Understanding Criminal Law by Dressler, Joshua -- Read -- Imperial Library of Trantor

§ 3.03 MODEL PENAL CODE Chapter 4 CONSTITUTIONAL LIMITS ON THE CRIMINAL LAW § 4.01 THE CONSTITUTION: OVERVIEW § 4.02 RELEVANT CONSTITUTIONAL PROVISIONS

[A] Bill of Rights [B] Fourteenth Amendment

§ 4.03 POLICY FACTORS IN ENFORCING THE CONSTITUTION

[A] In General [B] Separation of Powers [C] Federalism [D] Protecting Individual Rights

Chapter 5 LEGALITY § 5.01 PRINCIPLE OF LEGALITY

[A] “Legality”: Definition [B] Rationale [C] Constitutional Law

[1] Bill of Attainder and Ex Post Facto Clauses [2] Due Process Clause

§ 5.02 STATUTORY CLARITY § 5.03 AVOIDING UNDUE DISCRETION IN LAW ENFORCEMENT § 5.04 STRICT CONSTRUCTION OF STATUTES (RULE OF LENITY) Chapter 6 PROPORTIONALITY § 6.01 “PROPORTIONALITY” IN THE CRIMINAL LAW: OVERVIEW § 6.02 UTILITARIANISM AND PROPORTIONALITY

[A] General Principles [B] Application of the Principles

[1] General Deterrence [2] Individual Deterrence or Incapacitation [3] Rehabilitation

§ 6.03 RETRIBUTIVISM AND PROPORTIONALITY

[A] General Principles [B] Application of the Principles

[1] In General [2] Devising a Proportional Retributive System

§ 6.04 COMPARING THE TWO THEORIES OF PROPORTIONALITY § 6.05 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 § 7.01 PUTTING THE ISSUES IN PROCEDURAL CONTEXT § 7.02 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

§ 7.03 BURDEN OF PERSUASION

[A] Nature of the Burden [B] Who Has the Burden?

[1] The Presumption of Innocence: The Winship Doctrine (In General) [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

§ 7.04 MODEL PENAL CODE Chapter 8 PRESUMPTIONS § 8.01 THE NATURE OF A PRESUMPTION § 8.02 MANDATORY PRESUMPTIONS

[A] Rebuttable Presumptions [B] Irrebuttable (“Conclusive”) Presumptions

§ 8.03 PERMISSIVE PRESUMPTIONS (“INFERENCES”) § 8.04 MODEL PENAL CODE Chapter 9 ACTUS REUS § 9.01 ACTUS REUS : GENERAL PRINCIPLES

[A] Definition [B] Punishing Thoughts: Why Not?

§ 9.02 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 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”

§ 9.03 VOLUNTARY ACT: SUPPOSED (BUT NOT REAL) EXCEPTIONS TO THE REQUIREMENT

[A] Poorly Drafted Statutes [B] Status Offenses [C] Crimes of Possession

§ 9.04 VOLUNTARY ACT: CONSTITUTIONAL LAW

[A] Robinson v. California [B] Powell v. Texas [C] Current Law: Powell in Light of Robinson

§ 9.05 VOLUNTARY ACT: MODEL PENAL CODE

[A] General Principles [B] Exception to the Rule

§ 9.06 OMISSIONS: GENERAL PRINCIPLES

[A] General Rule [B] Criticisms of the General Rule [C] Defense of the General Rule

§ 9.07 OMISSIONS: EXCEPTIONS TO THE NO-LIABILITY RULE

[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)

§ 9.08 OMISSIONS: MODEL PENAL CODE § 9.09 MEDICAL “OMISSIONS”: A SPECIAL PROBLEM

[A] Act or Omission? [B] Analysis as an Omission [C] The Barber Approach [D] Reflections Regarding Barber

§ 9.10 SOCIAL HARM: GENERAL PRINCIPLES

[A] Overview [B] 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

§ 9.11 SOCIAL HARM: CONSTITUTIONAL LIMITS Chapter 10 MENS REA § 10.01 GENERAL PRINCIPLE § 10.02 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 ”

§ 10.03 RATIONALE OF THE MENS REA REQUIREMENT

[A] Utilitarian Arguments [B] Retributive Arguments

§ 10.04 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 [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”

§ 10.05 STATUTORY INTERPRETATION: WHAT ELEMENTS DOES A MENS REA TERM MODIFY? § 10.06 “SPECIFIC INTENT” AND “GENERAL INTENT” § 10.07 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 § 11.01 GENERAL PRINCIPLES

[A] “Strict Liability”: Definition [B] Presumption Against Strict Liability [C] Public Welfare Offenses [D] Non-Public-Welfare Offenses

§ 11.02 POLICY DEBATE REGARDING STRICT-LIABILITY OFFENSES

[A] Searching for a Justification for Strict Liability [B] Alternatives to Strict Liability

§ 11.03 CONSTITUTIONALITY OF STRICT-LIABILITY OFFENSES § 11.04 MODEL PENAL CODE Chapter 12 MISTAKES OF FACT § 12.01 PUTTING MISTAKE-OF-FACT IN CONTEXT § 12.02 WHY DOES A FACTUAL MISTAKE SOMETIMES EXCULPATE? § 12.03 COMMON LAW RULES

[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?

§ 12.04 MODEL PENAL CODE

[A] General Rule [B] Exception to the Rule

Chapter 13 MISTAKES OF LAW § 13.01 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

§ 13.02 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] Official Interpretation of the Law

[C] Fair Notice and the Lambert Principle [D] Ignorance or Mistake That Negates Mens ReaSee generally Sharon L. Davies, The Jurisprudence of Willfulness: An Evolving Theory of Excusable Ignorance, 48 Duke L.J. 341 (1998).

[1] General Approach [2] Specific-Intent Offenses [3] General-Intent Offenses [4] Strict-Liability Offenses

§ 13.03 MODEL PENAL CODE

[A] General Rule [B] Exceptions to the General Rule

[1] Reasonable-Reliance Doctrine [2] Fair Notice [3] Ignorance or Mistake That Negates Mens Rea

Chapter 14 CAUSATION § 14.01 GENERAL PRINCIPLES

[A] “Causation”: An Element of Criminal Responsibility [B] “Causation”: Its Role in Criminal Law Theory [C] “Causation”: Criminal Law versus Tort Law

§ 14.02 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

§ 14.03 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

§ 14.04 MODEL PENAL CODE

[A] Actual Cause [B] Proximate Cause (Actually, Culpability)

Chapter 15 CONCURRENCE OF ELEMENTS § 15.01 GENERAL PRINCIPLES § 15.02 TEMPORAL CONCURRENCE

[A] Mens Rea Preceding Actus Reus [B] Actus Reus Preceding Mens Rea

§ 15.03 MOTIVATIONAL CONCURRENCE § 15.04 SPECIAL PROBLEM: TEMPORALLY DIVISIBLE ACTS AND/OR OMISSIONS Chapter 16 DEFENSES: AN OVERVIEW § 16.01 DEFENSES: IN CONTEXT § 16.02 FAILURE-OF-PROOF DEFENSES § 16.03 JUSTIFICATION DEFENSES § 16.04 EXCUSE DEFENSES § 16.05 SPECIALIZED DEFENSES (“OFFENSE MODIFICATIONS”) § 16.06 EXTRINSIC DEFENSES (“NONEXCULPATORY DEFENSES”) Chapter 17 JUSTIFICATIONS AND EXCUSES § 17.01 HISTORICAL OVERVIEW § 17.02 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

§ 17.03 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

§ 17.04 JUSTIFICATION DEFENSES AND MISTAKE-OF-FACT CLAIMS

[A] General Rule [B] Criticisms of the General Rule [C] Defense of the General Rule

§ 17.05 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 [E] Third Party Conduct [F] Retroactivity [G] Burden of Proof

Chapter 18 SELF-DEFENSE § 18.01 GENERAL PRINCIPLES

[A] Overview [B] Elements of the Defense [C] The Necessity Component [D] The Proportionality Component [E] The “Reasonable Belief” Component

§ 18.02 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”

§ 18.03 DEADLY FORCE: “IMPERFECT” SELF-DEFENSE CLAIMS § 18.04 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

§ 18.05 SELF-DEFENSE: SPECIAL ISSUES

[A] The Reasonable-Belief Standard: More Reflections About the “Reasonable Person”

[1] The Issue [2] The Law

[B] “Battered Woman Syndrome”

[1] Issue Overview [2] Jury Instructions on Self-Defense [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

§ 18.06 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 [C] Justification Defenses and Risks to Innocent Bystanders

Chapter 19 DEFENSE OF OTHERS § 19.01 GENERAL RULE § 19.02 MODEL PENAL CODE Chapter 20 DEFENSE OF PROPERTY AND HABITATION § 20.01 PROPERTY AND HABITATION: COMPARISON AND CONTRAST § 20.02 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

§ 20.03 DEFENSE OF HABITATION

[A] Rationale of the Defense [B] Rules Regarding Use of Deadly Force

[1] Early Common Law Rule [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

§ 20.04 SPRING GUNS

[A] The Issue [B] Common Law Rule

§ 20.05 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 § 21.01 WHAT ARE THE “LAW ENFORCEMENT” DEFENSES? § 21.02 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

§ 21.03 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

[b] By Private Persons

§ 21.04 FORCE USED IN LAW ENFORCEMENT: CONSTITUTIONAL LIMITS

[A] Background: The Controversy [B] Constitutional Law

§ 21.05 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 § 22.01 BASIC NATURE OF THE DEFENSE § 22.02 GENERAL RULES § 22.03 CIVIL DISOBEDIENCE § 22.04 “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?

§ 22.05 MODEL PENAL CODE Chapter 23 DURESS § 23.01 GENERAL PRINCIPLES

[A] Overview [B] Elements of the Defense [C] Duress: Justification or Excuse?

§ 23.02 RATIONALE OF THE DEFENSE (AS AN EXCUSE)

[A] Utilitarian Arguments [B] Retributive Arguments

§ 23.03 DISTINGUISHING DURESS FROM NECESSITY § 23.04 DURESS AS A DEFENSE TO HOMICIDE

[A] General Rule [B] Is the No-Defense Rule Sensible?

§ 23.05 ESCAPE FROM INTOLERABLE PRISON CONDITIONS

[A] The Issue [B] The Law [C] Necessity versus Duress

[1] The Conceptual Problem [2] Why the Nature of the Defense Is Significant

[a] The Message of Acquittal [b] Ability to Obtain Acquittal [c] Liability of Those Who Assist in the Escape [d] Liability of Those Who Resist the Escape

[3] Concluding Comments

§ 23.06 SITUATIONAL DURESS: BRIEF OBSERVATIONS

[A] The Simplest Case: Necessity as an Excuse [B] Going Beyond Natural Threats

§ 23.07 BATTERED WOMEN UNDER DURESS § 23.08 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 § 24.01 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

§ 24.02 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

§ 24.03 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? [b] Should the Defense Be Abolished?

[C] Special Problem: Intoxication and Homicide

§ 24.04 VOLUNTARY INTOXICATION: VOLUNTARY ACT § 24.05 VOLUNTARY INTOXICATION: INSANITY

[A] “Temporary” Insanity [B] “Fixed” Insanity

§ 24.06 INVOLUNTARY INTOXICATION

[A] Definition [B] General Rule

§ 24.07 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 § 25.01 INSANITY: AN OVERVIEW § 25.02 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

§ 25.03 RATIONALE OF THE INSANITY DEFENSE

[A] Utilitarian Theory [B] Retributive Theory

§ 25.04 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 [b] Criticisms of the Rule

[2] “Irresistible Impulse” 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

§ 25.05 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

§ 25.06 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

§ 25.07 “GUILTY BUT MENTALLY ILL” Chapter 26 DIMINISHED CAPACITY § 26.01 “DIMINISHED CAPACITY”: A TERM OF CONFUSION § 26.02 DIMINISHED CAPACITY: MENS REA DEFENSE

[A] Nature of the Defense [B] Law

[1] Overview [2] Defense-to-All-Crimes (Model Penal Code) Approach [3] Limited-Use Approach [4] No-Defense Approach

§ 26.03 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 § 27.01 CRIMINAL ATTEMPTS: AN OVERVIEW TO INCHOATE CONDUCT § 27.02 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

§ 27.03 “SUBJECTIVISM” AND “OBJECTIVISM” § 27.04 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

§ 27.05 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

§ 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

§ 27.07 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

§ 27.08 DEFENSE: ABANDONMENT § 27.09 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

Chapter 28 SOLICITATION § 28.01 GENERAL PRINCIPLES

[A] Definition

[1] In General [2] Mens Rea [3] Actus Reus

[B] Relationship of the Solicitor to the Solicited Party

[1] In General [2] Use of an Innocent Instrumentality

[C] Relationship of a Solicitation to the Target Offense [D] Policy Considerations

§ 28.02 COMPARISON OF SOLICITATION TO OTHER INCHOATE OFFENSES

[A] Conspiracy [B] Criminal Attempt

§ 28.03 MODEL PENAL CODE

[A] In General [B] Defense: Renunciation

Chapter 29 CONSPIRACY § 29.01 CONSPIRACY: IN GENERAL

[A] Common Law [B] Model Penal Code

§ 29.02 PUNISHING CONSPIRACIES: WHY?

[A] “Conspiracy” as an Inchoate Offense: Preventive Law Enforcement [B] Special Dangers of Group Criminality

§ 29.03 PUNISHING CONSPIRACIES: HOW MUCH?

[A] In General

[1] Common Law and Non-Model Penal Code Statutes [2] Model Penal Code

[B] Punishment When the Target Offense is Committed

[1] Common Law [2] Model Penal Code

§ 29.04 CONSPIRACY: THE AGREEMENT

[A] In General [B] Distinguishing the Agreement from the Group That Agrees [C] Object of the Agreement [D] Overt Act [E] Model Penal Code

[1] In General [2] Object of the Agreement [3] Overt Act

§ 29.05 CONSPIRACY: MENS REA

[A] In General [B] Special Issues

[1] “Purpose” versus “Knowledge”: The Meaning of “Intent” [2] Mens Rea Regarding Attendant Circumstances [3] Corrupt-Motive Doctrine

[C] Model Penal Code

§ 29.06 “PLURALITY” REQUIREMENT

[A] Common Law [B] Model Penal Code

§ 29.07 PARTIES TO A CONSPIRACY

[A] The Issue

[1] Kotteakos v. United States [2] Blumenthal v. United States [3] United States v. Peoni [4] United States v. Bruno

[B] Why the Issue Matters

[1] Liability for Conspiracy [2] Liability of Parties for Substantive Offenses [3] Use of Hearsay Evidence [4] Joint Trial [5] Overt-Act Requirement [6] Venue

[C] Structure of Conspiracies

[1] Wheel Conspiracies [2] Chain Conspiracies [3] Chain-Wheel Conspiracies

[D] Common Law Analysis

[1] In General [2] Wheel Conspiracies [3] Chain Conspiracies [4] Chain-Wheel Conspiracies

[E] Model Penal Code

[1] Relevant Provisions [2] Example of the Code Approach: United States v. Bruno

§ 29.08 OBJECTIVES OF A CONSPIRACY

[A] The Issue [B] Common Law Analysis [C] Model Penal Code

§ 29.09 DEFENSES

[A] Impossibility

[1] Common Law [2] Model Penal Code

[B] Abandonment

[1] Common Law [2] Model Penal Code

[C] Wharton’s Rule

[1] Common Law

[a] In General [b] Exceptions to the Rule

[2] Model Penal Code

[D] Legislative-Exemption Rule

[1] Common Law [2] Model Penal Code

Chapter 30 LIABILITY FOR THE ACTS OF OTHERS: COMPLICITY § 30.01 COMPLICITY: OVERVIEW TO ACCOMPLICE AND CONSPIRATORIAL LIABILITY § 30.02 ACCOMPLICE LIABILITY: GENERAL PRINCIPLES

[A] General Rules

[1] Definition of an “Accomplice” [2] Criminal Responsibility of an Accomplice: Derivative Liability

[B] Theoretical Foundations of Accomplice Liability

§ 30.03 ACCOMPLICE LIABILITY: COMMON LAW TERMINOLOGY

[A] Parties to a Felony

[1] General Comments [2] Principal in the First Degree

[a] In General [b] Innocent-Instrumentality Rule

[i] In General [ii] Difficulties in Application of the Rule

[3] Principal in the Second Degree [4] Accessory Before the Fact [5] Accessory After the Fact

[B] Principals versus Accessories: Procedural Significance

[1] General Comments [2] Jurisdiction [3] Rules of Pleading [4] Timing of the Trial of Accessories [5] Effect of the Acquittal of a Principal [6] Degree of Guilt of the Parties

§ 30.04 ACCOMPLICE LIABILITY: ASSISTANCE

[A] Types of Assistance

[1] In General [2] Physical Conduct [3] Psychological Influence [4] Assistance by Omission

[B] Amount of Assistance Required

[1] In General [2] Accomplice Liability and the Doctrine of Causation

[a] The Law [b] Criticism of the Law

§ 30.05 ACCOMPLICE LIABILITY: MENS REA

[A] In General [B] Significant Mens Rea Issues

[1] The Feigning Accomplice [2] “Purpose” versus “Knowledge”: The Meaning of “Intent” [3] Liability for Crimes of Recklessness and Negligence [4] Attendant Circumstances [5] Natural-and-Probable-Consequences Doctrine

§ 30.06 LIABILITY OF THE SECONDARY PARTY IN RELATION TO THE PRIMARY PARTY

[A] General Principles [B] Liability When the Primary Party Is Acquitted

[1] “Primary Party” as an Innocent Instrumentality [2] Acquittal on the Basis of a Defense

[a] Justification Defenses [b] Excuse Defenses

[3] Acquittal on the Basis of Lack of Mens Rea

[a] In General [b] Special Problem: The Feigning Primary Party

[C] Liability of an Accomplice When the Primary Party Is Convicted

§ 30.07 LIMITS TO ACCOMPLICE LIABILITY

[A] Legislative-Exemption Rule [B] Abandonment

§ 30.08 CONSPIRATORIAL LIABILITY: THE PINKERTON DOCTRINE

[A] “Accomplice” versus “Conspiratorial” Liability [B] Rule of Conspiratorial Liability [C] Comparison of Liability

§ 30.09 MODEL PENAL CODE

[A] Forms of Liability

[1] In General [2] Accountability Through an Innocent Instrumentality [3] Miscellaneous Accountability [4] Accomplice Accountability [5] Rejection of Conspiratorial Liability

[B] Nature of an “Accomplice”

[1] Conduct

[a] In General [b] Accomplice Liability by Solicitation [c] Accomplice Liability by Aiding [d] Accomplice Liability by Agreeing to Aid [e] Accomplice Liability by Attempting to Aid

[i] In General [ii] The Relationship of § 2.06 (Complicity) to § 5.01 (Criminal Attempt)

[f] Accomplice Liability by Omission

[2] Mental State

[a] In General [b] Liability for Crimes of Recklessness and Negligence [c] Attendant Circumstances [d] Natural-and-Probable-Consequences Doctrine

[C] Liability of the Accomplice in Relation to the Perpetrator [D] Limits to Accomplice Liability

Chapter 31 CRIMINAL HOMICIDE § 31.01 HOMICIDE

[A] Definition of “Homicide” [B] Definition of “Human Being”

[1] The Beginning of Human Life [2] The End of Human Life

[C] Year-and-a-Day Rule

§ 31.02 CRIMINAL HOMICIDE: GENERAL PRINCIPLES

[A] “Murder” and “Manslaughter”: Common Law Definitions [B] Murder: Definition of “Malice Aforethought”

[1] “Aforethought” [2] “Malice”

[C] Manslaughter: Types of “Unlawful Killings” [D] Statutory Reformulation of Criminal Homicide Law

[1] In General [2] The Division of Murder Into Degrees (“Pennsylvania Model”)

§ 31.03 MURDER: INTENT TO KILL

[A] In General [B] Proving the Intent to Kill

[1] In General

[a] Natural-and-Probable-Consequences Rule [b] Deadly-Weapon Rule

[2] Constitutional Limitation

[C] “Wilful, Deliberate, Premeditated” Killings

[1] Overview of the Issue [2] “Deliberate” [3] “Premeditated”

§ 31.04 MURDER: INTENT TO INFLICT GRIEVOUS BODILY INJURY § 31.05 MURDER: EXTREME RECKLESSNESS (“DEPRAVED HEART” MURDER)

[A] In General

[1] Terminology [2] Facts Supporting a Finding of Extreme Recklessness

[B] Distinguishing Murder from Manslaughter

§ 31.06 MURDER: FELONY-MURDER RULE

[A] The Rule [B] Rationale of the Rule

[1] Initial Observations [2] Deterrence [3] Reaffirming the Sanctity of Human Life [4] Transferred Intent [5] Easing the Prosecutor’s Burden of Proof

[C] Limits on the Rule

[1] Inherently-Dangerous-Felony Limitation [2] Independent Felony (or Merger) Limitation [3] The Res Gestae Requirement

[a] Overview [b] Time and Distance Requirements [c] Causation Requirement

[4] Killing by a Non-Felon

[a] The Issue [b] The “Agency” Approach [c] The “Proximate Causation” Approach

[i] In General [ii] Limited Version

[d] Distinguishing Felony-Murder from Other Theories (The “Provocative Act” Doctrine)

§ 31.07 MANSLAUGHTER: PROVOCATION (“SUDDEN HEAT OF PASSION”)

[A] In General [B] Elements of the Defense

[1] State of Passion [2] Adequate Provocation

[a] Early Common Law Categories [b] Modern Law

[i] In General [ii] The Nature of the “Reasonable Person”

[3] Cooling Off Time [4] Causal Connection

[C] Rationale of the Defense

[1] Partial Justification or Partial Excuse?: Initial Inquiry [2] Justification or Excuse: A Deeper Look

[a] The Argument for Provocation as a Partial Justification [b] The Argument for Provocation as a Partial Excuse

[3] Criticism of the Provocation Doctrine

§ 31.08 MANSLAUGHTER: CRIMINAL NEGLIGENCE § 31.09 MANSLAUGHTER: UNLAWFUL-ACT (MISDEMEANOR-MANSLAUGHTER) DOCTRINE § 31.10 CRIMINAL HOMICIDE: MODEL PENAL CODE

[A] In General [B] Murder [C] Manslaughter

[1] In General [2] Reckless Homicide [3] Extreme Mental or Emotional Disturbance

[a] In General [b] Comparison of Model Code to Common Law “Heat-of-Passion”

[D] Negligent Homicide

Chapter 32 THEFT § 32.01 THEFT: HISTORICAL OVERVIEW § 32.02 LARCENY: GENERAL PRINCIPLES

[A] Definition [B] Grading of the Offense

§ 32.03 LARCENY: TRESPASS § 32.04 LARCENY: TAKING (CAPTION)

[A] The Significance of “Possession” [B] “Custody” versus “Possession”

[1] In General [2] Temporary and Limited Use of Property [3] Employers and Employees

[a] Employer to Employee [b] Third Person to the Employee for the Employer

[4] Bailors and Bailees [5] Fraud

§ 32.05 LARCENY: CARRYING AWAY (ASPORTATION) § 32.06 LARCENY: PERSONAL PROPERTY OF ANOTHER

[A] Personal Property

[1] Land and Attachments Thereto [2] Animals [3] Stolen Property and Contraband [4] Intangible Personal Property

[B] Of Another

§ 32.07 LARCENY: INTENT TO STEAL ( ANIMUS FURANDI )

[A] Nature of the Felonious Intent

[1] In General [2] Recklessly Depriving Another of Property Permanently

[B] Concurrence of Mens Rea and Actus Reus

[1] In General [2] Continuing-Trespass Doctrine

[C] Claim of Right

[1] In General [2] Forced Sale

§ 32.08 LARCENY: LOST AND MISLAID PROPERTY § 32.09 EMBEZZLEMENT

[A] Historical Background [B] Elements of the Offense [C] Distinguishing Larceny from Embezzlement

§ 32.10 FALSE PRETENSES

[A] In General [B] Distinguishing False Pretenses from Larceny and Embezzlement [C] Elements of the Offense

[1] False Representation [2] Existing Fact

[a] Fact versus Opinion [b] Fact versus Promise of Future Conduct

[3] Mens Rea

§ 32.11 CONSOLIDATION OF THEFT OFFENSES Chapter 33 RAPE § 33.01 RAPE: GENERAL PRINCIPLES

[A] Definition: Common Law [B] Statutes: Traditional and Reform [C] Grading of the Offense

§ 33.02 STATISTICS REGARDING RAPE § 33.03 SOCIAL ATTITUDES REGARDING RAPE

[A] Social Harm of Rape

[1] The Original Perspective [2] Modern Perspective

[B] Perceptions of the Seriousness of the Offense

[1] In General [2] Blaming the Victim [3] Victim’s Relationship to Rapist

§ 33.04 RAPE: ACTUS REUS

[A] In General [B] Forcible Rape

[1] Traditional Law

[a] In General [b] Lack of Consent [c] Force and Resistance [d] Fear of Force versus Threat of Force [e] Cases Applying the Traditional Doctrine

[2] The Law in Transition

[a] Resistance Requirement [b] “Force”: Changing Its Definition (or Abolishing the Requirement)

[C] Fraud

§ 33.05 RAPE: MENS REA § 33.06 MARITAL IMMUNITY RULE

[A] The Immunity and Its Rationales

[1] Rule [2] Rationales

[a] Consent/Property Rationale [b] Protection of the Marriage [c] Protection of the Husband in Divorce Proceedings [d] Less Serious Harm

[B] Breakdown of the Rule

§ 33.07 PROVING RAPE AT TRIAL

[A] Corroboration Rule and Cautionary Jury Instructions [B] Rape-Shield Statutes

§ 33.08 MODEL PENAL CODE

[A] Sex Offenses, In General [B] Rape

[1] In General [2] Comparison to Common Law

[C] Gross Sexual Imposition [D] Proving a Sexual Offense

TABLE OF CASES TABLE OF CASES TABLE OF REFERENCES TO THE MODEL PENAL CODE INDEX

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