 Columbus, Ohio vii

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11 Frequently Cited Source This text frequently cites to the MODEL PENAL CODE COMMENTARIES, found in two volumes: American Law Institute, MODEL PENAL CODE AND COMMENTARIES (OFFICIAL DRAFT AND REVISED COMMENTS) (PART I: GENERAL PROVISIONS) (1985); and American Law Institute, MODEL PENAL CODE AND COMMENTARIES (OFFICIAL DRAFT AND REVISED COMMENT) (PART II: DEFINITION OF SPECIFIC CRIMES) (1980). * * * These sources are cited in footnotes of this text by use of the shorthand American Law Institute. ix

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13 Chapter 1 CRIMINAL LAW: AN OVERVIEW NATURE OF CRIMINAL LAW [A] Crimes [1] Comparison to Civil Wrongs [2] Classification of Crimes [B] Principles of Criminal Responsibility PROVING GUILT AT THE TRIAL [A] Right to Trial by Jury [1] In General [2] Scope of the Right [B] Burden of Proof [C] Jury Nullification [1] The Issue [2] The Debate [3] The Law [4] Race-Based Nullification Chapter 2 PRINCIPLES OF CRIMINAL PUNISHMENT PUNISHMENT AND CRIMINAL LAW THEORY PUNISHMENT : DEFINED [A] In General [B] Constitutional Law Analysis THEORIES OF PUNISHMENT [A] Utilitarianism [1] Basic Principles [2] Forms of Utilitarianism [B] Retributivism [1] Basic Principles [2] Forms of Retributivism [C] Denunciation (Expressive Theory) THE DEBATE BETWEEN THE COMPETING THEORIES [A] Criticisms of Utilitarianism [1] Deterrence [2] Rehabilitation [B] Criticisms of Retributivism MIXED THEORIES OF PUNISHMENT SENTENCING xi

14 Chapter 3 SOURCES OF THE CRIMINAL LAW ORIGINS OF THE CRIMINAL LAW [A] Common Law [B] Criminal Statutes MODERN ROLE OF THE COMMON LAW [A] Reception Statutes [B] Statutory Interpretation MODEL PENAL CODE Chapter 4 CONSTITUTIONAL LIMITS ON THE CRIMINAL LAW THE CONSTITUTION: OVERVIEW RELEVANT CONSTITUTIONAL PROVISIONS [A] Bill of Rights [B] Fourteenth Amendment POLICY FACTORS IN ENFORCING THE CONSTITUTION [A] In General [B] Separation of Powers [C] Federalism [D] Protecting Individual Rights Chapter 5 LEGALITY PRINCIPLE OF LEGALITY [A] Legality : Definition [B] Rationale [C] Constitutional Law [1] Bill of Attainder and Ex Post Facto Clauses [2] Due Process Clause STATUTORY CLARITY AVOIDING UNDUE DISCRETION IN LAW ENFORCEMENT STRICT CONSTRUCTION OF STATUTES (RULE OF LENITY) Chapter 6 PROPORTIONALITY PROPORTIONALITY IN THE CRIMINAL LAW: OVERVIEW UTILITARIANISM AND PROPORTIONALITY [A] General Principles [B] Application of the Principles [1] General Deterrence [2] Individual Deterrence or Incapacitation [3] Rehabilitation xii

15 6.03 RETRIBUTIVISM AND PROPORTIONALITY [A] General Principles [B] Application of the Principles [1] In General [2] Devising a Proportional Retributive System COMPARING THE TWO THEORIES OF PROPORTIONALITY CONSTITUTIONAL REQUIREMENT OF PROPORTIONALITY [A] General Principles [B] Death Penalty [C] Terms of Imprisonment [1] Rummel v. Estelle [2] Solem v. Helm [3] Harmelin v. Michigan [4] Ewing v. California [5] Summary Chapter 7 BURDENS OF PROOF PUTTING THE ISSUES IN PROCEDURAL CONTEXT BURDEN OF PRODUCTION [A] Nature of the Burden [B] Who Has the Burden? [C] How Great Is the Burden? [D] Effect of Failing to Meet the Burden BURDEN OF PERSUASION [A] Nature of the Burden [B] Who Has the Burden? [1] The Presumption of Innocence: The Winship Doctrine (In General).. 70 [2] Mullaney v. Wilbur [3] Patterson v. New York [4] Post-Patterson Case Law [a] In General [b] Element of an Offense Versus a Defense [C] How Great Is the Burden? [1] Elements of Crimes: Proof Beyond a Reasonable Doubt [2] Defenses [D] Effect of Failing to Meet the Burden [1] Elements of Crimes [2] Defenses MODEL PENAL CODE xiii

16 Chapter 8 PRESUMPTIONS THE NATURE OF A PRESUMPTION MANDATORY PRESUMPTIONS [A] Rebuttable Presumptions [B] Irrebuttable ( Conclusive ) Presumptions PERMISSIVE PRESUMPTIONS ( INFERENCES ) MODEL PENAL CODE Chapter 9 ACTUS REUS ACTUS REUS: GENERAL PRINCIPLES [A] Definition [B] Punishing Thoughts: Why Not? VOLUNTARY ACT: GENERAL PRINCIPLES [A] General Rule [B] The Act [C] Voluntary [1] Broad Meaning: In the Context of Defenses [2] Narrow Meaning: In the Context of the Actus Reus [3] Voluntariness : At the Controversial Edges [a] Hypnotism [b] Multiple Personality (or Dissociative Identity) Disorder [D] Voluntary Act Requirement: Rationale [E] Burden of Proof [F] The Issue of Time-Framing VOLUNTARY ACT: SUPPOSED (BUT NOT REAL) EXCEPTIONS TO THE REQUIREMENT [A] Poorly Drafted Statutes [B] Status Offenses [C] Crimes of Possession VOLUNTARY ACT: CONSTITUTIONAL LAW [A] Robinson v. California [B] Powell v. Texas [C] Current Law: Powell in Light of Robinson VOLUNTARY ACT: MODEL PENAL CODE [A] General Principles [B] Exception to the Rule OMISSIONS: GENERAL PRINCIPLES [A] General Rule [B] Criticisms of the General Rule [C] Defense of the General Rule OMISSIONS: EXCEPTIONS TO THE NO-LIABILITY RULE xiv

17 [A] Common Law Duty to Act: Commission by Omission [1] Overview [2] When There Is a Duty to Act [a] Status Relationship [b] Contractual Obligation [c] Omissions Following an Act [i] Creation of a Risk [ii] Voluntary Assistance [B] Statutory Duty (Including Bad Samaritan Laws) OMISSIONS: MODEL PENAL CODE MEDICAL OMISSIONS : A DEFINITIONAL PROBLEM [A] Act or Omission? [B] Analysis as an Omission [C] The Barber Approach [D] Reflections Regarding Barber SOCIAL HARM: GENERAL PRINCIPLES [A] Overview [B] A Definition of Social Harm [C] Finding the Social Harm Element in a Criminal Statute [D] Dividing Social Harm into Sub-Elements [1] Conduct Elements (or Conduct Crimes) [2] Result Elements (or Result Crimes) [3] Attendant Circumstances SOCIAL HARM: CONSTITUTIONAL LIMITS Chapter 10 MENS REA GENERAL PRINCIPLE DEFINITION OF MENS REA [A] Ambiguity of the Term [B] Broad Meaning: The Culpability Meaning of Mens Rea [C] Narrow Meaning: The Elemental Meaning of Mens Rea RATIONALE OF THE MENS REA REQUIREMENT [A] Utilitarian Arguments [B] Retributive Arguments FREQUENTLY USED MENS REA TERMS [A] Intentionally [1] Definition [2] Motive Distinguished [3] Transferred Intent [a] General Doctrine [b] An Unnecessary and Potentially Misleading Doctrine xv

18 [c] Looking Past the Easy Cases [B] Knowingly or With Knowledge [C] Willfully [D] Negligence and Recklessness [1] Overview [2] Negligence [a] In General [b] Distinguishing Civil from Criminal Negligence [c] Should Negligence Be Punished? [d] Who Really Is the Reasonable Person?: Initial Observations [3] Recklessness [E] Malice STATUTORY INTERPRETATION: WHAT ELEMENTS DOES A MENS REA TERM MODIFY? SPECIFIC INTENT AND GENERAL INTENT MODEL PENAL CODE [A] Section 2.02: In General [B] Culpability Terms [1] Purposely [2] Knowingly [3] Recklessly and Negligently [a] In General [b] Nature of the Reasonable Person [C] Principles of Statutory Interpretation Chapter 11 STRICT LIABILITY GENERAL PRINCIPLES [A] Strict Liability : Definition [B] Presumption Against Strict Liability [C] Public Welfare Offenses [D] Non-Public-Welfare Offenses POLICY DEBATE REGARDING STRICT-LIABILITY OFFENSES [A] Searching for a Justification for Strict Liability [B] Alternatives to Strict Liability CONSTITUTIONALITY OF STRICT-LIABILITY OFFENSES MODEL PENAL CODE Chapter 12 MISTAKES OF FACT PUTTING MISTAKE-OF-FACT IN CONTEXT WHY DOES A FACTUAL MISTAKE SOMETIMES EXCULPATE? COMMON LAW RULES xvi

19 [A] General Approach [B] Strict-Liability Offenses [C] Specific-Intent Offenses [D] General-Intent Offenses [1] Ordinary Approach: Was the Mistake Reasonable? [2] Another (Controversial and Increasingly Uncommon) Approach: Moral-Wrong Doctrine [a] The Doctrine Is Explained [b] Criticisms of the Doctrine [3] Still Another Approach: Legal-Wrong Doctrine [a] The Doctrine Is Explained [b] Criticism of the Doctrine [E] Regina v. Morgan: Common Law in Transition or an Aberration? MODEL PENAL CODE [A] General Rule [B] Exception to the Rule Chapter 13 MISTAKES OF LAW GENERAL PRINCIPLES [A] General Rule [B] Rationale of the Rule [1] Certainty of the Law [2] Avoiding Subjectivity in the Law [3] Deterring Fraud [4] Encouraging Legal Knowledge WHEN MISTAKE-OF-LAW IS A DEFENSE: EXCEPTIONS TO THE GENERAL RULE [A] Putting the Exceptions in Context [B] Reasonable-Reliance Doctrine (Entrapment by Estoppel) [1] No Defense: Reliance on One s Own Interpretation of the Law [2] No Defense: Advice of Private Counsel [3] Faulty Interpretation of the Law by the Government [C] Fair Notice and the Lambert Principle [D] Ignorance or Mistake That Negates Mens Rea [1] General Approach [2] Specific-Intent Offenses [3] General-Intent Offenses [4] Strict-Liability Offenses MODEL PENAL CODE [A] General Rule [B] Exceptions to the General Rule xvii

20 [1] Reasonable-Reliance Doctrine [2] Fair Notice [3] Ignorance or Mistake That Negates Mens Rea Chapter 14 CAUSATION GENERAL PRINCIPLES [A] Causation : An Element of Criminal Responsibility [B] Causation : Its Role in Criminal Law Theory [C] Causation : Criminal Law Versus Tort Law ACTUAL CAUSE (OR FACTUAL CAUSE ) [A] But-For ( Sine Qua Non ) Test [B] Causes Versus Conditions [C] Special Actual Cause Problems [1] Confusing Causation with Mens Rea [a] Causation Without Mens Rea [b] Mens Rea Without Causation [2] Multiple Actual Causes [a] Accelerating a Result [b] Concurrent Sufficient Causes [3] Obstructed Cause PROXIMATE CAUSE (OR LEGAL CAUSE ) [A] Putting Proximate Cause in Context [B] Direct Cause [C] Intervening Causes [1] Overview [2] Factor 1: De Minimis Contribution to the Social Harm [3] Factor 2: Foreseeability of the Intervening Cause [a] In General [b] Responsive (Dependent) Intervening Causes [c] Coincidental (Independent) Intervening Causes [4] Factor 3: The Defendant s Mens Mea (Intended Consequences Doctrine) [5] Factor 4: Dangerous Forces That Come to Rest (Apparent Safety Doctrine) [6] Factor 5: Free, Deliberate, Informed Human Intervention [7] Factor 6: Omissions MODEL PENAL CODE [A] Actual Cause [B] Proximate Cause (Actually, Culpability) xviii

21 Chapter 15 CONCURRENCE OF ELEMENTS GENERAL PRINCIPLES TEMPORAL CONCURRENCE [A] Mens Rea Preceding Actus Reus [B] Actus Reus Preceding Mens Rea MOTIVATIONAL CONCURRENCE SPECIAL PROBLEM: TEMPORALLY DIVISIBLE ACTS AND/OR OMISSIONS Chapter 16 DEFENSES: AN OVERVIEW DEFENSES: IN CONTEXT FAILURE-OF-PROOF DEFENSES JUSTIFICATION DEFENSES EXCUSE DEFENSES SPECIALIZED DEFENSES ( OFFENSE MODIFICATIONS ) EXTRINSIC DEFENSES ( NONEXCULPATORY DEFENSES ) Chapter 17 JUSTIFICATIONS AND EXCUSES HISTORICAL OVERVIEW UNDERLYING THEORIES OF JUSTIFICATION [A] Searching for an Explanatory Theory [B] Public Benefit Theory [C] Moral Forfeiture Theory [D] Moral Rights Theory [E] Superior Interest (or Lesser Harm ) Theory UNDERLYING THEORIES OF EXCUSE [A] Searching for an Explanatory Theory [B] Deterrence Theory [C] Causation Theory [D] Character Theory [E] Free Choice (or Personhood) Theory JUSTIFICATION DEFENSES AND MISTAKE-OF-FACT CLAIMS [A] General Rule [B] Criticisms of the General Rule [C] Defense of the General Rule JUSTIFICATION v. EXCUSE: WHY DOES IT MATTER? [A] In General [B] Sending Clear Moral Messages [C] Providing Theoretical Consistency in the Criminal Law [D] Accomplice Liability xix

22 [E] Third Party Conduct [F] Retroactivity [G] Burden of Proof Chapter 18 SELF-DEFENSE GENERAL PRINCIPLES [A] Overview [B] Elements of the Defense [C] The Necessity Component [D] The Proportionality Component [E] The Reasonable Belief Component DEADLY FORCE: CLARIFICATION OF THE GENERAL PRINCIPLES [A] Deadly Force : Definition [B] The Non-Aggressor Limitation [1] Definition of Aggressor [2] Removing the Status of Aggressor [a] Deadly Aggressor [b] Nondeadly Aggressor [C] Necessity Requirement: The Special Issue of Retreat [1] Explanation of the Issue [2] Contrasting Approaches [3] The Castle Exception to the Retreat Rule [D] Nature of the Threat: Imminent, Unlawful Deadly Force [1] Imminent [2] Unlawful Force DEADLY FORCE: IMPERFECT SELF-DEFENSE CLAIMS DEADLY FORCE IN SELF-PROTECTION: RATIONALE FOR THE DEFENSE [A] Self-Defense as an Excuse [B] Self-Defense as a Justification [1] Utilitarian Explanations [2] Non-Utilitarian Explanations SELF-DEFENSE: SPECIAL ISSUES [A] The Reasonable-Belief Standard: More Reflections About the Reasonable Person [1] The Issue [2] The Law [B] Battered Women and Battered Woman Syndrome [1] Issue Overview [2] Jury Instructions on Self-Defense xx

23 [3] Evidentiary Issues [a] Prior Abuse by the Decedent [b] Expert Testimony Regarding Battered Woman Syndrome [4] Nonconfrontational Battered Woman Self-Defense?: Some Reflections [C] Risk to Innocent Bystanders [D] Resisting an Unlawful Arrest MODEL PENAL CODE [A] General Rules [1] Force, in General [a] Permissible Use [b] Impermissible Use: Resisting an Unlawful Arrest [2] Deadly Force, in General [a] Deadly Force : Definition [b] Permissible Use [c] Impermissible Use [i] Deadly Force by Aggressors [ii] Retreat [iii] Summarizing the MPC Deadly-Force Rules [B] Mistake-of-Fact Claims and Model Penal Code Justification Defenses. 255 [C] Justification Defenses and Risks to Innocent Bystanders Chapter 19 DEFENSE OF OTHERS GENERAL RULE MODEL PENAL CODE Chapter 20 DEFENSE OF PROPERTY AND HABITATION PROPERTY AND HABITATION: COMPARISON AND CONTRAST DEFENSE OF PROPERTY [A] General Rule [B] Clarification of the Rule [1] Possession Versus Title to Property [2] Necessity for the Use of Force [3] Deadly Force [4] Threat to Use Deadly Force [5] Claim of Right [6] Recapture of Property DEFENSE OF HABITATION [A] Rationale of the Defense [B] Rules Regarding Use of Deadly Force [1] Early Common Law Rule xxi

24 [2] Middle Approach [3] Narrow Approach [C] Looking at the Rules in Greater Depth [1] May the Occupant Use Force After the Intruder Has Entered? [2] Are the Differences in the Habitation Rules Significant? [3] Relationship of the Defense to Other Defenses [a] Self-Defense and Defense-of-Others [b] Law Enforcement Defenses SPRING GUNS [A] The Issue [B] Common Law Rule MODEL PENAL CODE [A] Permissible Use of Nondeadly Force [1] Force to Protect Property [2] Force to Recapture Property [B] Impermissible Use of Nondeadly Force [C] Use of Deadly Force [1] In General [a] Dispossession of a Dwelling [b] Prevention of Serious Property Crimes [2] Spring Guns Chapter 21 LAW ENFORCEMENT WHAT ARE THE LAW ENFORCEMENT DEFENSES? RESTRAINT ON LIBERTY IN LAW ENFORCEMENT: PUBLIC AUTHORITY DEFENSE [A] By Police Officers [1] Common Law [2] Constitutional Limits on the Common Law [B] By Private Persons FORCE USED IN LAW ENFORCEMENT: COMMON AND STATUTORY LAW [A] Nondeadly Force [B] Deadly Force [1] Crime Prevention [a] Broad Defense: Minority Rule [b] Narrow Defense: Majority Rule [2] Effectuation of an Arrest [a] By Police Officers [i] Early Common Law Rule [ii] Modification of the Rule xxii

25 [b] By Private Persons FORCE USED IN LAW ENFORCEMENT: CONSTITUTIONAL LIMITS [A] Background: The Controversy [B] Constitutional Law MODEL PENAL CODE [A] Authority to Arrest [B] Crime Prevention [1] Use of Force, In General [2] Use of Deadly Force [C] Effectuation of an Arrest [1] Use of Force, In General [2] Use of Deadly Force Chapter 22 NECESSITY BASIC NATURE OF THE DEFENSE GENERAL RULES CIVIL DISOBEDIENCE NECESSITY AS A DEFENSE TO HOMICIDE [A] The Issue [B] Regina v. Dudley and Stephens [C] What Does Dudley and Stephens Really Say? [D] How Should Dudley and Stephens Have Been Decided? MODEL PENAL CODE Chapter 23 DURESS GENERAL PRINCIPLES [A] Overview [B] Elements of the Defense [C] Duress: Justification or Excuse? RATIONALE OF THE DEFENSE (AS AN EXCUSE) [A] Utilitarian Arguments [B] Retributive Arguments DISTINGUISHING DURESS FROM NECESSITY DURESS AS A DEFENSE TO HOMICIDE [A] General Rule [B] Is the No-Defense Rule Sensible? ESCAPE FROM INTOLERABLE PRISON CONDITIONS [A] The Issue [B] The Law [C] Necessity Versus Duress xxiii

26 [1] The Conceptual Problem [2] Why the Nature of the Defense Is Significant [a] The Message of Acquittal [b] Ability of the Defendant to Obtain Acquittal [c] Liability of Those Who Assist in the Escape [d] Liability of Those Who Resist the Escape [3] Concluding Comments SITUATIONAL DURESS: BRIEF OBSERVATIONS [A] The Simplest Case: Necessity as an Excuse [B] Going Beyond Natural Threats BATTERED WOMEN UNDER DURESS MODEL PENAL CODE [A] General Rule [B] Comparison to the Common Law [1] In General [2] Escape from Intolerable Prison Conditions [3] Situational Duress [4] Battered Women and the Nature of the Person of Reasonable Firmness Chapter 24 INTOXICATION INTOXICATION AND THE CRIMINAL LAW: AN OVERVIEW [A] Intoxication : Definition [B] Intoxication Law in Its Social and Historical Context [C] Intoxication Cases: Issues to Consider [D] Intoxication Claims: Relationship to Other Defenses VOLUNTARY INTOXICATION: GENERAL PRINCIPLES [A] Definition of Voluntary Intoxication [1] In General [2] Alcoholism, Drug Addiction, and Voluntary Intoxication [B] General Rules [1] No Excuse [2] When Voluntary Intoxication May Be Exculpatory VOLUNTARY INTOXICATION: MENS REA [A] In General [B] Traditional Common Law Rule [1] Overview [2] General-Intent Offenses [3] Specific-Intent Offenses [4] Criticism of the Traditional Approach [a] Why Draw a Distinction? xxiv

27 [b] Should the Defense Be Abolished? [C] Special Problem: Intoxication and Homicide VOLUNTARY INTOXICATION: VOLUNTARY ACT VOLUNTARY INTOXICATION: INSANITY [A] Temporary Insanity [B] Fixed ( Settled ) Insanity INVOLUNTARY INTOXICATION [A] Definition [B] General Rule MODEL PENAL CODE [A] General Rule [B] Negation of an Element of an Offense [1] Mental State [a] In General [b] Exception to the Rule [2] Voluntary Act [C] Intoxication as an Affirmative Defense Chapter 25 INSANITY INSANITY: AN OVERVIEW INSANITY DEFENSE: PROCEDURAL CONTEXT [A] Competency to Stand Trial [1] General Rule [2] Procedures for Determining Competency [3] Effect of an Incompetency Finding [B] Pre-Trial Assertion of the Insanity Plea [C] Jury Verdicts [D] Bifurcated Trial [E] Burden of Proof RATIONALE OF THE INSANITY DEFENSE [A] Utilitarian Theory [B] Retributive Theory DEFINITIONS OF INSANITY [A] Putting the Insanity Tests in Historical and Legal Context [B] Mental Disease or Defect [1] In General [2] Medical Definition of Mental Disorder [3] Legal Definition of Mental Disease or Defect [C] The Tests [1] M Naghten Test [a] Rule xxv

28 [i] Know : Broad or Narrow? [ii] Nature and Quality of the Act [iii] Right from Wrong [iv] The Deific Decree Doctrine [b] Criticisms of the Rule [2] Irresistible Impulse ( Control ) Test [a] Rule [b] Criticisms of the Rule [3] American Law Institute (Model Penal Code) Test [a] Rule [b] Criticisms of the Rule [4] The Product Test [a] Rule [b] Criticisms of the Rule [5] Federal Test EFFECT OF AN INSANITY ACQUITTAL [A] Mental Illness Commitment Procedures [1] Automatic Commitment [2] Discretionary Commitment [B] Release After Commitment for Mental Illness [1] Criteria for Release [2] Length of Confinement [3] Release Procedures [C] A Different Form of Commitment: Sexual Predator Laws ABOLITION OF THE INSANITY DEFENSE [A] Abolitionist Arguments [1] Abuse [2] Counter-Deterrence [3] Conflict of Perspectives [4] Mental Illness : Merely a Deviation from a Cultural Norm [5] Equity [B] Legislative Efforts to Abolish the Defense GUILTY BUT MENTALLY ILL Chapter 26 DIMINISHED CAPACITY DIMINISHED CAPACITY : A TERM OF CONFUSION DIMINISHED CAPACITY: MENS REA DEFENSE [A] Nature of the Defense [B] Law [1] Overview [2] Defense-to-All-Crimes (Model Penal Code) Approach xxvi

29 [3] Limited-Use Approach [4] No-Defense Approach DIMINISHED CAPACITY: PARTIAL RESPONSIBILITY DEFENSE [A] Rule [1] In General [2] The Largely Discredited California Approach [3] The Model Penal Code Approach [B] Controversy Regarding the Defense Chapter 27 ATTEMPT CRIMINAL ATTEMPTS: AN OVERVIEW TO INCHOATE CONDUCT GENERAL PRINCIPLES [A] Historical Background [B] Definition of Attempt [C] Punishment of Attempts [D] Relationship of an Attempt to the Target Offense [E] Assault : Attempt in Different Clothing [1] Assault Versus Attempt [2] Attempted Assault [F] Inchoate Crimes in Disguise SUBJECTIVISM AND OBJECTIVISM PUNISHING ATTEMPTS: WHY, AND HOW MUCH? [A] Rationale for Punishing Attempts [1] Utilitarian Analysis [2] Retributive Analysis [B] Less or Equal Punishment? [1] Overview to the Issue [2] Utilitarian Analysis [3] Retributive Analysis MENS REA OF CRIMINAL ATTEMPTS [A] General Rule [B] Result Crimes [1] In General [2] Rationale of Intent Requirement: Does It Make Sense? [3] Special Homicide Problems [a] Attempted Felony-Murder [b] Attempted Manslaughter [C] Conduct Crimes [D] Attendant Circumstances xxvii

30 27.06 ACTUS REUS OF CRIMINAL ATTEMPTS [A] Policy Context [B] The Tests [1] General Observations [2] Last Act Test [3] Physical Proximity Test [4] Dangerous Proximity Test [5] Indispensable Element Test [6] Probable Desistance Test [7] Unequivocality Test DEFENSE: IMPOSSIBILITY [A] The Issue [B] General Rule [C] Factual Impossibility [1] In General [2] Inherent Factual Impossibility [D] Legal Impossibility [1] Introductory Comments [2] Pure Legal Impossibility [3] Hybrid Legal Impossibility [a] In General [b] Modern Approach: Abolition of the Defense DEFENSE: ABANDONMENT MODEL PENAL CODE [A] Introductory Comments [B] Criminal Attempt: In General [1] Elements of the Offense [2] Explaining Subsection (1) [C] Mens Rea [D] Actus Reus [1] In General [2] Attempt to Aid [E] Defenses [1] Impossibility [a] Hybrid Legal Impossibility [b] Pure Legal Impossibility [2] Renunciation (Abandonment) [F] Grading of Criminal Attempts and Other Inchoate Crimes [1] In General [2] Special Mitigation xxviii