Preface

Acknowledgments

Chapter 1 The Sources and Limitations of the Criminal Law

Overview

Sources of Criminal Law

The Common Law as a Source of Criminal Law

Legislative Sources

The Model Penal Code as a Source of Criminal Law

Constitutional Sources and Limits

Limitations on the Criminal Law

The Principle of Legality

The Common Law in England

The Common Law in the United States

The Strengths and Weaknesses of Common Law Crimes

Principle of Legality

Ex Post Facto

The Rule of Lenity

Void for Vagueness

The Burden of Proof

Examples

Explanations

Chapter 2 The Purposes of Punishment

Overview

Defining Punishment

The Purposes of Punishment

Utilitarianism

Deterrence

Incapacitation

Rehabilitation

Empirical Critiques

Normative Critiques

Retribution

The Relationship of the Theories

The Importance of Sentencing

“Civil” vs. “Punitive”

The Difference Between “Criminal” and “Civil” Confinement

A Contemporary Example: Sexual Predator Laws

Examples

Explanations

Chapter 3 Actus Reus

Overview

The Common Law

Voluntary Act

Omission and Legal Duty

Moral Duty

Possession

The Model Penal Code

Voluntary Act

Omission and Legal Duty

A More Precise Definition for Actus Reus

Possession

Examples

Explanations

Chapter 4 The Doctrines of Mens Rea

Overview

The Concepts of Mens Rea

“Traditional” and “Statutory” Mens Rea

Motive and Mens Rea

Motive and Defenses

Specific Kinds of Mens Rea

Intent (Purpose)

Knowledge

Recklessness

Negligence as a Predicate for Criminal Liability

Proving Mens Rea

Contemporaneity, Prior Fault, and Time Frames

Statutory Interpretation and Mens Rea

Principles of Statutory Construction

Element Analysis

The “Default Position”

Mens Rea and the Constitution

The Model Penal Code

“Elements” v. “Material” Elements

Kinds of Material Elements

Levels of Mental States

Element Analysis

The Default Position Under the Code

Summary

Examples

Explanations

Chapter 5 Mistake

Overview

Mistake and Ignorance of Law

Ignorance of the Law

Mistake of Law

Exceptions to the Rule

“Specific Intent” Crimes

Noncriminal Law Mistake

Estoppel

The Model Penal Code

Retention of the “Ignorantia Lex” Doctrine

The “Reasonable Reliance” Approach to Mistake

Mistake of Fact

Reasonableness and Specific Intent

Knowledge and Willful Blindness

Mistake of Legal Fact

The Model Penal Code

A Note on the Future of Mistake

Examples

Explanations

Chapter 6 Strict Liability

Overview

The Reach of Strict Criminal Liability

Definitions and Indicia of Strict Liability

Public Welfare Offenses

Mala in Se (“Real”) vs. Mala Prohibita (“Unreal”?) Crimes

“Regulatory” or “Police” Offenses

Innocent Actors

The Litmus Test of Available Punishments

Strict vs. Vicarious Liability

Arguments For and Against Strict Liability

Alternatives to Strict Liability

“Greater Crime” Theory

One More Way of Imposing Strict Liability: Elements, Material Elements, and Sentencing Factors

Constitutionality

The Model Penal Code

A Recap and a Methodology

Examples

Explanations

Chapter 7 Causation

Overview

The Rationale of Causation

The Elements of Causation

The Common Law

Responsibility for Causing Harm

Cause in Fact

Omission as a Cause

Concurrent Causation

Direct Cause

Proximate Cause

Contributory Negligence and Proximate Causation

The Model Penal Code

Responsibility for Causing Harm

“But For” Causation

Other Causation, Concurrent Causation, and Transferred Intent

Culpability as to Result

Examples

Explanations

Chapter 8 Homicide

Overview

Human Being

When Does Life Begin?

When Does Life End?

Cause and Death

Murder

“Original” Murder: Killing with “Malice Aforethought”

Presumed Malice

Gradations of Murder

“First-Degree” Murder

“Second-Degree” Murder

The Model Penal Code Approach

Some Further Thoughts

Examples

Explanations

Felony Murder

Introduction

Restrictions on the Doctrine: “Cause” Questions

The “Proximate Cause” Theory

The “In Furtherance” (“Agency”) and “Provocative Act” Theories

Justified vs. Excused Killings

The Shield Cases: Exception to an Exception to an Exception

Other Restrictions

Duration of the Felony: Time Matters

Limitations on the Predicate Felony

Summary

Statutory Felony Murder: The Interplay of Courts and Legislatures

The Model Penal Code Approach

Examples

Explanations

Manslaughter

Voluntary Manslaughter

The Rules of Voluntary Manslaughter

Twentieth-Century Changes in the Doctrines

The Model Penal Code Approach

Involuntary Manslaughter

Reckless and Negligent Manslaughter

Misdemeanor-Manslaughter

Examples

Explanations

Chapter 9 Rape

Overview

The Common Law Approach

Definition

Spousal Immunity

Force

Threat of Force

Consent

Attacking the Credibility of the Complainant

Legally Ineffective Consent

Fraud

American Common Law

The Actus Reus of Rape

The Mens Rea of Rape

The Model Penal Code

Second-Degree Rape

First-Degree Rape

Gross Sexual Imposition

Modern Rape Statutes

Rape by Force or Threat of Serious Bodily Injury

Force

Additional Force

Inherent Force

Nonphysical Force

Dispensing with the Force Requirement

Threat of Force

Resistance by the Victim

Consent

Deception

Rape in the First Degree

Spousal Immunity

Rape Because No Legally Effective Consent

Summary

Evidence Reforms

The Corroboration Requirement

Rape Shield Laws

Examples

Explanations

Chapter 10 Theft

Overview

The Impact of History

The Death Penalty

Protecting Trade vs. Protecting Individualism

Larceny

Trespass

Asportation and Taking

Personal Property

Of Another

With Intent

To Deprive

Permanently

Contemporaneity

Finders

Embezzlement

Conversion

In Lawful Possession

Fraud

False Pretenses

Representation

Present or Past Fact

Title

Mens Rea, Knowledge, and Intent to Defraud

Puffing and Opinion

Confusion

Grading

The Model Penal Code

Examples

Explanations

Chapter 11 Solicitation

Overview

Definition

The Common Law

The Model Penal Code

Another Version of Solicitation

The Mens Rea of Solicitation

The Common Law

The Model Penal Code

The Actus Reus of Solicitation

The Common Law

The Model Penal Code

The Relationship Between Solicitation and Conspiracy

Responsibility for Crime Solicited

Solicitation and Immunity for Crime Solicited

Solicitation and Innocent Agents

Impossibility

The Common Law

Legal Impossibility

Factual Impossibility

The Model Penal Code

Abandonment

Solicitation and Law Enforcement

Punishment

Examples

Explanations

Chapter 12 Attempt

Overview

Definition

The Mens Rea of Attempt

The Actus Reus of Attempt

The Common Law

Mens Rea

Intend the Act

Intend the Result

Intend the Circumstances

Actus Reus

Last Act

The Equivocality Test

Proximity Test

Probable Desistance

The Model Penal Code

Definition

Mens Rea

Conduct

Result

Circumstance

Actus Reus

Summary

Abandonment

The Common Law

The Model Penal Code

Impossibility: Legal, Factual, and Inherent

The Common Law

Legal Impossibility

Factual Impossibility

Analysis

Inherent Impossibility

The Model Penal Code

Legal Impossibility

Factual Impossibility

Inherent Impossibility

Stalking

Examples

Explanations

Chapter 13 Conspiracy

Overview

Definition

The Common Law

The Model Penal Code

Punishment and Grading

The Common Law

The Model Penal Code

The Special Advantages of Conspiracy for Prosecutors

Choice of Venue

Joint Trials

Use of Hearsay Evidence

Responsibility for Crimes Committed by Co-Conspirators

The Common Law

The Model Penal Code

Duration

The Common Law

Extending the Life of a Conspiracy

The Model Penal Code

Consequences of Termination

The Mens Rea of Conspiracy

The Common Law

Act and Result

Circumstances

The Model Penal Code

Conduct and Result

Circumstances

The Corrupt Motive Doctrine

The Crimmins Doctrine

Purpose or Knowledge When Providing Goods and Services

Case Law

The Model Penal Code

The Actus Reus of Conspiracy

Agreement

The Common Law

The Model Penal Code

Overt Act

In General

The Model Penal Code

The Scope of the Agreement or How Many Conspiracies?

Single Agreement with Multiple Criminal Objectives

Single or Multiple Agreements?

The Wheel and Spokes Approach

The Chain Approach

Wheel and Chain Conspiracies

The Model Penal Code

Parties to a Conspiracy

The Common Law’s Bilateral Approach

The Model Penal Code’s Unilateral Approach

Abandonment

The Common Law

The Model Penal Code

Withdrawal

The Common Law

The Model Penal Code

Impossibility

Legal Impossibility

Factual Impossibility

Wharton’s Rule

The Common Law

The Model Penal Code

Immunity for Substantive Offense

The Common Law

The Model Penal Code

Examples

Explanations

Chapter 14 Complicity

Overview

The Rationale of Accomplice Liability

Definitions

The Common Law

The Model Penal Code

Procedural Consequences of Classification

The Common Law

The Model Penal Code

Contemporary Law

Elements of Accessorial Responsibility

Mens Rea

The Mens Rea of the Crime Aided

The Mens Rea to Be an Accomplice: Purpose or Intent to Aid the Principal’s Criminal Action

Knowledge That Another Intends to Commit a Crime

Providers of Goods and Services

Liability for Unintended Crimes Committed by the Principal

Actus Reus

Actual Assistance

Omission

How Much Aid Is Enough?

Immunity from Conviction

Conduct Necessarily Part of the Crime

Legal Incapacity to Commit Substantive Crime

The Relationship Between Principal and Accessories

The Common Law

The Requirement of a Guilty Principal

The Pretending Principal

Differences in Degree of Culpability Between Principal and Accomplice

Withdrawal of Aid

The Model Penal Code

The Requirement of a Guilty Principal

The Pretending Principal

Differences in Degree of Culpability Between Principal and Accomplice

Withdrawal of Aid

Examples

Explanations

Chapter 15 Defenses: An Initial Survey

Overview

Presumptions

Constitutional Aspects of Presumptions

The Model Penal Code

“Affirmative” Defenses

Legislative Clarity and the Offense-Defense Distinction

The Constitution and Affirmative Defenses

The Common Law and Affirmative Defenses

Excuse and Justification: The Debate and Confusion

The Distinction Drawn

The Distinction Questioned

The Problems with Explaining Justification

Mistake and Justification

Mistake: Honest or Reasonable?

Unknowing Justification: The Dadson Problem

The Problem with Explaining Excuses

Procedural Implications of the Distinctions

The Burden of Proof Problem

The Abolition Problem

The Assistance and Resistance Problem

The Model Penal Code

Examples

Explanations

Chapter 16 Acts in Emergency: Justification vs. Excuse

Overview

Common Requirements, Common Problems

Actus Reus, Mens Rea, or Both? Or Neither?

Actus Reus

Mens Rea

Why Punish?

Duress

The Doctrines of Duress

Personal Injury

Source of the Threat

“Imminence”

Reasonableness of Fear

To “Himself”

Creating Conditions of Duress

Duress and Homicide

Termination of the Threat

The Guilt of the Duressor: A Note

The Rationale of Duress

The Model Penal Code

Necessity

The Doctrines of Necessity

Source of the Threat

Necessity and Homicide

The Problem of Imminence

Choice of Evils and Alternatives

Creating Conditions of Necessity

Excuse or Justification?

Duress vs. Necessity

The Problem of Democracy

Terrorists, Torture, and Necessity

The Model Penal Code

Examples

Explanations

Self-Defense

The Rules of Self-Defense

Imminence; No Alternatives

Preemptive Strikes

To Retreat or Not to Retreat, That Is the Dilemma

“Stand Your Ground” Laws

Proportionality and Subjectivity

Mistake and Reasonableness

The Position of the “Aggressor”; Withdrawal

The “Not Unlawful” Aggressor

Time Frames

The Battered Wives Cases: A Challenge to the Doctrines

Doctrinal Problems of Self-Defense

The Mens Rea of Self-Defense

Defense of Others

The Model Penal Code

Examples

Explanations

Provocation—Excuse or Justification?

Defense of Property and Habitat

The Common Law

Other Lawful Means Available

Warning

Deadly Force Not Permitted

The Model Penal Code

Initial Aggression

Retaking Property

Use of Force

Examples

Explanations

Use of Force

Arrest

The Common Law

The Model Penal Code

Preventing Crime

The Common Law

The Model Penal Code

Examples

Explanations

Chapter 17 Defenses Based on Individual Characteristics

Overview

Insanity

The Relevance of Mental Illness in the Criminal Justice System

Competency to Stand Trial

Transfer from Prison to a Psychiatric Hospital

Release from Confinement

Execution Pursuant to a Sentence of Death

The Insanity Defense

The M’Naghten Test

The Irresistible Impulse Test

The Model Penal Code Test

The Federal Insanity Test

Reform of the Insanity Defense

Substantive Changes

Procedural Changes

Insanity Defense Myths and Facts

The Guilty But Mentally Ill Defense

Historical Origin

Jury Options

Dispositional Consequences

Arguments Pro and Con

The Empirical Consequences of the GBMI Defense

Examples

Explanations

Infancy

The Common Law

Under Age 7

Between Ages 7 and 14

Over Age 14

The Model Penal Code

Contemporary Law

Juvenile Court Jurisdiction

Criminal Responsibility

Example

Explanation

Intoxication

Intoxication as an Element

The Relevance of Voluntary Intoxication to Mens Rea or Culpability

The Common Law

The Model Penal Code

The Relevance of Voluntary Intoxication to Defenses

Involuntary Intoxication

The Relevance of Voluntary Intoxication to Actus Reus

Alcoholism and Insanity

Examples

Explanations

Diminished Capacity

A Brief History

The British Version: Diminished Responsibility

The California Version

The Rule of Evidence Approach

The Model Penal Code

Summary

Examples

Explanations

Entrapment

The History of the Entrapment Defense

The Defense Today

The Subjective Approach

The Objective Approach

Due Process

Examples

Explanations

New Excuses: The Future Is Upon Us

Physiologically (Biologically) Based Excuses for Criminality

Neuroscience and the Law—My Brain Made Me Do It

Genetics and Crime

Premenstrual Syndrome (PMS)

Other Physiologically Based Claims

Psychologically Based Excuses

Brainwashing

Mob Mentality

Cognitive Psychology, Law and the Emotions

Sociologically Based Claims

Criminogenic Causes: Rotten Social Background

Urban Survival Syndrome and Black Rage

Recap

Examples

Explanations

Table of Cases

Index