Understanding Criminal Law
EIGHTH EDITION
Joshua Dressler
DISTINGUISHED UNIVERSITY PROFESSOR EMERITUS
FRANK R. STRONG CHAIR IN LAW EMERITUS
MICHAEL E. MORITZ COLLEGE OF LAW
THE OHIO STATE UNIVERSITY
Copyright © 2018 Joshua Dressler
All Rights Reserved
Library of Congress Cataloging-in-Publication Data
Names: Dressler, Joshua, author.
Title: Understanding criminal law / Joshua Dressler.
Description: Eighth edition. | Durham, North Carolina : Carolina Academic Press, LLC, [2018] | Series: The understanding series | Includes bibliographical references and index.
Identifiers: LCCN 2018007180 | ISBN 9781531007911 (alk. paper)
Subjects: LCSH: Criminal law--United States. | LCGFT: Study guides
Classification: LCC KF9219 .D74 2018 | DDC 345.73-dc23
LC record available at https://lccn.loc.gov/2018007180
eISBN 978-1-53100-792-8
Carolina Academic Press, LLC
700 Kent Street Durham, North Carolina 27701
Telephone (919) 489-7486
Fax (919) 493-5668
www.cap-press.com
Printed in the United States of America
I dedicate this book to:
Dottie, David, Jessica, Lucy Belle, Maya Shoshana, Gideon Jacob, and Dahlia Jane: You give my life meaning and pleasure. and to:
Sandy Koufax, for refusing to pitch in the World Series on Yom Kippur
Contents
Frequently Cited Source
Preface to the Eighth Edition
Chapter 1 · Criminal Law: An Overview
§ 1.01 Nature of “Criminal Law”
[A] Crimes
[1] Comparison to Civil Wrongs
[2] Classification of Crimes
[B] Principles of Criminal Responsibility
§ 1.02 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
§ 2.01 “Punishment” and Criminal Law Theory
§ 2.02 “Punishment”: Defined
[A] In General
[B] Constitutional Law Analysis
§ 2.03 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)
§ 2.04 The Debate between the Competing Theories
[A] Criticisms of Utilitarianism
[1] Deterrence
[2] Rehabilitation
[B] Criticisms of Retributivism
§ 2.05 Mixed Theories of Punishment
§ 2.06 Sentencing
Chapter 3 · Sources of the Criminal Law
§ 3.01 Origins of the Criminal Law
[A] Common Law
[B] Criminal Statutes
§ 3.02 Modern Role of the Common Law
[A] “Reception” Statutes
[B] Statutory Interpretation
§ 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 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”
§ 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
[B] Statutory Duty (Including “Bad Samaritan” Laws)
§ 9.08 Omissions: Model Penal Code
§ 9.09 Medical “Omissions”: A Definitional 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] 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
§ 9.11 Social Harm: Constitutional Limits
Chapter 10 · Mens Rea
§ 10.01 General Principle
§ 10.02 Definition of “Mens Rea”: The Dual Meanings
[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” and the Special Problem of “Willful Blindness”
[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] Defense: 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
§ 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 versus 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 Use of 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] Issue Overview
[2] The Law
[B] Battered Women and “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 SelfDefense? 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
[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 Defenses
§ 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
[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 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
§ 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” (“Settled”) 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 M'Naghten 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
§ 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 The Role of “Social Harm” in an Attempt: “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
