JUSTIFICATION AND EXCUSE
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Chapter 5 JUSTIFICATION AND EXCUSE Introductory note: Grouped within this chapter are a number of affirmative defenses (that is, defenses as to which, generally, the defendant must bear the burden of proof) that will allow the defendant to escape conviction, even though the prosecution may be able to prove all the elements of the crime. These defenses are: (1) duress; (2) necessity; (3) self-defense; (4) defense of others; (5) defense of property; (6) law enforcement (arrest, prevention of crime and escape); (7) consent; (8) maintenance of authority; and (9) entrapment. While the u ...

RESPONSIBILITY
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Chapter 4 RESPONSIBILITY Introductory Note: This chapter considers several defenses which the defendant may raise regarding his lack of mental responsibility for the alleged offense. These include: (1) the insanity defense (including the “XYY chromosome” defense); (2) the defense of diminished responsibility (which can negate the existence of the required mens rea); (3) automatism (the doing of acts while in an unconscious state); (4) the defense of intoxication; and (5) infancy. I. THE INSANITY DEFENSE A. General purpose: If the defendant can show that he was insane at the ...

CAUSATION
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Chapter 3 CAUSATION Introductory note: This chapter examines the requirement that the defendant's actus reus must have “caused” the harmful result. The prosecutor must make two distinct showings of causation: (1) that the act was the “cause in fact” of the harm; and (2) that the act was the “proximate” or “legal” cause of the harm. Problems like that of the unintended victim, or the intervening act, fall within category (2). I. INTRODUCTION A. Causation generally: The problems of concurrence, discussed in the previous chapter, related to the links between mental ...

ACTUS REUS AND MENS REA
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Chapter 2 ACTUS REUS AND MENS REA Introductory note: All crimes have several basic common elements. This chapter treats all but one of the major ones: (1) a voluntary act (“actus reus”); (2) a culpable intent (“mens rea”); and (3) “concurrence” between the mens rea and the actus reus (i.e., a showing that the act was the result of the culpable intention). The fourth major element, causation of harm, is discussed in the following chapter, infra, p. 55. I. ACTUS REUS A. Significance of “actus reus” concept: The requirement that the defendant have committed a volun ...

CAPSULE SUMMARY
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CAPSULE SUMMARY This Capsule Summary is intended for review at the end of the semester. Reading it is not a substitute for mastering the material in the main outline. Numbers in brackets refer to the pages in the main outline where the topic is discussed. The order of topics is occasionally somewhat different from that in the main outline. Chapter 1 SOME BASIC ISSUES IN CRIMINAL LAW I. A BRIEF INTRODUCTION TO CRIMINAL LAW A. Felonies vs. misdemeanors: Modern criminal statutes typically divide crimes into two broad categories: felonies and misdemeanors. [1] A good general rule, at ...

CASEBOOK CORRELATION CHART
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CASEBOOK CORRELATION CHART (Note: general sections of the outline are omitted from this chart. NC =  not directly covered by this casebook. ) Emanuel's Criminal Law Outline (by chapter and section heading) Kadish, Schulhoffer, Steiker & Barkow Criminal Law and Its Processes (9th Ed. 2012) Dripps, Boyce & Perkins Criminal Law and Procedure: Cases and Materials (12th Ed. 2013) LaFave Modern Criminal Law: Cases, Comments & Questions (5th Ed. 2011) Dressler & Garvey Cases and Materials on Criminal Law (6th Ed. 2012) Kaplan, Weisberg ...

Preface
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Preface Thank you for buying this book. We think the special features that are part of this edition will help you a lot. These include: Capsule Summary---We've boiled the black-letter law of Criminal Law down to 108 pages. We've designed this Capsule Summary to be read in the last week or so (maybe even the last night) before your exam. If you want to know more about a topic, cross-references in the Capsule point you to the pages in the main text that cover the topic more thoroughly. Casebook Correlation Chart---This chart shows you, for the five leading Criminal Law casebooks, where ...

TABLE OF CONTENTS
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TABLE OF CONTENTS Preface Casebook Correlation Chart Capsule Summary Chapter 1  SOME BASIC ISSUES IN CRIMINAL LAW I. A BRIEF INTRODUCTION TO CRIMINAL LAW A. Nature of criminal law B. What is a “crime” C. Felonies vs. misdemeanors D. Theories of punishment 1. Utilitarianism 2. Retributivism E. Types of punishment 1. “Shaming” punishments II. CONSTITUTIONAL LIMITS ON PUNISHMENT A. The U.S. Constitution generally 1. Bill of Rights 2. Exte ...

Summary of Contents
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SUMMARY OF CONTENTS Preface Casebook Correlation Chart Capsule Summary 1. SOME BASIC ISSUES IN CRIMINAL LAW 2. ACTUS REUS AND MENS REA 3. CAUSATION 4. RESPONSIBILITY 5. JUSTIFICATION AND EXCUSE 6. ATTEMPT 7. CONSPIRACY 8. ACCOMPLICE LIABILITY AND SOLICITATION 9. HOMICIDE AND OTHER CRIMES AGAINST THE PERSON 10. THEFT CRIMES AND OTHER CRIMES AGAINST PROPERTY Essay Exam Questions and A ...

Abbreviations Used in Text
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Abbreviations Used in Text B&P---Boyce and Perkins, Cases and Materials on Criminal Law and Procedure (Foundation Press, 8th Ed., 1999) D&G---Dressler and Garvey, Cases and Materials on Criminal Law (West, 6th Ed., 2012) Dressler Csbk---Joshua Dressler, Cases and Materials on Criminal Law (Thomson / West, 5th Ed., 2009) Dressler Hnbk---Joshua Dressler, Understanding Criminal Law (LexisNexis, 2006) Fletcher---George Fletcher, Rethinking Criminal Law (Little Brown, 1978) Johnson---Phillip Johnson, Criminal Law, Cases, Materials and Text (West Pubishing, 5th Ed., 1995) KS&S---K ...

SUBJECT MATTER INDEX
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SUBJECT MATTER INDEX ABORTION Clinics, performance by Standards for Consent to By parents By spouse Counseling, restrictions on Free speech concerning Hospitals Casey, effect on hospitalization Informed consent Regulations discouraging abortion Minors Immature Mature or emancipated Notice and consultation By spouse To parents Partial birth method Planned Parenthood v. Casey Undue burden standard Procedures for Public facilities Ban on use of Public funding of Counseling about abortions Medically-necessary abortions Refusal of in non-therapeutic abortions Webster, ...

ESSAY EXAM QUESTIONS AND ANSWERS
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ESSAY EXAM QUESTIONS AND ANSWERS The following Essay Questions are taken from the Constitutional Law volume of Siegel’s Essay & Multiple Choice Questions & Answers, a series written by Brian Siegel and published by Wolters Kluwer. The full volume contains 27 essays (with model answers), as well as 128 multiple-choice questions. (The majority of the essay questions were originally asked on the California Bar Exam, and are copyright the California Board of Bar Examiners, reprinted by permission.) To learn more about this book and other stu ...

JUSTICIABILITY
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Chapter 16 JUSTICIABILITY In order for a case to be heard by the federal courts, the plaintiff must overcome a series of procedural obstacles that we collectively call the requirements of "justiciability." Here is an overview of each of these obstacles: Advisory opinion: The federal courts may not issue opinions based on abstract or hypothetical questions. This is known as the prohibition of "advisory opinions." It stems from the fact that the Constitution limits federal court jurisdiction only to "cases and controversies." Standing: The most important single justiciability require ...

FREEDOM OF RELIGION
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Chapter 15 FREEDOM OF RELIGION Here are the key concepts involving "freedom of religion": Two clauses: There are two distinct clauses in the First Amendment pertaining to religion: Establishment Clause: First, there is the Establishment Clause. That clause prohibits any law "respecting an establishment of religion." The main purpose of the Establishment Clause is to prevent government from endorsing or supporting religion. Free Exercise Clause: The second clause is the Free Exercise Clause. That clause bars any law "prohibiting the free exercise of religion." The main purpose ...

FREEDOM OF EXPRESSION
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Chapter 14 FREEDOM OF EXPRESSION The First Amendment provides, in part, that "Congress shall make no law ... abridging the freedom of speech, or of the press. ... " These rights (plus the accompanying "freedom of association") are often grouped together as "freedom of expression." Here are the key concepts relating to freedom of expression: Content-based vs. content-neutral: Courts distinguish between "content-based" and "content-neutral" regulations on expression. Content-based: If the government action is "content-based," the action will be generally subjected to strict scrutin ...

CONGRESSIONAL ENFORCEMENT OF CIVIL RIGHTS
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Chapter 13 CONGRESSIONAL ENFORCEMENT OF CIVIL RIGHTS This Chapter involves several aspects of Congress' power to enforce the Amendments enacted immediately after the Civil War. The main concepts are: Congress has special powers to enforce the Civil War Amendments, i.e., the 13th, 14th, and 15th Amendments. Congress probably can't prohibit purely private discrimination under the 14th and 15th Amendments. But Congress can prohibit purely private discrimination under the 13th Amendment, if it finds that the discrimination is a "badge or incident of slavery." Congress does not ...

STATE ACTION
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Chapter 12 STATE ACTION Nearly all of the rights guaranteed by the Constitution to individuals are protected only against interference by government. This is sometimes called the requirement of "state action." However, sometimes even a private individual's actions are found to be "state action," and thus subject to the Constitution. Here are the main concepts in this Chapter: "Public function" doctrine: Under the "public function" doctrine, if a private individual or group is entrusted by the state to perform functions that are traditionally viewed as governmental in nature, the privat ...

MISCELLANEOUS CLAUSES: 14TH AM. PRIVILEGES OR IMMUNITIES; TAKING; CONTRACT; RIGHT TO BEAR ARMS; EX POST FACTO; BILLS OF ATTAINDER
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Chapter 11 MISCELLANEOUS CLAUSES: 14TH AM. PRIVILEGES OR IMMUNITIES; TAKING; CONTRACT; RIGHT TO BEAR ARMS; EX POST FACTO; BILLS OF ATTAINDER This chapter considers several clauses that have little in common except that they protect individuals against specific types of government conduct. The most important concepts in this chapter are: Privileges or Immunities: The 14th Amendment has a "Privileges or Immunities" Clause. But this clause is very narrowly interpreted: it only protects the individual from state interference with his rights of "national" citizenship (principally the righ ...

EQUAL PROTECTION
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Chapter 10 EQUAL PROTECTION The Equal Protection Clause is part of the Fourteenth Amendment. It provides that "no state shall make or enforce any law which shall ... deny to any person within its jurisdiction equal protection of the laws." Here are the key concepts concerning equal protection:     Classifications: The Clause imposes a general restraint on the governmental use of classifications, not just classifications based on race but also those based on sex, alienage, illegitimacy, wealth, or any other characteristic.     Federal government: The direct text of the Clause ap ...

DUE PROCESS OF LAW
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Chapter 9 DUE PROCESS OF LAW This Chapter examines principally the Due Process Clause of the Fourteenth Amendment, which imposes the obligation of due process on the states. As you read, keep in mind that there is also a Fifth Amendment Due Process Clause, which applies only to the federal government; in general, anything that the Fourteenth Amendment Due Process Clause would require the states to do, the Fifth Amendment Due Process Clause requires the federal government to do. Here are the key concepts in this Chapter:     Due Process Clause generally: The Fourteenth Amendment provi ...

SEPARATION OF POWERS
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Chapter 8 SEPARATION OF POWERS A prior Chapter (supra, p. 15) summarized the general boundaries of the powers of the three federal branches. Here, we examine closely certain conflicts between branches, especially between the Executive and Legislative Branches. Here are the most important concepts in this Chapter:   President/Congress boundary line: Many separation-of-powers conflicts involve the boundary line between the President (Executive Branch) and Congress (Legislative Branch). Here are some of the more important principles concerning this boundary line:     President can ...

TWO LIMITS ON STATE POWER: THE DORMANT COMMERCE CLAUSE AND CONGRESSIONAL ACTION
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Chapter 6 TWO LIMITS ON STATE POWER: THE DORMANT COMMERCE CLAUSE AND CONGRESSIONAL ACTION This Chapter examines two federalism-based limits on state and local power: (1) the so-called "dormant" Commerce Clause; and (2) ways in which Congress may block the states from legislating in particular areas. The most important concepts in this Chapter are:     Dormant Commerce Clause: The mere existence of the federal commerce power restricts the states from discriminating against, or unduly burdening, interstate commerce. This restriction is called the "dormant Commerce Clause."     ...

OTHER NATIONAL POWERS
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Chapter 5 OTHER NATIONAL POWERS The previous chapter covered the Commerce Clause, clearly the most important source of federal power. This chapter considers other sources of federal authority:     Taxing power: Under the "taxing power," Congress is given a far-reaching ability to tax in order to raise revenue.     Taxation as regulation: Congress may also regulate via taxation.     Spending power: Under the "spending power," Congress may "provide for the common Defense and general Welfare of the United States. ... "     Conditional spending: Congress may place co ...

THE FEDERAL COMMERCE POWER
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Chapter 4 THE FEDERAL COMMERCE POWER This Chapter examines Congress' power to "regulate commerce ... among the several states." This is the "commerce power." The most important concepts in this Chapter are:     Test for commerce power: A particular congressional act comes within Congress' commerce power if both of the following are true:     Substantially affects commerce: The activity being regulated substantially affects commerce; and     Reasonable means: The means chosen by Congress is "reasonably related" to Congress' objective in regulating.     Conclusion: ...

THE SUPREME COURT’S AUTHORITY
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Chapter 2 THE SUPREME COURT'S AUTHORITY This Chapter examines several aspects of the Supreme Court's authority.     Supreme Court review: It is the Supreme Court, not Congress, which has the authority and duty to review the constitutionality of statutes passed by Congress, and to invalidate the statute if it violates the Constitution.     Review of state court decisions: The Supreme Court may review state court decisions, but only to the extent that the decision was based on federal law.     "Independent and adequate state grounds": Even if there is a federal question in ...