Examples & Explanations: Criminal Law

Front Matter
	Editorial Advisors
	Title Page
	Copyright
	About Wolters Kluwer Legal & Regulatory U.S.
	Dedication
	Summary of Contents
	Contents
	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
		Intangible Acts
		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” vs. “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
		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
		The Rules of 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
		Threat of Force
		Dispensing with the Force Requirement
		Resistance by the Victim
		Consent
		Deception
		Rape in the First Degree
		Spousal Immunity
		Rape Because No Legally Effective Consent
		Summary
	Evidence Reforms
		Rape Shield Laws
	Examples
	Explanations
Chapter 10 Theft
	Overview
	The Impact of History
		The Death Penalty
	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
	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
		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
			Principals and Accessories
			Misprision of Felony
			Treason
			Misdemeanors
		The Model Penal Code
			Principals and Accessories Before the Fact
			Accessories After the Fact
	Procedural Consequences of Classification
		The Common Law
			Venue
			Pleadings and Proof
			The Requirement of a Guilty Principal
		The Model Penal Code
			Venue
			Pleadings and Proof
			The Requirement of a Guilty Principal
	Contemporary Law
		Principals and Accessories
		Accessories After the Fact
	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
		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
			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
			Determining Capacity
	Examples
	Explanations
	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