Columbia Law Review

March, 1982




Paul H. Robinson [FNaa1]





Copyright   1982 by Paul H. Robinson






    INTRODUCTION .........................................................200

 I. A SYSTEM OF DEFENSES .................................................203

    A. Failure of Proof Defenses .........................................204

    B. Offense Modifications .............................................208

    C. Justifications ....................................................213

    D. Excuses ...........................................................221

    E. Nonexculpatory Public Policy Defenses .............................229

    F. Problematic Classifications .......................................232

       1. Provocation/Extreme Emotional Disturbance: Failure of Proof or       

  Offense Modification? ..................................................233

       2. Necessity: Justification or Excuse? ............................234

       3. Self-Defense: Justification or Excuse? .........................235

       4. Entrapment: Excuse or Nonexculpatory Defense? ..................236

       5. Mistake as to a Justification: Justification or Excuse? ........239

       6. Recognition of More than One Category of Defense in a Single         

  Provision ..............................................................240

    G. A System of Defenses: Summary .....................................241


    A. Satisfaction of the Purposes of Criminal Liability and Punishment .243

    B. Burden of Production ..............................................250

       1. Allocation of the Burden .......................................251

       2. Standard of Proof ..............................................256

    C. Burden of Persuasion ..............................................256

       1. Allocation of the Burden .......................................257

       2. Standard of Proof ..............................................262

       3. The Tribunal ...................................................263

    D. Rules and Doctrines Assuring Fair Notice of What Constitutes an         

  'Offense' ..............................................................264

    E. Liability for Resisting Conduct for Which the Aggressor has a           

  Defense ................................................................273

    F. Applicability of an Actor's Defense to a Confederate ..............278

    G. Maintaining Collateral Consequences of Conviction After a               

  Successful Defense .....................................................285

    SUMMARY AND CONCLUSION ...............................................291



  *200 Unlike many aspects of the criminal law, defenses have not yet been the subject of comprehensive conceptual analysis. The general nature and scope of most defenses have been perpetuated for centuries with little or no question. [FN1] Current debates commonly focus on whether a particular defense should apply in a particular circumstance, but rarely consider the larger perspective. How do circumstances covered by one defense compare with those of other defenses? Do defenses overlap? If so, will the outcome in identical situations vary with the defense asserted? Should it? Are there gaps between defenses, that is, circumstances in which our common sense of justice suggests that the defendant should be exculpated, yet where no defense applies? Do defenses based on theoretically analogous grounds of exculpation generate analogous results? The general inquiry, which seems never to have been undertaken, is: how does the collection of recognized defenses operate as a system? [FN2]


  *201 In sharp contrast to this neglect of defenses, the American criminal law community has examined in detail the full range of offenses and their interrelation. Led by the drafters of the Model Penal Code, states have during the past two decades adopted modern criminal codes that replace a confusing and inconsistent collection of offenses with a thoughtfully organized system. The jumble of offenses in older codes was commonly drafted ad hoc, in response to one highly publicized incident or one anti-crime crusade after another.  [FN3] *202 Modern codes, in contrast, define and arrange all offenses according to a single definitional scheme based on the central elements of the offense: the nature of the interest injured, the extent of the injury, and the culpability of the offender. The result is a significant consolidation of related offenses, few overlaps, few gaps, and a consistency in the organization of offenses that permits the comparisons and classifications necessary for a fair sentencing system. [FN4]


  There are, no doubt, many people who believe that defenses defy such systemization. Defenses, it might be argued, are the embodiment of such complex human notions of fairness and morality, tempered by the demands of utility and efficiency, that they are too complex and perhaps too illogical to be reduced to an integrated, comprehensive, and internally consistent system of exculpation. This may well be true, but the complexity and perhaps irrationality of human judgments have not deterred us in other instances, especially in the law, from attempting to devise a principled system that attempts to approximate such judgments. [FN5] Advances in the behavioral sciences have repeatedly demonstrated that some systemization of human thought is possible, even though it may have absolute limits. [FN6] While we may not be able to reduce our feelings about exculpation to a precise final form, the level of sophistication in examining, understanding, and setting down the most fundamental principles seems to have fallen far behind our attempts to explicate our notions of justice in other legal areas, including criminal justice matters such as offense definition and procedural fairness.


  This Article attempts to provide some measure of conceptual organization for criminal law defenses that may foster a more refined system of *203 defenses analogous to the system of offenses and offense definition embodied in most modern criminal codes. Part I of the Article describes a general conceptual framework for such a system; part II discusses the practical implications of the framework.






  The term "defense" is commonly used, at least in a casual sense, to mean any set of identifiable conditions or circumstances which may prevent a conviction for an offense. Current law recognizes a surprising variety of such possible bars to conviction, from amnesia to withdrawal. [FN7] Upon examining the functions of and the rationales supporting these rules and doctrines, five general categories become apparent. They may be termed: failure of proof defenses, offense modification defenses, justifications, excuses, and nonexculpatory public policy defenses.


  Failure of proof defenses are nothing more than instances where, because of the "defense," the prosecution is unable to prove all the required elements of the offense, the objective conduct, circumstance, and result elements and their corresponding culpability requirements. [FN8] Offense modifications are similar in that they essentially modify or refine the criminalization decision embodied in the definition of the particular offense. The remaining three groups of defenses--justifications, excuses, and nonexculpatory public policy defenses--are general defenses; they theoretically apply to all offenses, even when the required elements of an offense are satisfied. They represent principles of exculpation or defense which operate independently of the criminalization decision reflected in the particular offense. A justified actor engages in conduct that is not culpable because its benefits outweigh the harm or evil of the offense; an excused actor admits the harm or evil but nonetheless claims an absence of personal culpability; and an actor exempt under a nonexculpatory public policy defense admits the harm or evil and his culpability but relies upon an important public policy interest, apart from blamelessness, that is furthered by foregoing the defendant's conviction.



*204 A. Failure of Proof Defenses


  Failure of proof defenses consist of instances in which, because of the conditions that are the basis for the "defense," all elements of the offense charged cannot be proven. [FN9] They are in essence no more than the negation of an element required by the definition of the offense. Nearly every American jurisdiction has a rule analogous to Model Penal Code section 1.12(1) which states that " n o person may be convicted of an offense unless each element of such offense is proven beyond a reasonable doubt." [FN10] The defendant, as a practical matter, may have to act affirmatively to present evidence on the issue of a given element of the offense; he may have to carry certain evidentiary burdens. [FN11] But this can be as true with respect to negating any other element *205 of the offense as it is with those situations in which one speaks of the defendant having a failure of proof "defense." The characterization of a given failure of proof as a defense rather than as a defect in proving the offense depends, for the most part, upon common usage of language; whether the defendant will be obliged to present evidence on the issue will depend not on this characterization but rather on whether the prosecutor is able to persuade the jury, on the evidence presented in its case- in-chief, that the required element is satisfied. [FN12]


  Failure of proof defenses often appear to overlap with offense modifications and general defenses. As is discussed in the next section, whether a defense is a failure of proof defense or an offense modification may depend on the form in which it is drafted. [FN13] General defenses differ conceptually from failure of proof defenses in that the former bar conviction even if all elements of the offense are satisfied, whereas the latter prevent conviction by negating a required element of the offense. But as will be seen, a defense identified by a single name, like mistake or mental illness, may operate in both ways.


  Mistake provides a clear example of how a single label may in fact embody defenses within several different definitional categories. Assume, for example, that incest is defined as having intercourse with a person the actor knows to be an ancestor, descendant, or sibling. If the actor honestly believes that the person with whom he is having intercourse is not a relative, one might term his mistake a "defense." In reality, the actor's mistaken belief prevents a state from proving the required mental element of knowledge of the familial relationship. [FN14] When this sort of mistake of fact is recognized as a "defense," it is considered not a general mistake excuse, but only a failure of proof defense. On the other hand, a mistake such as one arising from reliance upon an official misstatement as to the legality of the conduct constituting the offense, may have the reverse effect of providing a general defense without negating a required element. [FN15]


  *206 Mental illness can also be a failure of proof defense [FN16] or a general defense (insanity) that would bar conviction even if all elements of the offense were satisfied. [FN17] Of course, if the mental illness negates an element, the general defense is unnecessary and that issue may never arise.


  Mental illness commonly negates an element without amounting to insanity. As a failure of proof defense, at least in cases where the defendant is still guilty of a lesser included offense, it is often called "partial responsibility" or "diminished capacity." [FN18] Its name highlights the fact that it is something short of insanity; but it is nonetheless an unfortunate choice of terms because there is nothing partial about the defense. The mental illness either negates a required element of an offense or it does not, thereby providing a complete defense to that offense or providing no defense. It is true that many offenses, especially homicide offenses, have lesser included offenses with less demanding culpability elements. Thus mental illness may negate the culpability element of the greater offense but not of the lesser offense. When this occurs, the net effect of the mental illness is to reduce the defendant's liability from the greater to the lesser. (This is also what occurs in the failure of proof defense of provocation, which is said to negate the required malice element of murder, and thereby reduces the defendant's liability to manslaughter. [FN19]) However, this ultimate reduction effect results from the comparative culpability elements of the different offenses, not from a special rule that, when faced with diminished responsibility due to mental illness, generates diminished liability. If there is no lesser included offense, or if the mental illness also negates an element of any lesser included offense, the mental illness will prevent conviction altogether. [FN20]


  *207 Like mistake and mental illness, a state of intoxication may also cause the negation of a required offense element, and when raised in this context intoxication is a failure of proof defense. [FN21] Intoxication is special among these defenses, however, because it is one of the few instances in which a required element of an offense may be absent, yet conviction may nonetheless be permitted. [FN22] Model Penal Code section 2.08(1), for example, provides that intoxication is a defense if it negates an element, but section 2.08(2) bars this defense--that is, ignores the negation of a required element--where self-induced intoxication negates a required recklessness element that would have been present had the defendant been sober. The rule follows from the view that a defendant should not benefit from his own culpability in causing the absence of a required mental element. [FN23]


  *208 Other defenses that commonly have been drafted as failure of proof defenses include consent, [FN24] impossibility, [FN25] no duty to act,  [FN26] accident, [FN27] and a host of miscellaneous provisions that apply to particular offenses, such as the spousal defense to rape. [FN28] Many failure of proof defenses, such as mistake, intoxication, and mental illness, operate by negating only a culpability element. Others, such as consent and impossibility, negate required circumstance elements. An alibi defense consists of a failure of proof of the conduct element. [FN29]



B. Offense Modifications


  Offense-modification defenses are real defenses in the sense that they do more than simply negate an element of an offense. They apply even where all *209 elements of the offense are satisfied. They are distinguishable from general defenses (like self-defense or insanity), however, because they introduce criminalization decisions similar to those used in defining offenses, rather than giving effect to general principles of exculpation. They provide a more sophisticated account, when needed, of the harm or evil sought to be prohibited by the definition of the offense.


  A parent, against the advice of police, pays a $10,000 ransom to the kidnapper of his child. A businessman pays monthly extortion payments to a racketeer. These persons may well satisfy the elements required for complicity in kidnapping and extortion, yet they will nonetheless have a defense to these charges. Similarly, assume a trucker, after entering a bar in a strange city, recognizes a fellow trucker and soundly slaps him on the back, momentarily causing him to choke on his beer. The trucker has satisfied all of the elements of assault, [FN30] yet probably could not be successfully prosecuted for that offense.


  There is a single principle behind these modifications of the definition of an offense: while the actor has apparently satisfied all elements of the offense charged, he has not in fact caused the harm or evil sought to be prevented by the statute defining the offense. Such a general statement of the principle, however, would not supply the more detailed guidance a legislature may consider necessary. [FN31] This need for special guidance gives rise to the more detailed provisions typical of offense modifications, provisions limited in scope to a single offense or related group of offenses.


  In many cases the defenses of this group are given no formal name, but exist only as accepted rules. For example, with regard to the kidnapping and extortion examples above, a common rule provides that the victim of a crime may not be held as an accomplice even though his conduct has in a significant sense aided the commission of the crime. [FN32] Under a similar rule, an accomplice may escape liability if the crime is so defined that participation by another is inevitably incident to its commission. [FN33] Thus a "john" may have a defense to complicity in prostitution. Operating in an analogous fashion, the so-called "Wharton's rule" bars conviction for conspiracy where the nature of the underlying offense is such that it necessarily requires the participation of more than one person. Thus, the rule provides a defense to conspiracy for *210 two persons who engage in dueling, bigamy, adultery, or incest. [FN34] Such offense modification rules are often simply the result of applying accepted rules of statutory interpretation to offense definitions.  [FN35]


  Some offense modifications are considered defenses, rather than simply rules or doctrines, but they operate similarly to modify the definition of offenses. For example, the renunciation defense to inchoate offenses [FN36] exists because renunciation tends to undercut the culpability that inchoate offenses are designed to punish: it prevents proof of the actor's intention to commit a crime and his apparent willingness to carry out that intention. [FN37] An impossibility defense similarly serves to refine an offense's definition of the conduct to be punished. [FN38]


  *211 The de minimis infraction defense [FN39] is also an offense modification. It does not exculpate a defendant because of a justifying or excusing condition, but rather serves to refine the definition of an offense: while the actor has apparently satisfied all elements of the offense charged, he has done so to an extent so trivial as to be outside the harm or evil sought to be prevented and punished by the offense. While the defense would seem to be theoretically applicable to all offenses, whether and how it will apply is in each case a direct function of the particular offense at issue.


  Offense modifications, like failure of proof defenses, commonly apply to only one specific offense. Typical of offense modifications are: the "faculty member of an institution of higher learning" defense to disseminating obscene material; [FN40] the use of a valid prescription as a defense to possessing a controlled substance; [FN41] a reasonable belief in the truth of the allegation as a defense to blackmail when accusing a person of a crime;  [FN42] foreseeability of the hazard of participation in an athletic contest as a defense to maiming or aggravated battery; [FN43] membership on the jury as a defense to the offense of monitoring jury deliberations; [FN44] the purpose of inducing a person to testify truthfully as a defense to witness tampering; [FN45] and uncontrollable circumstances as a defense to bail jumping. [FN46]


  As one might guess, different offense modifications, and even single modifications, [FN47] are supported by a variety of rationales. Consent or extreme *212 emotional distress, for example, serve to exculpate or to mitigate; they are based on a concern for the culpability of the actor. Other offense modifications further public policies independent of culpability; for example, dissemination of obscene matter by faculty is permitted in order to advance liberal arts education. The same range of rationales underlies both offense modifications and the definition of offenses, reflecting the fact that both are expressions of criminalization decisions.


  In many cases it is difficult to determine whether a defense is more appropriately drafted as a failure of proof or as an offense-modification defense. Many defenses may appear in either form. [FN48] For example, consent may be drafted as an offense modification: "The consent of the victim to conduct charged to constitute an offense . . . is a defense if such consent . . . precludes the infliction of the harm or evil sought to be prevented by the law defining the offense." [FN49] Or it maybe drafted as a failure of proof defense by including the lack of consent as an element of the offense. [FN50] For example, battery may in some statutes be defined as a touching without consent, [FN51] or trespass as an entering without consent. [FN52] Consent is then a failure of proof defense. On the other hand, assault may be simply defined as a touching, and consent provided as an independent defense, an offense modification. [FN53] Or it may be drafted, as it is in the Model Penal Code, [FN54] to operate in both ways.


  *213 These alternative formulations of a single defense are not themselves a problem, but since the results of the two forms are identical, one may question whether the distinction between the two forms is significant. Where both forms of the consent defense generate the same result--for instance, that a consent to touching will bar conviction for assault--there seems to be no reason for a theoretical preference of one drafting approach over the other.


  An offense modification, like a failure-of-proof defense, interjects what is essentially an aspect of the criminalization decision initially set out in the definition of an offense. When taken together, the defenses in these two categories might be described as "criminalization defenses" because they represent judgments about what has and has not been prohibited and criminalized by the criminal law. Whether the negative of the defense is written into the definition of an offense--lack of consent as an element--or stated as an independent defense applicable to that particular offense--consent as a defense--may be merely a matter of drafting ease or efficiency. Once the definitions are drafted, however, each defense is clearly placed in one category or the other, and, as we shall see in Part II, this classification carries with it important practical implications. While the apparent interchangeability of the two types of defenses is entirely consistent with the similar criminalization roles of the two groups, the resultant arbitrary division can create significant practical and conceptual problems, as where it is relied upon by the Supreme Court to determine when a state may constitutionally allocate the burden of persuasion to the defendant. [FN55]



C. Justifications


  Unlike failure of proof and offense modification defenses, justification defenses are not alterations of the statutory definition of the harm sought to be prevented or punished by an offense. The harm caused by the justified behavior remains a legally recognized harm which is to be avoided whenever possible. Under the special justifying circumstances, however, that harm is outweighed by the need to avoid an even greater harm or to further a greater societal interest.


  A forest fire rages toward a town of 10,000 unsuspecting inhabitants. The actor burns a field of corn located between the fire and the town; the burned field then serves as a firebreak, saving 10,000 lives. The actor has satisfied all elements of the offense of arson by setting fire to the field with the purpose of *214 destroying it. The immediate harm he has caused--the destruction of the field--is precisely the harm which the statute serves to prevent and punish. Yet the actor is likely to have a complete defense, because his conduct and its harmful consequences were justified. The conduct in this instance is tolerated, even encouraged, by society.


  The forest fire case provides an example of the "lesser evils" or "choice of evils" justification (often called "necessity" when the threat of greater harm stems from natural forces). [FN56] This type of justification defense, though the least common in American criminal codes, mostclearly reflects the general principle of justification defenses. In such lesser evils cases, however, the competing harms are more apparent and hence more easily compared than in other types of justifications. The interests involved in what might be called "defensive force" and "public authority" justifications are more subtle and abstract, and their relative value more obscure.


  A prowler attempts to steal chickens from a chicken coop. May the owner use physical force against the prowler to prevent the theft? Some limited degree of force is commonly permitted if it is necessary to protect the property. [FN57] It is not that society deems injury to a person as less significant than property; rather, in weighing the interests at stake, it considers not only the immediate physical harms--loss of a chicken versus personal injury--but also the societal interest in maintaining a right to hold personal property. The threatened theft endangers not only the rightful possession by this owner, but also the general stability and vitality of the rule of private possession. To state it negatively, society generally abhors unjustified aggressive takings because they undercut the rule of private possession. Society is therefore more tolerant of the harmfulness of the injury that must be inflicted to stop the aggressor. The same reasoning applies when the aggression is toward the actor himself or other persons. [FN58] Society's interest in the right to bodily integrity, when combined with the physical harm threatened, outweighs the harm inflicted to deter such an aggressor.


  These "defensive force justifications" are all based on a threat in response to which defensive force is justified; [FN59] they are distinguished from one *215 another by the nature of the interest threatened. Legislatures often wish to make special alterations or exceptions to the basic principle of defensive force justification depending on the interest threatened. They may add a special provision to defense of property, for example, excluding the use of deadly force. [FN60] Thus, self-defense, defense of others, and defense of property are often separately defined. [FN61]


  A third category of justification also arises from a balancing of harms. When a deputy sheriff uses force in the execution of a judicial search warrant, his conduct may satisfy all the elements of assault. But his use of force helps to further the effective investigation of criminal activity, and it supports the more general societal interest in the effective exercise of judicial authority. [FN62]


  This third category can be termed "public authority" defenses. Unlike defensive force justifications, these need not be triggered by a threat. The actor need only be protecting or furthering a legally recognized interest.  [FN63] On *216 the other hand, whereas defensive force justifications are generally available to all citizens, the use of public authority justifications is often limited to certain persons whose position or training makes them particularly appropriate protectors of the interest at stake. [FN64] These interests may be personal or societal; they include law enforcement, child-rearing and education, safety and order on public transportation vehicles or in institutions, life or health (as in medical emergencies and suicide prevention), and judicial, military, and other public authority generally.  [FN65] In each case the interest gives rise to a publicly recognized authority for the appropriatepersons to further or protect that interest.


  Like defensive force justifications, different public authority justifications are distinguished from one another according to the interest protected. Legislatures may refine the basic principle to provide in each case a suitable justification defense for each interest and authority. [FN66]


  All justification defenses have the same internal structure: triggering conditions permit a necessary and proportional response. The triggering conditions are the circumstances which must exist before the actor will be eligible to act under a justification. In defensive force justifications an aggressor must present a threat of unjustified harm to the protected interest, as by attempting to burn the defendant's chicken coop. Public authority justifications are triggered when the circumstances arise which evoke the use of the authority given to the actor. A train conductor is given a general authority to maintain order and safety on a train. Thus a situation of potential disruption triggers the conductor's justification to use force to prevent the disturbance. The general justification defense, lesser evils, has the broadest triggering conditions. In its purest form, the defense is available whenever any legally protected interest is threatened or may be furthered. [FN67]


  *217 The triggering conditions of a justification defense do not in themselves give the actor the privilege to act without restriction. To be justified, the response conduct must satisfy two requirements: (1) it must be necessary to protect or further the interest at stake, and (2) it must cause only a harm that is proportional, or reasonable in relation to the harm threatened or the interest to be furthered.


  The necessity requirement demands that the defendant act only when [FN68] and to the extent [FN69] necessary to protect or further the interest at stake. Thus, where an aggressor announces his intention to assault the actor at noon the next day, the threat provides the triggering condition for self- defense; but if indeed the actor is in no danger at the time, he is not justified in immediately using physical force against the aggressor. [FN70] Similarly, where the actor is *218 threatened and must act immediately, he is privileged to use only that degree of force actually necessary for self- protection. [FN71] Even if greater force might be reasonable in relation to the harm threatened, and even if most persons would find it necessary to use greater force, the force used is not justified if the individual actor could protect himself effectively with less. For instance, assume the actor is a karate expert who can, with no risk of harm to himself, dislodge an attacker's weapon with a high kick. While the average person might be justified in shooting an armed attacker, this actor may only use karate to disarm, since any greater force, such as shooting, is not necessary to protect himself.


  The proportionality requirement places a maximum limit on the harm which may be used in protection or furtherance of an interest. It bars justification when the harm caused by the actor may be necessary to protect or further the interest at stake, but is too severe in relation to the value of the interest. Where an actor has no other option but deadly force to prevent the stealing of apples from her orchard, a jurisdiction which prohibits deadly force in the protection of property essentially requires the actor to sacrifice her apples out of regard for the life of the thieves. It should be no surprise that such rules are not without controversy, since they require the actor to stoically sacrifice a legally-recognized interest, frequently for the protection of an aggressor (e.g., in all defensive force justifications). But such recognition of the value of human life over property alone, even the life of a law breaker, is the mark of a civilized society. [FN72]


  *219 This structure of triggering conditions plus a necessary and proportional response is common to all justifications--defensive force, public authority, and lesser evils. In the lesser evils justification, the triggering conditions may be broader, but this is counterbalanced by a stricter proportionality requirement, which permits the justification only if the actor causes a harm which is not merely reasonably proportional to, but actually less than the harm or evil threatened. [FN73] On the other hand, the less demanding "reasonably proportional" language commonly found in all other justifications [FN74] seems preferable when the interests to be protected or furthered are so abstract or otherwise difficult to quantify as to make application of a stricter standard impossible. It is true of all justifications that while the competing interests can be identified, they can rarely be sufficiently quantified to permit a precise comparison in the proportionality assessment. [FN75]


  Justifications may appear similar in some respects to offense modifications. Both are commonly drafted in provisions separate from the offense definition. Both have the effect of declaring that while the elements of the offense are satisfied, the actor's conduct is not in fact prohibited and condemned by the criminal law. An offense modification may often be distinguished in practice because it usually applies to only a single offense or group of offenses.  [FN76] Justifications, in contrast, usually appear in general provisions *220 which are at least theoretically applicable to all offenses. [FN77] In some cases, however, in order to introduce special rules of application, a justification provision may apply to a single offense or group of offenses.  [FN78]


  But there is a critical conceptual distinction between the two: one consists of a criminalization decision, the other provides an exculpation for conduct that remains generally criminalized. Where conduct is covered by an offense modification, it is not in fact a legally recognized harm. Such conduct is always tolerated by the criminal law. Justified conduct, on the other hand, causes a legally recognized harm or evil. The conduct remains generally condemned and prohibited. It is tolerated only when, by the infliction of the intermediate harm or evil, a greater societal harm is avoided or benefit gained. [FN79] When a person consents to a battery, the conduct is rendered harmless and the actor has an offense modification defense; his conduct is not justified by some greater good that will come from the battery. On the other hand, when a firebreak is burned to save a town, the burning of another's property, though justified, remains a harm that the criminal law generally abhors. Indeed, if there is some other way to save the town, a less harmful way, the actor must take it. If he does not, the burning of the field is not justified, but continues to be criminal. In sum, criminalization decisions, such as those represented by offense modification defenses, consider precisely which harms or evils are to be legally recognized and therefore generally condemned and prohibited. Exculpation decisions, including justification defenses, determine when a harm or evil that is legally recognized deserves nevertheless to go unpunished.



*221 D. Excuses


  Excuses, like justifications, are usually general defenses applicable to all offenses even though the elements of the offense are satisfied.  [FN80] Excuses admit that the deed may be wrong, but excuse the actor because conditions suggest that the actor is not responsible for his deed. For instance, suppose that the actor knocks the mailman over the head with a baseball bat because she believes he is coming to surgically implant a radio receiver which will take control of her body. The defendant has satisfied all elements of the offense of aggravated assault--she struck the mailman with a deadly weapon with the purpose of causing him bodily injury. This is precisely the harm sought to be prevented by the statute, and it is not outweighed by any greater societal harm avoided or greater societal interest furthered. It is conduct that society would in fact condemn and seek to prevent. The defendant is exculpated only because her condition at the time of the offense--her paranoid delusion--suggests that she has not acted through a meaningful exercise of free will and therefore is not an appropriate subject for criminal liability. [FN81]


  Each of the excuse defenses has the following internal structure: a disability causing an excusing condition. The disability is the abnormal condition of the actor at the time of the offense. We say, for example, that the actor is suffering from insanity, intoxication, subnormality, or immaturity. The disability is a real condition with a variety of observable manifestations apart from the conduct constituting the offense. It may be a long term or even permanent condition, such as subnormality, or it may be a temporary state like intoxication, somnambulism, automatism, or hypnotism. Its cause may be internal, as in insanity, or external, as in duress.


  Having a recognized disability at the time of the offense will not alone qualify an actor for an excuse, for it is not the disability that is central to our reason for exculpating the defendant. An actor is not excused because he or she is intoxicated, but because the effect of the intoxication in this instance is *222 to create a condition which renders the actor blameless for his conduct constituting the offense. [FN82] The requirement of an excusing condition, then, is not an element independent of the actor's disability, but rather a requirement that the actor's disability cause a particular result, a particular exculpating mental condition in relation to the conduct constituting the offense.


  Society is generally willing [FN83] to excuse an actor under four types of conditions:

    (1) when the conduct constituting the offense is simply not the product of the actor's voluntary effort or determination (e.g., the actor is having a seizure);

    (2) when the conduct is the product of the actor's voluntary effort or determination, but he does not accurately perceive the physical nature or consequences of the conduct (e.g., the actor thinks the gun is a paint brush, or accurately sees the physical characteristics of the gun but does not know that the gun shoots bullets that injure people);

    (3) when the actor accurately perceives and understands the physical nature of the conduct, its physical results, and physical surroundings, but does not know that the conduct or its results are wrong or criminal (e.g., the actor thinks God has ordered him to sacrifice a neighbor for the good of mankind, or believes, because of paranoid delusions, that the man waiting for a bus is about to assault him); or

    (4) when the actor perceives the conduct accurately and fully, understands its physical consequences, and knows its wrongfulness or criminality, but the actor lacks the ability to control his conduct (e.g., because of an insane compulsion or duress) to such an extent that it is no longer proper to hold him accountable for it.


  Each of these excusing conditions will give the actor a defense, so long as the condition has been caused by the actor's disability. [FN84] It is also required *223 that the disability cause an excusing condition for the conduct constituting the offense charged. If A, while killing B, hallucinates that a neighbor's dog has turned into a tiger, he may be considered to be insane at the time of killing B, but he will not be given an insanity excuse if his hallucination plays no part in the murder of B. [FN85] If he kills the dog/tiger in self-defense, of course, he would be excused. In both cases, A is disabled by insanity. Only if his victim is the dog, however, can the disability be said to have created an excusing condition (type three) that affects his responsibility for the offense.


  All excuse defenses thus hinge on the existence of one of these four types of excusing conditions. The first excusing condition occurs where the actor cannot be said to be performing a volitional act. Excuses in this group include reflex actions and convulsions. Traditionally they bar conviction because they prevent satisfaction of the voluntary act requirement said to be inherent in all offense definitions. There may be conceptual advantages, however, to discussing such conditions as a general excuse. [FN86]


  In an excusing condition of the second sort there is, admittedly, a voluntary act by the actor, but he is appropriately exculpated because he is unaware of the nature of his act, that is, unaware of its physical nature or consequences. A typical example is the actor who, suffering from a delusion that he is squeezing an orange, strangles his wife. The defect is one of perception, resulting from insanity or intoxication, or more exotic disabilities such as automatism or somnambulism, which are often included, inaccurately, [FN87] in the involuntary act defense.


  *224 In the third category, the actor engages in conduct voluntarily and knows the nature of his act, but does not know that the act is wrong or criminal. This is a defect in knowledge. It can result from a simple lack of information, or from a lack of the intelligence or cognitive function necessary to use available information to determine wrongfulness or criminality. This basis for exculpating the actor underlies the defenses of insanity, subnormality, intoxication, immaturity, and certain mistake defenses. Note that insanity and intoxication may cause both this excusing condition and the second condition, noted above. That is, the defects in the mental processes which come from mental illness or intoxication can cause defects either in the perception of the nature of the act or in the intelligent evaluation of its wrongfulness or criminality. A congenital mental defect resulting in severely limited intelligence is sometimes given its own label, "subnormality," but is more often, in present practice, simply grouped with forms of mental illness under "insanity." But that particular aspect of insanity would seem to cause conditions primarily of this third group and not the second since there is no defect in perception inherent in low intelligence. Similarly, immaturity, or "infancy," as it is often called, can be the cause of the failure to appreciate the wrongfulness or criminality of one's acts, [FN88] but it cannot be said to distort one's perceptions of conduct.


  Certain instances of mistake are also in this third group. Four types of mistakes will provide a general defense, that is, they go beyond the "failure of proof" mistakes, which simply negate an element of the offense. These defenses are available when, because of the mistake, the actor does not know the act is wrong or criminal. Reliance on an official misstatement of law and mistake due to the unavailability of a law are two of the recognized general mistake excuses. [FN89] A mistake as to the existence of a justification is also commonly recognized as an excuse by use of the phrase "an actor is justified if he believes" in the formulation of justification defense codifications. [FN90] In *225 such cases the actor does not know his conduct is wrong because under the circumstances as he perceives and understands them his actions are justified. [FN91] The fourth mistake excuse, reliance on unlawful military orders, [FN92] is essentially a subclass of the mistake as to a justification excuse: the justification in this case is the public authority of lawful military orders. This excuse and the justification of lawful military orders are commonly treated together under the "defense of military orders."


  In instances of the fourth excusing condition the actor engages in conduct voluntarily, correctly perceives the nature of his act, and is aware that it is wrong. He is exculpated because he lacks the capacity to control his conduct: he can not fairly be held accountable for it. Insanity and intoxication may cause this excusing condition as well as the previous two. The duress defense is based solely on this defect in control. Hypnotism is sometimes recognized as an excuse because it may cause this fourth excusing condition, although it is often incorrectly listed as an example of the involuntary act defense,  [FN93] the first excusing condition.


  The four types of excusing conditions appear in a decreasing order of severity. Omissions aside, [FN94] the first excusing condition presents the clearest case of blamelessness. The absence of volition in the doing of the criminal act is only a step above the absence of a muscular contraction. In such cases, nearly any disability is recognized. The result is apparently sufficiently gross *226 that it establishes its own abnormality. In the second group of excusing conditions, in which the actor does not accurately perceive the physical nature of the conduct, a more demanding disability requirement is imposed, but it is nearly always excused. Where the resulting condition is only the actor's failure to know the wrongfulness or criminality of the conduct, the third condition, the law is more suspicious of a claimed excuse. The normal person's plea for excuse based on ignorance of the law proscribing the conduct is rejected. Since normal people can make such mistakes, presence of the condition alone does little to distinguish the actor from the general population. Instances of the third excusing condition are thus more selectively excused, generally requiring a disability with persuasive indications of abnormality, or special circumstances of mistake compelling a conclusion of blamelessness. Finally, where an actor engages in criminal conduct with the same knowledge and appreciation of its nature, consequences, and wrongfulness or criminality as a normal person, yet claims lack of control, and the lack of control is not so complete as to make the conduct involuntary-- the fourth condition--the law is generally unwilling to excuse unless there is a clear, confirmable, almost compelling disability. But further, unlike any other excusing condition, this impairment of control condition must be of a certain degree. Everyone is subject to pressures and temptations to engage in criminal conduct. For this type of condition to provide an excuse, the loss of control must be sufficiently serious that the actor has, at least temporarily, entered the realm of abnormality. A loaded .357 Magnum pointed at the actor's head, for example, may provide the objective, confirmable criteria necessary to distinguish the actor's ability to control his conduct from that of the general population.


  Although it might appear that the disability requirement is theoretically unnecessary, since the central inquiry in excuse defenses is the existence of an excusing condition, as illustrated above, the disability element provides an important means for limiting the instances in which a given condition will excuse according to the degree of blamelessness which an excusing condition elicits. In addition, the disability requirement often serves the important function of shifting blame from the actor to another object, the disability. Further, the disability serves to distinguish the defendant from the general population. If the actor is perceived as clearly abnormal, he can be spared condemnation and punishment without undercutting the general condemnatory and deterrent functions of the criminal law. [FN95] Still further, the existence of a disability provides useful evidence that the excusing condition does in fact *227 exist. [FN96] These last two purposes confirm the need for disabilities to have confirmable manifestations beyond the criminal conduct at hand. Such manifestations signal the actor's abnormality to others, and provide some factual support for the conclusion that the actor's conduct is not the meaningful exercise of free will. It is for these reasons, no doubt, that the mistake excuses are often controversial, being as they are the only recognized excuses without a disability. [FN97]


  Perhaps because the disability is an independently observable phenomenon, distinct from the conduct constituting the offense, the scope of most excuses is commonly defined by the nature of the disability. [FN98] Where a mental disease or defect is the cause of the excusing condition, the insanity defense is applicable. [FN99] Even where the results of the defendant's disability are identical to those which may result from insanity--distortion in perception, ignorance of criminality, or impairment of ability to control one's conduct--if the disability is not insanity, a defendant will be considered under an excuse different from insanity. Which excuse will be available will generally depend upon the cause of the defendant's disability--be it intoxication, [FN100] *228 immaturity, [FN101] subnormality,  [FN102] hypnotism, [FN103] duress, [FN104] or some other disability  [FN105]--rather than the results of the disability. [FN106]


  Such a disability-oriented system of classification may be of some practical value since, as with justifications, it may be appropriate to attach special rules of excuse to particular disabilities. For example, it may be more of a concern, in practice, that a defendant may cause himself to become intoxicated than that he may cause himself to become insane. Thus special rules governing the intoxication excuse may be appropriate to account for this possibility even if the resulting conditions of the insanity and intoxication are identical. On the other hand, it would seem that theoretically the same principles of excuse should apply identically, no matter what the cause. One may well wish to have a principle governing the situations in which a defendant causes his own disability; but there is no reason why this same principle should *229 not apply to all disabilities, whether the defendant causes his own intoxication, hypnotism, duress, or insanity. [FN107]


  Thus, it is important to consider both elements of excuse defenses. Although criminal codes, for some good practical reasons, generally center their definitional schemes around the disability requirement, the conceptual heart of this category of defenses is the resulting excusing condition.


  Justifications and excuses may seem similar in that both are general defenses which exculpate an actor because of his blamelessness. Indeed, while the distinction between justifications and excuses was recognized at early common law, it fell into disuse when both kinds of defenses came to acquit a defendant in the same fashion. [FN108] The conceptual distinction remains an important one, however. Justified conduct is correct behavior which is encouraged or at least tolerated. In determining whether conduct is justified, the focus is on the act, not the actor. An excuse represents a legal conclusion that the conduct is wrong, undesirable, but that criminal liability is inappropriate because some characteristic of the actor vitiates society's desire to punish him. Excuses do not destroy blame, as do the three groups of defenses previously discussed; rather, they shift if from the actor to the excusing conditions. The focus in excuses is on the actor. Acts are justified; actors are excused. [FN109]



E. Nonexculpatory Public Policy Defenses


  In 1971 the actor forcibly takes a wallet from an old man at gun point. The crime goes unsolved until 1978 when he is identified and arrested. Although *230 he has committed the offense, caused the harm sought to be prevented by the statute, and has no claim that his conduct is justified or excused, the actor may nonetheless have a defense. The statute of limitations may bar his conviction for robbery despite his clear culpability because by foregoing that conviction society furthers other, more important, public interests. [FN110]


  Time limitations on criminal prosecutions are often supported as fostering a more stable and forward-looking society. The Model Penal Code Commentary to the Code's statute of limitations explains, "[a]fter a period of time, a person ought to be allowed to live without fear of prosecution." [FN111] The Commentary also suggests that delayed prosecutions are less useful because " a s time goes by the retributive impulse which may have existed in the community is likely to yield place to a sense of compassion for the person prosecuted for an offense long forgotten." [FN112] The Commentary further suggests that " i f the person refrains from further criminal activity, the likelihood increases with the passage of time that he has reformed, diminishing pro tanto the necessity for imposition of the criminal sanction." [FN113] Finally, the Commentary argues that the

    [f]oremost [objective of limitation provisions] is the desirability of requiring that prosecutions be based upon reasonably fresh evidence. With the passage of time memory becomes less reliable, witnesses may die or become otherwise unavailable; physical evidence becomes more difficult to obtain, more difficult to identify and more likely to become contaminated. [FN114]


These rationales may justify current statutes of limitations, but it must be noted that they are not based on a lack of culpability of the defendant. They are purely public policy arguments.


  Similarly, overriding nonexculpatory public policy interests are the basis for the defenses provided by many constitutional provisions. The double jeopardy clause of the fifth amendment, [FN115] for example, may foreclose the trial of a clearly culpable and convictable offender by barring the state from making repeated attempts to convict him, because public policy demands that the state not subject him to the embarrassment, expense, and ordeal of multiple trial nor compel him to live in a continuing state of anxiety and insecurity. [FN116]


  *231 Other public policy-based bars to prosecution include diplomatic immunity, [FN117] judicial, legislative, and executive immunities,  [FN118] immunity after compelled testimony [FN119] or pursuant to a plea bargain or other agreement, [FN120] and incompetency. [FN121] Each of the six forms of immunity furthers important societal interests: reciprocal protection of our diplomats abroad, protection of governmental officials from personal liability arising from their official duties, the availability of critical compelled testimony, and the avoidance of the costs and risks of trials through inducement of plea agreements. The last defense, incompetency, is based primarily on concerns for fairness to the defendant. It prohibits trial unless the defendant has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and unless he has a rational as well as factual understanding of the proceedings against him."  [FN122]


  Such nonexculpatory public policy concerns are at work whenever a dismissal is based on factors other than the innocence of the defendant. Dismissals based on the operation of the exclusionary rule or upon prosecutorial misconduct are of this nature, especially if the dismissals are unrelated to the reliability of the evidence of the fact-finding process. [FN123] The public *232 policies served may be as broad as protecting all members of society from unlawful searches, or they may focus on assuring fairness in the treatment of the particular defendant, only indirectly conferring a benefit on society at large.


  This balancing of countervailing public policy interests, both societal and personal, should be distinguished from the balancing which occurs in justification defenses. In the latter, the harm done by defendant's act is outweighed by the societal benefit that it creates, and, as a result, he is not blameworthy. In nonexculpatory defenses, the defendant's conduct is harmful, and creates no societal benefit; the defendant is blameworthy. The societal benefit underlying the defense arises not from his conduct, but from foregoing his conviction. The defendant escapes conviction in spite of his culpability.



F. Problematic Classifications


  These, then, are five categories of defenses--failure of proof defenses, offense modifications, justifications, excuses, and nonexculpatory public policy defenses--that provide a conceptual structure useful in the analysis of criminal law defense issues. The scheme is comprehensive; it appears to account for all types of defenses. The bases for the categorizations--those characteristics of each defense which bring it within one or another group--can be articulated. Further, the categories of the scheme have a logical, serial relation. Each successive type of defense need only be considered if those preceding it are unavailable. If there is a failure of proof defense, then there is no offense to be defended against; if there is an offense modification, there is no legally recognized harm that need be justified; if the harm is justified, then nothing remains to be excused; and unless no other defense exists, public policy need not be invoked, for there is no danger of conviction. [FN124]


  A scheme such as this need be neither symmetrical nor unambiguous to be analytically useful, however. The systematic presentation of any significant distinctions, especially where no such structure has been previously proposed, may at least serve to stimulate criticism leading to a better conceptual structure. In the end, the ultimate utility of any scheme will depend on whether the distinctions it draws are in fact the most significant for the goals that area of the law seeks to achieve.


  The scheme proposed here does not clearly classify all defenses into one category or another. There are some undeniably problematic defenses. Is *233 provocation a failure of proof defense or an offense modification? Is necessity a justification or an excuse? Is entrapment an excuse or a nonexculpatory public policy defense?


  But consider the nature of these problematic classifications. They appear to be precisely those defenses whose proper formulation has been a matter of confusion and debate. If this is true, the fact that these defenses do not fit cleanly into one or another category only reinforces the usefulness of the scheme. If ambiguity in classification coincides with independently generated disputes over proper formulation, it would seem to confirm that the distinctions made by the scheme are central to the ongoing criminal law theory debates, although perhaps not recognized as such.


  Thus, the answer to the specific classification problems previously posed is, of course: it depends. The classification of a defense depends on the formulation of the defense.


  1. Provocation/Extreme Emotional Disturbance: Failure of Proof or Offense Modification? Provocation was traditionally drafted as negating the malice required for murder. In this form it is a failure of proof defense. The same concept may be formulated as an offense modification, an independent defense to murder--independent in the sense that it does not negate any element of the offense. Usually, this formulation is slightly broader in scope and is called "extreme emotional disturbance." [FN125]


  The conceptual similarity between provocation and extreme emotional disturbance, like the interchangeability of the two forms of consent previously discussed, [FN126] raises the more basic issue of the meaningfulness of the distinction between the categories of failure of proof and offense modification. In theory, the first negates an element of an offense and the second bars conviction even where all elements of an offense have been satisfied. The greatest practical significance of this distinction, in the past, has been in cases of strict liability. If no culpability element is required by the offense definition, it is impossible to negate a culpability element. Thus failure of proof defenses which rely on the negation of a culpability element, the most common form, [FN127] *234 will be unavailable for strict liability offenses. But a defense which operates independently of its ability to negate a culpability element, that is, an offense modification, will provide a defense even if no culpability element is required by the offense definition.


  Recently, however, the failure of proof/offense modification distinction has taken on constitutional significance with far-reaching practical implications. In Patterson v. New York, [FN128] the Supreme Court adopted this distinction as the most significant characteristic of the dividing line between those issues for which the state may shift the burden of persuasion to the defendant and those for which it may not. In Mullaney v. Wilbur [FN129] the Court had required that the state of Maine carry the burden of persuasion for the provocation defense. But in Patterson it held that New York was permitted to shift this burden to defendants asserting extreme emotional disturbance even though, like provocation, this defense operated to reduce murder to manslaughter under similar, albeit broader, conditions. The Court considered it critical that in Mullaney the provocation instructions "emphasized that 'malice aforethought and heat of passion on sudden provocation are two inconsistent things' . . . ; thus, by proving the latter the defendant would negate the former." [FN130] In other words, provocation was a failure of proof defense that simply negated a required element. The Court argued that the New York defense in Patterson was more akin to a real defense:

    This affirmative defense . . . does not serve to negative any facts of the crime which the State is to prove in order to convict of murder. It constitutes a separate issue on which the defendant is required to carry the burden of persuasion . . . . [FN131]


  Section II.C. of this Article discusses the wisdom of relying upon the failure of proof/offense modification distinction to determine whether a state may constitutionally shift the burden of persuasion.


  2. Necessity: Justification or Excuse? The issue of whether necessity is a justification or an excuse, like the issue of whether provocation is a failure of proof or an offense modification, reveals an underlying dispute over the proper formulation of the defense. Necessity and coercion were at one time, and in some places still are, viewed as analogous defenses. [FN132] Necessity applied where the threatening force was of natural origin (e.g., a storm, a fire), while coercion applied where a human agent made the threat. In that form, it is unclear how these defenses would be categorized. Both seem capable of providing a defense in situations where the harm is justified, and in instances where it is not but where the actor would be excused. For example, *235 some necessity statutes provided the necessity defense in cases where the defendant acted under the " p ressure of natural physical forces,"  [FN133] suggesting an excuse rationale for an otherwise justification-based defense.


  Perhaps reflecting the weakness of the previous distinction--a natural versus a human source of the threat--it has frequently been replaced with what is essentially the justification-excuse distinction. One defense, termed "choice of evils" under new codes, now serves to exculpate justified conduct no matter what the source, while another, termed "duress," excuses a pressured or coerced actor no matter what the source. [FN134] These reformulated defenses previously treated as necessity and coercion are cleanly categorized by the proposed scheme. [FN135]


  3. Self-Defense: Justification or Excuse? In many ways self-defense may have suffered from the same commixture of purpose--to justify and to excuse--as did necessity. [FN136] Where the coercion defense was limited to harm against an innocent party, self-defense provided the necessary means of recognizing the coercive and confusing conditions inherent in self-defense situations: being forced to act while under attack. With the broader modern duress defense, this excuse role is no longer necessary. If an actor's conduct in self-defense is held unjustified, he can turn to the duress defense to take into account any appropriate coercion excuse. Even more likely is the availability of very liberal provisions providing a mistake excuse for a mistake as to self-defense. For example, where an actor uses more force than is actually necessary to repel an attacker, his conduct is hardly justified but may well be excused if it is based on a mistake as to how much force is needed.


  The commixture of purpose is evident in some self-defense provisions, like the necessity-coercion defenses discussed above that contain language appropriate for a duress excuse. It is common, for example, after a list of certain instances in which deadly defensive force may be used, to find a provision like the following:

    A bare fear of the commission of [certain offenses], to prevent which homicide may be lawfully committed, is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone. [FN137]


*236 Such provisions fail to provide an adequate self-defense justification. A defendant should not have to show a degree of excitement, in himself or a reasonable person, in order to be justified, as long as his response to the attack is necessary and reasonable in relation to the harm threatened. At the same time, the provision is unnecessary to provide an excuse. A modern duress defense or mistake as to as justification defense will provide an excuse where the defendant, although unjustified, acts under a state of excitement that would have caused the reasonable person to do the same.


  In most modern codifications, self-defense is appropriately treated, like lesser evils, as a pure justification. It is a necessary specialized subclass of general justification that properly accounts for the aggressive conduct of the attacker when weighing the propriety of taking the attacker's life for the protection of the defendant.


  4. Entrapment: Excuse or Nonexculpatory Defense? Like provocation, necessity, and self-defense, entrapment initially appears to present a classification problem. Is entrapment an excuse which is provided because, as in the case of duress, it is felt that the defendant is not fully responsible for his actions? Or is entrapment a nonexculpatory public policy defense designed to deter police conduct even at the expense of allowing a culpable defendant to go free? But here again the classification problem simply illustrates the different points of view concerning what the function of the defense should be.


  On the one hand, the Supreme Court in Sorrells v. United States [FN138] adopted the view that the entrapment defense is intended to prevent conviction of "otherwise innocent" individuals who have been lured into the commission of a crime that they were not predisposed to commit. [FN139] Thus, it has been noted that " t he Chief Justice's opinion . . . left no doubt that the gravamen of the defense of entrapment was not the propriety of the conduct of the government agents but rather the subjective guilt of the defendant, that is, his predisposition to commit the offense." [FN140] A long line of cases has upheld this characterization of the defense. [FN141]


  On the other hand, an equally long line of concurrences and dissents, beginning with the concurrence of Justice Roberts in Sorrells, has opposed this view. [FN142] Justice Roberts argued that the basis of the entrapment defense is a public policy requirement that the integrity of the judicial process not be sullied by the use of improper police conduct to procure convictions. The *237 predisposition of the defendant is thus irrelevant, and the only question is the degree to which the police have overstepped the bounds of appropriate behavior. [FN143]


  Statutory formulations also reflect this division in thought as to whether entrapment should be drafted as an excuse, designed to exculpate actors coerced into committing an offense they have no predisposition to commit, [FN144] or as a nonexculpatory defense, designed to preserve the integrity of the judicial process and to deter improper police conduct, without regard for the predisposition of the actor. [FN145] But there is nothing improper about either of these rationales for the defense; they need not be viewed as mutually exclusive alternatives. By recognizing that both an excuse and a public policy rationale are appropriate and have great precedent in other defenses, as the defense scheme here illustrates, one is more likely to frame the entrapment debate in terms of whether either or both rationales are independently desirable, rather than in terms of which is the proper formulation. As discussed in section I.F.G. below, it would not necessarily be inappropriate to recognize both forms of defense in a single provision.


  In reality, the appearance of entrapment as an excuse under one formulation, but a public policy defense under another, is not entirely accurate. For even where the entrapment defense is cast in its excuse formulation, focusing upon the "subjective guilt" of the defendant rather than the police conduct, it is not truly an excuse. It is, after all, limited to persons induced to commit criminal offenses by government agents. [FN146] If the standard of inducement applied in entrapment cases is enough to render the defendant blameless for performing the conduct constituting the offense, the effect of such inducement should be enough to excuse any defendant no matter who created the inducement. The fact that the inducer does not turn out to be a government agent does not create culpability in the defendant. Nor does a governmental association of the inducer render an otherwise culpable offender blameless. Indeed, it is most often the case that an entrapment scheme works only because the defendant is unaware of the inducer's true identity. Thus the entrapment defense, even in its excuse-like formulation, is not based solely on culpability principles, as excuses are, but reflects a combination of concerns, probably including an estoppel notion that it is unfair to permit the entity that has entrapped to also prosecute and punish. [FN147]


  *238 Ultimately then, as long as the entrapment defense is limited to inducement by an official, both approaches to entrapment must be viewed as nonexculpatory defenses. As part II discusses, nonexculpatory defenses impose significant societal costs by letting admittedly culpable defendants escape conviction and punishment. [FN148] The excuse-like formulations of the entrapment defense may be seen as attempts to minimize such societal costs. This minimization, the reduction in the number of culpable defendants who will get the defense, is achieved through a variety of provisions. One approach is to allow the defense only when the defendant was "induced" to commit the offense by official conduct that "would induce a normally law-abiding person to commit the offense," or that would create a risk of such inducement. [FN149] This language does not require that the particular defendant at hand be a normally law-abiding person who was so induced. [FN150] Rather, it merely requires some causal connection between the police conduct and the defendant's commission of the offense, and establishes an objective standard by which the propriety of the government conduct is to be gauged.


  More effective at excluding culpable defendants from the defense are provisions that require that the defendant at hand "would not otherwise have engaged in" the conduct constituting the offense. [FN151] This tends to limit the defense to persons who are more likely to be blameless; the defendant's predisposition is at least an issue. It still does not assure, however, as an excuse would, that the defendant resisted the temptation presented to the extent that could reasonably be expected of him or of the reasonable law-*239 abiding person. No formulation of the entrapment defense includes such an excuse-like requirement.


  Least effective at excluding culpable defendants from the defense, that is, the most costly formulation of the defense in culpability terms, is the Model Penal Code provision. It requires only that the defendants have acted "in response to" the official conduct. [FN152] Here the causal connection between the police's conduct and the defendant's can be even weaker than when the former is required to have "induced" the latter. Presumably, the defendant could have been fully predisposed and presently prepared to commit the offense, even without the officer's encouragement, but will nonetheless get the defense if the officer's conduct simply triggered the commission. At the same time, however, this formulation is likely to be more effective than other provisions at deterring police conduct that creates a risk of improper entrapment.  [FN153]


  In deciding between these formulations, a legislature, or court, must decide whether the added increase in deterrence of improper police conduct, if any, justifies the harm of letting additional culpable offenders go free.


  5. Mistake as to a Justification: Justification or Excuse? Many modern codes, following the lead of the Model Penal Code, define justification defenses in the following terms: "the use of force upon or toward (another person) is justifiable when the actor believes that such force is . . . ." [FN154] Under such provisions, the actor who mistakenly believes that his conduct meets the requirements of a justification defense will be justified, when it seems clear that such an actor is properly only excused. [FN155] His conduct has not, in fact, avoided a greater harm or furthered a greater good; it has not caused a net benefit, but rather a net harm. On the other hand, he may well be blameless, especially if his mistake is reasonable.


  This is one problematic classification where there is a clear answer no matter the formulation. A mistake as to a justification is by its nature necessarily *240 an excuse, not a justification. The Model Penal Code's confusion on this point creates a host of practical difficulties and liability errors in the variety of instances, described in part II, where the justification-excuse distinction has practical significance. [FN156]


  6. Recognition of More than One Category of Defense in a Single Provision. The previous discussion has pointed out instances of ambiguity in the classification of particular defenses. An unarticulated assumption has been that a single defense should have a single classification. Given the mutually exclusive nature of the classification definitions, this remains an accurate assumption. It does not necessarily follow, however, that a single defense label or provision may not refer to multiple defenses, and hence be classified under more than one category.


  There is nothing inherently improper with having an excuse defense of  "entrapment" and a nonexculpatory defense by the same name, as long as the difference between the two formulations and their implications are clear.  [FN157] Nor is there necessarily a problem even with recognizing two different categories of defense under the same label at the same time and in the same jurisdiction. A jurisdiction may properly provide a "self-defense" justification and a "self-defense" excuse. [FN158] Such multiple defenses may even occur in the same provision, as when the justification of lawful military orders is provided in the same statute as the excuse of reliance upon unlawful military orders. [FN159] But when this is done, the potential for misunderstanding and confusion increases significantly. This is well illustrated by the Model Penal Code custom of defining justification defenses to apply when an actor "believes" the justifying circumstances exist, thereby including within each justification provision the excuse of mistake as to a justification. [FN160] Given the great potential for confusion and the relatively slight advantage that is to be *241 gained by including multiple defenses of different groups in a single provision, the practice seems unwise.  [FN161]



G. A System of Defenses: Summary


  Other writers have offered proposals for what might be called a "system" of criminal law theory, [FN162] but the proposals seem to be of a different nature than the system of defenses presented here. [FN163] This scheme attempts to approximate the underlying notions of the current Anglo-American system, although it is certainly more detailed in its theory. For the most part, it does not ask legislators or judges to adopt a different theoretical system, but only to use the scheme to help analyze and discuss the law of criminal defenses as it now exists. [FN164]


  This theory of criminal law defenses serves a number of important practical purposes. As someone once suggested, there is nothing more practical than a good theory. Simply providing some measure of conceptual clarity is likely to enhance our ability to analyze defenses more carefully. But such fundamental conceptual improvements aside, the scheme offers many immediate insights and solutions to existing problems. Part II details some of the most important.


  *242 Table I summarizes the "system" of criminal law defenses presented in this Part:



Table I


A System of Defenses


    Failure of Proof "Defenses" (Examples)

    Mistake that negates an element of the offense

    Intoxication that negates an element of the offense

    Mental illness that negates an element of the offense

    Partial Responsibility/Diminished Capacity

    Impossibility that negates an element of the offense

    Consent that negates an element of the offense



    Offense Modifications (Examples)


    Impossibility defense

    De Minimis Infraction

    Consent defense

    Extreme Emotional Disturbance

    Victim cannot be accomplice

    Conduct inevitably incident cannot be complicity

    Wharton's Rule


    Lesser Evils (including necessity)

    Authorized use of defensive force

                Defense of Others


                Defense of Property

                Defense of Premises/Habitation

    Authorized use of aggressive force--public authority

                Law Enforcement Authority

                Authority to Maintain Order and Safety

                Parental Authority

                Benevolent Custodial Authority

                Medical Authority

                Authority to Prevent Suicide

                Judicial Authority

                Military Authority

                General Public Authority


    Not product of actor's determination

                Involuntary Act Defense (including reflex action, convulsion)

    Defect in perception or knowledge of physical nature ofconduct or consequences



                Somnambulism, Automatism

    *243 Ignorance of criminality or wrongfulness of conduct






                Official Misstatement of Law

                Unavailable Law

                Mistake as to a Justification

                Unlawful Military Orders

    Impairment of control





    Nonexculpatory Public Policy Defenses

                Statute of Limitations

                Double Jeopardy

                Diplomatic Immunity

                Testimonial Immunity

                Plea-Bargained Immunity

                Judicial, Legislative, and Executive Immunities



                Dismissals based upon exclusionary rule or prosecutorial misconduct






A. Satisfaction of the Purposes of Criminal Liability and Punishment


  The purposes of criminal liability and punishment have been expressed in a variety of ways. [FN165] A common approach is to distinguish four primary aims: just punishment, general deterrence, special deterrence, and rehabilitation. [FN166] Just punishment reinforces the efforts of nonoffenders to avoid violating the criminal law. As a practical matter, the primary mechanism for achieving this goal is the public condemnation of the offender and his conduct, through formal and public criminal conviction and sanction; in more *244 serious cases, imprisonment underscores the gravity of the condemnation. [FN167] General deterrence seeks to inhibit other potential offenders by using the conviction and punishment of this offender as an example of the consequences of a criminal violation. [FN168] Special deterrence is the prevention of future crimes by the same offender by restraining or supervising him and by demonstrating to him the unpleasant consequences of a violation. [FN169] Rehabilitation is achieved by giving treatment so that an offender will neither desire nor need to commit further crimes. [FN170] There is no consensus, however, as to which of these goals is the proper one or, if more than one is appropriate, which should prevail when they conflict. [FN171]


  Whether these purposes of criminal liability and punishment are fostered or thwarted by criminal defenses depends in large part on the kind of defense at issue. Failure of proof defenses, as noted, are not really defenses, but a failure to prove all required elements of the offense. The recognition of such *245 defenses does not undercut any of the broad purposes of criminal conviction because the defendant has done nothing the legislature has defined as criminal. There is nothing to condemn or to deter and no need to rehabilitate. [FN172]


  As in the case of successful failure of proof defenses, the conduct exculpated under an offense modification is not criminal; it does not come within the description of the harm or evil sought to be prevented and condemned by the offense. There is a potential problem, however. Since the minimum requirements of the offense, as expressed in the offense definition, are satisfied, the actor's acquittal might have the effect of undercutting the general prohibition of the conduct proscribedby the offense definition. It seems more likely, however, that an acquittal under an offense modification will be viewed as it should, not as a repudiation of the offense definition, but as a refinement of it. When consent is an offense modification to battery, touching will remain a recognized harm, unless the victim consents to the contact. If an offense modification exempts educational use of pornography from the scope of an obscenity statute, obscenity will continue to be perceived as evil, unless it is used for such a purpose. [FN173]


  When conduct is justified there is again nothing to condemn or punish. The defendant's conduct did not, under the circumstances, violate the prohibition of the law, and indeed may be desired and encouraged. Yet a harm or evil was inflicted, and such conduct should remain generally prohibited and condemned. Arson, for example, remains a crime even though the law may permit the burning of a field if it creates a fire break that saves an entire town. But when an actor is acquitted under a justification defense, the message to the public may be unclear, especially since the verdict of "not guilty" gives no hint that a justification defense is at work. Thus, the condemnation and general deterrence of arson may be undercut. [FN174] It might be desirable to alter *246 the jury verdict to "justified," thereby acquitting the actor because his conduct caused no net harm, yet noting the continuing prohibition of arson. On the other hand, it may be that, because the justifying conditions are generally objective circumstances, they will commonly be known to those who observe or hear of the harmful conduct. If so, a general acquittal presents no practical problem. This is not true, however, of excuses.


  Excuses have a great potential for undercutting the condemnation and general deterrence of the harmful conduct. Even taking the objective circumstances into account, the conduct in an excuse case does constitute a net harm or evil that is condemned by the criminal law. Society will continue to condemn and seek to deter such conduct even in identical circumstances. It is the actor, not the act, which causes us to excuse. [FN175] Furthermore, the explanation for acquittal of the offender is much less apparent than in cases of justification. Excuses, for the most part, rely on subjective criteria like mental illness, mistake, or subnormality. [FN176] Often only a person who is aware of the evidence adduced at trial will understand that acquittal is based upon these special characteristics of the actor, not on approval or tolerance of the act.


  The limited value of a simple "not guilty" verdict to convey the proper message accounts for some of the difficulties which have arisen in cases of excuse. In Regina v. Dudley and Stephens, [FN177] for example, the defendants killed a sick cabin boy in order to save themselves from starving while hopelessly adrift in an open boat. The court may have thought that the defendants should be excused, but at the same time may have felt compelled to convict them because an acquittal would be a dangerous precedent. [FN178] It is dangerous, of course, only if a judgment of excuse, which condemns the conduct, is mistaken by the community as a judgment that it is justified, proper conduct. On the other hand, conviction and punishment of defendants who deserve an excuse is also an improper result. Absent an adequate justification- excuse distinction, the proper resolution of such cases can require unusual methods; punishment is often publicly imposed, then later mitigated or withdrawn, in an informal or less public way. In Dudley and Stephens, the Court passed the death sentence upon the prisoners, [FN179] but this was commuted by the Crown to six months' imprisonment. [FN180]


  *247 It may be because of this potential for misapprehension that an acquittal based on insanity is reported as a verdict of "not guilty by reason of insanity." But the important interests in continuing condemnation and general deterrence of the act, which are protected by the special verdict in insanity, are endangered in all excuses based on equally subjective excusing conditions. Unfortunately, no other excuse requires a comparable special verdict.


  The perception that dangerous offenders are going free under the insanity excuse has no doubt prompted the recent movement toward verdicts of "guilty but mentally ill." [FN181] Conviction in cases of excuse might well serve the goals of special deterrence and rehabilitation, and it would seem to solve the problem of undercutting the condemnation of admittedly harmful or evil acts. If these goals were the primary concern of the criminal law, then many excuses would merit similar verdicts, in practice eliminating the availability of excuse defenses. [FN182] But the condemnatory function of the criminal law involves more than the condemnation of harmful or evil conduct, for the actor is condemned along with his act. And to punish a blameless person is to weaken this function. The only sound approach is to recognize excuse defenses, but to minimize the danger of misperception of the acquittal by relying upon special verdicts--not guilty by reason of excuse--and assuring that the public understands their special message. Civil commitment and similar procedures outside the criminal justice system are available to further the goals of special deterrence and rehabilitation in the absence of condemnable culpability. [FN183]


  *248 Concern for maintaining the condemnatory function of the criminal law may also be seen in the formulation of excuses to conform with the community *249 view of exculpation. [FN184] Attempts to substitute definitions relying upon "expert" assessments that depart from the community view, for example, have generally been rejected because they undermine condemnation. [FN185]


  Nonexculpatory public policy defenses not only threaten but clearly hinder achievement of the purposes of criminal liability. There can be little doubt that acquitting culpable persons who have admittedly caused the harm or evil prohibited by the criminal law must undercut the aims of special and general *250 deterrence. [FN186] The offender has demonstrated publicly that it is possible to violate the criminal law without suffering adverse consequences, a point which he and others may take note of when considering future violations. In addition, the criminal justice system is deprived of authority to rehabilitate, and a person who deserves punishment has escaped it.


  Steps can be taken, however, to minimize these detrimental effects. While permitting an acquittal, the system can nonetheless condemn the conduct and the actor. A special verdict of "guilty but not punishable" may help, [FN187] and, as discussed in section II.G., a variety of the collateral consequences of conviction might appropriately be retained after such an acquittal. The success of the effort will depend upon public awareness of the special nature of nonexculpatory public policy defenses, yet at present few seem to be aware of the nonexculpatory nature of this group of defenses and fewer still seem to be aware of which defenses are of this sort.



B. Burden of Production


  The burden of production is said to prevent verdicts based on conjecture by excluding from the jury's consideration legal issues that are not sufficiently supported by the evidence. The burden serves as a mechanism for legal assessment of the sufficiency of the evidence. The party bearing the burden of production for a defense must adduce sufficient evidence to either support or negate, as the case may be, its existence. If the defendant successfully meets his burden of production or if the prosecutor fails to meet his burden, the defense will be presented to the jury. If the defendant fails to carry his burden or the prosecutor successfully carries his burden, the defense will not be presented to the jury. [FN188]


  The burden of production must be distinguished from what might be called the burden of pleading. [FN189] The latter simply imposes an obligation on *251 the defendant to put a defense in issue; [FN190] the former imposes a standard of evidence which must be met if the burdened party is to be successful in having the defense presented to or withheld from the jury. The burden of pleading is simply the first step in a defendant's continuing burden of production. Where the defendant meets his burden of pleading, subsequent evidence by the prosecution may undercut the initial defense claim and leave the defendant in the same position as before he raised the defense. Unless he presents further evidence supporting the defense, he will not satisfy the burden of production, and the defense will not be presented to the jury.  [FN191]


  The burden of production, including the proper allocation and standard of proof, and the constitutional aspects of these issues, can be analyzed with some additional clarity by using the defense distinctions set out in part I.


  1. Allocation of the Burden. The general rule of criminal trials is that the defendant must carry the burden of production for defenses and the prosecution the burden for elements of the offense. [FN192] On occasion, the prosecution is nonetheless given the burden of producing evidence of the absence of a *252 defense. [FN193] Since failure of proof "defenses" are really matters concerning the elements of an offense, the defendant cannot, as a practical matter, be made to bear the burden of production on such defenses. All issues concerning elements of an offense will be presented to the jury in every case. [FN194] It may be that if the defendant seeks a special jury instruction suggesting a particular theory for the absence of a required element, such as mental illness negating an element, he may have to bear a burden of production on this issue to receive the special instruction.  [FN195] But whatever the result, the court may never foreclose the issue of the presence of the element by directing a verdict of conviction. [FN196] When the prosecution must establish the defendant's conduct *253 constituting the offense, for example, any evidence of an alibi defense indicating that the defendant was not present at the scene of the crime should be submitted to the jury. [FN197] No matter how weak the defendant's evidence on the point, the judge cannot foreclose jury consideration of whether the defendant committed the required acts.


  A jurisdiction may attempt to put the burden of production for a failure of proof defense on the defendant. [FN198] The attempt will be functionally barred, however, by the requirement that the judge instruct the jury on all elements of the offense, [FN199] and by the strong preference for trial by jury as to each element of the offense. [FN200] Further, the prosecution may be constitutionally required to bear the burden of production for each element of the offense; if the prosecution does not introduce sufficient evidence to allow a rational factfinder to find each element beyond a reasonable doubt, a verdict of acquittal is constitutionally required. [FN201]


  Since offense modifications mark the dividing line between offenses and defenses, it should be no surprise that there is considerable confusion over the proper allocation of the burden of production for such offense-related defenses. [FN202] Given their similarity in function to failure of proof defenses, it can well be argued that the allocation of the burden of production should be the same, that is, allocation to the state. [FN203] On the other hand, if offense modifications are viewed as a matter of defense, and are more susceptible to proof by him than disproof by the prosecution, [FN204] then the burden might be appropriately allocated to the defendant. It can be argued that offense modifications, especially when they hinge on a characteristic or status of the defendant, as they commonly do, [FN205] are likely to be peculiarly within the knowledge of the defendant. [FN206]


  *255 It is generally clear that a defendant may be allocated the burden of production for justifications, excuses, and nonexculpatory defenses.  [FN207] One could argue, however, that when the burden of production for a general defense is on the defendant, a judge's determination that the defendant has failed to meet that burden, and therefore is barred from having the defense determined by the jury, may for some defense groups be a denial of a right to a jury trial. [FN208] The nature of that right might be interpreted, for example, as applying to all issues relating to the defendant's culpability.  [FN209] If that were so, the defendant might have a right to present all defenses other than nonexculpatory public policy defenses to a jury. [FN210] Such a jury trial right, then, *256 would essentially bar allocation of the burden of production to the defendant for any but this single group of defenses. [FN211]


  2. Standard of Proof. While the standard of proof required for the burden of production may vary between jurisdictions, it is generally the same for all defenses within a jurisdiction. [FN212] The exception is where the standard for production varies according to the standard set for the burden of persuasion on the same defense. Some argue that a burden of persuasion of "proof beyond a reasonable doubt" merits a higher standard for the burden of production than a burden of persuasion "by a preponderance of the evidence."  [FN213] Where this argument is accepted, the standard of proof for the burden of production may appropriately vary according to the defense group as described in section II.C.



C. Burden of Persuasion


  The burden of persuasion guides the factfinder in translating the evidence adduced at trial into a final verdict. The party bearing the burden of persuasion must convince the tribunal of the existence of the facts supporting his position (or the non-existence of facts supporting his opponent's position) or *257 suffer a contrary verdict. [FN214] The burden does not require absolute persuasion, however, but rather a defined degree of certainty on the part of the factfinder; absent this certainty, the factfinder must decide the issue against the burdened party. For this reason the burden of persuasion is said to define and allocate the "risk of non-persuasion." [FN215] The defense classifications set out in part I are useful, and in some instances controlling, in determining the constitutional limitations on allocation of the burden of persuasion and in selecting the appropriate standard of proof and tribunal for assessing whether the evidence satisfies the burden.


  1. Allocation of the Burden. In Patterson v. New York, [FN216] the Supreme Court adopted what is essentially the distinction between offense modifications and failure of proof defenses as the dividing line between those issues for which the state may allocate the burden of persuasion to the defendant and those for which it may not, as discussed previously in section I.F.1. The Court distinguished the provocation defense in Mullaney v. Wilbur, [FN217] for which the Court had required that the state of Maine retain the burden of persuasion, from the extreme emotional disturbance defense of New York, even though both defenses operated to reduce murder to manslaughter under similar conditions, although the latter provided the defense under other conditions as well. The Court considered it critical that in Mullaney the provocation instructions "emphasized that 'malice aforethought and heat of passion on sudden provocation are two inconsistent things'; thus, by proving the latter the defendant would negate the former . . . ." [FN218] The New York defense, they argued, was an "affirmative defense  that  does not serve to negative any facts of the crime which the State is to prove in order to convict of murder. It constitutes a separate issue . . . ." [FN219]


  The choice of the failure of proof/offense modification distinction as constitutionally controlling on the allocation of burden of persuasion seems unfortunate. First, as noted in section I.B., the distinction certainly does not have the same conceptual significance as the distinctions between other groups of defenses. The difference between failure of proof and offense modification defenses on the one hand, and justifications and excuses on the other hand, for example, is more significant because only the latter represent general principles of exculpation that are clearly independent of the offense involved and apply to all offenses. The distinction between failure of proof, offense modification, and justification defenses on the one hand, and excuses on the other, is also more significant. In the former there is no net recognized harm, while in the latter the defendant has caused a societal harm. One might argue that it is particularly appropriate that the defendant carry the burden of *258 persuasion on a defense which seeks exculpation while admitting the harm or evil of the offense. Some have argued that all four of these groups of defenses should be distinguished from the fifth group, nonexculpatory public policy defenses. [FN220] It is arguably most appropriate to place the burden of persuasion on the defendant in this last group of defenses, because here the defendant claims that despite the harm or evil of his conduct and his personal culpability, sound public policydemands that society forego his conviction.


  The failure of proof/offense modification distinction is not only conceptually less important than the other distinctions, but is constitutionally unsuited to be the significant distinction for allocating the burden of persuasion. The guiding constitutional principle for that allocation, and the principle on which the Patterson Court relied, is the dictate of In re Winship that the due process clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." [FN221] The common thread of offense modification defenses--perhaps not as apparent when extreme emotional disturbance is considered alone, because that defense seems similar in nature to a general excuse [FN222]--is their function in providing refinements of the criminalization decision. Impossibility, renunciation, consent, and de minimis infraction defenses are all defined independently of the elements of the offense, and thus may be subject to an allocation of the burden of persuasion to the defendant under Patterson. Yet these defenses clearly serve to define better the nature of the harmful conduct to be prohibited, and the Winship standard, if nothing else, seems to emphasize the need for the state to carry the burden of persuasion on such criminalization matters. [FN223]


  *259 To date, there is little consensus on the appropriate allocation of the burden of persuasion within the constitutionally permissible range. Some states take a relatively narrow view, allocating to the defendant everything that is constitutional, and in some cases attempting to allocate even more than is probably permitted. [FN224] This view no doubt reflects the logical appeal of rules for allocation of the burden of persuasion in civil cases, where the party benefiting from an issue generally carries the burden of persuasion on it. [FN225] If this view were commonly accepted, all exculpating factors outside the minimum requirements of liability, in other words, all defenses other than failure of proof, would be the defendant's burden.


  *260 On the other hand, many jurisdictions appear to adopt a very broad criterion that places the burden on the state for all conditions that establish the harmfulness of the conduct and the blameworthiness of the defendant. [FN226] Since justifications and excuses go to establish this "rightness of punishing the accused," [FN227] the burden of persuasion for such defenses is likely to fall to the state under this view. [FN228] In an effort to foster the adoption of this latter position, the Model Penal Code takes the somewhat confusing step of defining "elements of the offense" to include the absence of justifications and excuses. [FN229]


  *261 To the extent that any common ground exists, it is the view that the burden of persuasion on issues that do not "touch upon guilt or innocence"  [FN230] may properly be allocated to the defendant. [FN231] In other words, the state need not carry the burden of persuasion for nonexculpatory public policy defenses. This view is put into practice most often for defenses such as double jeopardy and the statute of limitations, for which the burden is placed on the defendant. Even states limiting the defendant's burden to this single group of defenses frequently create an exception for a new culpability defense that redounds to the benefit of the defendant. [FN232]


  The fact that both the current allocations of the burden of persuasion and the rare statements of criteria for those allocations can be explained using the definitions of defense groups presented in part I tends to confirm that the distinctions introduced there are indeed relevant to the allocation decision. *262 The articulation of those distinctions and of the specific defense classifications they suggest invites legislatures and courts to adopt explicit criteria for allocating the burden, and assists the decision by revealing what allocation each of the possible criteria implies.


  2. Standard of Proof. The standard for the burden of persuasion describes the degree to which the trier of fact must be persuaded in order to decide an issue in favor of the burdened party. [FN233] Typically, the standard for the burden of persuasion in a criminal trial varies according to the party burdened. [FN234] Where the prosecution bears the burden of persuasion, the trier of fact generally must be convinced "beyond a reasonable doubt."  [FN235] Where the defendant is burdened, the burden is generally lighter; he must prove the facts supporting his claim by "a preponderance of the evidence." [FN236] The differential between the prosecution's burden and defendant's, as well as the demand for a higher degree of persuasion before imposition of criminal as opposed to civil sanction, is "bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free." [FN237] If this is the criterion for the differential, then the parties' burdens for nonexculpatory public policy defenses should be equal. In fact, modern criminal codes often provide that when either the prosecution or defense must establish a fact "unrelated to the finding of guilt or innocence," [FN238]--in other words, for nonexculpatory public policy defenses--the parties' burdens are to be equal, at the "preponderance" level. [FN239] Whenever *263 contested matters are unrelated to the culpability of the defendant, it seems reasonable to treat them as any other non-criminal issue would be treated. [FN240]


  3. The Tribunal. In criminal trials, if a jury trial has not been waived, the jury is the trier of fact for nearly every defense. There are exceptions to this rule, however, and for the most part these appear to be nonexculpatory public policy defenses. [FN241] Indeed, one could argue that submission of all culpability defenses to the jury is constitutionally required. When a justification or excuse is determined by the judge rather than the jury, as is sometimes the case, [FN242] it *264 could be argued that such judicial determination is a denial of the constitutional right to have a jury of one's peers determine one's guilt. [FN243]



D. Rules and Doctrines Assuring Fair Notice of What Constitutes an "Offense'. The law must give fair and adequate notice of the conduct constituting a criminal offense if punishment for the commission of that offense is to be just. [FN244] A variety of rules and doctrines are at least in part designed to assure such fair notice: the constitutionally mandated void-for-vagueness doctrine, the judicially created rule requiring strict construction of criminal statutes, the prohibition of judicially created offenses, and the abolition of common law crimes. Like the constitutional demand that the state bear the burden of persuasion, each of these doctrines applies only to "offenses," causing confusion over their application like that in the current debate over the burden of persuasion. [FN245]


  The void-for-vagueness doctrine sets a standard for the definition of criminal offenses:

    [T]he terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties . . . . [A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning . . . violates the first essential of due process of law. [FN246]


*265 It seems clear that the objective and culpability elements of an offense definition must meet this constitutional standard, [FN247] but the rule has not been employed to test the validity of defenses. [FN248]


  The judicially created rule requiring strict construction of criminal statutes is also employed to insure fair notice of prohibited conduct.  [FN249] While a vague statute may not be saved by strict construction, an ambiguous statute may. [FN250] The rule is applied to construe objective and culpability elements of offenses as narrowly and as favorably to defendants as possible. [FN251] Even *266 where legislatures have revoked the rule of strict construction, courts continue to read offense definitions narrowly.  [FN252] The rule is generally not applied in the same way to defenses.  [FN253]


  Under a related doctrine, the judiciary may not create offenses. "[I]t is well and wisely settled that there can be no judge-made offenses against the United States and that every federal prosecution must be sustained by statutory authority." [FN254] Many state criminal codes similarly prohibit judicial *267 definition of crimes. [FN255] Yet the judiciary is not barred from creating or modifying defenses. The American Law Institute insanity defense, for example, has been adopted by judicial action in a number of federal circuits. [FN256] A rationale commonly cited for this doctrine is again fair notice. [FN257] A judicially created offense is necessarily one created for the case at hand, without fair notice to the defendant. [FN258]


  Similar to the prohibition against judicially created offenses is the abolition of common law crimes. [FN259] This prohibition is particularly important where the "common law" is viewed not as a static historical concept, but a dynamic process in which the "common law gives expression to the changing customs and sentiments of the people." [FN260] Absent such a prohibition a judge might be able to hold an offender liable for a "common law offense" with the same absence of fair notice sought to be barred by the prohibition of judicial creation of offenses. [FN261] Where common law crimes are abolished, common *268 law defenses are often left in effect. [FN262] The differential between treatment of offenses and defenses cannot be viewed as based simply on the distinction between exculpation and inculpation; for example, codes retaining common law defenses often prohibit courts from applying the defenses where an offense definition deals with the situation or where the legislature intended to exclude the defense. [FN263]


  These rules and doctrines [FN264] demand prospective application of precisely *269 defined criminal offenses. [FN265] The fact that they are applicable only to "offenses" creates some ambiguity as to which defenses, if any, they are to be applied. Where on the spectrum--from elements of an offense, to failure of proof defenses, to offense modifications, to justifications, to excuses, to *270 nonexculpatory defenses--does the shift from "offense" to "defense" occur? Failure of proof defenses are conceptually indistinguishable from elements of the offense; offense modifications often differ only in form; justifications are admittedly independent of the offense definition but may be viewed as serving to redefine the criminal conduct of the offense in light of special justifying circumstances; and excuses, while admitting the commission of the harm or evil proscribed by the offense definition, raise issues of responsibility which are often closely allied to the culpability requirements contained in offense definitions. Only nonexculpatory defenses seem clearly pure "defense" issues unrelated to culpability concerns, and thus unrelated to the definition of what is to be held criminally culpable under the offense definition. [FN266]


  Because failure of proof defenses are essentially the absence of elements of the offense, [FN267] all rules and doctrines designed to insure notice of the latter necessarily apply to the former: a vague failure of proof defense is a vague offense definition. [FN268] Similarly, the rule of strict construction of offenses must apply to failure of proof defenses; a requirement that statutes be narrowly construed in favor of the defendant is the logical equivalent of a rule that requires broad construction of failure of proof defenses. For example, if homicide is defined as causing the death of a human being, construing the term "human being" to exclude unborn fetuses can be considered either a narrow reading of an objective element of the offense, or a broad interpretation of when the state has failed to prove commission of the forbidden act. [FN269] Finally, if the judiciary is prohibited from creating offenses or applying common law offenses, it should also be precluded from altering offense definitions to the defendant's disadvantage, in other words, abolishing a failure of proof defense. [FN270]


  *271 While the notice rationale might be interpreted to apply only to the minimum requirements of criminal liability--the definition of the elements of the offense or corresponding failure of proof defenses--one could argue that notice is equally important when offense modifications modify or refine the definition of the harm or evil embodied in the offense definition. After all, offense modifications differ from failure of proof defenses only in form. [FN271] Thus, a vague offense modification--for example, "otherwise obscene material may be disseminated if it has artistic value"--presents as severe a problem for the person seeking to act in conformity with the law as does a vague offense definition, and the statute should similarly be voided. Where a rule of strict construction requires the court to construe an ambiguous offense definition narrowly in favor of the defendant, logically the rule should require a broad reading of a proviso, for example, exempting dissemination of obscenity for an "academic purpose." For the same reasons, the prohibition against judicially created offenses and the abolition of common law crimes should have the same effect for offense modifications as they do for failure of proof defenses. [FN272]


  Arguably, these doctrines furthering the interest in fair notice should also frequently apply to justifications. A justification authorizing a homeowner to shoot an intruder "if circumstances warrant it" would not give sufficient notice of the conduct that will render the homeowner liable. [FN273] Indeed, the vagueness of the justification might well discourage persons from engaging in conduct that society actively seeks to promote. [FN274] The rule of strict construction in favor of the defendant seems equally applicable to justifications. If the justification allows the defense of "family members," the reasons underlying the application of the rule to offenses suggest that the phrase should be broadly construed, to include cousins, for example. In this application to defenses, however, the rule is one of "broad construction," suggesting that when used to refer to both, it may be better termed the rule of construction favoring the defendant. Application of such a rule to justifications does not suggest that the defendant should be permitted to substitute his judgment of what will constitute justified action for society's, but only that the statement of society's judgment should be unambiguous. While the interest in fair notice supports a prohibition of judicial creation of offenses and abolition of common law offenses, it does not support a prohibition of the judicial creation of *272 justifications nor the recognition of common law justifications. A defendant's right to notice is not infringed if his conduct is later recognized to have created a net benefit.  [FN275] Judicial revocation or limitation of a justification, however, would clearly violate the defendant's right to fair warning. [FN276]


  In contrast, the rules and doctrines assuring fair notice are not properly applicable to excuses. It is true that excuses raise issues of personal responsibility akin to the culpability requirements of offense definitions, but these are not matters as to which notice is important. Excuses rely upon characteristics of the actor, not the nature of his conduct. An actor does not, or at least should not, gauge his conduct according to the precise formulation of an excuse. It is, indeed, the nature of excuses that the actor's conduct is beyond his control or results from his defective perception or knowledge. [FN277] The defendant who claims to have relied upon a particular interpretation of a vague or ambiguous insanity statute or upon the existence of such an excuse may by definition be ineligible for an excuse because his reliance demonstrates cognition and control inconsistent with the excusing conditions. [FN278]


  In the case of nonexculpatory public policy defenses, it may well be that an actor will gauge his conduct according to the scope of his anticipated defense. But because it is conduct that is generally deplored and sought to be deterred, even when performed by persons who qualify for such a defense, a nonexculpatory defense is appropriately denied to an actor who mistakenly interprets the defense to include him. Indeed, vagueness and ambiguity in these defenses may serve the useful purpose of deterring undesirable conduct by persons who in fact qualify for the defense. This deterrence must be *273 distinguished from the undesirable "chilling effect" of vague offense definitions. [FN279] Here, the criminal conduct is clearly defined; only the nonexculpatory defense is vague. A chilling effect may have beneficial consequences. The corrupt congressman may decline a bribe if he is not sure whether the offeror's conduct has risen to the level of an entrapment. The immune foreign embassy attache may behave himself if he is unsure whether he is covered by diplomatic immunity. One can argue that such an offender has little ground to complain of the vagueness or ambiguity of a defense, [FN280] or to insist on a construction favorable to him. Similarly, even if judicial creation of offenses is limited or common law offenses abolished to promote fair notice, judicial revocation of a nonexculpatory defense should be permitted. The defendant has been afforded notice of all elements describing the proscribed conduct, and despite such notice has committed the offense. It seems proper to hold that in such instances, an actor commits an offense at his own peril. [FN281] When the Supreme Court reduces the availability of a constitutionally-based nonexculpatory defense, it commonly applies the reduced scope to the case at hand, in other words, without prior notice. [FN282]



E. Liability for Resisting Conduct for Which the Aggressor has a Defense


  Defensive force justifications generally give an actor a right to resist physical aggression against his person and to interfere when such conduct is directed against another person or property. [FN283] But this right should and in many instances does in current law depend upon whether the aggressor's *274 conduct is lawful or unlawful. [FN284] More importantly, however, if the aggression is not criminal the right to resist or interfere should depend upon the kind of defense the aggressor asserts.


  Conduct for which an aggressor has a failure of proof or offense modification defense is generally lawful conduct, and force used to resist or interfere with such conduct is generally not justified. A property owner may typically use force to expel an intruder, but if the property is a building open to the public and the intruder has complied with all conditions imposed by the proprietor, the use of force will not be justified. [FN285] On the other hand, where a failure of proof or offense modification defense hinges upon the absence of a required culpability element, the objective elements of the offense being satisfied, it seems more likely that the aggressor's attack should be properly resisted; that is, the inadvertent thief or intoxicated attacker may properly be resisted. [FN286] Of course, where the lack of culpability comes from a mistake, no force would be justified if, for example, the inadvertent theft could be stopped with a simple, "excuse me, that is my umbrella."


  Where an aggressor has a justification defense, the proper rule is clear: justified aggression should never be lawfully subject to resistance or interference. [FN287] When conduct is deemed justified, it creates, by definition, a net benefit to society. The owner of a field should not be allowed to resist one who would burn it to stop a spreading fire, and others should be encouraged to assist, and not permitted to interfere. [FN288]


  *275 An excused aggressor, on the other hand, should be subject to lawful resistance. [FN289] That is, the victim of the psychotic attacker should be able lawfully to defend himself and to have others lawfully assist him in such defense. [FN290] While the aggressor may be ultimately blameless, the conduct is clearly harmful. All required elements of the offense are satisfied and no justification exists.


  *276 When an actor has a nonexculpatory public policy defense, the case is clearest for permitting, indeed encouraging, resistance and interference. The conduct is harmful; the actor is blameworthy and condemnable. The immune diplomat may escape conviction for an unjustified and unexcused attack, but it hardly follows that the victim is bound to submit or the observer to acquiesce. [FN291]


  Because these defense groups and their convenient labels are not generally recognized, it is no surprise that many current statutes have considerable difficulty dealing with the problem of resisting and assisting justified conduct. Some fail to restrict properly the authorized use of defensive force, providing instead a justification whenever it is necessary to defend against "the use . . . of physical force." [FN292] Such a formulation is clearly too broad, for it contravenes the logic of justifications by apparently permitting defensive force in response to a justified attack. Suppose X unjustifiably attacks Y, and Y lawfully defends through the use of physical force. Such a provision would apparently allow X to then use additional force in response to Y's justified defensive force. [FN293]


  At the other extreme are statutes that authorize defensive force only to defend against "unlawful" force. [FN294] These provisions are too narrow, for they improperly bar a justification for resisting an attacker who has an excuse, a nonexculpatory defense, or a failure of proof or offense modification defense based on lack of culpability. The Model Penal Code uses this "unlawful force" formulation, but gives that phrase a special, albeit unnatural, meaning. Section 3.11(1) defines "unlawful force" to mean: "force . . . the employment of which constitutes an offense or actionable tort . . . except for a defense (such as the absence of intent, negligence, or mental capacity; duress; youth; or diplomatic status) not amounting to a privilege to use the force."  [FN295] The language of the definition appears to be consistent with the *277 analysis presented above. It includes as "unlawful force," and thereby permits resistance to and interference with, aggression for which the actor has a "defense . . . such as the absence of . . . mental capacity; duress;  or youth" [FN296]--i.e., an excuse--or "a defense . . . such as . . . diplomatic status" [FN297]--i.e., a nonexculpatory public policy defense-- or "a defense . . . such as the absence of intent  or  negligence" [FN298]-- i.e., a failure of proof or offense modification based upon absence of culpability. By including within the definition of "unlawful force" force for which the actor has "a defense . . . not amounting to a privilege," the provision properly bars a justification defense for resisting an aggressor who has a defense amounting to a privilege--i.e., a justification. [FN299]


  Several criticisms of this provision may be made, however. First, such important distinctions should not be hidden in a definition section. [FN300] Second, as the previous discussion illustrates, even when discovered, the provision is unnecessarily contorted. Third, the Code never defines what defenses are those "amounting to a privilege." Apparently the drafters are relying upon the tort concept of privilege, [FN301] but it seems a sadly inadequate criminal law that cannot define so central a concept without reference to tort law. [FN302] (It is true, of course, that the drafters cannot simply refer to their own justification defenses by referring, for example, to "defenses in Article 3, General Principles of Justification." As previously discussed, [FN303] the drafters have included within those justification provisions the excuse of a mistake as to the justification.) Fourth, the use of examples of defenses that will be categorized as "unlawful force" is clearly inadequate in the absence of a conceptual framework by which the analogous defenses can be deduced. The conceptual scheme presented in this Article provides such a framework, but it also provides terminology that is sufficiently precise to make definition by illustration unnecessary.



*278 F. Applicability of an Actor's Defense to a Confederate


  There are a number of criminal law doctrines--such as complicity rules, felony murder, and the Pinkerton doctrine--through which an actor may be held liable for causing or assisting another's criminal conduct. [FN304] If the perpetrator has a defense of some sort, the confederate may well argue that he cannot be held liable. While this argument was generally accepted at common law, [FN305] the modern move toward subjective criminality--defining offenses solely in terms of the defendant's conduct and culpability--has generally undercut the argument. The Model Penal Code, for instance, makes at least some defenses of perpetrators irrelevant to the culpability of confederates, instigators, and co-conspirators. But it does not always make clear which defenses fall into that category, nor does it appear to base its treatment on the conceptual differences among the various defenses.


  Model Penal Code section 2.06(7), for example, provides that an accomplice may be convicted "though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted." [FN306] It is more appropriate, however, to make the liability of the confederate dependent upon the kind of defense by which the perpetrator has gained an acquittal. Where the perpetrator has a failure of proof or offense modification defense, especially where he has not satisfied even the objective elements of the offense, the confederate should get the benefit of the defense, since no offense has in fact been committed. [FN307] He might nonetheless be criminally liable, based on his own conduct and culpability, but this is properly limited to liability for an attempt to commit an *279 offense. [FN308] Even the modern move toward subjective criminality, as evidenced by its distinction between substantive offenses and attempts, has not eliminated the significance of the presence of the harm or evil sought to be prevented or condemned by the offense. [FN309]


  An analogous argument applies where the perpetrator's conduct is justified. Assisting or causing another to engage in justified conduct should be similarly justified, since no harm has occurred. [FN310] As before, the confederate *280 of a justified perpetrator may nonetheless be liable for an attempt, based solely on his own culpability. [FN311] One may also be liable for causing the need for justified conduct. [FN312]


  It is only a perpetrator's excuse or nonexculpatory defense that is clearly inapplicable to a confederate. When conduct is excused, the elements of the offense are satisfied and the conduct is not justified. The perpetrator's excuse for causing the harm or evil relates not to the nature of the act, but to the condition and characteristics of the perpetrator. If the confederate does not share these excusing conditions, he should not share in their exculpatory effect. The insanity of a bank robber is irrelevant to the culpability of his sane getaway driver. [FN313]


  Nonexculpatory public policy defenses should similarly operate only to the benefit of the perpetrator. Many nonexculpatory defenses--such as incompetency, statute of limitations, or double jeopardy--arise for the perpetrator only after the offense, making it difficult for a confederate to claim that his earlier assistance is subject to the perpetrator's defense;  [FN314] not even the perpetrator had the defense at the time of the offense. But even when the defense does exist at the time of the offense--for example, when the confederate assists an immune diplomat or congressman--it should not be extended to the accomplice unless the public policy interest underlying the defense supports exemption of the accomplice as well. It rarely does.  [FN315] That is, the *281 marginal benefit to the public interest, if any, to be gained from extending the defense to an accomplice is generally outweighed by the costs of foregoing the conviction of the culpable accomplice.


  The Model Penal Code, and the states following its lead, include a special provision imposing liability for causing criminal conduct by an "innocent or irresponsible" person, [FN316] a doctrine similar to but distinct from complicity. [FN317] An actor can be held liable under the provision only if the perpetrator has a defense that is included within the phrase "innocent or irresponsible." Other defenses of the perpetrator will provide a defense to the accomplice, at least to liability under this provision. [FN318] But the Code gives no hint as to what defenses are included in the phrase. Examples in the Commentary to the section suggest that the drafters meant to include cases where the perpetrator is "innocent" in the sense that he does not satisfy all of the elements of the offense, and "irresponsible" in the sense that he has an insanity or immaturity defense. [FN319] The Code deals with these last two excuses separately in Article 4, *282 entitled "Responsibility." [FN320] Left unclear, however, is application of this liability provision to cases where the perpetrator is unconvictable because he has an offense modification defense, [FN321] a justification, [FN322] an excuse other than insanity or immaturity, [FN323] or a nonexculpatory public policy defense. [FN324]


  The theoretically proper result in such cases is the same as that for complicity liability: an objective failure of proof or offense modification defense or a justification defense of the perpetrator should provide a similar defense to the confederate, although not a defense to an attempt to commit the substantive offense; excuses and nonexculpatory defenses of the perpetrator should not provide a defense to the confederate. [FN325] One could well argue, however, that a perpetrator might be deemed to be "innocent," within the meaning of the Model Penal Code's causing-crime-by-an-innocent provision, thereby denying an unconvictable confederate defense to a defendant, if the perpetrator has any but a nonexculpatory defense. [FN326] Perpetrators with nonexculpatory public policy defenses are not "innocent" by the common sense meaning of that term. [FN327] They are at best "guilty but unconvictable"; thus the language of the causing-crime-by-an-innocent provision would not appear to impose liability on the confederate of such a perpetrator. Such results are theoretically improper in two respects. Such an interpretation of the provision improperly denies a defense to a defendant for liability under the provision where the perpetrator is "innocent" because he has an objective failure of proof or offense modification defense or a justification, and improperly provides a defense to liability under the provision where the perpetrator is not "innocent," because he has only a nonexculpatory defense. The provision is also inconsistent with the Code's treatment of the unconvictable confederate defense where the actor is charged under the Code's complicity provisions, a *283 difficulty aggravated by the considerable overlap between the two provisions. [FN328]


  The effect of a confederate's defense arises in still another context: inchoate offenses in which group criminality is inherent, such as conspiracy, solicitation, and facilitation. The common law rule was that a defense by the co-conspirator or perpetrator barred conviction of the confederate. [FN329] Again, reflecting the modern trend, the Model Penal Code and the many states patterning their codes after it attempt to limit severely the unconvictable confederate defense. [FN330] Section 5.04(1)(b) renders it "immaterial"  [FN331] to the defendant's liability that the co-conspirator or perpetrator "is irresponsible or has an immunity to prosecution or conviction." [FN332] But omitted are references *284 to a co-conspirator who is "innocent,"  [FN333] "has not been prosecuted," "has been convicted of a different offense or degree of offense," or "has been acquitted," [FN334] phrases used to describe the extent of the rejection of the unconvictable confederate defense in cases of complicity or causing crime by an innocent. Either the defense is meant to be broader for conspiracy and solicitation, or the differences are simply a matter of careless drafting. [FN335]


  More importantly, like the analogous provisions for causing crime by an innocent and for accomplice liability, section 5.04(1)(b) fails to specify precisely which defenses of the co-conspirator or perpetrator are to be "immaterial" to the liability of the defendant-confederate. The phrase "is irresponsible or has an immunity to prosecution or conviction" appears to come closer to approximating the theoretically correct result of rendering immaterial only excuses and nonexculpatory public policy defenses: [FN336] the term "irresponsible" probably includes insanity and immaturity and "immunity" probably includes diplomatic, judicial, legislative, and executive immunities. [FN337] But the Commentary contradicts, at least in some respects, any notion that the drafters had these defense groups in mind.  [FN338] Neither the text nor the Commentary makes clear exactly what defenses are to be held immaterial. [FN339]


  The Model Penal Code's persistent difficulties in determining and describing the kinds of defenses which should bar conviction of a confederate are a clear symptom of the current lack of critical analysis of criminal law *285 defenses as a group. The conceptual scheme presented in part I can solve both these problems: it provides a theory by which the defenses can be properly selected, and a terminology with which they can be precisely described.



G. Maintaining Collateral Consequences of Conviction After a Successful Defense


  Where a defendant is convicted, he may suffer not only the immediate sentence of the court such as fine, imprisonment, or probation, but also a host of other penalties and disabilities. He may lose many of his basic rights and privileges: citizenship; employment opportunities in licensed and unlicensed occupations; the capacity to litigate, to testify, and to serve as a juror and as a court-appointed fiduciary; voting, parental, and marital rights; and the rights to hold public office, to carry a firearm, to inherit, and to receive insurance, pension, and workmen's compensation benefits. [FN340] The offender may also incur forfeiture, civil restraint and injunction, civil liability, or civil commitment. [FN341] Further, the conviction may be used to impeach an offender in a subsequent trial where the offender is a witness or a defendant-witness, [FN342] and to aggravate the sentence for a subsequent offense. [FN343]


  Some of these collateral consequences may occur even if a defendant successfully presents a defense to criminal conviction. Civil commitment,  [FN344] *286 civil restraint or injunction, [FN345] forfeiture,  [FN346] civil liability, [FN347] and expulsion from the country  [FN348] do not depend upon a conviction. But most other collateral penalties and disabilities cannot now be imposed if the defendant is not convicted.


  Depending on the nature of the defense, however, it may be appropriate to reconsider whether such exemption from collateral effects is always appropriate. Failure of proof defenses, offense modifications, and justifications present little problem. Since no net harm or evil has occurred, a recurrence of the same non-criminal conduct need not be avoided. [FN349] But this is not the case with excuses and nonexculpatory defenses, for under such defenses the offender has occasioned a legally-recognized harm or evil.


  In many cases of excuse, the disability which led to the offense in the case at hand may well reappear, and it can well be argued that society has a right to protect itself from further harmful but excused conduct by insisting upon some action to eliminate or control the disability. This is done effectively in cases of the insanity excuse by procedures for automatic civil commitment or at least automatic consideration for civil commitment. [FN350]


  For other excuses, however, there is no analogous procedure. One could well argue that defendants offering excuses such as involuntary act (e.g., epilepsy), subnormality, immaturity, or intoxication may be acquitted, but *287 should be obliged to take action to avoid further offenses. [FN351] This might mean a probation-like supervision system to ensure that an epileptic will take his anti-seizure medicine or that an alcoholic or addict will seek treatment. Or it may mean permanent supervision for the subnormal, [FN352] or temporary commitment for the immature defendant. [FN353]


  The key, of course, is whether the disability and its harmful effects are recurrent in nature. Defendants offering a duress excuse present little continuing threat. Mistake of law excuses are automatically corrected by the charging and adjudication process. And many instances of intoxication or involuntary conduct may be one-time occasions, as where the intoxication was involuntary or the seizure was the first suffered. [FN354]


  *288 Where protective action by society is appropriate, there is rarely an established procedure to effect it in such cases. Some pre-trial diversion programs will screen for some of these excuses, such as alcoholism or drug addiction, and the juvenile justice process will take control of most cases that would involve an immaturity defense. But against other recurring excuses society often remains defenseless. Beyond persons found guilty of criminal offenses and mentally ill persons endangering themselves or others, intervention is rare. [FN355] Since with the proper procedures it can be reliably determined whether a defendant's acquittal is based on an excuse, trial judges might properly be authorized to impose necessary conditions upon excused offenders.


  The most significant difficulty with such a procedure, however, is that it would create the spectacle of a person found not guilty, being subject nonetheless to criminal justice authority. [FN356] Perhaps a better approach would be the creation of civil authority, like that used for civil commitment of insane and other irresponsible persons, to impose the necessary restrictions. On the other hand, because such civil authority over individuals might be used too broadly there is, appropriately, a reluctance to provide it to government except in special cases. Government intervention in noncriminal cases is not unknown. The police power has long been used to impose limits on individual freedom. [FN357] The case for the propriety of government action against the excused offender is significantly stronger. The offender has already demonstrated his capacity to produce harm, and by causing such harm he has established a legitimate, narrowly-defined basis for societal intervention.


  Perhaps of greater practical importance than the failure to impose certain collateral consequences of conviction after an excuse, is the lack of imposition after a successful nonexculpatory public policy defense. Such defendants may be fully culpable for past criminal harms and may continue to threaten society. In a few instances, current procedures can avoid the future threat even if the past harm or evil cannot be redressed. The criminal diplomat can be expelled from the country. [FN358] The incompetent defendant can be incarcerated *289 until his trial is possible. [FN359] In most cases, however, such offenders will escape all penalties and disabilities.


  Assume that a guilty [FN360] defendant's case is dismissed because of police or prosecutorial misconduct, for example. Presumably it has been concluded that allowing the offender to escape the normal consequences of conviction--the condemnation and the restraint of imprisonment or supervision-- is an acceptable cost of furthering the important societal interest in deterring such misconduct. But is it equally clear that the interest in deterrence also justifies dispensing with all collateral consequences that might have attached to the conviction? Should the corrupt official be able to keep his public office? [FN361] Should the child molester be licensed to drive a school bus? [FN362] Should the rapist be permitted to escape sentencing as a repeat offender after a subsequent rape? [FN363] Should the conman escape impeachment of his testimony as a prosecution witness in a subsequent capital offense trial? [FN364] The public policy nature of nonexculpatory defenses means that the effect of the defense should be a matter of balancing the competing public interests. Just because the interest supporting a public policy defense is enough to justify permitting the offender to escape conviction itself, it does not follow that he should escape all collateral consequences that would have accompanied that conviction. [FN365] *290 Collateral consequences often provide the most critical protections for society with minimal infringement upon the defendant's interests.


  There is some precedent for retaining collateral consequences in the absence of a standing conviction and sentence, as is frequently done where an offender is pardoned. [FN366] More often, however, in devising a response to these problems, one is again faced with the difficulty of exercising authority over a person who has been acquitted by or dismissed from the criminal justice process. There is a better argument here, however, for such criminal justice authority. The offender here is by all standards culpable and blameworthy. It is nothing in his character or conduct by which he deserves to escape conviction; rather, it is the societal interests that are to be furthered by his acquittal. As society may choose to adopt a nonexculpatory public policy defense because of the balance of competing societal interests, so may it properly modify the defense or its consequences as it sees fit. Thus a nonexculpatory defense might result in exemption from custodial or supervisory sanctions yet permit the imposition of those collateral consequences that are, on balance, too important to society's protection to be ignored.


  While a general jury verdict of "not guilty" may obscure the use of some nonexculpatory defenses, the trial record will often reflect whether such a defense has been relied upon. Failing that, special verdicts of "guilty, but not punishable" could be instituted. [FN367] In the many cases such a defense is determined by the judge, rather than the jury, at a hearing independent of the trial, thus an offender's reliance upon it is easy to determine. [FN368]


  The greatest practical difficulty in fashioning a proper resolution is that some nonexculpatory defenses bar further prosecution of the defendant where a culpability determination can be made. Double jeopardy and incompetency by their nature bar trial of the defendant. [FN369] Many other nonexculpatory defenses, such as the statute of limitations and immunities (judicial, legislative, executive, diplomatic, testimonial, and plea bargaining) are often taken up before trial. [FN370] A change in procedural rules to permit a culpability *291 determination would generally solve this problem. Whether such a change would be worth the additional expenditure of resources depends upon how great a threat the defendant would continue to present if no collateral consequences were imposed.






  The five-tiered conceptual framework described in part I provides a basis on which to think about and discuss all criminal law defenses. Not every defense fits cleanly into one or another conceptual group, but where classification is problematic, it appears that the difficulty arises from confusion or variations in the formulation of the defense. In such cases the scheme successfully identifies the confusion and its source and offers a perspective for more thoughtful analysis.


  Beyond the inherent value of conceptual clarity, the proposed framework for defenses serves a number of critical practical purposes. It distinguishes groups of defenses which have different effects upon the different purposes of criminal liability and punishment. Any effort to further such purposes through the formulation of defenses must take account of these differences in effect. The conceptual groupings also properly control the allocation, the standard, and the tribunal for the burdens of production and persuasion. They are central to defining the proper scope of the rules and doctrines assuring fair notice of what constitutes an "offense." And they are indispensable to a proper determination of whether a defendant should be liable for resisting or for assisting a perpetrator who has a defense to criminal conviction. Further, they suggest that even when certain types of defenses are successful, some collateral consequences of conviction may remain appropriate.


  The Article demonstrates that some sort of overall conceptual organization of criminal law defenses is possible, that properly defined such a scheme can be logically sound and can bring conceptual clarity to a troubled area, and that within such a scheme lies the resolution of a host of thorny practical problems. It illustrates the feasibility and usefulness of good doctrinal theory in a discipline drowning in ad hoc political and public policy debate.



[FNa1]. Copyright 1982, Paul H. Robinson.



[FNaa1]. Professor of Law, Rutgers University School of Law--Camden. B.S. 1970, Rensselaer Polytechnic Institute; J.D. 1973, University of California at Los Angeles; LL.M. 1974, Harvard; Dipl.Leg.St. 1976, Cambridge.

  I wish to thank Jay Feinman and George Fletcher for criticizing an early draft and Jane Grall for her extensive research assistance.

  This Article is adapted in part from 2 P. Robinson, Criminal Law Defenses  (forthcoming 1983).



[FN1]. Most of the defenses recognized today, and in some cases their precise formulation, have not changed in more than 300 years. A lawyer of today would feel familiar with the defenses described in Sir Matthew Hale Historia Placitorum Coronae ch. II-IX (London 1736).



[FN2]. The examination of such a system will be furthered by comparison of defenses. The concepts and terminology necessary for this comparison must be derived from the internal structure of defenses. Yet there has been no examination of such fundamental questions as how the internal structures of defenses compare, and whether there is a structure common to all or certain groups of defenses. Such questions are a prerequisite to consideration of the internal structures of defenses.

  In sharp contrast toits treatment of defenses, the American criminal law has developed a relatively sophisticated view of the internal structure of offenses. Due for the most part to the pioneering work of the drafters of the Model Penal Code, there exist concepts and terminology to describe in detail an internal structure common to all offenses. The scheme for the structure of offenses in the Model Penal Code is a model of simple sophistication. The rules governing the formulation of offenses may be stated as follows:

    1. An offense has been committed where an actor has satisfied all elements contained in the definition of the offense. The elements of an offense are of two sorts: objective criteria (actus reus elements) and culpability elements (including primarily mens rea elements).

    2. The objective elements of an offense may consist of the conduct of the actor, the circumstances under which the conduct takes place, and the results stemming from the conduct.

    3. Every offense must contain at least one objective element consisting of the conduct of the actor. (This is termed the "act requirement.")

    4. The mental or culpability elements of an offense may be purpose (or intention), knowledge, recklessness, negligence, or lack of culpability, with regard to engaging in the conduct, causing the result, or being aware of the circumstances, specified in the objective elements. (One may prefer that negligent and strict liability be avoided, but as long as they are in practice permitted one cannot devise rules of structure that prohibit them.)

    5. Every objective element must have a corresponding culpability element, which may be different for each of the objective elements of the same offense.

See Model Penal Code   2.02 (Proposed Official Draft 1962) (definition of culpability terms and rules for their application); id.   2.05 (strict liability). A sixth rule, though only implicit in the Model Penal Code, may be added:

    6. A culpability element may be required without requiring a corresponding objective element.

This is often termed a "specific intent" but might better be called an  "ulterior intent." See G. Fletcher, Rethinking Criminal Law 454 (1978). For example, assault with intent to rape has the mental element of "intent to rape," but no corresponding objective element of rape.

  This system, outlining a common structure for all offenses, provides a groundwork that has contributed to an important theoretical understanding of the interaction of culpability terms and objective elements. It reveals, for example, the need for code draftsmen to specify a culpability requirement for each objective element. The internal structure indicates that the culpability requirement may vary for different objective elements of the same offense. Our traditional practice of specifying a single culpability term for an offense seems painfully confusing and unsophisticated by comparison.

  Such theoretical advances, made possible by the existence of this structure for offenses, have had important practical results. The scheme permits courts and counsel to prepare a complete and precise list of facts which must be proven in order to constitute each offense. This avoids uncertainty, extensive litigation, and the improper delegation to the judiciary of the legislative authority to define offenses. Further, it avoids the ad hoc, ex post facto determination inherent in judicial definition of offenses. See infra notes 254- 55 and accompanying text.

  Although it has not been done, it is possible to formulate a similar system of rules for the internal structure of defenses. The rules of structure for defenses may well furnish both practical benefits and the same enlightenment provided by the "discovered" structure of offenses. An in-depth analysis of the internal structure of defenses is provided in my forthcoming treatise, Criminal Law Defenses (1983). The major outline of the internal structure of justifications is set forth infra at text accompanying notes 67-75. A sketch of the major components of the structure of excuses is provided infra at text accompanying notes 82-107.



[FN3]. American kidnapping law changed dramatically during the second quarter of the 20th century.

    [S]everal notorious cases drew public attention to the crime and created a political demand for reforming the offense and escalating maximum penalties. The most famous was the 1932 abduction and murder of the infant son of Charles A. Lindbergh. The long ordeal of a national hero became a popular obsession and prompted a spate of legislative action. The federal law passed in 1932, and in 1933 alone at least six jurisdictions amended or replaced their kidnapping statutes.

Model Penal Code   212.1, comment 1 at 215-16 (1980) (footnotes omitted). See generally Fisher & McGuire, Kidnapping and the So-Called Lindbergh Law, 12 N.Y.U.L.Rev. 646 (1935); Note, A Rationale of the Law of Kidnapping, 53 Colum.L.Rev. 540 (1953). The United States Code furnishes other examples of statutes reflecting a particular social or political era. Consider for example:

    Seduction of Female Passenger. Whoever, being a master, officer, seaman, or other person employed on board of any American vessel, during the voyage, under promise of marriage, or by threats, or the exercise of authority, or solicitation, or the making of gifts or presents, seduces and has illicit connection with any female passenger, shall be fined not more than $1,000 or imprisoned not more than one year, or both.

    Subsequent intermarriage of the parties may be pleaded in bar of conviction and no conviction shall be had on the testimony of the female seduced without other evidence.

18 U.S.C.   2198 (1976). Unfortunately, when the social or political interest passes, the offense remains, resulting in a collection of obscure, obsolete, and irrational offenses. See Model Penal Code   212.1, comment 1 at 218-20 (1980) (noting anomalies in the law of kidnapping in New York and California at the time of the drafting of the Model Penal Code and the need for major restructuring of the law governing that offense). See generally Wechsler, The Challenge of a Model Penal Code, 65 Harv.L.Rev. 1097, 1101 (1952) [hereinafter cited as Wechsler, Challenge]; S.Rep. No. 605, 95th Cong., 1st Sess. 3-6 (1977).



[FN4]. Admittedly, we have not yet taken full advantage of the systematization of offenses in our sentencing practices. See generally A. Dershowitz, Fair and Certain Punishment: Report of the Twentieth Century Fund Task Force on Criminal Sentencing (1976); M. Frankel, Criminal Sentences: Law Without Order 3-49 (1973); P. O'Donnell, M. Churgin & D. Curtis, Toward a Just and Effective Sentencing System: Agenda for Legislative Reform ch. 1 (1977); A. Partridge & W. Eldridge, The Second Circuit Sentencing Study: A Report to the Judges of the Second Circuit (1974).



[FN5]. See Wechsler, Challenge, supra note 3, at 1098 (noting that there has been no Williston or Wigmore "to chart the contours of [criminal law]"). Since the Model Penal Code, however, at least the contours of offenses have been charted, thanks in large measure to Professor Wechsler.



[FN6]. For a general discussion of systematic analysis in the social sciences, see M. Duverger, An Introduction to the Social Sciences 225-48 (1964).



[FN7]. Possible bars to conviction include alcoholism, alibi, amnesia, authority to maintain order and safety, brainwashing, chromosomal abnormality, consent, convulsion, custodial authority, defense of habitation, defense of others, defense of property, de minimis infraction, diplomatic immunity, domestic (or special) responsibility, double jeopardy, duress, entrapment, executive immunity, extreme emotional disturbance, hypnotism, impaired consciousness, impossibility, incompetency, insanity, intoxication (voluntary and involuntary), involuntary act defenses, judicial authority, judicial immunity, justification, law enforcement authority, legislative immunity, lesser evils, medical authority, mental illness (apart from insanity), military orders (lawful and unlawful), mistake (of law and fact), necessity, official misstatement of law, parental authority, plea bargained immunity, provocation, public duty or authority, reflex action, renunciation, self-defense, somnambulism, the spousal defense to sexual assaults and theft, statute of limitations, subnormality, testimonial immunity, the unavailable law defense, unconsciousness, and withdrawal.



[FN8]. See supra note 2.



[FN9]. By using the label "failure of proof" defense I do not mean to suggest that the defense concerns evidentiary matters. See infra text accompanying notes 10-11. The phrase "absence of an element" defense could also be used.



[FN10]. Model Penal Code   1.12(1) (Proposed Official Draft 1962) (requiring the prosecution to prove each element of the offense beyond a reasonable doubt); id.   1.13(9) (defining elements of the offense); id.   1.12(2) (excepting certain defenses); National Commission on Reform of Federal Criminal Laws, Final Report of the National Commission on Reform of Federal Criminal Laws: A Proposed New Federal Criminal Code (Title 18, United States Code)   103(1) (1971) (defining elements and requiring the prosecutor to prove all elements) [hereinafter cited as Brown Commission]; id.   103(2)- (3) (exempting certain defenses); Ala. Code   13A-1-2 commentary at 4 (1977) (statute does not so provide but commentary states that prosecution must prove each element beyond a reasonable doubt); Ariz.Rev.Stat.Ann.   13- 115(A) (1978) (if a reasonable doubt as to guilt exists the defendant is entitled to an acquittal); Ark.Stat.Ann.   41-110(1)(a) (1977) (each element of the offense beyond a reasonable doubt); id.   41-115(5) (defining elements); id.   41-110(3)-(4) (exempting certain defenses); Cal. Penal Code   1096 (West 1970) (tracks the Arizona statute); Colo.Rev.Stat.   18-1-402 (1978) (prosecution must prove guilt of the defendant beyond a reasonable doubt); Del.Code Ann.tit. 11,   301(b) (1979) (convention requires proof of each element beyond a reasonable doubt); id.   232 (defining elements of the offense); D.C. Code Encycl.   22-2401 (  16) (West 1967); Ga.Code Ann.   26- 501 (1977) (each element must be proved beyond a reasonable doubt); Hawaii Rev.Stat.   701-114(1)(a)-(b) (1976) (each element beyond a reasonable doubt); id.   701-115(2)(b) (exempting certain defenses); id.   702-205(a)- (b) (defining elements); Ill.Ann.Stat. ch. 38,   3-1 (Smith-Hurd 1972) (defendant's guilt of an offense must be proved beyond a reasonable doubt); Ind. Code Ann.   35-41-4-1 (Burns 1979) (defendant may be convicted of offense only if guilt proved beyond a reasonable doubt); Iowa Code Ann.   701.3 (West 1979) (defendant's guilt of the offense must be proved beyond a reasonable doubt); Kan.Stat.Ann.   21-3109 (1974) (tracking Arizona); Ky.Rev.Stat.   500.070(1), (3) (1975) (every element of the offense and excepting certain defenses); Me.Rev.Stat.Ann.tit.17-A,   32 (1981) (every element of the offense and defining elements);   101(2) (excepting certain defenses); N.J.Stat.Ann.   2C:1-13(a) (West 1981) (each element); id.   1- 14(h) (defining elements); id.   1-13(b) (exempting certain defenses); N.D.Cent. Code   12.101-03 (1976) (each element, defining element to exclude defenses not raised at trial); Ohio Rev.Code Ann.   2901.05(A) (all elements of offense) (Page Supp.1981) id.   2901.05(C)(2) (exempting certain defenses); S.D. Codified Laws   22-1-2(3) (1979) (prosecution must prove each element of the offense and disprove each defense); Tex. Penal Code Ann. tit. 1,   2.01 (each element of offense) (Vernon 1974); id.   2.04(d) (exempting certain defenses); Utah Code Ann.   76-1-501 (1978) (each element must be established by proof beyond a reasonable doubt); Wash.Rev.Code Ann.   9A.04.100(1) (1977) (each element must be proved beyond a reasonable doubt). Many of these jurisdictions define element of the offense broadly so as to include the absence of certain defenses, see infra note 229. This broad definition is not intended here. In re Winship, 397 U.S. 358, 364 (1970), constitutionally requires the proof of each element of an offense beyond a reasonable doubt.



[FN11]. For example, Conn.Gen.Stat.Ann.   53a-12(a) (West 1972) suggests that the defendant must "raise" any defense in order to have that defense considered at trial. The statute does not indicate the quantum of evidence necessary to raise a defense and seems to impose a mere burden of pleading. See infra note 187 and accompanying text.



[FN12]. See infra notes 194-202 and accompanying text.



[FN13]. Compare Alaska Stat.   11.41.410, .445 (1978) (defining sexual assault in the first degree and a separate exemption for conduct with spouses under certain circumstances) with the Model Penal Code and California provisions, see infra note 28 and accompanying text (defining the prohibited conduct as conduct with a non-spouse). See infra text accompanying notes 48-55 for a further discussion of the relationship of failure of proof and offense modification defenses.



[FN14]. Conn.Gen.Stat.Ann.   53a-191 (West 1972).



[FN15]. See, e.g., Hawaii Rev.Stat.   702-219 (1976); N.J. Stat Ann.   2C:2-4(c)(2) (West 1981); Model Penal Code   2.04(3)(b) (Proposed Official Draft 1962). The mistake that would serve as the basis for such general defenses might conceivably negate an element, but only where knowledge of unlawfulness is an element. Such knowledge is rarely an element, however. See, e.g., N.J.Stat.Ann.   2C:2-2(d) (West 1981); Model Penal Code   2.02(9) (Proposed Official Draft 1962). Where knowledge of the illegality of conduct is an element of the offense, the conditions of the general official misstatement defense need not be met to negate that element. See, e.g., N.J.Stat.Ann.   2C:2-4(a)(2) (West 1981); Model Penal Code   2.04(1)(b) (Proposed Official Draft 1962).



[FN16]. E.g., Alaska Stat.   12.45.085 (1978); Ark.Stat.Ann.   41-602  (1977); Colo.Rev.Stat.   18-1-803 (1978) (to disprove specific intent); Guam Crim. & Corr. Code   7.19, .22(c)-(d) (1977); Hawaii Rev.Stat.   704- 401 (1976); Idaho Code   18-208(1) (1979); Me.Rev.Stat.Ann.tit. 17-A,   38 (1981); Mo.Ann.Stat.   552.030(3) (Vernon Cum. Supp.1981); Mont.Code Ann.   46-14-102 (1981); N.J.Stat.Ann.   2C:4-2 (West 1981); Or.Rev.Stat.   161.300 (1979); Model Penal Code   4.02(1) (Proposed Official Draft 1962).



[FN17]. Typically a general insanity defense applies where the defendant  "lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law." E.g., Alaska Stat.   12.45.083(a) (1978); Hawaii Rev.Stat.   704-400 (1976); Model Penal Code   4.01 (Proposed Official Draft 1962). Other states grant an insanity defense where the defendant "as a result of mental disease or defect . . . did not know or appreciate the nature, quality or wrongfulness of his conduct or was incapable of conforming his conduct to the requirements of law." E.g., Mo.Ann.Stat.   562.086(1) (Vernon 1979). Contrast the requirements of a general defense with the requirements of a failure of proof defense. The former has specific components that must be established. The latter has no requirements other than the absence of an element of the offense. A person who lacks capacity to conform his conduct to the law may well satisfy all the mental elements of the offense.



[FN18]. See, e.g., People v. Wetmore, 22 Cal.3d 318, 583 P.2d 1308, 149 Cal.Rptr. 265 (1978) ("diminished capacity"); State v. Jacobs, 260 N.W.2d 828 (Iowa 1977) ("diminished responsibility"); W. LaFave & A. Scott, Handbook on Criminal Law 326 (1972) (indicating that the phrases "partial responsibility," "diminished responsibility," and "partial insanity" are used interchangeably).



[FN19]. See, e.g., Ala.Code   13A-6-3(a)(2) (1978); Alaska Stat.   11.41.115(a), (f)(2) (1978); Ariz.Rev.Stat.Ann.   13-1103(A)(2) (1978); Colo.Rev.Stat.   18-3-104(1)(c) (Cum. Supp.1980).



[FN20]. The California courts have added a twist to the normal operation of mental illness as a failure of proof defense to homicide. They not only permit mental illness to negate the elements of deliberation and premeditation (required for first degree murder) and malice (required for either degree of murder), they have taken the opportunity to redefine these elements, and apparently most ulterior intent requirements, to make them more easily negated by mental abnormality. For first degree murder an actor must not only deliberate and premeditate, in its former sense, but must do so at a time when he can"maturely and meaningfully reflect upon the gravity of his contemplated act." People v. Wolff, 61 Cal.2d 795, 821, 394 P.2d 959, 975, 40 Cal.Rptr. 271, 287 (1964) (emphasis omitted); People v. Goedecke, 65 Cal.2d 850, 856, 423 P.2d 777, 781, 56 Cal.Rptr. 625, 629 (1967). For murder, he must not only have malice, in its former sense, but must have it at a time when he can "comprehend his duty to govern his actions in accord with the duty imposed by law." People v. Conley, 64 Cal.2d 310, 322, 411 P.2d 911, 918, 49 Cal.Rptr. 815, 822 (1966). While the California courts have chosen this approach, it should be clear that, first, mental illness can negate an element of an offense without such redefinition and, second, much of the effect of such redefinition might be achieved more effectively and perhaps more appropriately through a properly drafted general insanity defense. Such a defense would then apply to all offenses, not just to homicide, and would be likely to incorporate a more workable standard.

  Some have suggested that the peculiar California approach was a result of judicial dissatisfaction with the narrow M'Naghten insanity test then in effect in California. See Arenella, The Diminished Capacity and Diminished Responsibility Defenses: Two Children of a Doomed Marriage, 77 Colum.L.Rev. 827, 842 (1977). The M'Naghten insanity test exculpates where, because of a defect in reason or a disease of the mind, the defendant does not know the nature and quality of the act or does not know that it is wrong. M'Naghten's Case, 8 Eng.Rep. 718, 720 (1843). California has since adopted the broader A.L.I. insanity defense which also excuses where there is a lack of capacity to conform to the requirements of the law. People v. Drew, 22 Cal.3d 333, 583 P.2d 1318, 149 Cal.Rptr. 275 (1978).



[FN21]. E.g., Hawaii Rev.Stat.   702-230(1) (1976); N.J.Stat.Ann.   2C:2-8(a)-(b) (West 1981); Model Penal Code   2.08(1)-(2) (Proposed Official Draft 1962).



[FN22]. There are other instances. An actor may be held liable for an offense even if he does not satisfy the objective elements, if the actor's accomplice commits the objective elements of the offense, see, e.g., State v. Duran, 86 N.M. 594, 526 P.2d 188 (1974); Model Penal Code   2.06(2)(3) (Proposed Official Draft 1962), or if the actor has caused an innocent person to engage in the prohibited conduct, see, e.g., Pereira v. United States, 347 U.S. 1 (1954); Model Penal Code   2.02(3) (Proposed Official Draft 1962). Under the "Pinkerton Doctrine" an actor may be held accountable for offenses committed by a co-conspirator in furtherance of the conspiracy, even if the actor neither satisfies the objective elements nor had knowledge of the offense. See Pinkerton v. United States, 328 U.S. 640 (1946); United States v. Tilton, 610 F.2d 302 (5th Cir.1980).



[FN23]. See Model Penal Code   2.08(1)-(2) (Proposed Official Draft 1962). For an alternative proposal for dealing with a person who brings about his own excusing conditions, see infra note 107.



[FN24]. E.g., Ala. Code   13A-6-70(a)-(b) (1978) (defining rape as a sexual act without consent of victim); Del. Code Ann. tit. 11,   764(2) (1979) (defining rape as intercourse with a female without her consent); cf. Ga. Code Ann.   26-2001 (1977) (defining rape as carnal knowledge of a female forcibly and against her will); Model Penal Code   213.1(1)(a) (1980) (defining rape as compelled submission). Consent can also be a failure of proof defense to other offenses. See, e.g., Del. Code Ann. tit. 11,   625, 626 (1979) (assault by unlawful administration of a drug); Iowa Code Ann.   710.1 (West 1979) (kidnapping); N.M.Stat.Ann.   30-4-3 (1978) (false imprisonment); Wis.Stat.Ann.   940.19(1) (West Supp.1981) (battery).



[FN25]. E.g., N.J.Stat.Ann.   2C:24-5 (West 1981) (offense to fail willfully to provide support that one is capable of providing); Model Penal Code   230.5 (1980) (offense to fail persistently to provide support that one is capable of providing). Some failure-of-proof impossibility defenses provide a more liberal defense; under certain circumstances the actor may be excused for nonfeasance even though it would not be actually impossible to perform the duty. See Model Penal Code   220.1(3) (1980) (offense to fail to act to control a fire endangering life or a substantial amount of property if one owing a duty can do so without substantial danger to himself); accord N.J.Stat.Ann.  2C:17-1(c) (West 1981).



[FN26]. N.J.Stat.Ann.   2C:24-5 (West 1981) (offense to fail to provide support which the actor is legally obliged to provide); Model Penal Code   230.5 (1980) (offense to fail to provide support which the actor is legally obligated to provide); N.J.Stat.Ann.   2C:17-1(c)(1)-(2) (West 1981) (offense to fail to control a fire where a duty to do so is imposed by contract or where actor lawfully started but lost control of fire); accord Model Penal Code   220.1(3)(a)-(b) (1980).



[FN27]. Accident is included within the definition of an offense with a result element if culpability is required as to each element of the offense, as it usually is. See, e.g., Model Penal Code   2.02(1) (Proposed Official Draft 1962). Different levels of culpability requirements will of course exclude different levels of accident. Where reckless homicide, Model Penal Code   210.3 (1980), is charged, the actor will be guilty if he "consciously disregards a substantial and unjustifiable risk that" his conduct will "accidentally" result in the death. Model Penal Code   2.02(c) (Proposed Official Draft 1962). A person accused of negligent homicide, Model Penal Code   210.4 (1980), is guilty of the offense if his accident, "considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation." Id.   2.02(d). A person charged with a strict liability offense will be held liable even if his accident is faultless; accident will not be a defense.



[FN28]. Model Penal Code   213.1(1), .6(2) (1980); accord Cal. Penal Code   261 (West 1970 & Cum.Supp.1980); Me.Rev.Stat.Ann. tit. 17-A,   255(1) (1981). Other examples of failure of proof defenses are numerous. See, e.g., Del. Code Ann. tit. 11,   625, 626 (1979) (assault to administer a drug to a nonconsenting person for other than lawful medicinal or therapeutic treatment); R.I. Gen. Laws   11-1-4 (1969) (offense for nonfamily member to harbour a criminal); Fla.Stat.Ann.   790.05 (West Cum.Supp.1980) (offense to possess a weapon without a license).



[FN29]. W. LaFave & A. Scott, supra note 18, at 48; C. Torcia, 1 Wharton, Criminal Law 209 (14th ed. 1978).



[FN30]. See, e.g., Me.Rev.Stat.Ann. tit. 17A,   207(1) (1981); Model Penal Code   211.1, 210.0(2) (1980). These sections define assault and bodily injury.



[FN31]. The more generalized language is, however, included in the statutory language of the Model Penal Code de minimis infraction defense. Model Penal Code   2.12(2) (Proposed Official Draft 1962). The name of the defense may be misleading, since the harm excluded from liability under   2.12 may not be de minimis, but simply different than that contemplated by the statute.



[FN32]. See, e.g., Model Penal Code   2.06(6)(a) (Proposed Official Draft 1962); accord, e.g., Ala. Code   13A-2-24(1) (1978); Alaska Stat.   11.16.120(b)(1) (1978); Ark.Stat.Ann.   41-305(1)(a) (1977).



[FN33]. See, e.g., Model Penal Code   2.06(6)(b) (Proposed Official Draft 1962); accord, e.g., Ala. Code   13A-2-24(2) (1978); Alaska Stat.   11.16.120(b)(2) (1978); Ark.Stat.Ann.   41-305(1)(b) (1977).



[FN34]. See W. LaFave & A. Scott, supra note 18, at 492 (citing 2 Wharton, Criminal Law   1604 (12th ed. 1932)).



[FN35]. See W. LaFave & A. Scott, supra note 18, at 492 (describing the defense of inseparably incident conduct as simply relying upon the legislative intent evinced by the offense definition). Wharton's rule similarly follows from the purpose of the offense of conspiracy. Wharton construes conspiracy as punishing the aggravation of criminality that occurs where a plurality of agents agree to a crime. He reasons that this aggravation cannot occur where, as in dueling, a plurality of agents is necessary for the commission of the crime. See id. at 492 (quoting 2 Wharton, Criminal Law   1604 (12th ed. 1932)).



[FN36]. See, e.g., Model Penal Code   5.01(4) (attempt), . 02(3) (solicitation), .03(6) (conspiracy) (Proposed Official Draft 1962). Each of these renunciation defenses requires either abandonment or some affirmative act of prevention under "circumstances manifesting a complete and voluntary renunciation of [the] criminal purpose." Id.   5.01(4), .02(3), .03(6); accord Ala. Code   13A-4-2 to -3 (1977); Conn.Gen.Stat.Ann.   53a-49 (attempt), -10 (complicity), -48 (conspiracy) (West 1972).



[FN37]. See G. Williams, Criminal Law: The General Part 620 (2d ed. 1961)  (the intention of the accused who withdraws is only half-formed and is insufficient for liability); cf. Model Penal Code   5.01 comment 71 (Tent. Draft No. 10, 1960) (the renunciation negatives dangerousness).



[FN38]. Attempt can be defined to punish any conduct designed to result in the commission of an offense no matter how unrealistic the design. E.g., Model Penal Code   5.01(1) (Proposed Official Draft 1962). Where impossibility is a defense to attempt, however, only attempts which could in fact give rise to the prohibited result are punished. See, e.g., United States v. Berrigan, 482 F.2d 171 (3d Cir.1973); People v. Jaffe, 185 N.Y. 497, 78 N.E. 169 (1906). Thus, the impossibility defense further defines the harm prohibited by the offense of attempt: it must come close to the actual commission of an actual offense.

  Some jurisdictions adopt a more limited impossibility defense, allowing the impossibility defense where the attempt was not possible and the actor's expectations of possibility were "unreasonable in light of the facts known to the actor." E.g., Iowa Code Ann.   707.11 (West 1979) (defining attempted murder). This defense has less effect on the definition of the attempt offense; the prohibited harm is engaging in conduct that the reasonable person would believe would result in the commission of an offense. Other jurisdictions provide an even more limited impossibility defense, excluding only "inherently unlikely" attempts from the scope of the attempt offense; the offense still encompasses all attempts where the actor or his conduct present a public danger. E.g., Ark.Stat.Ann.   41-715 (1977). Still other jurisdictions do not provide a substantive defense, even in this limited form, where the attempt is so inherently unlikely that neither the conduct nor the actor poses a threat, but do give the court discretion to dismiss the case, 18 Pa.Cons.Stat.Ann.   905(b) (Purdon 1973), or provide a mitigation of sentence, Model Penal Code   5.05(2) (Proposed Official Draft 1962). These latter approaches do not, however, formally refine the definition of the attempt offense as other offense modifications do.

  An impossibility defense may also refine the definition of an omission offense. Not all failures to perform a duty will be punished; the penal sanction is typically reserved for culpable omissions, and, in many jurisdictions, a person does not culpably fail to perform a legal duty unless the performance is possible. See, e.g., Mo.Ann.Stat.   568.040(3) (Vernon 1979); Tex. Penal Code Ann.   25.05(a)-(f) (Vernon 1974) (inability to provide support is an affirmative defense to criminal nonsupport). Many recent criminal codes contain an offense modification that provides a defense where the actor is not physically capable of performing the required act. See, e.g., Model Penal Code   2.01(1) (Proposed Official Draft 1962); Ala. Code   13A-2-3 (1977); Alaska Stat.   11.81.600(a) (1978); Ariz.Rev.Stat.Ann.   13-201 (1978); Ark.Stat.Ann.   41-202(1) (1977); Colo.Rev.Stat.   18-1- 502 (1978); Hawaii Rev.Stat.   702-200(1) (1976); Ill.Ann.Stat. ch. 38,   4-1 (Smith-Hurd 1972); Ky.Rev.Stat.Ann.   501-030(1) (Baldwin 1978); Me.Rev.Stat.Ann. tit. 17-A,   31(2) (1981). These provisions refine the definition of each omission; the harm prohibited is a failure to do what one ought to do when one is capable of doing it.



[FN39]. E.g., Model Penal Code   2.12 (Proposed Official Draft 1962).



[FN40]. E.g., Conn.Gen.Stat.Ann.   53a-195 (West 1972); Del. Code Ann. tit. 11,   1362 (1979); N.M.Stat.Ann.   30-37-5(D) (Supp.1980). Another common defense based on the identity of the actor is the parental defense to kidnapping, which is available in many jurisdictions even if the parent does not have lawful custody. See, e.g., Crump v. Alaska, 625 P.2d 857 (Alaska 1981) (the defense if not available to the parent's agent, however; the case discusses the rationale and compares the law in other jurisdictions).



[FN41]. Fla.Stat.Ann.   893.13(1)(e) (West Supp.1980).



[FN42]. S.1437, 95th Cong., 1st Sess.   1842(c)(1) (1977).



[FN43]. E.g., Model Penal Code   2.11(2)(b) (Proposed Official Draft 1962);  Ala. Code   13A-2-7(b)(2) (1977); S. 1437, 95th Cong., 1st Sess.   1813(b) (1977).



[FN44]. S.1437, 95th Cong., 1st Sess.   1327(b) (1977).



[FN45]. Id.   1323(b).



[FN46]. Id.   1312(b). Others include: an exemption for unlicensed possession of antique firearms, Mo.Ann.Stat.   571.125(5) (Vernon 1979); truth as a defense to libel, Nev.Rev.Stat.   200.510(3) (1977); exemption from liability for projectionists for exhibiting pornography, Nev.Rev.Stat.   201.254 (1977); exemption from false advertising offense for newspapers that publish the ads, R.I. Gen. Laws   11-18-11 (1969); an exemption from a gambling offense for those who conduct a church raffle, Miss. Code Ann.   97-33-51 (Supp.1980).



[FN47]. It has been argued, for example, that the renunciation defense may be justified either because it undercuts the culpability of the actor, see supra text accompanying note 37, or because it tends to encourage would-be offenders to desist. G. Fletcher, supra note 2, at 544.



[FN48]. Compare Model Penal Code   230.5 (1980) (providing impossibility as a failure of proof defense to willful non-support), with Model Penal Code   2.01(1) (Proposed Official Draft 1962) (providing an offense-modification defense of impossibility for all omissions). See supra notes 25 & 38. Compare Model Penal Code   230.5 (1980) (legal obligation to provide support is an element of the offense) with Model Penal Code   2.01(3) (Proposed Official Draft 1962) (lack of a legal duty is defense for all omissions). Compare Iowa Code Ann.   707.11 (West 1979) (providing an offense-modification defense to attempt for "unreasonable" impossibility, see supra note 38) with N.J.Stat.Ann.   2C:5-1(a)(1) (West 1981) (defining attempt to require reasonable possibility).



[FN49]. See, e.g., Hawaii Rev.Stat.   702-233 (1976); Model Penal Code   2.11(1) (Proposed Official Draft 1962).



[FN50]. See, e.g., La.Rev.Stat.Ann.   14:34.1 (West Supp.1980) (second degree battery). The Wisconsin battery statute is similar:

    Battery; aggravated battery. Whoever causes bodily harm to another by an act done with intent to cause bodily harm to that person or another without the consent of the person so harmed is guilty of a Class A misdemeanor.

Wis.Stat.Ann.   940.19(1) (West Supp.1979). See Conn.Gen.Stat.Ann.   53a- 60(a)(4) (West Supp.1981) (prohibiting "administering . . . without . . . consent, a drug, substance or preparation capable of producing" stupor or unconsciousness).



[FN51]. See supra note 50.



[FN52]. See, e.g., Model Penal Code   221.2 (1980) (consent of the owner negatives the element requiring that the actor "is not licensed or privileged" to enter).



[FN53]. See supra note 49. Consent is also a defense to battery and menacing, and to arson and destruction of property, if all parties having an interest in the property consent. S.1437, 95th Cong., 1st Sess.   1618(b), 1704(b) (1977).

  Fletcher suggests that consent might also be a justification. See G. Fletcher, supra note 2, at 557, 566, 769. But since consent clearly does not apply to all offenses, this classification would seem inappropriate. Consent does not outweigh a harm done, but rather refines the specific definition of the harm in the particular offense to say that no harm has been done.



[FN54]. Model Penal Code   2.11(1) (Proposed Official Draft 1962). "The consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense if such consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense." Id. (emphasis added).



[FN55]. As the Model Penal Code commentary notes, in discussing the criteria for allocation of the burden of production to the defendant,

    [t]here is admittedly no certain principle by which to gauge when a qualification of the scope of a prohibition should be classified as matter of excuse or justification as distinguished from an aspect of the basic definition of the crime.

Id.   1.13 (currently   1.12) comment 114 (Tent. Draft No. 4, 1955). See infra text accompanying notes 216-23.



[FN56]. E.g., Model Penal Code   3.02 (Proposed Official Draft 1962);  Ala. Code   13A-3-29 (1977); Ark.Stat.Ann.   41-504 (1977); Ill.Ann.Stat. ch. 38,   7-13 (Smith-Hurd 1972); Ky.Rev.Stat.   503.030 (1975); Me.Rev.Stat.Ann. tit. 17A,   103 (1981); N.Y. Penal Law   35.05 (McKinney 1975).



[FN57]. See, e.g., Model Penal Code   3.06(1), (3) (Proposed Official Draft 1962); Conn.Gen.Stat.Ann.   53a-21 (West 1972); Ga. Code Ann.   26-904 (1977); Ill.Ann.Stat. ch. 38,   7-3 (Smith-Hurd 1972); N.J.Stat.Ann.   2C:3-6(c), (d) (West 1981); N.Y. Penal Law   35.25 (McKinney 1975); 18 Pa.Cons.Stat.Ann.   507(a), (c) (Purdon 1973).



[FN58]. Some jurisdictions provide two defenses--a defense of self and a defense of others. E.g., Ariz.Rev.Stat.Ann.   13-404, -406 (1978); N.J.Stat.Ann.   2C:3-4, 3-5 (West 1981); 18 Pa.Cons.Stat.Ann.   505, 506 (Purdon 1973); Tex. Penal Code Ann.   9.31, 9.33 (Vernon 1974); Model Penal Code   3.04, .05 (Proposed Official Draft 1962). Others combine the defenses in a justification for defense of persons. E.g., Fla.Stat.Ann.   776.012 (West 1976); Ga. Code Ann.   26-902 (1977); Ill.Ann.Stat. ch. 38,   7-1 (Smith-Hurd 1972); N.Y. Penal Law   35.15 (McKinney 1975).



[FN59]. For a discussion of the aggression that will trigger a justification for the use of defensive force, see infra notes 283-303 and accompanying text.



[FN60]. E.g., Model Penal Code   3.06(3)(d) (Proposed Official Draft 1962);  Colo.Rev.Stat.   18-1-706 (1978); Me.Rev.Stat.Ann. tit. 17-A,   105 (West 1981); N.Y. Penal Law   35.25 (McKinney 1975). There are many examples of special rules incorporated in particular justifications. The retreat rule, for example, requires the actor to retreat, if possible, before using deadly force. See, e.g., Model Penal Code   3.04(2)(b)(ii) (Proposed Official Draft 1962); Hawaii Rev.Stat.   703-304(5)(b) (1976); Me.Rev.Stat. tit. 17-A,   108(2)(C)(3)(a) (West 1981). Another rule denies the justification of self- defense if the actor uses force to resist an unlawful arrest. See, e.g., Model Penal Code   3.04(2)(a)(i) (Proposed Official Draft 1962); Tex. Penal Code   9.31(b)(2) (Vernon 1974).

  While it is common practice to codify separate justifications, as described in the text, the practice is not universal. Fletcher notes that the German and Soviet systems recognize a general defensive force privilege, G. Fletcher, supra note 2, at 855-56, which provides a justification for protecting all rights and interests recognized by law. Id. at 863-64.



[FN61]. On the other hand, where these defenses overlap, they are sometimes combined in a hybrid, a defense of habitation or premises. E.g., Conn.Gen.Stat.Ann.   53a-20 (West Supp.1981); Ga. Code Ann.   26-903 (1978); Ill.Ann.Stat. ch. 38,   7-2 (Smith-Hurd 1972); N.Y. Penal Law   35.20 (McKinney 1975).



[FN62]. Professor Fletcher argues that "[e]ven the theory of interest- balancing fails to take into account important values that shape the theory of justification. Of these additional values, we should take special note of the concept of autonomy and the significance of acting in the name of the government." G. Fletcher, supra note 2, at 769-70 (footnote omitted). But there is no apparent reason why a balancing of interests must fail to consider these interests. Certainly, if one argues that a particular interest, such as the interest in autonomy, is accepted as an absolute, one which cannot be outweighed, then the balancing analysis is unnecessary to determine the proper result. Of course, as Fletcher concedes, only "radical individualists" would take such a view. Id. at 771. In any case, such an absolutist view does not undercut the value of interest-balancing generally, but only serves to govern the result of the balance in cases where an absolute interest is at stake. Fletcher's concern that the interests in autonomy and acting in the name of the government will be unaccounted for in a theory of interest-balancing is more likely founded on the mistaken belief that such abstract interests will be ignored while only immediate physical harms will be balanced. But as discussed in the text, this need not be the case; interests which are more abstract and more complex than those noted by Fletcher are at stake and are generally accounted for in the balance under current law.



[FN63]. For example, a parent may discipline a child to "promote the welfare of the minor" and to prevent or punish misconduct. See, e.g., Model Penal Code   3.08(1)(a) (Proposed Official Draft 1962). Often in public authority justifications there is no real threat and no real aggressor. The bus passenger who is smoking, the escaping convict, and the enemy camped in its own territory, do not threaten in the same sense that the aggressor in a self- defense situation does. The justified actions of the bus driver, the arresting officer, and the attacking soldier are actions taken more to further an interest than to protect against a threat to tangible property or to persons. The passenger, convict, and enemy do threaten abstract interests--order, effective law enforcement, and national security--and perhaps it is the threat to this abstract interest rather than a mere opportunity to further an interest that justifies conduct that would not be covered by defensive force justifications that require an act of aggression.



[FN64]. Professor Fletcher distinguishes justifications as either "private" or "governmental." G. Fletcher, supra note 2, at 771, 773. Such a distinction may be significant in tort law, but in criminal law every justification has some societal interest at stake and even private interests are important only from a societal perspective. Nor is it clear that justifications can, as a practical matter, be convincingly categorized as "private" or "governmental," as Fletcher suggests. Is it clear, for example, that the defense of lesser evils is more appropriately termed a "private" justification, as Fletcher suggests, id. at 771, when it can as easily be exercised in the name of the government?



[FN65]. See, e.g., Model Penal Code   3.03, .07, .08 (Proposed Official Draft 1962).



[FN66]. The interest protected in a public authority justification is generally reflected in the source of the authority, be it the law enforcement interest in law enforcement authority, the military interest in military authority, or medical interest in medical authority, and so on.



[FN67]. For all justifications, one must take into account an actor's culpability in causing the justifying circumstances. Many jurisdictions bar a justification defense in such cases. See, e.g., Model Penal Code   3.02(2) (Proposed Official Draft 1962); Ariz.Rev.Stat.Ann.   13- 404(B)(3) (1978); Colo.Rev.Stat   18-1-702(1) (1978);Ill.Stat.Ann. ch. 38,   7-4(b) (Smith-Hurd 1972); Mont.Rev. Codes Ann.   45-3-105(2) (1981); Tex. Penal Code Ann.   9.31(b)(4) (Vernon 1974). The better view is to permit the justified conduct to retain its justified character--this will continue to encourage all actors to act for the greater good under the existing circumstances--but to impose liability for an actor's conduct in causing the need for the justified conduct. If X recklessly starts a forest fire and is also reckless as to causing the need for the burning of a firebreak to save a nearbly village, X and all others will be justified in burning the firebreak; X will be criminally liable, however, not for burning the break but for culpably causing the burning of the break by creating the need for it. If X is a more sinister fellow and intentionally causes the need for the justified conduct in order to cause the burning of Y's field, X and all others will be justified in burning that break; but X will be liable for intentional arson based on his earlier conduct and his intention as to the ultimate result.

  For a discussion of the principles governing an actor's culpability in causing his excusing conditions, see infra note 107.



[FN68]. Statutes rarely state explicity the temporal aspect of the necessity requirement, but simply use the term "necessary." See, e.g., N.Y. Penal Law   35.05(2) (McKinney 1975) (conduct is justifiable if such conduct is necessary). The requirement is evident in caselaw, however. See Regina v. Dudley & Stephens, [1884] 14 Q.B.D. 273, 279 (suggesting that the defendants' cannibalism was unjustified because they might have survived if they had waited a few more days). Perhaps jurisdictions that require justified conduct to be "necessary as an emergency measure," e.g., N.Y. Penal Law   35.05(2) (McKinney 1975), intend to codify this temporal aspect of the necessity requirement. This language is confusing, however, as it suggests that the actor must be faced with a threat so pressing that there is no time for contemplation; if the action is necessary at the time it is taken, it is inappropriate to deny the justification because the actor chose his course of conduct freely. Cf. Tex. Penal Code Ann.   9.22(1) (Vernon 1974) (requiring that the conduct be immediately necessary).



[FN69]. Concern for this aspect of the necessity requirement is evident in prison escape cases. Courts often deny the lesser evils defense on the grounds that the prisoner could have avoided the dangers by employing less drastic means or by publicizing their plight. See, e.g., Aderhold v. Soileau, 67 F.2d 259, 260 (5th Cir.1933); People v. Richards, 269 Cal.App.2d 768, 778, 75 Cal.Rptr. 597, 604 (1969); Matthews v. State, 288 So.2d 712, 714 (Miss. 1974); People v. Brown, 70 Misc.2d 224, 232, 333 N.Y.S.2d 342, 351 (1972).



[FN70]. Where the actor takes a risk in waiting to use the defensive force, the analysis is more complex. Consider X who is being held captive by Y and can only escape by use of deadly force. Y has informed X that X will be executed on the 10th day of captivity. Can X kill Y in defense on the 7th or 8th day? Or must he wait until day 10? One might require X to wait until the last moment, to give aggressor Y as much time as possible to change his mind before he becomes subject to the justified use of deadly force. One might alternatively argue that deadly force is as necessary on the 1st day as it is on the 10th day andthat X should not be required to wait and risk being killed on the 8th day; Y, after all, is the aggressor. Statutes that require an "imminent threat" appear to limit the temporal aspect of the necessity requirement by demanding that X wait until day 10. E.g., N.Y. Penal Law   35.15(1) (McKinney 1975); cf. Tex. Penal Code Ann.   9.22, .31 (Vernon 1974) (only lesser evils statutes requires an imminent threat). Statutes that contain the phrase "immediately necessary," e.g., Tex. Penal Code Ann.   9.31(a) (Vernon 1974) impose a less drastic temporal limitation but may require the same result in this case.



[FN71]. The command of the necessity requirement to use the least harmful conduct necessary is frequently, but apparently inadvertently, frustrated by justification codifications which justify only the use of force. See, e.g., Model Penal Code   3.04-.08 (Proposed Official Draft 1962). Where the threatened harm may be avoided or the societal interest furthered by unlawful conduct short of force, these provisions inexplicably fail to provide a justification, thereby forcing the defendant to engage in the use of force, a more harmful alternative. (Indeed, such a defendant, by using force which causes more harm than is necessary to protect or further the interest at stake, has violated the necessity requirement and might technically be denied the justification altogether.) Suppose the defendant, A, is unjustifiably attacked and confined by a gun-wielding attacker. A is presented with an occasion where he can avoid the attacker and further confinement, in complete safety, by stealing the attacker's gun and running off. The Model Penal Code self-defense section would ostensibly justify A's "use of force upon or toward another person," id. at   3.04(1), but not A's less harmful theft of the gun. At the same time, one could argue that if A used force against the attacker rather than theft, he could be denied a justification because such force was not necessary. The same difficulty can arise whenever the actor seeks to engage in any less harmful, but unlawful, conduct other than force, such as making threats, making false statements to an officer, perjury, or trespass. Model Penal Code   3.10 (Proposed Official Draft 1962) would appear to provide a justification where the defensive conduct amounts to a property crime, but this section is inapplicable if another Code provision applies to the specific situation. Id. at   3.11(1). Thus, the self-defense statutes justifying only "force" might well foreclose the application of   3.11. For these reasons it would seem preferable to use the broader term "conduct," rather than "force," in describing an act which may be justified.



[FN72]. There can be little doubt that proportionality is a clearly recognized requirement in Anglo-American Law. LaFave and Scott, for example, state that the force used in self-defense "must be reasonably related to the threatened harm." W. LaFave & A. Scott, supra note 18, at 392. See State v. Vance, 17 Iowa 138, 144 (1864) (if a person intentionally kills a mere trespasser, the crime is murder); Commonwealth v. Emmons, 157 Pa.Super. 495, 497-98, 43 A.2d 568 (1945) (denying a justification defense because the force was unreasonable); 4 W. Blackstone, Commentaries on the Laws of England *182 (a crime may not be prevented by killing the perpetrator, unless the crime is punishable by death).



[FN73]. E.g., Model Penal Code   3.02(1)(a) (harm avoided must be greater than that prevented by the offense); Colo.Rev.Stat.   18-1- 702(1) (1978) (desirability of avoiding threat must clearly outweigh desirability of avoiding injury prohibited by the offense); accord Del. Code Ann. tit. 11,   463 (1975); Hawaii Rev.Stat.   703-302(1)(a) (1976); Ky.Rev.Stat.   503.030(1) (1975); N.Y. Penal Law   35.05(2) (McKinney 1975); Or.Rev.Stat.   161.200(1)(b) (1977); 18 Pa.Cons.Stat.Ann.   503(a)(1) (Purdon 1973); Tex. Penal Code Ann.   9.22(2) (Vernon 1974).



[FN74]. Statutory formulations of the proportionality requirement are not as easily identifiable as are formulations of the necessity requirement, but the concern for proportionality is evinced by terms such as "just" force, Vt.Stat.Ann. tit. 13,   2305(1) (1974), "appropriate" force, N.D. Cent. Code   12.1-05-07(1) (1976) (applicable to all justifications), "reasonable" force, Ind.Stat.Ann.   35-41-3-2(a)-(c) (Burns 1975) (applicable to all defensive force justifications), "reasonable physical force," Conn.Gen.Stat.   53a-18(1), (3)-(5) (West 1972 & Supp.1981) (applicable to public authority justifications), and "reasonable degree of force," Me.Rev.Stat.Ann. tit. 17- A,   106(1)-(3) (1981) (applicable to use of force by parents, teachers and guardians of incompetents). Concern for proportionality is also reflected in the multitude of specific provisions that delineate in great detail the circumstances justifying the use of deadly force. See, e.g., Model Penal Code   3.04(2)(b) (Proposed Official Draft 1962) (deadly force not permissible unless protecting against death, serious bodily harm, kidnapping, or sexual intercourse compelled by force or threat and even then not permissible if defender purposely provoked the attack or if he can retreat from a place other than his home). These details no doubt reflect the drafters' judgment of proportionality.



[FN75]. As one writer has suggested in a different context, "[i]n the end, the comparison of costs and benefits is just a useful way of thinking about the problem. When it begins to lead to definite answers, one begins to suspect that the proponent's personal moral philosophy is quantifying the uncertainties." Johnson, Book Review, Trans-Action, Dec. 1969, at 57, 59.



[FN76]. See supra notes 31-46 and accompanying text. There are exceptions, however. The offense modification defense of de minimis infraction applies at least in theory to all offense definitions, see, e.g., Model Penal Code   2.12 (Proposed Official Draft 1962), and consent is an offense modification to a variety of offenses, see, e.g., Mo.Ann.Stat.   569.050.2(2) (Vernon 1979) (arson); Model Penal Code   2.11(2) (Proposed Official Draft 1962) (all offenses of causing or threatening bodily harm); Tex. Penal Code Ann.   22.06 (Vernon 1974) (assault offenses).



[FN77]. See, e.g., Model Penal Code   3.01(1) (Proposed Official Draft 1962).



[FN78]. The following statutes contain justifications applicable to a particular offense: Model Penal Code   212.4(1)(a) (1980) (justification defense to custodial interference when child is taken to preserve him from danger to his welfare); La.Rev.Stat.   14:704:11 (West Supp.1980) (law enforcement justification for solicitation); S.C. Code   16-17-470, - 480 (1976) (law enforcement justification defense for eavesdropping and peeping); Tenn. Code Ann.   39-514 (1975) (burning a firebreak, or lesser evils justification, as a defense to burning woodlands). These justifications, which apply to specific offenses, may be necessary where the legislature has not codified an applicable general justification defense, such as a law enforcement justification. See, e.g., S.C. Code   16-17-470, -480 (1976). Or these provisions may be necessary to provide a broader justification for particular conduct. The Model Penal Code custodial interference provision, for example, offers a broader justification than would be available under defense of others. The child need not be threatened by unlawful force, as required by the defense of others justification, see Model Penal Code   3.05(1)(a), .04(1) (Proposed Official Draft 1962), but may be merely subject to any danger to its welfare, Model Penal Code   212.4(1)(a) (1980). Similarly many jurisdictions have adopted a shopkeeper's defense to unlawful restraint, which extends a broader law enforcement and defense of property defense to citizens who operate stores. See, e.g., S.C. Code   16-13-140 (Supp.1979); Wash.Rev.Code Ann.   9A.16.080 (Supp.1980-1981).



[FN79]. The introduction to Guam Crim. & Corr. Code art. 4 (1977) articulates the distinction: "throughout this article [on justifications], the law looks not to the offense with which the defendant has been charged, but to the conduct which he seeks to justify." Id. comment at 44.



[FN80]. E.g., Model Penal Code   2.04, .09, .10, .13 (Proposed Official Draft 1962) (excuses of mistake, duress, military orders, and entrapment applicable to all offenses). There are exceptions, however. For example, in some jurisdictions duress is not available as a defense to serious violent offenses against the person. See, e.g., Ariz.Rev.Stat.Ann.   13- 412(C) (1978); Ga. Code Ann.   26-906 (1977); Ill.Ann.Stat. ch. 38,   7- 11(a) (Smith-Hurd 1972).



[FN81]. Free will is an essential prerequisite to criminal liability. Goldstein argues:

    Each of the theories underlying the criminal law [retribution, deterrence, or rehabilitation] describes functions which can or should be carried out only with men capable of responding in accordance with the tenets of the theory. Each depends upon men who are capable of choosing how they will behave. And each expresses concern about imposing the "criminal" designation upon one who is not personally responsible.

A. Goldstein, The Insanity Defense 16 (1967). The defendant must be blameworthy and blame-worthiness must stem from meaningful choice. Hart argues that punishment without responsibility raises moral questions:

    If we imprison a man who has broken the law in order to deter him and by his example others, we are using him for the benefit of society. . . . [T]his is a step which requires to be justified by (inter alia) the demonstration that the person so treated could have helped doing what he did.

H.L.A. Hart, Punishment and Responsibility 207 (1973).



[FN82]. "[T]he 'ultimate' ground of exculpation lies not in the concept of  'mental disease' [or any other disability] itself but in some independently identifiable condition that such a disease may (or may not) produce." H. Fingarette & A. Hasse, Mental Disabilities and Criminal Responsibility 17 (1979). For the purposes of the criminal law, the condition must be one that undercuts the possibility of the act being the product of a meaningful choice. Thus, hallucination, for example, is a significant condition not because of its nature in general, but because it may prevent the hallucinating actor from distinguishing right from wrong. For a good discussion of the historical development from viewing insanity as a general condition to viewing it as an excuse for a particular wrongful act and the conceptual implications of the shift, see G. Fletcher, supra note 2, at 836-39.



[FN83]. There have been attempts to abolish the insanity defense. See, e.g., S.1, 93d Cong., 2d Sess.   522 (1974); 2 Senate Comm. on the Judiciary, 93d Cong., 2d Sess., Report on Criminal Justice Codification and Reform Act of 1974,   522, at 99-113 (Comm. Print 1974). One may ask how the insanity excuse may be abolished yet other excuses retained. See generally G. Fletcher, supra note 2, at 843-46. Two state supreme courts have held attempts to abolish the insanity excuse unconstitutional. Sinclair v. State, 161 Miss. 142, 132 So. 581 (1931); State v. Strasberg, 60 Wash. 106, 110 P. 1020 (1910). See infra note 181 for a discussion of recent laws adopting a guilt by reason of insanity defense.



[FN84]. Every major insanity test has required that the mental disease or defect cause the excusing condition. See M'Naghten's Case, 8 Eng.Rep. 718, 722 (1843) (the party must be laboring under a defect of reason caused by disease of the mind so as not to know the nature and quality or wrongfulness of the act); Parsons v. State, 81 Ala. 577, 2 So. 854 (1887) (the "irresistible impulse; test is satisfied by a showing that mental disease prevented the defendant from controlling his conduct); State v. Jones, 50 N.H. 369, 398 (1871) (the "New Hampshire" or "Durham" test is satisfied by showing that the criminal conduct was a product of mental disease); Model Penal Code   4.01 (Proposed Official Draft 1962) (the ALI insanity test is satisfied by showing that the defendant's lack of substantial capacity to appreciate the criminality or wrongfulness of his conduct is a result of mental disease or defect). The required causal connection between the result and disability is sometimes identified as a separate and third element of a mental illness excuse. E.g., G. Fletcher, supra note 2, at 841-42.



[FN85]. See supra note 82 and accompanying text.



[FN86]. The voluntariness issue is typically treated as an element of the offense. E.g., Model Penal Code   2.01(1) (Proposed Official Draft 1962); 38,   4-1 (Smith-Hurd 1972); N.Y. Penal Law   15.00(2) (McKinney 1975); 18 Pa.Cons.Stat.Ann.   301(a) (Purdon 1973); Tex. Penal Code Ann.   6.01(a) (Vernon Supp.1981). It seems more appropriate to group involuntariness with general excuses. Like a general excuse, and unlike defenses negating an element of the offense, involuntariness is a defense to every offense. Involuntariness in the form of unconsciousness, for example, may well negate a mens rea element, but insanity and intoxication, both general excuses, may have the same effect. The fact that an excuse disability may also negate a required element does not make it inappropriate as an excuse. See supra text accompanying notes 16-17. Hawaii treats involuntariness as a defense. Hawaii Rev.Stat.   702-200 (1976). Where the voluntariness issue is treated as an element, the decisions in Patterson v. New York, 432 U.S. 197 (1977), and Jackson v. Virginia, 443 U.S. 307, 319 (1979), would require the prosecution to raise and prove beyond a reasonable doubt a voluntary act is every case. But there seems to be little justification for distinguishing between the defenses of insanity and involuntariness in allocating the burdens of proof. There are other practical implications as well if voluntariness is an element of every offense: involuntariness may not be a defense to strict liability offenses.



[FN87]. Acts done during periods of automatism or somnambulism are the product of the effort or determination of the actor. See Blair, The Medicolegal Aspects of Automatism, 17 Med. Sci. & L. 167, 171 (1977); Knox, Epileptic Automatism and Violence, 8 Med. Sci. & L. 96, 98-104 (1968); Podolsky, Somnambulistic Homicide, 1 Med. Sci. & L. 260 (1960). Cf. G. Williams, supra note 37, 609 (pointing out similar difficulties with Britain's automatism defense). Such acts are more properly dealt with under a general defense that exculpates for excusing conditions of defects in perception, knowledge, or control. For instance, Hawaii's equivalent of the insanity defense, Hawaii Rev.Stat.   704-402 (1976), has a broad disability element that includes physical as well as mental disease or defect.



[FN88]. See 1 M. Hale, supra note 1, at 26 (noting that children lack the discretion to judge between good and evil); R. Perkins, Criminal Law 839 (2d ed. 1969) (noting that children have insufficient capacity to understand the act or to know its wrongfulness). Courts have developed tests denying the defense where the child shows an understanding of the wrongfulness of his conduct, for example, where he tries to conceal his crime. See, e.g., Godfrey v. State, 31 Ala. 323 (1858) (by falsely accusing others of the crime); State v. Mulholland, 89 Iowa 5, 56 N.W. 403 (1893) (by bribing a witness).



[FN89]. E.g., Model Penal Code   2.04(3)(a)-(b) (Proposed Official Draft 1962); Raley v. Ohio, 360 U.S. 423 (1959) (official misstatement only); Kan.Stat.Ann.   21-3203(2)(a)-(d) (1974); 38,   4- 8(b) (Smith-Hurd 1972); N.J.Stat.Ann.   2C:2-4(C) (West 1981).



[FN90]. E.g., Model Penal Code   3.02(1), .03(3), .04(1), .05(1)(a)-(c), . 06(1), .07(1) (Proposed Official Draft 1962). Some jurisdictions recognize only a reasonable mistaken belief as an excuse. See infra note 91.



[FN91]. In this case, the mistake excuse may overlap with other excuses.  (Where defined by the disability, excuses are generally mutually exclusive.) For example, where a defendant mistakenly believes he is justified and his mistake is caused by his insanity, as in the mailman radio receiver hypothetical, discussed supra in text following note 80, the defendant may have both an insanity excuse and a mistake as to a justification excuse (depending on the level of mistake excused by the jurisdiction). Some jurisdictions allow only a reasonable mistake as to a justification. See, e.g., Ariz.Rev.Stat.Ann.   13-406 (1978); La.Rev.Stat.Ann.   14:22 (West 1974);N.J.Stat.Ann.   2C:3-5(a) (West 1981). Other jurisdictions allow any mistake as to a justification buy deny the defense if the mistake is reckless or negligent and recklessness or negligence suffices to establish culpability for the offense charged. See, e.g., Model Penal Code   3.05(1)(a)-(c) (defense of others), .09(2) (reckless or negligent use of force) (Proposed Official Draft 1962).



[FN92]. E.g., Model Penal Code   2.10 (Proposed Official Draft 1962);  Hawaii Rev.Stat.   702-232 (1976); Okla.Stat.Ann. tit. 21,   152(7), 155 (West 1958); 18 Pa.Cons.Stat.Ann.   310 (Purdon 1973); S.D. Codified Laws Ann.   22-3-1(6) (1979); P.R. Laws Ann. tit. 33,   3093 (Supp.1980).



[FN93]. E.g., Model Penal Code   2.01(2)(c) (Proposed Official Draft 1962). The evidence suggests that acts under hypnosis are voluntary in that they are the product of the actor's effort and determination. Nor does hypnosis generally affect an actor's awareness of the nature of his act or of its wrongfulness or criminality. See G. Williams, supra note 37,   250 (analogizing the effects of hypnotism to those of coercion). See generally Allen, Hypnotism and Its Legal Import, 12 Can.B.Rev. 14(1934); T. Barber, Hypnosis: A Scientific Approach 7 (1969); E. Hilgard, Hypnotic Susceptibility (1965); J. Meerloo, The Rape of the Mind 60-61 (2d ed. 1961); A. Scheflin & E. Opton, The Mind Manipulators (1978).



[FN94]. Omission cases add unnecessary complications to the issue of voluntariness. An often-cited hypothetical for the involuntary act defense presents a driver who is attacked by a swarm of bees and fends them off as a reflex action. The reflex action is not the offensive conduct, however, but rather the explanation for the actor's inability to perform the conduct required, driving properly. The proper inquiry is not whether the reflex action is voluntary, but rather whether it was possible for the actor to perform the act required and omitted, that is, whether the omission was voluntary.



[FN95]. The clearly abnormal defendant "is too much unlike the man in the street to permit his example to be useful for the purposes of deterrence. He is too far removed from normality to make us angry with him." A. Goldstein, supra note 81, at 15. Nor is specific deterrence furthered by punishment of one who cannot conform.

    If a man cannot make the calculations or muster the feelings demanded of him by the theory, he is classed as insane. He lacks the requisite degree of intelligence, reasoning power, and foresight of consequence. If he were held criminally responsible, he would be made to suffer harsh sanctions without serving the purpose of individual deterrence.

A. Goldstein, supra note 81, at 13.



[FN96]. The danger of fabrication of an excuse is reduced if the disability must be objectively or scientifically confirmable. "The point made here is that, if, for example, the mentally deranged (scientically tested) are exempted, criminals will not be able to exploit this exemption to free themselves from liability, since they cannot bring themselves within its scope and so will not feel free to commit crimes with impunity." H.L.A. Hart, supra note 81, at 42. A scientific label is not sufficient, however. Society, as represented by the jury, must be convinced that the labelled disorder is severe enough to distinguish the defendant.



[FN97]. Mistake is the only excuse that does not require that the excusing condition be caused by a particular disability or abnormality in the actor. The actor's lack of culpability must still be shown, but instead of attributing the mistake to a set of symptoms collectively recognized as a disability, such as insanity or intoxication, it is sufficient for the actor to show that because of the circumstances he should not be held responsible for the mistake. The inquiry is the same, however: is the actor responsible for his ignorance or mistake? He may show a disability recognized in other excuses or the special circumstances to explain the mistake. Differences in the cause of the resulting mistake--whether insanity, intoxication, or mistake due to the special circumstances--are generally not theoretically significant. See Arzt, Ignorance or Mistake of Law, 24 Am.J.Comp.L. 646, 647 (1976) (discussing the origins of the German insanity defense in the doctrine that refused to admit that "normal" persons did not know the law); id. at 646 n.1 (translating   17 StGB which provides a mistake of law defense if the error was "invincible," one that was not avoided even though the actor employed moral diligence). Practical considerations, however, may invite alterations or exceptions to the general principle of excuse depending on its cause. The presence of a disability, for example, as in insanity and intoxication, can sometimes be of special importance, see supra text accompanying notes 95-96, and certain disabilities may more commonly give rise to other complications. Intoxication, for example, is frequently caused by the actor. See infra notes 100 & 107.



[FN98]. See note 106 infra.



[FN99]. E.g., Model Penal Code   4.01(1) (Proposed Official Draft 1962);  Ill.Ann.Stat. ch. 38,   6-2(a) (Smith-Hurd 1972); N.Y. Penal Law   30.05(1) (McKinney 1975); Tex. Penal Code Ann.   8.01(a) (Vernon 1974).



[FN100]. Where voluntary intoxication is the cause of the excusing condition the defense may be limited. E.g., Model Penal Code   2.08(4) (Proposal Official Draft 1962) (provides excuse when intoxication is not self-induced or is pathological); Ill.Ann.Stat. ch. 38,   6-3(b) (Smith-Hurd 1972) (excuse for involuntary intoxication); N.Y. Penal Law   15.25 (McKinney 1975) (rejecting intoxication as a general excuse); Tex. Penal Code Ann.   8.04(b) (Vernon 1974) (voluntary intoxication causing temporary insanity may be introduced in mitigation of the penalty).



[FN101]. In most jurisdictions the immaturity defense bars prosecution of a child under a certain age. E.g., Model Penal Code   4.10(1)(a) (Proposed Official Draft 1962); Ga. Code Ann.   26-701 (1977); Ill.Ann.Stat. ch. 38,   6-1 (Smith-Hurd 1972); La.Rev.Stat.Ann.   14:13 (West 1974); N.Y.Penal Law   30.00(1) (McKinney 1975). A few jurisdictions bar prosecutions if the child is very young, but do not bar prosecution of a child in an intermediate group if the child is shown to have the ability to understand either the nature and quality or the wrongfulness of the act. See, e.g., Nev.Rev.Stat.   194.010(1), (2) (1979); Okla.Stat.Ann. tit. 21,   152(1), (2) (West 1958); S.D. Codified Laws Ann.   22-3-1-(1), (2) (1979); Wash.Rev. Code Ann.   9A.04.050 (1977).



[FN102]. Some jurisdictions provide an excuse to "idiots." E.g., Cal. Penal Code   26(2) (West 1970); Nev.Rev.Stat.   194.010(3) (1979); Okla.Stat.Ann. tit. 21,   152(3) (West 1958). Other jurisdictions appear to include subnormality under the insanity defense as a mental defect. See statutes cited supra in note 84.



[FN103]. Where hypnotism is alleged as the disability, the involuntary act defense may apply. E.g., Model Penal Code   2.01(2)(C) (Proposed Official Draft 1962); Mont. Code Ann.   45-2-101(31)(c) (1981). Hypnosis, however, is not properly treated under an involuntary act defense. Scientific research suggests that the result produced by hypnosis is more akin to the results produced by intoxication. See Murray, Hypnosis and Criminal Behavior, 11 Cath.Law. 209, 212 (1965). See supra note 93 and accompanying text.



[FN104]. E.g., Model Penal Code   2.09(1) (Proposed Official Draft 1962);  Ga. Code Ann.   26-906 (1977); Ill.Ann.Stat. ch. 38,   7-11(a) (Smith- Hurd 1972); Iowa Code Ann.   704.10 (West 1979); Kan.Stat.Ann.   21- 3209(1) (1974); N.Y. Penal Law   40.00(1) (McKinney 1975); Tex. Penal Code Ann.   8.05(a)-(b) (Vernon 1974).



[FN105]. In some jurisdictions, alcoholism and drug addiction are defenses to certain offenses. E.g., N.C.Gen.Stat.   14-445 (Supp.1979) (a defense to offense of being intoxicated in a public place, defined by id.   14-444). Those claiming excusing results caused by brainwashing have met with little success. See United States v. Hearst, 412 F.Supp. 863 (N.D.Cal. 1975); United States v. Hearst, 424 F.Supp. 307 (N.D.Cal. 1976), aff'd, 563 F.2d 1331 (9th Cir.1977), cert. denied, 435 U.S. 1000 (1978); United States v. Batchelor, 19 C.M.R. 452, 489-94 (A.C.M.R. 1954) (given the lack of medical or legal acceptance of "induced political psychoses" and the "fence complex syndrome," there was sufficient evidence to support a finding of mental responsibility). Similarly, insanity defenses claimed on the grounds of chromosomal abnormality have been rejected by most courts. See, e.g., People v. Tanner, 13 Cal.App. 3d 596, 600-01, 91 Cal.Rptr. 656, 659 (1970); Millard v. State, 8 Md.App. 419, 261 A.2d 227 (1970); People v. Yukl, 83 Misc. 2d 364, 372 N.Y.S. 2d 313 (1975); State v. Roberts, 14 Wash.App. 727, 544 P.2d 754 (1976). Cf. People v. Farley, No. 1827 (Sup.Ct. Queens Cty. Apr. 30, 1969) (defense submitted to jury but rejected). Judge Farrell, who presided in Farley, discusses the case in Farrell, The XYY Syndrome in Criminal Law: An Introduction, 44 St. John's L.Rev. 217, 218 (1969).



[FN106]. There are two significant exceptions. The involuntary act excuse includes all disabilities which cause involuntariness, the first excusing condition. Second, general mistake excuses are defined in terms of the third excusing condition, ignorance of the wrongfulness or criminality of the conduct. See infra note 97 and accompanying text.



[FN107]. One can state some general principles governing liability in all instances in which an actor culpably causes his own excusing conditions. While many jurisdictions withdraw an excuse where an actor brings the disability or excusing conditions upon himself, the better view is that excusable conduct should always be excused; the "law only punishes for overt acts done by responsible moral agents." Fain v. Commonwealth, 78 Ky. 183, 193 (1879). There are occasions, however, where it may be desirable to impose some liability although the actor is excused for his conduct constituting the offense. If X is prone to commit violent acts when aroused from sleep, for example, and he nevertheless goes to sleep in a hotel lobby while armed with a loaded gun, id. at 193, he should not escape punishment if he kills Y while in a somnambulistic state. X is appropriately held liable for reckless homicide. X was a responsible agent at the time he went to sleep. At that time, knowing of his disability, he was reckless or at least negligent with respect to the commission of the ultimate offense.

  There is some precedent for such an approach. In State v. Gooze, 14 N.J. Super. 277, 286, 81 A.2d 811, 816 (1951), the defendant suffered from blackouts and drove his car despite this ailment; the court held that injury to others was reasonably foreseeable. Similarly, where an actor goes to a hypnotist and requests to be hypnotized so as to be compelled to kill his wife, his liability should not be based on his irresponsible state at the time of the homicide, but rather it should be based on his conduct during his earlier responsible state. He was, at the time he sought hypnotism, acting intentionally with regard to the commission of the ultimate offense.

  For a discussion of the principles governing an actor's culpability in causing justifying circumstances, see supra note 67.



[FN108]. Cf. Robinson, A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability, 23 U.C.L.A.L.Rev. 266, 275-76 (1975) (at early common law an acquittal on the basis of justification provided a complete defense while a finding of excuse merely gave the Crown a right to grant a pardon).



[FN109]. See id. at 274-75; G. Fletcher, Rethinking, supra note 2, at 759.



[FN110]. See, e.g., Model Penal Code   222.1(1)(b), (2) (1980) (defining robbery and grading the offense as a felony, respectively); Model Penal Code   1.06(2)(b) (Proposed Official Draft 1962) (statute of limitations for felony is three years).



[FN111]. Model Penal Code   1.07 (currently   1.06) comment at 16-17 (Tent. Draft No. 5, 1956).



[FN112]. Id. at 16.



[FN113]. Id.



[FN114]. Id.



[FN115]. U.S. Const. amend. V, cl. 2.



[FN116]. Green v. United States, 355 U.S. 184, 187-88 (1957). The double jeopardy clause, U.S. Const. amend. V, cl. 2, also protects against multiple punishment for the same offense. Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874).



[FN117]. 22 U.S.C.   254a-254d (Supp.III. 1979). Some states also codify a diplomatic immunity defense. E.g., Okla.Stat.Ann. tit. 21,   160 (West 1958). Diplomatic immunity is provided in order to foster foreign relations.



[FN118]. See U.S. Const. art. I,   6, cl. 1 (legislative immunity);  Ariz. Const. art. 4, pt. 2,   6 (legislative); Alaska Stat.   12.60.220 (1980) (judicial and executive immunity for death resulting from an attempt to disperse a riot); La.Rev.Stat.Ann.   14:50(1) (West 1974) (legislators and judges may not be prosecuted for defamation where statement is made in the course of official duties). Generally these immunities are afforded to enable officials to perform their duties while in office. Permanent immunity from prosecution for unrelated activities is not afforded.



[FN119]. There are two types of testimonial immunity. Transactional immunity protects one who is compelled to testify despite his assertion of the privilege against self-incrimination from any prosecution for offenses touched on during his testimony. E.g., Ariz.Rev.Stat.Ann.   4-245 (1974) (only available for testimony in cases of violations of regulations governing the sale of alcohol); Cal. Penal Code   1324 (Supp.1981); 38,   106-1 (Smith-Hurd 1980); N.Y. Penal Law   50.10 (McKinney 1971). Use and derivative use immunity protects one who testifies under compulsion from any direct or indirect use of that testimony against him in a subsequent criminal proceeding. E.g., 18 U.S.C.   6002 (1976); Ariz.Rev.Stat.   13-4064 (1978). The policy supporting testimonial immunity is the need for evidence in the trial of another. See C. Whitebread, Criminal Procedure: An Analysis of Constitutional Cases and Concepts 261 (1980).



[FN120]. Where a defendant agrees to plead to a lesser included offense and the plea is accepted by the court, the defendant is immune from prosecution for the greater offense. See Santobello v. New York, 404 U.S. 257, 262 (1971) (agreement or promise on which a plea rests should be fulfilled). The most commonly asserted justification for the plea bargain system is administrative convenience. Enker, Perspectives on Plea Bargaining in President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 108, 112 (1967).



[FN121]. E.g., Model Penal Code   4.04 (Proposed Official Draft 1962); 18 U.S.C.   4244 (1976); Alaska Stat.   12.45.100(a) (1980); Colo.Rev.Stat.   16-8-110(1) (1978); Ga. Code Ann. 27-1502(a),-1504 (1977); 38,   104-10 (Smith-Hurd Supp.1980); Mich. Comp. Laws Ann.   767.27a(1) (West 1968). Due process, guaranteed by the fifth and fourteenth amendments, requires competency at the time of trial. Pate v. Robinson, 383 U.S. 375 (1966).



[FN122]. Dusky v. United States, 362 U.S. 402, 402 (1960).



[FN123]. For instance, when the exclusionary rule is viewed as serving primarily to deter police misconduct, it provides a nonexculpatory public policy defense. See, e.g., United States v. Calandra, 414 U.S. 338 (1974).



[FN124]. In practice, of course, the requirements of the order of presentation of evidence at trial or strategic considerations may preclude this serial analysis. Indeed, the nature of some defenses is such that they can or must be raised before trial. Exclusion of evidence, for example, is often required before trial. See, e.g., Fed.R.Crim.P. 12(b)(3). Similarly double jeopardy claims may, and sometimes must, be raised before trial because the nature of the right is to avoid a second prosecution, not just conviction after a second prosecution. See Abney v. United States, 431 U.S. 651, 659-62 (1977) (right to interlocutory appeal where double jeopardy claim is denied). Such defenses are more accurately described as "bars to prosecution." Model Penal Code   1.13 (currently   1.12) comment at 113 (Tent. Draft No. 4, 1955) (describing irregularity in grand jury selection, pardon, double jeopardy, and immunity as bars to prosecution).



[FN125]. One could argue that the provocation and extreme emotional disturbance defenses merit treatment as a general excuse. The defenses appear to operate in an excuse-like manner, shifting the blame from the actor to the circumstances.

    Other things being equal, the greater the provocation, measured in that way, the more ground there is for attributing the intensity of the actor's passions and his lack of self-control on the homicidal occasion to the extraordinary character of the situation in which he was placed rather than to any extraordinary deficiency in his own character.

Michael & Wechsler, A Rationale of the Law of Homicide II, 37 Colum.L.Rev. 1261, 1281 (1937). Further, the provoking circumstances have been permitted as a defense in offenses other than murder, see Maher v. People, 10 Mich. 212, 81 Am. Dec. 781 (1862) (provocation a defense to assault with intent to murder), suggesting a similarity to the multiple offense application of general excuses. However, as long as its application is tied to the culpability requirements of a particular offense, or limited to a group of offenses, as is currently the case, one cannot claim that there is a general excuse principle of provocation anymore than one can claim that there is a general excusing principle of mistake of fact which is independent of the definition of offenses.



[FN126]. See supra text accompanying notes 48-54.



[FN127]. See supra text accompanying notes 14-23.



[FN128]. 432 U.S. 197 (1977).



[FN129]. 421 U.S. 684 (1975).



[FN130]. Id. at 686-87 (emphasis added).



[FN131]. Patterson v. New York, 432 U.S. 197, 206-07 (1977).



[FN132]. See J. Smith & B. Hogan, Criminal Law 164 (3d ed. 1973); accord, e.g., P.R. Laws Ann. tit. 33,   3098 (Supp.1979).



[FN133]. E.g., Wis.Stat.Ann.   939.47 (West 1958).



[FN134]. Under the Model Penal Code, necessity is contained in article 3, entitled "General Principles of Justification," and duress in article 2, entitled "General Principle of Liability." Neither contains a requirement as to the nature of the source of the threat. See Model Penal Code art. 2,   2.09 (Proposed Official Draft 1962); id. art. 2,   3.02.



[FN135]. The defenses of necessity and duress are distinguished in most modern codes, as instances of justification and excuse, respectively. See, e.g., Model Penal Code   2.09 (duress, codified in art. 2, General Principles of Liability), 3.02 (choice of evils, codified in art. 3, General Principles of Justification); N.Y. Penal Law   35.05 (necessity, grouped with justifications in   35.05 to .50), 40.00 (duress, not grouped with justifications) (McKinney 1975).



[FN136]. See G. Williams, supra note 37,   12, at 26 (suggesting that it is unclear whether the law wishes to promote self-defense or merely provides an excuse for such conduct).



[FN137]. Cal. Penal Code   198 (West 1970) (emphasis added).



[FN138]. 287 U.S. 435 (1932).



[FN139]. Id. at 442.



[FN140]. S.Rep. No. 95-605, part 1, 95th Cong., 1st Sess. 111 (1977).



[FN141]. E.g., United States v. Russell, 411 U.S. 423 (1973); Sherman v. United States, 356 U.S. 369 (1958); Hansford v. United States, 303 F.2d 219 (D.C. Cir.1962); State v. Hochman, 2 Wis. 2d 410, 86 N.W.2d 446 (1957).



[FN142]. E.g., United States v. Russell, 411 U.S. 423, 436  (1973) (Douglas, J., dissenting); id. at 439 (Stewart, J., dissenting); Sherman v. United States, 356 U.S. 369, 378 (1958) (Frankfurter, J., concurring); Sorrells v. United States, 287 U.S. 435, 453 (1932) (Roberts, J., concurring).



[FN143]. Sorrells v. United States, 287 U.S. 435, 458-59 (1932) (Roberts, J., concurring).



[FN144]. For a discussion of statutes of this nature, see infra note 151 and accompanying text.



[FN145]. For a discussion of statutes of this nature, see infra notes 149 & 150 and accompanying text.



[FN146]. The defense may apply where the entrapment is accomplished by an informer, but it does not apply where "a private person, unconnected with law enforcement, induces the defendant . . . ." W. LaFave & A. Scott, supra note 18,   48, at 370.



[FN147]. The majority opinion in Sorrells suggests that there is entrapment "when the criminal design originates with the officials of the Government, . . . and [they] induce its commission in order that they may prosecute." Sorrells v. United States, 287 U.S. 435, 442 (1932) (emphasis added). The prohibited conduct is inducement for the sake of prosecution. Williams notes, "instigation by the police, as guardians of the law, should cause them to be quasi-estopped in any charge of crime." G. Williams, supra note 37, at 782. See United States v. Russell, 411 U.S. 423, 436 (1973) (Douglas, J., dissenting) (supporting an objective entrapment offense in language that suggests estoppel).



[FN148]. See infra text accompanying notes 186 (discussing the effect of nonexculpatory defenses on the purposes of the criminal law) and 360-70 (discussing the propriety of imposing certain collateral consequences of conviction after acquittal based upon a nonexculpatory defense).



[FN149]. Alaska Stat.   11.81.450 (1978) (would induce the average person); accord, e.g., Ark.Stat.Ann.   41-209(2) (1977) (likely to cause the law abiding person); Colo.Rev.Stat.   18-1-709 (1978) (substantial risk of commission by one who would not have committed but for such inducement); Hawaii Rev.Stat.   702-237(b) (1976) (substantial risk of commission by person other than those ready to commit it); N.Y. Penal Law   40.05 (McKinney 1975) (substantial risk of commission by a person not otherwise disposed); 18 Pa.Cons.Stat.Ann.   313(a)(2) (Purdon 1973) (substantial risk of commission by persons other than those ready to commit it).



[FN150]. See, e.g., State v. Anderson, 58 Hawaii 479, 483, 572 P.2d 159, 162 (1977) (focus of inquiry is the police conduct not the defendant's predisposition); Hawaii Rev.Stat.   702-237, Commentary (1976) (predisposition or lack thereof is irrelevant). Cf. generally People v. Isaacson, 44 N.Y.2d 511, 518-19, 406 N.Y.S.2d 714, 717-18, 378 N.E.2d 78, 81-82 (1977) (interpreting the objective New York entrapment defense, see supra note 149, to require a subjective showing of lack of predisposition yet finding the police conduct so outrageous as to trigger a due process violation requiring an acquittal even though the defendant was predisposed).



[FN151]. Conn.Gen.Stat.Ann.   53a-15 (West 1972); accord Del. Code Ann. tit. 11,   432(a) (1979); Ga. Code Ann.   26-905 (1979); Ind. Code Ann.   35-41-3-9(a) (Burns 1979) (the police activity must be likely to cause the particular person to commit the crime and the particular person must not be predisposed); Ky.Rev.Stat.   505.010(1)(a)-(b) (1975) (the defendant must be one who was not otherwise disposed to commit the offense); Mo.Ann.Stat.   562.066(2) (Vernon 1979) (the defendant must not have been ready and willing to commit the offense).



[FN152]. Model Penal Code   2.13(2) (Proposed Official Draft 1962).



[FN153]. The Model Penal Code uses the following language to describe what, among other things, will constitute improper entrapment conduct: "methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it." Model Penal Code   2.3(1)(b) (Proposed Official Draft 1962). As noted supra in text accompanying note 150, this does not require that the defendant be one of those "persons other than those who are ready to commit" the offense. Indeed, the "in response to" language of the Model Penal Code, supra text accompanying note 152, does not even require that the defendant have been "induced" by the improper conduct.



[FN154]. E.g., Model Penal Code   3.04(1), 3.05(1)(c), 3.06(1) & 3.07(1) (emphasis added) (Proposed Official Draft 1962); see, e.g., id.   3.02(1). An analogous situation exists in Model Penal Code   2.10, where a military authority justification is contained in the same provision as an excuse for a mistake as to such a justification.



[FN155]. The presence of words like "believes" in justification provisions has another critical, perhaps inadvertent effect: it bars exculpation where the actor's conduct satisfies the requirements of justification--i.e., avoids a greater harm or furthers a greater good--but the actor does not affirmatively believe that his conduct does so. In other words, it serves to punish the unknowingly justified actor. As I have suggested elsewhere, the propriety of this result is questionable. See Robinson, A Theory Of Justification: Societal Harm As A Prerequisite For Criminal Liability, 23 U.C.L.A.L.Rev. 266, 284-92 (1975).



[FN156]. See infra text accompanying notes 175-85, 273-78, 287-90, 310-13, 325-28.



[FN157]. Recall that many failure of proof defenses, like consent, can also be drafted as offense modifications. See supra notes 48-54 and accompanying text.



[FN158]. E.g., Mont. Code Ann.   94-2513 to -2514 (repealed current version at Mont. Code Ann.   45-3-102 (1981)). Section 94-2513 justifies homicide committed in defense of person or habitation and   94-2514 justifies (sic) such homicides where the person acting in defense acts under the influence of reasonable fear alone. The first section provides a pure justification and the second section seems to mix the defenses of defensive force and compulsion. If X is under life-endangering attack he should be justified in killing Y even if he is not motivated by "fear alone." See G. Williams, supra note 37,   12, at 26 (discussing the confusion as to whether self-defense is a justification or an excuse). G. Fletcher, supra note 2, at   10.5.1, .5.2 (discussing the same point).



[FN159]. E.g., Model Penal Code   2.10 (Proposed Official Draft 1962). This provision would exculpate wherever a soldier executes a superior's order which he does not know is unlawful. Thus, the defense would apply whether the order is valid or invalid. It may be desirable to provide a liberal defense for a soldier who does not know that an order is unlawful, but execution of an unlawful order should be excused and execution of a lawful order should be justified. Adding to the possible confusion generated by this provision, the drafters have also codified an overlapping justification for actions in the lawful conduct of war. Id.   3.03(1)(d).



[FN160]. See supra note 154 and accompanying text.



[FN161]. There may be less of a problem with using the same label to represent multiple defenses of different categories if the identically named defenses are included in separate defense provisions.



[FN162]. See, e.g., G. Fletcher, supra note 2; H. Gross, A Theory of Criminal Justice (1979).



[FN163]. Fletcher identifies a theoretical structure, basically the German structure, which he views as superior to traditional Anglo-American theory, and explains the advantages of that structure. See Fletcher, supra note 2,   6.6. Gross, on the other hand, does not present what is meant to be taken as a workable system of criminal law; he comments on the current system with a view towards establishing ideals of a criminal justice system. See H. Gross, supra note 162, at XV. Gross' work is addressed primarily to other theoreticians.



[FN164]. One may argue that any discussion of a system of "defenses" relies too heavily upon the offense-defense distinction, that many Anglo-American jurisdictions define defenses as simply negative elements of one or all offenses, and thus, any use of the offense-defense distinction does not, in fact, correspond to what may be called an existing Anglo-American scheme. First, while Model Penal Code   1.13(9) defines the absence of defenses as an "element of an offense" (Model Penal Code   1.13(9) (Proposed Official Draft 1962), see infra note 229 for text of the provision), the presence of the section has not, and no doubt will not, alter the way Anglo-American lawyers think about defenses. That section, like others patterned after it, e.g., Hawaii Rev.Stat.   702-205 (1976); N.J.Stat.Ann.   2C:1-14(h) (West 1981), is simply a technical device designed to effect a procedural result: the allocation to the state of the burden of persuasion for most defenses. See infra note 229 and accompanying text. Other jurisdictions, which generally follow the Model Penal Code, have not adopted this definition of elements of the offense. See statutes cited infra. It seems indisputable that Anglo- American lawyers do not conceptually equate elements of an offense with defenses. The distinction between offenses and defenses is perhaps the most basic distinction in criminal law that lawyers do recognize. Second, unlike the Model Penal Code, many jurisdictions do not attempt to treat defenses as negative elements of an offense. See, e.g., Conn.Gen.Stat.Ann.   53a-5 (West 1972); Colo.Rev.Stat.   18-1-501, -503, -407 (1978) (does not define elements of the offense); Del. Code Ann. tit. 11,   232 (1979) (elements of the offense do not include the absence of defenses). Third, and most importantly, a primary goal of this Article is to show that the offense-defense distinction is not so clean as many think, that there are many very different doctrines included under the label "defenses," and that many of these are more closely related to the definition of offenses than to principles of defense. In other words, it attempts to correct and refine the distinction rather than to reject it.



[FN165]. See generally J. Bentham, The Principles of Morals and Legislation 170-203 (1789); 4 W. Blackstone, Commentaries, *1-14; J. Hall, General Principles of Criminal Law 296-309 (2d ed. 1947); H.L.A. Hart, supra note 81, at 1-27; W. LaFave & A. Scott, supra note 18,   5; H. Packer, The Limits of the Criminal Sanction 35-61 (1968); H. Gross, supra note 162, ch. 3.



[FN166]. See, e.g., S. 1437   103(b)(1)-(4); Colo.Rev.Stat.   18-1- 102(a)-(c) (1978); Del. Code Ann. tit. 11,   201(1), (4)-(5) (1974); N.J.Stat.Ann.  2C:1-2(a)(1)-(2), (b)(1)-(4) (West 1981); see also G. Fletcher, supra note 2, at 414-20.



[FN167]. See Kadish, The Decline of Innocence, 26 Cambridge L.J. 273, 288 (1968) (creates a sense of security); A. von Hirsch, Doing Justice 51-55 (1976) (deterrence alone is insufficient; the actor must also deserve the punishment). There are those who reject the concept of just punishment altogether and argue that all who cause harm and are dangerous should, for the protection of society, be treated if possible, or if untreatable should be incapacitated whether they are blameworthy or not. See B. Wootton, Crime and the Criminal Law (1963). This, it has been observed, is essentially a step toward "punishing" no one, but subjecting all persons to the risk of being "reformed" even though they are innocent. See Kadish, supra, at 277-85 (discussing and refuting arguments for abolition of the insanity defense).



[FN168]. See Bentham, supra note 165, at 170-77 (focusing on deterrence; opposing the imposition of punishment where the penal sanction could have no such effect). The effectiveness of the criminal sanction as a general deterrent came into question at the end of the nineteenth century. A. von Hirsch, supra note 167, at 37; see L. Radzinowicz, Ideology and Crime 50-56 (1966) (deterrence fell into disfavor when criminologists began to attribute crime to sociological and biological factors). It is currently common to recognize that punishment has at least the minimal effect of inducing more compliance than there would be if there were no punishment. A. von Hirsch, supra note 167, at 40; see P. O'Donnell, M. Churgin & D. Curtis, Toward a Just and Effective Sentencing System: Agenda for Legislative Reform 44 (1977) (concluding that there is insufficient evidence to dismiss deterrence as ineffective) [hereinafter cited as P. O'Donnell].



[FN169]. See W. LaFave & A. Scott, supra note 18, at 22 (using the terms  "particular deterrence," "prevention," and "intimidation").



[FN170]. See, e.g., B. Wootton, Crime and the Criminal Law (1963) (proposing a scheme that would focus on rehabilitation and restraint, and advocating either release, rehabilitation, or removal of an offender from society, depending on the degree of danger the defendant presents). Rehabilitation is frequently attacked as ineffective. See A. von Hirsch, supra note 167, at 14. See generally Robison & Smith, The Effectiveness of Correctional Programs, 17 Crime & Delinquency 67 (1971); D. Lipton, R. Martinson & J. Wilks, The Effectiveness of Correction Treatment: A Survey of Treatment Evaluation Studies (1975); Martinson, The Paradox of Prison Reform--I: The "Dangerousness Myth," New Republic, Apr. 1, 1972, at 23; Martinson, What Works?--Questions and Answers About Prison Reform, 35 Pub. Interest 22, 49 (1974). Rehabilitation has also been attacked on ideological grounds. F. Allen, The Borderland of Criminal Justice 33-37 (1964); see Amos, The Philosophy of Corrections: Revisited, 38 Fed. Prob. 43, 46 (Mar. 1974); Kadish, The Decline of Innocence, 26 Cambridge L.J. 273, 287 (1968).



[FN171]. Some argue that one or another purpose should predominate. See, e.g., Bentham, supra note 165, at 170-203 (deterrence). Others contend that the penal sanction is only appropriate where more than one purpose is served. See, e.g., A. von Hirsch, supra note 167, at 51-55. Still others suggest that all justifications for punishment should be considered and that the longest sentence justified by any one purpose should be imposed. P. O'Donnell, supra note 168, at 52. O'Donnell and his co-authors offer three additional purposes-- incapacitation, denunciation, gravity of the offense. Id. at 43. Arguably, incapacitation is included in special deterrence, and denunciation and gravity of the offense are included in just punishment.



[FN172]. When an actor has a failure of proof defense to a greater offense, but is nonetheless liable for a lesser offense, there is something to condemn and deter; but it will, of course, be treated accordingly through conviction and sentence for the lesser offense.

  Some may argue that persons who gain a failure of proof defense through the absence of a culpability requirement, through mistake or mental illness negating a required mental element, for example, are nonetheless dangerous. Special deterrence, then, is undercut when such failure of proof defenses are relied upon. The response is simple: if significant purposes of the criminal law are satisfied by a criminal conviction in this situation, then the offense should be redefined without the mental element requirements. If the purposes of conviction and punishment would not be satisfied by such an alteration, then the defense remains appropriate. Resolution of the issue obviously depends upon the view one takes of the primary purpose or purposes of conviction and punishment. See supra notes 166-71. "Just punishment," for example, would clearly require some culpability.

  There are instances, however, in which failure of proof defenses based upon the absence of culpability merit special treatment. See infra notes 285-86, 307-09, 325 and accompanying text.



[FN173]. The Model Penal Code provides such a defense to dissemination of obscene material:

  It is an affirmative defense . . . that dissemination was restricted to:

    (a) institutions or persons having scientific, educational, governmental or other similar justification for possessing obscene material . . . .

Model Penal Code   251.4(3)(a) (1980). Accord, e.g., Ga. Code Ann.   26- 2101(e)(1) (1977); Idaho Code   18-4102(A)-(B) (1979); Mich. 2d Rev.   6360; N.Y. Penal Law   235.15 (McKinney 1975); Tex. Penal Code Ann.   43.23(b) (Vernon 1974).



[FN174]. Special deterrence is not undercut here. The offender is, or will become, aware of the special justifying circumstances and their decisive role in his acquittal. Nor is rehabilitation a significant problem; none is called for except in the rare case of an unknowingly justified actor.



[FN175]. See supra text accompanying notes 80-81.



[FN176]. Duress is the clearest exception. While the disability, the coercion, may be subjective, the cause of the coercion is generally readily apparent. Intoxication is a borderline case. The intoxication, and the extent of its effect, may or may not manifest itself through objective, observable signs.



[FN177]. [1884-85] 14 Q.B.D. 273.



[FN178]. Id. at 287.



[FN179]. Id. at 288.



[FN180]. S. Kadish & M. Paulsen, Criminal Law and Its Processes 10 n.2 (3d ed. 1975). In a similar case, United States v. Holmes, 26 F. Cas. 360, 1 Wall Jr. 1 (E.D.Pa. 1842), the defendant was convicted of manslaughter but sentenced to only six months' imprisonment and a $20 fine. The penalty was later remitted. S. Kadish & M. Paulsen, supra at 544.



[FN181]. See, e.g., Ill. Pub. Act No. 82-553 (1981); Ind. Code Ann.   35- 5-2-3(4) (Burns Supp.1980); Mich. Comp. Laws Ann.   768.36 (Supp.1981). The guilty but mentally ill verdict does not replace the insanity defense entirely but rather provides the jury with a third alternative in determining the proper disposition of a defendant who may be mentally ill. The jury may insure imprisonment for an appropriate period and require psychiatric treatment.



[FN182]. Many would seem to support such abolition. See, e.g., S. Halleck, Psychiatry and the Dilemmas of Crime 205-28 (1967); Morris, Psychiatry and the Dangerous Criminal, 41 So. Cal.L.Rev. 514 (1968); B. Wootton, Crime and the Criminal Law 32-90 (1963).



[FN183]. Unlike most defendants who gain a successful criminal defense, a defendant found not guilty by reason of insanity is not commonly released. In practice, an insanity acquittee is likely to be committed to a mental institution. See A. Goldstein, The Insanity Defense 145 (1967); W. LaFave & A. Scott, supra note 18, at 317; Note, Commitment Following an Insanity Acquittal, 94 Harv.L.Rev. 605, 605 (1981). Many jurisdictions require automatic and mandatory commitment. Colo.Rev.Stat.   16-8-105(4) (1978); Del.Code Ann. tit. 11,   403(a) (1979); D.C. Code   24-301(d) (1981); Ga. Code Ann.   27-1503(a) (1979); Idaho Code   18-214(1) (Supp.1981); Kan.Stat.Ann.   22-3428(1) (Supp.1981); La. Code 654 (1969) (commitment automatic for capital offenses only); Me.Rev.Stat.Ann.tit. 15,   103 (1964); Mo.Ann.Stat.   552.040(1) (Vernon Supp.1981); Nev.Rev.Stat.   178.425(1), .460(2) (1979) (language is ambiguous); Wis.Stat.Ann.   971.17(1) (West 1971); V.I. Code Ann. tit. 5,   3637(a) (1967). See Model Penal Code   4.08 (Proposed Official Draft 1962).

  This procedure has been attacked as a violation of due process and equal protection, although the attacks often fail. See, e.g., In re Lewis, 403 A.2d 1115 (Del. 1979); Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980); In re Jones, 228 Kan. 90, 612 P.2d 1211 (1980); State v. Kee, 510 S.W.2d 477 (Mo. 1974) (en banc); People ex rel Henig v. Commissioner of Mental Hygiene, 43 N.Y.2d 334, 372 N.E.2d 304, 401 N.Y.S.2d 462 (1977); Annot., 50 A.L.R.3d 144 (1973). Contra Bolton v. Harris, 395 F.2d 642 (D.C. Cir.1968); People v. McQuillan, 392 Mich. 511, 221 N.W.2d 569 (1974).

  A primary theoretical problem with mandatory commitment is the fact that an acquittal by reason of insanity does not indicate that the defendant is currently insane or dangerous. See Hunt & Wiley, Operation Baxstrom After One Year, 124 Am. J. Psychiat. 974 (1968); Steadman, Follow-up on Baxstrom Patients Returned to Hospital for the Criminally Insane, 130 Am. J. Psychiat. 317 (1973). Note, Commitment Following an Insanity Acquittal, 94 Harv.L.Rev. 605, 610-12 (1981). See generally Diamond, The Psychiatric Prediction of Dangerousness, 123 U.Pa.L.Rev. 439 (1974).

  Nineteen jurisdictions now provide that an insanity acquittee is entitled to be judged under the same standards of commitment as are afforded persons faced with normal civil commitment. See Ariz.R.Crim.P. 25; 38,   1005-2-4(a) (Smith-Hurd Supp.1981); Ind. Code Ann.   35-5-2-5 (Burns Supp.1981); La.Rev.Stat.Ann.   28:59(a) (West Supp.1981) (excluding capital offenses, see La.Code 654 (1981); Mass.Gen.Laws 123,   16 (1981); Mich.Comp. Laws Ann.   330.2050 (1980); Minn.R.Crim.P. 20.02(8); Neb.Rev.Stat.   29-2203 (1975); N.M.R.Crim.P. 35(a)(2); N.Y.Crim.Pro. Law   330.20 (McKinney Supp.1980); N.C.Gen.Stat.   15A- 1321 (1978); Ohio Rev. Code Ann.   2945.40 (Page Supp.1980); Okla.Stat.Ann.tit. 22,   1161 (West Supp.1981); 50 Pa.Consol.Stat.Ann.   7406 (Purdon Supp.1981); S.C. Code   44-23-610 (1977); S.D. Codified Laws Ann.   23A-26-12 (1979); Tenn. Code Ann.   33-709 (Supp.1980); Tex.Code 46.03,   4 (Vernon 1981); Utah Code Ann.   77-24-15 (1978); Vt.Stat.Ann.tit. 13,   4822(a) (Supp.1981); Wash.Rev. Code Ann.   10.77.110 (West 1980); W.Va. Code   27-6A-3 (1980). In most jurisdictions this requires a showing that the defendant is dangerous to himself or others. See generally Developments in the Law--Civil Commitment of the Mentally Ill, 87 Harv.L.Rev. 1190, 1203-05 (1974).

  Michigan has apparently found this procedure inadequate and as a result has adopted a verdict of guilty but mentally ill. See supra note 181. Other jurisdictions take a middle position, allowing the trial judge or a jury in the criminal case to determine in a hearing after the trial whether the defendant should be committed; but the standard of proof required for commitment in these jurisdictions is typically lower than that for normal civil commitment. Some of these states require the defendant at the commitment hearing to bear the burden of proving he is not fit for commitment. E.g., State v. Alto, 589 P.2d 402, 404-05 (Alaska 1979); Hill v. State, 358 So. 2d 190, 199-201 (Fla.Dist.Ct.App. 1978); La. Code 654 (West 1969) (noncapital felonies). Some require the state to prove the defendant's fitness for commitment by only a preponderance of the evidence. Ark.Stat.Ann.   41- 612(3) (1977); Conn.Gen.Stat.Ann.   53a-47(a)(4) (West 1972); Hawaii Rev.Stat.   704-411(4) (1976). This is much less than the "clear and convincing evidence" standard the Constitution requires in civil commitment proceedings, Addington v. Texas, 441 U.S. 418, 425-33 (1979), and is much less than the reasonable doubt standard Hawaii requires for civil proceedings, Hawaii Rev.Stat.   334-60(b)(4)(I) (1976). Notwithstanding the Addington decision, the Second Circuit approved Connecticut's lower standard of proof in Warren v. Harvey, 632 F.2d 925 (2d Cir.1980). But see Williams v. Superintendent, Clifton T. Perkins Hosp. Center, 43 Md.App. 588, 598-99, 406 A.2d 1302, 1308 (1979) (holding that Addington's standard of proof applies to insanity acquittees as well).

  Commitment is mandatory in four jurisdictions if the trial judge finds that the defendant's insanity continues. Ala. Code   15-16-40 (1975); Cal. Penal Code   1026(a) (West Supp.1981); P.R.Laws Ann.tit. 34 app. II, rule 241 (1954); Va. Code   19.2-181(1) (Supp.1981) (if defendant is insane or feeble-minded, or release would be dangerous). Commitment is permissible in six other jurisdictions if the trial judge finds that the defendant would be dangerous to the community or to himself if released. Of these, four make commitment mandatory. N.H.Rev.Stat.Ann.   651:9-a (Supp.1979) (to take effect when new mental health building is completed); N.J.Stat.Ann.   2C;4- 8 (West 1980); R.I.Gen. Laws   40.1-5.3-4 (Supp.1980); Wash.Rev. Code Ann.   10.77.110 (West 1961). In two jurisdictions commitment is discretionary. Iowa Code Ann.   813.2, rule 21(8) (West 1979); N.D.Cent. Code   29-22-36 (1974). Commitment is mandatory in three other jurisdictions if the judge finds the defendant's insanity continues and that his release would be dangerous. Md.Ann. Code art. 59,   27B (1979) (may conditionally release); Or.Rev.Stat.   161.327 (1979) (may conditionally release); Wyo.Stat.   7-11-306(c), (d) (1977). In another, commitment is mandatory if the trial jury makes this finding. Miss. Code Ann.   99-13-7 (1972). Kentucky makes commitment mandatory if a second jury finds the defendant suitable for commitment, Ky.R.Crim.P. 9.90(2), but the judge has discretion to commit the defendant through a civil proceeding.

  The relative merits of various procedures for commitment after an insanity acquittal have been discussed elsewhere. See, e.g., American Bar Foundation, The Mentally Disabled and the Law 34-63 (S. Brakel & R. Rock rev.ed. 1971); A. Goldstein, The Insanity Defense 143-70 (1967); W. LaFave & A. Scott, supra note 18, at 317-18; Figinski, Commitment After Acquittal on Grounds of Insanity, 22 Md.L.Rev. 293 (1962); Tydings, A Federal Verdict of Not Guilty by Reason of Insanity and a Subsequent Commitment Procedure, 27 Md.L.Rev. 131 (1967); Developments in the Law--Civil Commitment of the Mentally Ill, 87 Harv.L.Rev. 1190 (1974); Note, Commitment Following an Insanity Acquittal, 94 Harv.L.Rev. 605 (1981).

  As the text suggests, the best approach may be to fashion civil commitment standards which would adequately protect the public and respect the culpability principle. It may be appropriate, for example, after an acquittal upon an insanity defense, to have the past criminal conduct create a rebuttable presumption that the dangerousness requirement for civil commitment has been met. See, e.g., State v. Alto, 589 P.2d 402, 404-05 (Alaska 1979); Hill v. State, 358 So.2d 190, 199-201 (Fla.Dist.Ct.App. 1978); La. Code 544 (West Supp.1980) (noncapital felonies). Or it may be appropriate to shift the burden of persuasion to the defendant as Alaska, Florida, and Louisiana have. See cases and statutes cited supra. Another alternative is to increase the stringency of standards for release of defendants who had been found not guilty by reason of insanity, e.g., taking the decision out of the hands of the psychiatrists alone and putting more power in the court.

    In practice these procedures [civil commitment type standards such as those mandated by McQuillan] have led to horrifying results. Once a patient's symptoms are brought under control by powerful tranquilizing drugs, the Department of Mental Health no longer considers the patient mentally ill for purposes of continued hospitalization. Thus, the patient is prescribed medicine and released. Problems occur when the patient simply decides to discontinue medication. In many cases, individuals become "time bombs ready to explode."

Brown & Wittner, Criminal Law, 1978 Annual Survey, 25 Wayne L.Rev. 335, 356  (1979) (footnotes omitted).



[FN184]. For example, several jurisdictions continue the common law rule and deny a duress excuse where the defendant is charged with murder. See, e.g., Ga. Code Ann.   26-906 (1977); Mo.Ann.Stat.   562.071(2)(1) (Vernon 1979); Or.Rev.Stat.   161.270(1) (1975). Blackstone's explanation for the common law limitation suggests that the conduct, killing an innocent, was so serious as to require condemnation and to foreclose the issue of blamelessness. "[T]hough a man be violently assaulted, and hath no other possible means of escaping death but by killing an innocent person, this fear and force shall not acquit him of murder; for he ought rather to die himself, than escape by murder of an innocent." 4 W. Blackstone, Commentaries *30. While many modern codes apparently have recognized that some homicides under duress may be blameless by omitting this limitation on the duress defense, the concern that one who is too easily coerced must be condemned is still evident. A typical provision makes the defense available only if a "person of reasonable firmness in his [the defendant's] situation would have been unable to resist [the threat]." Model Penal Code   2.09(1) (Proposed Official Draft 1962).



[FN185]. The Durham insanity test, for example, requires the jury to acquit when they find that the defendant's "unlawful act was the product of mental disease or defect." Durham v. United States, 214 F.2d 862, 874-75 (D.C. Cir.1954). The Court of Appeals abandoned this test for two reasons: (1) experts tended to dominate the issue of responsibility and (2) there was "no generally accepted understanding, either in the jury or the community it represents, of the concept requiring that the crime be the product of the mental disease." Id. at 981-82. Thus, while the court did not explicitly state that the condemnatory function was weakened by the defense, the court insisted on a ground of exculpation that the community could accept.



[FN186]. The relative importance of these purposes is, of course, open to dispute. See supra note 171.



[FN187]. For a discussion of the practical difficulties of administering such a verdict for nonexculpatory defenses that operate as bars to prosecution, see infra text accompanying notes 369-70.



[FN188]. McCormick labels this burden the burden of production. McCormick's Handbook of the Law of Evidence 783-84 (E. Cleary 2d ed. 1972). Other labels are also employed. 22A C.J.S. Criminal Law   573 (1961) (noting use of such terms as burden of explanation, burden of adducing evidence, burden of introducing evidence, and burden of evidence); Model Penal Code   1.13, comment 110 (Tent. Draft No. 4, 1955) (burden of adducing evidence and evidential burden). Some authors and criminal codes minimize the significance of this burden. See Jeffries & Stephan, Defenses, Presumptions, and Burden of Proof in the Criminal Law, 88 Yale L.J. 1325, 1334 (1979) (describing it as an economical device for screening out extraneous issues, a housekeeping device); Brown Commission, supra note 10,   103, comment 5 (permits a narrowing of issues at trial). Yet any device that controls submission of an issue to the jury is significant. See 9 Wigmore on Evidence 279 (3d ed. 1940) (establishes bounds of reasonable jury decisions). The quantum of evidence required to satisfy the standard will, of course, affect its impact on the defendant. See infra note 212.



[FN189]. The term is typically used in civil trials. McCormick uses this term to describe the parties' respective duties under pleading rules of the jurisdictions. He notes that the party bearing the burden of pleading is not necessarily the party who will bear the burdens of production and persuasion on the same issue. McCormick's Handbook of the Law of Evidence 784-66 (E. Cleary 2d ed. 1972). In a civil trial the pleadings, primarily the complaint for the plaintiff and the answer for the defendant, serve to indicate the position that each party is taking in the litigation. C. Wright, Law of Federal Courts 273 (2d ed.1970). In contrast, in a criminal trial, most matters of defense may be raised under a general plea of not guilty. In some instances jurisdictions require advance notice of certain defenses, for example alibi and insanity. E.g., Fed.R.Crim.P. 12.1 & 12.2 (alibi and insanity); State v. Dodd, 101 Ariz. 234, 418 P.2d 571 (1966) (alibi); People v. Holiday, 47 Ill. 2d 300, 265 N.E.2d 634 (1970) (alibi); Ark.Stat.Ann.   41-604 (1977) (insanity); Colo.Rev.Stat.   16-8-103(1) (1978) (insanity); see 1 C. Torcia, Wharton's Criminal Law 222 & n.67 (14th ed. 1978) (alibi); 2 C. Torcia, Wharton's Criminal Law 35 (14th ed. 1978) (insanity). The more typical general plea does not alert the prosecution to the theory of defense and it would be unreasonable to require the prosecution to negate every possible theory of defense, until called to do so. See W. LaFave & A. Scott, supra note 18, at 47. The burden of pleading serves this function. In general, where a defendant wishes to put a defense such as duress in issue in a criminal trial, the defendant may do so at the trial by either adducing evidence, agreeing that the prosecution's case has adduced such evidence, or indicating that such evidence will be adduced. If the burden of pleading is not met in one of the foregoing manners, the defense will not be considered.



[FN190]. Even where an advance notice requirement exists, as in the case of alibi and insanity, no particular quantum of evidence is required. See, e.g., F.R.Crim.P. 12.1 & 12.2. Where advance notice is not required, the defense will receive preliminary consideration on request or on any showing. See United States v. Bailey, 444 U.S. 394 (1980) (defendants were allowed to submit evidence of duress and necessity defenses even though that evidence was insufficient as a matter of law to establish the defense and the defense did not go to the jury). Accord People v. Unger, 33 Ill.App. 3d 770, 338 N.E.2d 442 (1975), aff'd, 66 Ill.2d 333, 362 N.E.2d 319 (1977); People v. Warlick, 13 Ill.App. 3d 282, 300 N.E.2d 834 (1973). Where a burden of production is satisfied by a minimal quantum of evidence, so minimal that it does not serve to screen issues from the jury at all, it is in actuality a burden of pleading. See infra note 212 identifying various standards of evidence.



[FN191]. See United States v. Bailey, 444 U.S. 394 (1980) (proper for court to prohibit jury from considering duress defense where defense evidence was totally discredited). See generally McCormick, supra note 188, at 790-93.



[FN192]. "As to the burden of production of evidence, it is uniformly held that the defendant is obliged to start matters off by putting in some evidence in support of his defense . . . ." W. LaFave & A. Scott, supra note 18, at 47 (not identifying the standard of evidence); see Jeffries & Stephan, Defenses, Presumption, and Burden of Proof in the Criminal Law, 88 Yale L.J. 1325, 1333 (1979). Both LaFave and Scott, and Jeffries and Stephan overstate the rule by claiming that it is universal. See generally 22A C.J.S. Criminal Law   573-76 (1961). Even if it were clear that the defendant was always required to bear the burden of production on all matters of defense, there is in current law "no certain principle by which to gauge when a qualification of the scope of a prohibition should be classified as a matter of [defense] as distinguished from an aspect of the basic definition of the crime." Model Penal Code   1.13 (currently   1.12), comment 111 (Tent. Draft No. 4, 1955). The Model Penal Code, and jurisdictions following its lead, include a general provision providing that an allocation of the burden of production to the defendant will be specifically identified in the code by designating such instances as "affirmative defenses." Model Penal Code   1.12(2)(a), (3)(a) (Proposed Official Draft 1962). Colo.Rev.Stat.   18-1- 407(1) (1978) ( "affirmative defense" must be raised by defense if not raised by prosecution); N.J.Stat.Ann.   2C:1-13(b)(1), (c)(1) (West 1981) ("affirmative defense" used to identify defenses where defendant bears burden of production). The following defenses which serve only to negate an element, are not designated as affirmative; thus, the prosecution must bear the burden of production for them; mistake of fact, Model Penal Code   2.04(1)(a) (Proposed Official Draft 1962); Colo.Rev.Stat.   18-1- 504(1) (1978); N.J.Stat.Ann.   2C:2-4(a)(1) (West 1981); intoxication, Model Penal Code   2.08(1) (Proposed Official Draft 1962); Colo.Rev.Stat.   18-1- 804(1) (1978); N.J.Stat.Ann.   2C:2-8(a) (West 1981); consent, Model Penal Code   2.11(1) (Proposed Official Draft 1962); Colo.Rev.Stat.   18-1- 505(1) (1978); N.J.Stat.Ann.   2C:2-10(a) (West 1981); and mental disease negating an element, Model Penal Code   4.02(1); Colo.Rev.Stat.   18-1-803 (1978); N.J.Stat.Ann.   2C:4-2 (West 1981).



[FN193]. See, e.g., Model Penal Code   1.12(1)(2) (Proposed Official Draft 1962). The Commentary to this section states that where a defense is labelled "affirmative," the prosecution is relieved of the responsibility of adducing evidence in the first instance. Model Penal Code   1.13 (currently   1.12), comment (Tent.Draft No. 4, 1955). This implies that in all other instances the burden of production is on the prosecution.



[FN194]. See Johnson v. Hatrak, 417 F.Supp. 316 (D.N.J.) (the right to a jury trial includes a jury determination of each element of the offense unless, as here, the defense stipulates to certain elements), aff'd, 564 F.2d 90 (3d Cir.), cert. denied, 435 U.S. 906 (1976). The prosecution must prove each element of the offense and the jury must be instructed accordingly. See Patterson v. New York, 432 U.S. 197, 206 (1977) (in upholding the defendant's conviction the court noted that the jury was instructed in accordance with the statute defining the offense and that the state had proved the facts constituting the crime beyond a reasonable doubt); In re Winship, 397 U.S. 358, 364 (1970) (prosecution must prove each element of the offense beyond a reasonable doubt). If the jury is not instructed on the elements, a reviewing court will be unable to determine if the constitutional standard has been met. Several state statutes and cases similarly require the court to instruct the jury on all elements. See, e.g., Del. Code Ann. tit. 11,   301 (1979); People v. Jaso, 4 Cal.App. 3d 767, 770-71, 84 Cal.Rptr. 567, 569- 70; Cal.Penal Code   2217, 1096 (West 1970); Hawaii Rev.Stat.   635- 17 (1968); La.Stat.Ann.C.Cr.P.arts. 802-04 (1967); Mo.Stat.Ann.   546.070(4) (1953).



[FN195]. See, e.g., Del.Code Ann. tit. 11,   302(b) (1979) (defendant may introduce any evidence tending to negate an element of the offense, but must introduce the specified quantum of evidence in order to receive a special instruction on a defense negating an element).



[FN196]. See United States v. Martin Linen Supply Co., 430 U.S. 564, 573  (1977) (prohibition against directed verdict of conviction as protection against potentially abusive government conduct); United Bhd. of Carpenters & Joiners v. United States, 330 U.S. 395, 408 (1947) (directed verdict prohibited no matter how conclusive evidence of guilt); W. LaFave & A. Scott, supra note 18, at 53 (court may not direct verdict on any element of the crime even if the evidence is uncontradicted).



[FN197]. Evidence of an alibi "is admissible always, without regard to its weight, and is for the consideration of the jury." Statev. McGarry, 111 Iowa 706, 712, 83 N.W. 718, 719 (1900). Arguably, if a court may not direct a verdict on an element of the offense, see supra note 196, the court should not be allowed to exclude defense evidence negating an element.



[FN198]. Although a defense that negates an element of the offense is merely a denial of the element, W. LaFave & A. Scott, supra note 18, at 46-47, some jurisdictions require the defendant to bear the burden of production for such defenses. See, e.g., Hawaii Rev.Stat.   701-111(1)-(2) (1976). The Hawaii provision defines a "defense" as "a fact or set of facts which negatives penal liability" and further provides that "[n]o defense may be considered unless evidence of the specified fact or facts has been presented." Id. While the definition of a "defense" is ambiguous, additional provisions make it clear that defenses negating an element are included. See id.   702-218 (ignorance or mistake negating an element is a "defense"). LaFave and Scott suggest that this approach is common and that the burden of production is on the defendant even where a defense negates an element. W. LaFave & A. Scott, supra note 18, at 47. See, e.g., Del. Code Ann. tit. 11,   304 (defendant bears the burden of production for all defenses), 441 (mistake negating an element is an affirmative defense and defendant bears both the burden of persuasion and production) (1979); State v. Stump, 254 Iowa 1181, 1194, 119 N.W.2d 210, 218 (1963) (alibi considered a defense as to which defendant bears the burden of production and persuasion).



[FN199]. See supra note 194. An occasional decision has reversed a conviction where the trial court prevented the jury from considering evidence relevant to an element. See, e.g., McDaniel v. United States, 24 F.2d 303 (5th Cir.1928). The McDaniel court held that it was error for the trial court to instruct the jury to disregard the defendant's testimony because it was inadequate to establish an alibi as a matter of law, and to require them to believe the government's witnesses. Id. at 305. Of course, where the prosecution bears, and does not meet, the burden of production on an element of the offense, the judge must direct a verdict of acquittal for the defendant. E.g., Fed.R. Crim P. 29(a). The prosecution must introduce sufficient evidence on each element of the offense in order to make out a prima facie case and avoid a directed verdict. France v. United States, 164 U.S. 676 (1897). See McCormick, supra note 188, at 784; W. LaFave & A. Scott, supra note 18, at 54. This rule is not universal, however. For cases holding that the trial court does not have the authority to direct a verdict of acquittal for the defendant, see State v. Broussard, 217 La. 90, 46 So. 2d 48 (1950); State v. Pusch, 77 N.D. 860, 46 N.W.2d 508 (1950); Bright v. State, 191 Tenn. 249, 232 S.W.2d 53 (1950).



[FN200]. See supra note 194; McCormick, supra note 188, at 804; W. LaFave & A. Scott, supra note 18, at 53.



[FN201]. Jackson v. Virginia, 443 U.S. 307, 319 (1979).



[FN202]. Offense modification defenses are often classified as "exemptions" or "exceptions" to criminal prohibitions. Prior to the modern codification movement a variety of approaches were developed to determine the allocation of the burden of production for such exemptions. One approach relied upon the positioning of the exempting clause: if it was within the offense definition the burden was on the prosecution; if it was separate the burden was the defendant's. See, e.g., United States v. Fleischman, 339 U.S. 349, 360-63 (1950); State v. Tonnisen, 92 N.J.Super. 452, 224 A.2d 21 (App.Div. 1966). See Model Penal Code   1.13 (currently   1.12), comment 110 (Tent. Draft No. 4, 1955). Under modern codes the burden for exemptions is often allocated to one party by a general provision; this approach establishes a uniform rule in the jurisdiction, but jurisdictions continue to disagree as to which party the allocation is most appropriately made. Compare N.D.Cent. Code   12.1-01- 03(2) (1960) (exemptions are treated as defenses--defendant bears the burden of production) with Tex. Penal Code Ann.   2.02(b) (Vernon 1974) (prosecution must negate all exceptions both in the indictment and at trial). See State v. Davis, 598 S.W.2d 189 (Mo.App. 1980) (defendant has burden of proving that he falls within an exception to a criminal statute). Some modern codes specify certain exceptions, or offense modifications, as matters for the defendant's burden of production; the prosecution apparently must bear the burden for all others. See, e.g., N.J.Stat.Ann.   2C:1-13 (West 1981).



[FN203]. If the prosecution is required to meet the burden of production for all elements of an offense, see supra text accompanying note 201, it seems unclear why drafting differences should remove that duty. Consider Model Penal Code   223.9 (1980), which makes it an offense to operate another's vehicle without the consent of the owner. The prosecution must ultimately persuade the jury that the actor was reckless with respect to the absence of actual consent of the owner. Model Penal Code   2.02(3) (Proposed Official Draft 1962). Yet, the defendant must bear the burden of production if he wishes to establish a defense of implied consent: that he "reasonably believed the owner would have consented to the operation had he known of it." Model Penal Code  223.9 (1980) (reasonable belief is an affirmative defense to unauthorized use of vehicle); Model Penal Code   1.12(2)(a) (Proposed Official Draft 1962) (code does not require prosecution to disprove "affirmative defense unless and until there is evidence supporting such a defense"). This allocation of the burden of production on implied consent to the defendant narrows the scope of the prosecution's obligation to prove the defendant's state of mind as to lack of consent. The prosecution need only show that the defendant was reckless as to actual consent. It is relieved of the duty of showing recklessness with respect to any consent which might be implied because of the relationship of the parties or an emergency situation. Thus, no matter how weak the prosecution's case on the defendant's recklessness with respect to implied consent, the prosecution can reach the jury. Both forms of the consent defense reflect criminalization decisions and one might wonder why the prosecution must prove the absence of one and not the other.



[FN204]. The Model Penal Code specifies as an "affirmative defense" the matters on which the defendant bears the burden of production, and provides general criteria to determine whether additional allocations to the defendant are appropriate. The criteria allow a shift where the matter is one of excuse or justification, on which the defendant can fairly be required to adduce evidence, and which is peculiarly within his knowledge. Model Penal Code   1.12(3)(c) (Proposed Official Draft 1962). The "knowledge" rationale is one traditionally evoked to justify an allocation of the burden of production to the defendant. See W. LaFave & A. Scott, supra note 18, at 47.



[FN205]. See supra notes 40-48 and accompanying text for examples of offense modifications.



[FN206]. Many failure of proof defenses, however, such as mistake or intoxication negating an element, might also be considered within the scope of this rationale. But this is clearly inappropriate. See supra text accompanying notes 192-201.



[FN207]. The Model Penal Code places the burden of production on the defendant for all "affirmative defenses." Model Penal Code  1.12(2)(a), 3(a), 3(c) (Proposed Official Draft 1962). All justifications are labelled affirmative defenses. Id.   3.01(1). Most excuses are also identified as affirmative defenses. Id.   2.08(4) (involuntary intoxication), 2.09(1) (duress), 2.10 (military orders), 4.03(1) (insanity). The defendant also bears the burden of production for most nonexculpatory public policy defenses. Entrapment is expressly designated an affirmative defense. Id.   2.13. Model Penal Code   1.12(4) allocates the burden of production to the defendant for other nonexculpatory public policy defenses by imposing the burden of proving a fact that is not an "element of the offense" on the party who will benefit from proof of the fact. Id.   1.12(4). Section 1.13(9) defines "elements of the offense"; e definition does not include any nonexculpatory public policy defenses other than the statute of limitations. Id.   1.13(9).

  Several jurisdictions adopt this Model Penal Code scheme, using the phrase  "affirmative defense" to allocate the burden of production to the defendant for comparable defenses. See, e.g., Alaska Stat.   11.81.900(b)(1) (1978); Ga. Code Ann.   26-907 (1977) (justifications are "affirmative defenses"); Perkins v. State, 151 Ga.App. 199, 259 S.E.2d 193 (1979) ("affirmative defense" designates allocation of burden of production to the defendant). Other jurisdictions achieve the same result by use of the term "defense." See, e.g., Brown Commission, supra note 10,   103(2)-(3); Conn.Gen.Stat.   53a- 12(a)(-(b) (West 1972).



[FN208]. Both the majority and the dissent in Bailey recognized that exclusion of a defense on the ground that the defendants failed to satisfy their burden of production, had an impact on the defendants' right to a trial by jury. Compare United States v. Bailey, 444 U.S. 394, 428-35 (1980) (Blackmun, J., dissenting) (arguing that because of the jury right judicial decisions denying defenses as a matter of law should be rare), with id. at 414-15 (majority opinion) (rationalizing that the burden of production is a necessary screening device because the defendant is entitled to have the jury rationally decide issues of credibility). Cf. generally Sandstrom v. Montana, 442 U.S. 510, 523 (1979) (conclusive presumptions invade the factfinding function of the jury).



[FN209]. See Allen, Structuring Jury Decisionmaking in Criminal Cases: A Unified Constitutional Approach to Evidentiary Devices, 94 Harv.L.Rev. 321, 329 (1980).



[FN210]. The province of the jury is clearly invaded if the trial court instructs the jury not to consider the defendant's evidence on a defense negating an element. See McDaniel v. United States, 24 F.2d 303, 305 (5th Cir.1928) (error to instruct jury not to consider alibi evidence); United States v. Bailey, 585 F.2d 1087, 1101 (D.C. Cir.1978) (prejudicial error in instruction which precluded jury from assessing defense evidence relevant to intent), rev'd on other grounds, 444 U.S. 394 (1979). See supra notes 194- 201 and accompanying text. A different case is presented, however, where it is clear that the evidence does not make out the legal requirements of a general defense. For example, where there is no evidence of necessity as required by a justification defense, it seems appropriate to bar the jury from considering the defense. See, e.g., People v. Taylor, 31 Ill.App. 3d 20, 332 N.E.2d 735 (1975). Some courts have indicated a preference for limiting the detailed legal requirements of a defense and thus limiting the possible grounds on which a judge can prevent general excuses from reaching the jury. E.g., Esquibel v. State, 91 N.M. 498, 501, 576 P.2d 1129, 1132 (1978) (refusing to adopt detailed criteria for the duress defense because the details go to the weight and credibility of the evidence and should be matters for the jury).

  One might argue that some public policy based offense modifications might also be included in the group of defenses that may be excluded from jury consideration, but the fact that they are essentially part of the criminalization decision, conceptually analogous to the elements of the offenses, would seem more properly to require their submission even though their reason for being is not directly related to culpability.



[FN211]. This would not mean, however, that the prosecution would have to be given the burden of persuasion in these cases. Supreme Court decisions do not require the prosecution to disprove, beyond a reasonable doubt, all defenses related to culpability. Patterson v. New York, 432 U.S. 197 (1977).



[FN212]. See, e.g., United States v. Wolffs, 594 F.2d 77, 80 (5th Cir.1979) (requiring more than a scintilla); N.J.Stat.Ann.   2C:1- 13(b) (West 1981) (evidence supporting); Colo.Rev.Stat.   18-1- 407(1) (1978) (some credible evidence); Brown Commission, supra note 10,   103(2)(b) (evidence sufficient to raise a reasonable doubt).



[FN213]. This argument is based on the function of the burden of production to prevent verdicts based on "speculation and conjecture." McCormick, supra note 188, at 791. See 9 J. Wigmore, Evidence 279 (1940) (establishes bounds of reasonable jury decisions); McNaughton, Burden of Production of Evidence: A Function of a Burden of Persuasion, 68 Harv.L.Rev. 1382, 1383 (1955) (describing the burden as the duty to produce "evidence which would justify a reasonable jury in finding the existence or non-existence of [a] fact"). Proponents of this variation in the burden of production standard argue that more evidence is needed for a jury to be convinced beyond a reasonable doubt than is necessary to convince a jury by a preponderanceof the evidence, and that the standard of the burden of production should reflect this fact. McNaughton, supra, at 1383. See generally Goldstein, The State and The Accused: Balance of Advantage In Criminal Procedure, 69 Yale L.J. 1149, 1157-59 (1960).

  Some jurisdictions apparently accept this argument in part, as they require a stricter standard for the burden of production in criminal trials, where the prosecution must carry the burden of persuasion beyond a reasonable doubt, than in a civil trial, where the burden of persuasion is beyond a preponderance of the evidence. E.g., United States v. Taylor, 464 F.2d 240 (2d Cir.1972); Riggs v. United States, 280 F.2d 949 (5th Cir.1960); Curley v. United States, 160 F.2d 229 (D.C. Cir.1947), cert. denied, 331 U.S. 837 (1947). Delaware codifies two standards for the burden of production: the defendant must introduce "some credible evidence" if the prosecution is required to disprove the defense beyond a reasonable doubt, Del. Code Ann. tit. 11,   303(a) (1979); if the defendant bears the burden of persuasion by a preponderance of the evidence, the burden of production is met "[u]nless the court determines that no reasonable juror could find an affirmative defense established by a preponderance of the evidence presented by the defendant." Del. Code Ann. tit. 11,   304(b) (1979).



[FN214]. McCormick, supra note 188, at 784.



[FN215]. Id. By allocating the burden of persuasion, the legal system, in effect, chooses the preferred result in close cases.



[FN216]. 432 U.S. 197 (1977).



[FN217]. 421 U.S. 684 (1975).



[FN218]. Id. at 686-87 (emphasis added).



[FN219]. Patterson v. New York, 432 U.S. 197, 206-07 (1977).



[FN220]. According to Fletcher, the German criminal law takes this position. Fletcher, supra note 2, at 532, 536. Fletcher concurs in this view. See, e.g., id. at 543. See People v. Tewksbury, 15 Cal. 3d 953, 964-65, 127 Cal.Rptr. 135, 143-44, 544 P.2d 1335, 1343-44 (distinguishing, in dicta, the appropriateness of placing burden of persuasion on the defendant where a nonexculpatory public policy defense is involved), appeal dismissed, 429 U.S. 805 (1976); Model Penal Code   1.13 (currently   1.12) comment 113 (Tent. Draft No. 4, 1955) (noting that there should be no bar to placing burden of persuasion on the defendant where defenses do not touch on guilt or innocence).



[FN221]. In re Winship, 397 U.S. 358, 364 (1970).



[FN222]. See supra note 125.



[FN223]. One may speculate that the Patterson Court felt compelled to draw the thin line dividing permissible and impermissible allocations of the burden of persuasion between provocation and extreme emotional disturbance because they wished to preserve the right of states to allocate the burden of persuasion to the defendant for the insanity defense. The Court permitted such allocation for insanity in Leland v. Oregon, 343 U.S. 790 (1952), and reaffirmed it in Rivera v. Delaware, 429 U.S. 877 (1976). The Court apparently felt that an expansion of the Winship rule-- from elements of the offense to defenses such as extreme emotional disturbance--would endanger Leland. See Patterson v. New York, 432 U.S. at 206. The majority noted that they were "unwilling to reconsider Leland and Rivera." Id. at 207. Thus, the Court's view in Patterson may have arisen because it could not perceive a significant distinction between extreme emotional disturbance and insanity. The conceptual framework provided in this Article suggests such a distinction between offense modifications (including extreme emotional distress) and excuses (including insanity). See supra text accompanying notes 30-55 & 80-85. And with this distinction it may be possible to abandon the weak failure of proof/offense modification distinction as the critical one for the burden of persuasion issue.

  Other writers have suggested an alternative interpretation of Patterson, which one can only hope is correct:

    Patterson should be read as a decision based on principles of federalism and respect for the independent evolution of state systems of criminal law. It would be [a] great misfortune if the case were read to endorse, in principle, the states' requiring defendants to bear the burden of persuasion on so-called affirmative defenses. The Court never says that it approves of the compromise adopted by the New York legislature, yet the majority does approve of a decentralized system of criminal law, with each state free to struggle with the problem of compromise and principle in working out rules on the burden of persuasion.

Fletcher, supra note 2, at 551. If Fletcher's interpretation is accepted, states will feel no need to adopt the Mullaney-Patterson line. On the contrary, they may be more inclined to accept the Supreme Court's invitation to consider the full range of possibilities before making a decision. Yet this interpretation still gives no reason to be optimistic about the future application of a conceptually inadequate standard for constitutional limitations on the allocation of the burden of persuasion. See infra note 232 and accompanying text, for a discussion of another rationale for allocating the burden of persuasion to the defendant and other explanations of Patterson.



[FN224]. Some states have attempted to allocate the burden of persuasion to the defendant for a defense that merely negates an element of an offense. For example, defendants have been required to prove alibi by a preponderance of the evidence. E.g., Thornton v. State, 226 Ga. 837, 178 S.E.2d 193 (1970) (to the satisfaction of the jury); State v. Stump, 254 Iowa 1181, 1195, 119 N.W.2d 210, 218, cert. denied, 375 U.S. 853 (1963); cf. Stump v. Bennett, 398 F.2d 111 (8th Cir.) (striking down the Iowa practice as violative of due process), cert. denied, 393 U.S. 1001 (1968). These decisions represent a minority position, see 22A C.J.S. Criminal Law   574 (1961); 9 J. Wigmore, supra note 213,   2512, and are often ambiguous in their intended effect. See State v. Stump, 254 Iowa at 1195, 119 N.W.2d at 218 (noting that the burden of persuasion is on the defendant to establish an alibi defense warranting acquittal, but also noting that evidence should be considered as a whole and if alibi evidence raised a reasonable doubt, acquittal is warranted). At least one jurisdiction requires the defendant to carry the burden of persuasion for a mistake which negates an element. Del. Code Ann. tit. 11,   304(a) (defendant has burden of proving an affirmative defense), 441(1) (ignorance or mistake of fact is an affirmative defense) (1979). Similarly, a defendant is sometimes required to convince the jury of the defense of consent, even where that defense negates an element of the offense. E.g., Del. Code Ann. tit. 11,   304(a) (defendant has burden of proving an affirmative defense), 451(2) (consent negating an element of the offense is an affirmative defense) (1974). These allocations are clearly impermissible under Patterson. See supra note 131 and accompanying text; W. LaFave & A. Scott, supra note 18, at 48 (if the prosecution must prove the elements of the offense, it follows that the prosecution must disprove defenses that assert the non-existence of those elements); Allen, supra note 209, at 322 (where the burden of persuasion is on the defendant the prosecution is relieved of the responsibility of proving a fact).



[FN225]. McCormick, supra note 188, at 785-86 (the allocation of the burden of persuasion in a civil trial often follows the pleadings).

    If any class of defenses deserves the title of "affirmative," it is those defenses that admit the commission of the act charged with the necessary mental element, but seek to interpose the existence of a state of facts that, if true, would provide a complete exculpation. The traditional defenses of duress, necessity and self-defense are common examples. Unless one is willing to draw the concepts of volitional act and mental element quite broadly, these defenses do not negate either concept. In that respect they are analogous to the common law of confession and avoidance; they admit the truth of the facts pleaded but offer an excuse. 36 Ohio State Law Journal 828 at 840-41.

Hawaii Rev.Stat.   702-231 commentary (Supp.1980) (quoting Senate Standing Committee Report No. 883 (1979)).



[FN226]. W. LaFave & A. Scott, supra note 18, at 48 ("it is basic Anglo- American criminal law philosophy that matters bearing on guilt should be proven against the defendant beyond a reasonable doubt").



[FN227]. McCormick, supra note 188, at 802.



[FN228]. Id.; see Model Penal Code   1.12 (currently   1.13) comment 112-13 (Tent. Draft No. 4, 1955).



[FN229]. Model Penal Code   1.13(9) (Proposed Official Draft 1962). Under the Model Penal Code,

    element of an offense means (i) such conduct or (ii) such attendant circumstances or (iii) such a result of conduct as

    (a) is included in the description of the forbidden conduct in the definition of the offense; or

    (b) establishes the required kind of culpability; or

    (c) negatives an excuse or justification for such conduct; or

    (d) negatives a defense under the statute of limitations; or

    (e) establishes jurisdiction or venue.

Id. Model Penal Code   1.12 (Proposed Official Draft 1962) provides:

    (1) No person may be convicted of an offense unless each element of such offense is proved beyond a reasonable doubt. In the absence of such proof, the innocence of the defendant is assumed.

    (2) Subsection (1) of this Section does not:

    (a) require the disproof of an affirmative defense unlessand until there is evidence supporting such defense; or

    (b) apply to any defense which the Code or another statute plainly requires the defendant to prove by a preponderance of evidence.

Model Penal Code   1.12(1)-(2) (Proposed Official Draft 1962). Since  "elements of the offense" is defined to include the negative of an excuse or a justification, unless a defense is designated as one which the defendant is required to prove, the general rule prevails and the prosecution bears the burden of persuasion. Accord Hawaii Rev.Stat.   701-114 (proof beyond reasonable doubt for all elements), 701-115(2)(b), -3(a)-(b) (only affirmative defenses must be proven by the defendant by a preponderance of the evidence), 702-205 ("elements of the offense" includes the negative of excuse and justification) (1976); N.J.Stat.Ann.   2C:1-13 (adopting Model Penal Code   1.12, supra), 2C:1-14(h) (defining elements of the offense to include the absence of excuse or justification) (West 1981). This general rule does not apply where the matter to be proved is not an element; in that case, the burden is on the side that will benefit from proof of the fact. Model Penal Code   1.12(4)(a) (Proposed Official Draft 1962).

  Other jurisdictions reach the same result by providing that the prosecution must disprove all but designated offenses. E.g., Colo.Rev.Stat.   18-1-407 (1978); Conn.Gen.Stat.Ann.   53a-12 (West 1972).



[FN230]. Model Penal Code   1.13 (currently   1.12) comment 113 (Tent. Draft No. 4, 1955).



[FN231]. See id. (where irregularity in grand jury selection, pardon, immunity, or double jeopardy are claimed, guilt and innocence are not at issue and there should be no hesitancy in placing the burden of persuasion on the defendant). One court used this non-culpability rationale to support allocation of the burden of persuasion to the defendant for entrapment. People v. D'Angelo, 401 Mich. 167, 257 N.W.2d 655 (1977). See W. LaFave & A. Scott, supra note 18, at 50-51 (noting that if entrapment is a public policy defense that prevents conviction despite guilt it should be considered procedural and the burden of persuasion should be on the defendant).



[FN232]. Thirty-three states have recently enacted revised criminal codes; many of the reforms benefit the defendant by introducing new defenses. Jeffries & Stephan, supra note 192, at 1354-55 & nn. 83-87. Some of the new defenses, if successfully asserted, provide a complete acquittal. E.g., Model Penal Code   207.5 (1980) (exercise of due diligence a complete defense to corporate liability). Others merely reduce the grade of the offense. E.g., Model Penal Code   210.3(1)(b) (1980); N.Y. Penal Law  125.25(1)(a) (McKinney 1975) (extreme emotional disturbance reduces murder to manslaughter).

  Other examples of such defenses include reasonable mistake as to the age of a victim of statutory rape, Model Penal Code   213.6(1) (1980); Alaska Stat.   11.41.445(b), .81.900(b)(1) (1978); Ark.Stat.Ann.   41-110(4), - 1802(3) (1977); Ky.Rev.Stat.   500.070(3), 510.030 (1975 & Supp.1978); Minn.Stat.   609.344(b), .345(b) (Supp.1979); Mo.Rev.Stat.   556.056, 566.020.3 (1978); N.D. Cent. Code   12.1-01- 03(3), -20-01(b) (1976); Or.Rev.Stat.   161.055(2), 163.325(2) (1977); 18 Pa.Cons.Stat.Ann.   3102 (Purdon 1975); Wash.Rev. Code Ann.   9.79.160(2) (1977); exercise of due diligence as a defense to corporate liability, Model Penal Code   2.07(5) (1980); N.J.Stat.Ann.   2C:2-7(c) (West 1981); 18 Pa.Cons.Stat.Ann.   307(d) (Purdon 1973); Tex. Penal Code Ann.   2.04 (Vernon 1974); id.   7.24(a), and mistake of law, Model Penal Code   2.04(3) (Proposed Official Draft 1962); Ark.Stat.Ann.   41-110(4), -206(3) (1977); Me.Rev.Stat.Ann. tit. 17-A,   37(4), 101(2) (1981); N.H.Rev.Stat.Ann.   5A:626:3 II (1974); N.J.Stat.Ann.   2C:2-4c(2) (West 1981); N.D.Cent. Code   12.1-01-03(3), -05-09 (1976); Tex. Penal Code Ann.  2.04 (Vernon 1974); id.   8.03.

  The Model Penal Code commentary suggests that it may be a political necessity to allocate the burden of persuasion to the defendant for controversial defenses. Model Penal Code   1.13 (currently   1.12) comment at 113 (Tent Draft No. 4, 1955); see 1 National Commission on Reform of Federal Criminal Laws, Working Papers 19 (1970); Conn.Gen.Stat.Ann.   53a-12 comment (West 1972) (burden on defendant where the defense or mitigation is new); W. LaFave & A. Scott, supra note 18, at 49; Jeffries & Stephan, supra note 192, at 1354- 55 & nn. 83-87. Indeed, language in the Patterson opinion suggests that one reason the Court approved of the allocation of the burden of persuasion to the defendant in that case was that the defense was an expanded version of a common law defense, Patterson v. New York, 432 U.S. 197, 202 (1977), and the Court was hesistant to discourage such state and federal reform. Id. at 207-08 (the due process clause "does not put New York to the choice of abandoning . . . defenses or undertaking to disprove [them]"); id. at 214 n.15 (noting that some scholars so interpreted Mullaney). See generally Jeffries & Stephan, supra note 192.



[FN233]. McCormick notes that the burden of persuasion is not really concerned with a quantum of evidence but rather with the "state of the jury's mind." McCormick, supra note 188, at 793; cf. 9 Wigmore, supra note 213,   2497, at 325 ("the truth is that no one has yet invented or discovered a mode of measurement for the intensity of human belief").



[FN234]. See infra notes 238-40 and accompanying text for exceptions.



[FN235]. In re Winship, 397 U.S. 358, 364 (1970); Patterson v. New York, 432 U.S. 197, 204 (1977).



[FN236]. E.g., Model Penal Code   1.12(2)(b) (Proposed Official Draft 1962); Brown Commission, supra note 10, at   103(3); see W. LaFave & A. Scott, supra note 18, at 48; McCormick, supra note 188, at 801. In a few instances the defendant has been required to establish a defense "beyond a reasonable doubt," the standard for the prosecution's burden of proof. See, e.g., Leland v. Oregon, 343 U.S. 790 (1952) (approving such a standard for proof of insanity). Oregon has since abandoned this standard. See Or.Rev.Stat.   161.055(2), .305 (1977).



[FN237]. In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring). For a discussion of the justification for a higher standard for the prosecution, see Patterson v. New York, 432 U.S. 197, 208 (1977) (noting that the social cost of an increased burden on the prosecution is an increased risk that the guilty will go free). McCormick notes that the required degree of proof is higher than in civil cases because of the seriousness of the consequences of criminal as opposed to civil liability. McCormick, supra note 188, at 798.



[FN238]. See Model Penal Code   1.13(4) (currently  1.12(4)) comment at 113 (Tent. Draft. No. 4, 1955). A fact is unrelated to guilt or innocence when that fact is not an "element of the offense." Model Penal Code   1.12(4) (Proposed Official Draft 1962). For a discussion of the Model Penal Code's broad definition of "elements of the offense," see supra note 229. The drafters note that this definition does not include irregularity in the selection of the grand jury, pardon, immunity, or double jeopardy. Model Penal Code   1.13 (currently   1.12) comment 113 (Tent. Draft No. 4, 1955).



[FN239]. Hawaii Rev.Stat.   701-116(2) (1976) (by a preponderance).  "[T]he fact must be proved to the satisfaction of the Court or jury, as the case may be." Model Penal Code   1.12(4)(b) (Proposed Official Draft 1962); accord N.J.Stat.Ann.   2C:1-13(d)(2) (West 1981).



[FN240]. For nonexculpatory public policy defenses, allocation of the burden of persuasion should be constitutionally permissible since the primary concern of Winship, Mullaney, and Patterson--the erroneous conviction of an innocent person--is not at issue. See supra note 237 and accompanying text. Thus, the prosecution's burden might be lowered to a preponderance, or the defendant might be required to bear the burden by a preponderance. It is for the state to determine the relative importance of the public policy supporting the defense in comparison to the harm of acquitting of a culpable offender. See W. LaFave & A. Scott, supra note 18, at 50-51 (there is more reason to place burden of persuasion on the defendant by a preponderance where the defense is of a procedural type); Brown Commission, supra note 10,   103 comment 4-5 (noting that "[w]hether or not it is proper for the federal government to prosecute is a separate question from whether or not the defendant has done something criminal," and arguing that where the former is in question, the prosecution's burden might be lowered or shifted to the defendant); cf. People v. McCullum, 66 Ill. 2d 306, 362, N.E.2d 307, 310-11 (1977) (unconstitutional to place burden of persuasion as to incompetency to stand trial on the defendant, but prosecution only required to disprove the incompetency by a preponderance). See generally McCormick, supra note 188, at 788-89 (burdens of proof are often allocated to the party supporting the disfavored contention. This reasoning suggests that some defenses commonly considered part of the prosecution's case, to be proved beyond a reasonable doubt, need not be treated as such. For example, the prosecution typically must prove the commission of the offense within the applicable period of the statute of limitations. See, e.g., Model Penal Code,   1.12(1), 1.13(9)(d) (Proposed Official Draft 1962); Hawaii Rev.Stat.   701-114(1)(e) (1976); N.J.Stat.Ann. 2C:1-13(a), :1- 14(h),(d) (West 1981). The statute of limitations protects defendants without regard to their innocence or guilt. The prosecution's burden of persuasion for such a defense could arguably be properly reduced to proof by a preponderance, or the burden could be shifted to the defendant. See also Brown Commission, supra note 10,   103 comment 4-5 (making this argument with respect to proof of jurisdiction).



[FN241]. Several jurisdictions adopting an entrapment defense based on police conduct require the defendant to prove the defense to the court. E.g., Model Penal Code   2.13(2) (Proposed Official Draft 1962); Mich. 2d Rev.Crim. Code   640(5) (Final Draft 1979); Utah Code Ann.   76-2-303(4) (1978) (the defendant may present the defense to the jury if the court rejects the defense); Guam Crim. & Corr. Code   7.70(e) (1977); see Sorrels v. United States, 287 U.S. 435, 457 (1932) (Roberts, J., concurring) (suggesting presentation of a nonexculpatory defense to the court rather than the jury). Similarly, incompetency, immaturity, and constitutional defenses are often matters for the court to decide. See, e.g., State v. Seminary, 165 La. 67, 115 So. 370 (1928) (incompetency); Model Penal Code   4.06(1) (incompetency), 4.10(2) (immaturity); Lewis v. State, 103 Tex. Crim. 64, 279 S.W. 828 (Crim.App. 1926) (immunity); State v. Murphy, 128 Wis. 201, 107 N.W. 470 (1906) (immunity); United States v. Sealfon, 161 F.2d 481 (3d Cir.1947) (double jeopardy), rev'd on other grounds, 332 U.S. 575 (1948). Contra People v. Bechtel, 41 Cal.2d 441, 260 P.2d 31 (1953) (double jeopardy).



[FN242]. The fact that the judge may determine whether a burden of production has been met may have the effect of allowing the judge to decide the defense on the merits. In making such a determination, he evaluates the evidence from the point of view of the reasonable juror, see McNaughton, supra note 213, at 1389-90; Allen, supra note 209, at 328 (judges must evaluate the persuasive force of the evidence); and it is arguable that each time a judge evaluates and finds the evidence insufficient he is deciding whether the jury could have a reasonable doubt. As a practical matter, this might mean that the judge decides whether he himself has a reasonable doubt. See generally United States v. Bailey, 444 U.S. 394 (1980).



[FN243]. See also Allen, supra note 209, at 329 (arguing that the right to a jury trial is diminished where a judge does not submit a defense to a jury).



[FN244]. A theory of just punishment relies upon the fact that the offender could have avoided the violation, and thus the punishment, by conforming his conduct to the requirement of the law. See A. von Hirsch, Doing Justice: The Choice of Punishments 45-55 (1976). Such conformity is not possible, of course, without notice of the requirements of the law. "The citizen must be able to ascertain beforehand how he stands with regard to the criminal law; otherwise to punish him for breach of that law is purposeless cruelty." G. Williams, supra note 37, at 575.



[FN245]. See supra text accompanying notes 216-23.



[FN246]. Connally v. General Constr. Co., 269 U.S. 385, 391 (1926). "The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." Palmer v. City of Euclid, 402 U.S. 544, 546 (1971) (per curiam) (quoting United States v. Harriss, 347 U.S. 612, 617 (1954)). See Colautti v. Franklin, 439 U.S. 379 (1979). The doctrine is also important as a check on governmental powers. See, e.g., Smith v. Goguen, 415 U.S. 566 (1974) (statutory guidelines must be clear enough to avoid arbitrary enforcement); Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) (vagrancy statute void for vagueness because, inter alia, it encourages arbitrary and erratic arrest and convictions); Grayned v. City of Rockford, 408 U.S. 104 (1972) (if arbitrary enforcement is to be avoided, laws must provide specific standards for those who apply them). See generally W. LaFave & A. Scott, supra note 18, at   11; Note, The Void For Vagueness Doctrine In the Supreme Court, 109 U.Pa.L.Rev. 67 (1960); H. Packer, The Limits of the Criminal Sanction 91-102 (1968).



[FN247]. See, e.g., Colautti v. Franklin, 439 U.S. 379, 390  (1979) (abortion statute, requiring physician to determine "viability," is void for vagueness); Martin v. State, 547 S.W.2d 81 (1977) (vagueness of mental element challenged). In Martin, the defendant challenged the constitutionality of the Arkansas battery statute, Ark.Stat.Ann.   41- 1601(1)(c) (1977), on the grounds that the required culpable mental state was not designated in the statute defining the offense. Id. at 82. The court rejected the claim, noting that Ark.Stat.Ann.   41-203(1), - 204(2) (1977) sufficiently identified the culpable mental state. Martin v. State, 547 S.W.2d 81, 82 (1977). The court did not contend that there was no need to identify the mental state.



[FN248]. The cases do not indicate that the vagueness doctrine applies to defenses. While the Supreme Court has stated that "the vagueness may be from uncertainty in regard to persons within the scope of the act, . . . or in regard to applicable tests to ascertain guilt," Winters v. New York, 333 U.S. 507, 515-16 (1948), the latter reference is to vague offense definitions. See id. (citing United States v. L. Cohen Grocery Co., 255 U.S. 81, 89-93 (1920). The Cohen court used the phrase "standard of guilt" in determining whether Congress had defined the elements of an offense sufficiently to give notice of the nature of the violation. United States v. L. Cohen Grocery Co., 255 U.S. 81, 89 (1920). Fletcher argues that "[t]he demands of legislative specificity are stricter in the category of definition than in the analysis of justification and excuse." Fletcher, supra note 2, at 576. But Fletcher does not describe what constitutional standard, if any, is applicable to the definition of justifications and excuses. To the extent that the vagueness doctrine is designed to promote fair administration of the law, which is an alternate basis for the rule, it may apply to defenses. Arguably, the standards for a defense could be so vague as to allow for arbitrary administration. For example, under the broad Durham insanity test, see infra note 277, the following inconsistent and apparently arbitrary results were reached: Brown v. United States, 331 F.2d 822, 823 (D.C. Cir.1964) (showing of narcotics addiction ordinarily suffices to raise the defense); Heard v. United States, 348 F.2d 43, 44 (D.C. Cir.1965) (mere showing of narcotics addiction without more will not suffice). See also in re Rosenfield, 157 F.Supp. 18, 21 (D.D.C. 1957) (expert testified sociopathy was not a mental disease; a few weeks later the expert's hospital declared sociopathy a mental disease) (discussed in United States v. Brawner, 471 F.2d 969 (D.C. Cir.1972)).



[FN249]. As Mr. Justice Holmes stated, "[w]hen a rule of conduct is laid down in words that evoke in the common mind [one picture] the statute should not be extended [to include another] simply because it may seem to us that a similar policy applies. . . ." McBoyle v. United States, 283 U.S. 25, 27 (1931). The rule of strict construction was developed in England before the 19th century, when courts sought to ameliorate the harsh penalties imposed for many offenses by narrowing the scope of a statute through strict construction. Hall, Strict or Liberal Construction of Criminal Statutes, 48 Harv.L.Rev. 748, 750-51 (1935); W. LaFave & A. Scott, supra note 18, at 72 & n.22. See generally Note, Liberal Construction of Title IX of the Organized Crime Control Act of 1970: Section 904(a) v. The Doctrine of Strict Construction, 12 Rutgers L.J. 69, 72-74 (1981).



[FN250]. Dombrowski v. Pfister, 380 U.S. 479 (1965). The rule is not always easy to apply, however. See W. LaFave & A. Scott, supra note 18, at 74 (noting that the cases do not establish a clear means of distinguishing vague and ambiguous statutes). Cf. State v. Levitt, 118 R.I. 32, 371 A.2d 596 (1977) (prior judicial construction defeated defendant's vagueness attack).



[FN251]. For example, the California Supreme Court refused to construe the objective element, human victim, of the murder statute, Cal. Penal Code   187 (West 1970), broadly enough to punish one who caused the death of a viable fetus. Keeler v. Superior Court, 2 Cal.3d 619, 470 P.2d 617 (1970). The Court noted that it "is the policy of this state to construe a penal statute as favorably to the defendant as its language and the circumstances of its application [allow]." Id. at 631, 470 P.2d at 624. Similarly, in Morissette v. United States, 342 U.S. 246, 263 (1952), Justice Jackson used the rule of strict construction as one ground of support for his decision requiring the government to prove a mental element, knowledge, as to each of the facts necessary to constitute a conversion. Id. at 270-72. Jackson noted, "we should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contemplated by the words used in the statute." Id. at 264. "[K]nowing conversion requires more than knowledge that defendant was taking the property in his possession. He must have had knowledge of the facts, though not necessarily the law, that made the taking a conversion." Id. at 270-71. Where the rule results in the construction of the offense definition to include a particular element, as in the Keeler and Morrissette cases, the notice rationale is applicable. In State v. Muller, 365 So.2d 464 (La. 1978), the court used the rule to construe the statute prohibiting indecent exposure in a "public place" as not prohibiting exposure in a supermarket. Id. at 465. See Note, Criminal Law: A Return to Strict Construction of Criminal Statutes, 25 Loy.L.Rev. 417 (1979). This result seems not to be required for fair notice; it might instead reflect the original rationale for the rule of strict construction, the prevention of harsh results. See supra note 249. Or it may also reflect the rule's use as a safeguard against arbitrary administration. See supra note 246.



[FN252]. The rule of strict construction is frequently eliminated by legislators drafting modern, comprehensive codes. See, e.g., Cal. Penal Code   4 (West 1970) (rule requiring that provisions be construed according to "fair import of their terms"); Del. Code Ann. tit. 11,   203 (1979) ("[t]he general rule that a penal statute is to be strictly construed does not apply to this Criminal Code . . ."); Hawaii Rev.Stat.   701-104 (1976) (provisions to be construed "according to the fair import of the words . . . with reference to the purpose of the provision"); N.J.Stat.Ann.   2C:1-2(c) (West 1981) (directs construction according to fair import unless susceptible of differing meanings, then "interpreted to further the general purposes [of the Code] and the special purposes of the particular provision.")

  But the abrogating provision often retains a reference to construction in light of the purpose of the Code, see supra this note, and one purpose commonly identified in codes is fair notice of prohibited conduct and resulting penalties. See, e.g., Del. Code Ann. tit. 11,   201(2), 203 (1979); N.J.Stat.Ann.   2C:1-2(a)(4), -2(c) (West 1981). Hawaii's provision is explicit on this point. Hawaii Rev.Stat.   701-104 (1976). Furthermore, the Keeler court, for example, followed the rule of strict construction despite the provisions of Cal. Penal Code   4 (West 1970) described above. See Keeler v. Superior Court, 2 Cal. 3d 619, 470 P.2d 617 (1970); supra note 251. This position is not unusual. See Hall, supra note 249, at 756; W. LaFave & A. Scott, supra note 18, at 73 (jurisdictions continue to adhere to rule of strict construction despite legislation to the contrary). But see Hice v. State, ___ Ark. ___, 593 S.W.2d 169 (1980) (construing rape statute to prohibit penetration of labia despite the fact that statute clearly required penetration of the vagina; court relied on fact that statutory commentary did not indicate an intent to change prior law prohibiting penetration of labia, arguing that there was fair notice from previous law); State v. Nunez, 381 So.2d 1199 (Fla.App. 1980) (statute not to be construed so as to defeat obvious intent).



[FN253]. Courts often construe defenses narrowly, but in contrast to the strict construction of offenses, this does not benefit the defendant. See United States v. Bailey, 444 U.S. 394 (1980) (the court gives the duress defense a strict construction detrimental to the defendants). Similarly, courts do not hesitate to refuse to instruct on a defense where the defendant's disability does not fit within an established defense. See, e.g., People v. Tanner, 13 Cal.App. 3d 596, 601, 91 Cal.Rptr. 656, 679 (1970) (defense denied where defendant failed to establish that chromosomal abnormality produces "mental disease"); Dyas v. United States, 376 A.2d 827 (D.C. 1977) (battered woman syndrome instruction denied); Buhrle v. State, 627 P.2d 1374 (Wyo. 1981) (research on battered woman syndrome in infancy excluded).



[FN254]. Krulewitch v. United States, 336 U.S. 440, 456-57  (1949) (Jackson, J., concurring). See, e.g., Holmes v. State, 342 So. 2d 134 (Fla.App. 1977) (courts may punish common law offenses but may not proscribe penalties for acts prohibited but not punished by legislatures).



[FN255]. See, e.g., Colo.Rev.Stat.   18-1-105(3) (1978); Del. Code Ann. tit. 11,   202(a) (1979) (all offenses must be defined by statute); Hawaii Rev.Stat.   701-102(1) (1976) (no act constitutes crime or violation unless defined by code or another statute); N.J.Stat.Ann.   2C:1-5(a) (West 1981) (no conduct constitutes an offense unless defined by code or another statute); cf. P.R. Laws Ann. tit. 33,   3031 (Supp.1979) (act must be expressly defined by law as an offense).



[FN256]. United States v. Freeman, 357 F.2d 606 (2d Cir.1966); United States v. Currens, 290 F.2d 751 (3d Cir.1961); United States v. Chandler, 393 F.2d 920 (4th Cir.1968); Blake v. United States, 407 F.2d 908 (5th Cir.1969); United States v. Smith, 404 F.2d 720 (6th Cir.1968); United States v. Shapiro, 383 F.2d 680 (7th Cir.1967); Pope v. United States, 372 F.2d 710 (8th Cir.1967); Wade v. United States, 426 F.2d 64 (9th Cir.1970); Wion v. United States, 325 F.2d 420 (10th Cir.1963). The Hawaii Supreme Court, in contrast, did not feel free to judicially adopt the American Law Institute's insanity defense. State v. Moeller, 50 Hawaii 110, 433 P.2d 136 (1967).



[FN257]. Fletcher, supra note 2, at   7.5; W. LaFave & A. Scott, supra note 18, at 67. Cf. J. Hall, supra note 165, at 28 ("The essence . . . is limitation on penalization by the State's officials, effected by the prescription and application of specific rules") (emphasis omitted). State v. Pierre, 320 So.2d 185 (1975) (a function of the separation of governmental powers).



[FN258]. Some but not all courts consider the issue of notice to the defendant before expanding the scope of an offense. Compare McCord v. People, 46 N.Y. 470 (1871) (creating an offense modification allowing criminality of the victim as a defense to theft by false pretenses), and People v. Tompkins, 186 N.Y. 413, 79 N.E. 326 (1906) (following McCord because defendant may have relied on it), with State v. Alexander, 76 Or. 329, 148 P. 1136 (1915) (creating same rule), and State v. Mellenberger, 163 Or. 233, 95 P.2d 709 (1939) (overruling Alexander despite possible reliance).



[FN259]. Many jurisdictions enacting comprehensive criminal codes abolish common law crimes. E.g., Ill.Ann.Stat. ch. 38,   1-3 (Smith-Hurd 1981- 1982); People v. Kessler, 11 Ill.App. 3d 321, 296 N.E.2d 631, aff'd in part, rev'd in part on other grounds, 57 Ill.2d 493, 315 N.E.2d 29, cert. denied, 419 U.S. 1054, on remand, 30 Ill. 3d 1021, 333 N.E.2d 69 (1973); La.Rev.Stat.   14:7 (West 1974); State v. Pierre, 320 So. 2d 185 (La. 1975); N.J.Stat.Ann.   2C:1-5(a) (West 1981); Wis.Stat.Ann.   939.10 (Supp.1981) (common law crimes abolished but common law rules not in conflict with the code are preserved); State v. Genoa, 77 Wis.2d 141, 252 N.W.2d 380 (1977) (courts should not look to common law to construe statutory offense). See W. LaFave & A. Scott, supra note 18, at 61. A state could retain common law crimes and still prohibit judicially created offenses.



[FN260]. State v. Bradbury, 136 Me. 347, 349, 9 A.2d 657, 658 (1939). For a discussion of judicial treatment of situations not covered by common law crimes, see W. LaFave & A. Scott, supra note 18, at 62-69. Cf. P.R. Laws Ann. tit. 33,   13031 (Supp.1979) (no crime shall be created by analogy).



[FN261]. For example, where the common law misdemeanor of misprison of a felony--punishing a failure to report a felony, W. LaFave & A. Scott, supra note 18, at 526--has been omitted from a modern criminal code, as it nearly always is, id., judicial punishment of the offense would be punishment without fair notice.



[FN262]. E.g., N.J.Stat.Ann.   2C:2-5 (West 1981); State v. Fischer, 23 Wash.App. 756, 598 P.2d 742 (1979) (provisions of new criminal code were not intended to abrogate common law self-defense requirements); Wis.Stat.Ann.   939.10 (Supp.1981);State v. Esser, 16 Wis. 2d 567, 115 N.W.2d 505 (1962) (insanity). See W. LaFave & A. Scott, supra note 18, at 62.



[FN263]. Id. See Fields v. State, 382 N.E.2d 972 (Ind.App. 1978) (court redefined self-defense to exclude the right to resist unlawful arrest and affirmed defendant's conviction); State v. Esser, 16 Wis. 2d 567, 115 N.W.2d 505 (1962) (common law defenses not abolished and court was not precluded from altering common law definition of insanity).



[FN264]. Other related doctrines serve the same purpose. The prohibition against ex post facto laws, U.S. Const. art I   9-10, for instance, also assures fair warning, Dobbert v. Florida, 432 U.S. 282, 298 (1977), but it is most often supported on other grounds. It alone appears to be applied without respect to the offense/defense distinction. The Supreme Court has defined ex post facto laws to include:

    1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.

Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798). The prohibition against ex post facto laws is violated where a new crime is created and applied retroactively. LaFave and Scott note that "[t]his is so obviously true that legislation seldom if ever has attempted to [create a new offense and apply it retroactively]." W. LaFave & A. Scott, supra note 18, at 90. The prohibition against ex post facto laws also bars an increase in sentence. Marion v. State, 16 Neb. 349, 20 N.W. 289 (1884) (statute changing punishment from life imprisonment or death to mandatory death penalty could not be applied retroactively); Lindsey v. Washington, 301 U.S. 397, 401 (1937) (prior law allowed judge to impose sentence within a range; improper to apply later law requiring maximum sentence and providing for early parole); Jaehne v. State, 128 U.S. 189 (1888) (increase in penalty for bribery could not be applied retroactively).

  Denial of a formerly-available defense may also violate the prohibition. Early Supreme Court decisions indicate, in dicta, that the ex post facto prohibition was intended to apply to defenses as well as offenses. See Kring v. Missouri, 107 U.S. 221, 225 (1883); Beazell v. Ohio, 269 U.S. 167, 170 (1925) (noting statute did not deprive the defendants of a defense or change the legal definition of the offense). No criminal cases holding that modification of a defense violates the prohibition against ex post facto laws have been discovered by this author. However, courts frequently choose to modify defenses only prospectively. See, e.g., United States v. Brawner, 471 F.2d 969 (D.C. Cir.1972) (modifying the insanity defense for future cases). But there is no clear Supreme Court authority requiring this result, and the Supreme Court has modified nonexculpatory public policy defenses without prior notice. See United States v. Salvucci, 448 U.S. 83 (1980) (abolishing the automatic standing ruling and applying the new and more limited standing rule to the case at bar).

  The applicability of the prohibition against ex post facto laws to defenses as well as offenses may be appropriate where the prohibition is supported as a protection against arbitrary enforcement of the law, rather than as a rule ensuring notice. "The constitutional inhibition of ex post facto laws was intended to secure substantial personal rights against arbitrary and oppressive legislative action . . . ." Malloy v. South Carolina, 237 U.S. 180, 183 (1915); accord Beazell v. Ohio, 269 U.S. 167, 171 (1925); Dobbert v. Florida, 432 U.S. 282 (1977). It is this rationale which explains decisions disallowing retroactive changes in the rules of procedure, such as changes in the number of jurors, Thompson v. Utah, 170 U.S. 343 (1898); a reduction in the number of jurors who must agree to convict, State v. Ardoin, 51 La.Ann. 169, 24 So. 802 (1899); and abolition of a jury trial, State ex rel. Sherburne v. Baker, 50 La.Ann. 1247, 24 So. 240 (1898). In Kring v. Missouri, 107 U.S. 221 (1883), for example, the defendant pleaded guilty to second degree murder and was sentenced to 25 years imprisonment. Id. at 222. At the time he committed the offense such a plea resulted in an acquittal for first degree murder. Id. at 226. Kring appealed and won a reversal and remand. The law governing the effect of the guilty plea had been changed since the commission of the offense but before his appeal, and Kring was tried for first degree murder and sentenced to death. The Supreme Court reversed on the grounds that the new law altered the position of the accused to his disadvantage. Id. at 235. Clearly notice was not the basis for this decision because the defendant had notice when he took his appeal. See id. at 235 (he "also knew that being as to his case an ex post facto law, it could have no such effect . . . .").

  Subsequent Supreme Court decisions have held that changes in procedure or rules of evidence do not violate the prohibition against ex post facto laws unless the change affects a substantive right. In Hopt v. Utah, 110 U.S. 574 (1884), the Supreme Court upheld a retroactive change in the rules of evidence that removed the disqualification of convicted felons as witnesses. The court reasoned:

    Any statutory alteration of the legal rules of evidence which would authorize conviction upon less proof, in amount or degree, than was required when the offense was committed, might, in respect of that offense, be obnoxious to the constitutional inhibition against ex post facto laws. But alterations which do not increase the punishment, nor change the ingredients of the offense, or the ultimate facts necessary to establish guilt, but, leaving untouched the nature of the crime, and the amount or degree of proof essential to conviction, only remove existing restrictions upon the competency of certain classes of persons as witnesses, relate to modes of procedure only, in which no one can be said to have a vested right, and which the state, upon grounds of public policy, may regulate at its pleasure. Such regulations of the mode in which the facts constituting guilt may be placed before the jury can be made applicable to prosecutions or trials thereafter had, without reference to the date of the commission of the offense charged.

Id. at 588-89. Similarly, in Thompson v. Missouri, 171 U.S. 380 (1898), the Supreme Court upheld a new rule which permitted handwriting comparison, noting that the change did not require less proof in amount or degree. Both cases were cited with approval in Dobbert v. Florida, 432 U.S. 282, 293-95 (1977). The emphasis on the protection of substantive rights was repeated in Malloy v. South Carolina, 237 U.S. 180 (1915). In that case, the Supreme Court refused to declare that a change in the mode of administering the death penalty was an ex post facto law. The court reasoned the prohibition "was intended to secure substantial personal rights against arbitrary and oppressive legislative action." Id. at 183.

  To the degree that some nonexculpatory public policy defenses establish personal rights, e.g., double jeopardy (freedom from repeated trial), statute of limitations (certainty of freedom after an established length of time), and amnesty or pardon (right to avoid the consequences of conviction), they should, under this rationale, be protected by the prohibition against ex post facto laws. See, e.g., Falter v. United States, 23 F.2d 420, 425-26 (2d Cir.1928) (change in statute of limitations could not be applied retroactively). To the extent that nonexculpatory public policy defenses such as the exclusionary rule or entrapment are based on deterrence of governmental conduct rather than a right of the accused, they do not merit similar protection by the ex post facto clause. Recently the Supreme Court has used broader language to describe the prohibition. See Weaver v. Graham, 101 S.Ct. 960 (1981) (noting two essential elements, retroactivity and impact, that are disadvantageous to the defendant).

  Criminal Codes often contain a provision giving a defendant the option of having retroactive application of defenses. See, e.g., Model Penal Code   1.01(3)(b) (Proposed Official Draft 1962); cf. P.R. Laws Ann. tit. 33,   3004 (Supp.1979) (any criminal law can be given retroactive effect if it redounds to defendant's benefit).



[FN265]. These doctrines reflect the traditional Anglo-American "legality principle," nullum crimen sine lege, nulla poena sine lege--there is no crime and can be no punishment without law. The principle supplies a theoretical basis for these notice doctrines. See J. Hall, supra note 165, at 28-30. Regardless of whether it is realistic to expect one to consult the law before committing an offense, doctrines designed to afford notice protect those who would.

    Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.

McBoyle v. United States, 283 U.S. 25, 27 (1931).



[FN266]. See supra notes 9-123 and accompanying text.



[FN267]. See supra notes 9-29 and accompanying text.



[FN268]. See, e.g., Cobb v. State, 376 So. 2d 230 (Fla. 1979) (defendant challenged vagueness of words "unnecessarily kill" in statute defining second- degree murder). The problems created by a vague offense definition and the resultant vague failure of proof defenses may become particularly evident at the time of trial. Where the offense definition is vague, there is neither notice of prohibited conduct nor a means of determining whether or not the prosecution has established the vague element. See Winters v. New York, 333 U.S. 507, 515-16 (1948) (the tests for ascertaining guilt must be definite). Thus, the vagueness prohibition overlaps with the analogous rule requiring definite indictments: the sixth amendment guarantees the defendant fair notice of the charges against him. U.S. Const. amend. VI. While the vagueness and accusation provisions are analogous, they remain distinct; a narrow indictment will not cure a vague statute. See United States v. National Dairy Prod. Corp., 372 U.S. 29, 33 (1963). The void-for-vagueness doctrine assures that the offense charged is proven and protects the defendant against arbitrary administration. See supra note 246.



[FN269]. See supra note 251.



[FN270]. The defendant would be deprived of notice if the judge were to remove an element of the offense and its accompanying failure of proof defense. The notice rationale would not, however, prevent the judge from adding elements that provide additional grounds for exculpation. And even where common law crimes are abolished the federal courts may supply common law elements if Congress uses common law terms in the definition of the offense. See W. LaFave & A. Scott, supra note 18, at 73-74.



[FN271]. See supra notes 31-54 and accompanying text.



[FN272]. See supra notes 269-70 and accompanying text.



[FN273]. Cf. Cobb v. State, 376 So.2d 230 (Fla. 1979) (words  "unnecessarily kill" in homicide statute are sufficiently definite "when considered in light of statute providing that homicides are punishable only if neither excusable nor justifiable").



[FN274]. An analogous argument is made where a vague statute inhibits constitutionally protected activity. See Colautti v. Franklin, 439 U.S. 379, 390 (1979) (vague statute inhibited doctor's exercise of right to perform an abortion).



[FN275]. Those who argue that the actor must engage in justified conduct for the purpose of bringing about a justified result would disagree. For a discussion of these issues, see supra note 155 and accompanying text.



[FN276]. As justifications redefine the harmfulness of conduct under special circumstances, a retroactive limitation of the justifying circumstances would result in punishment without notice of the prohibited nature of the conduct. Similarly, an ex post facto revocation of a justification by the legislature should not be given effect. A justification granted after the fact could be granted without depriving the defendant of notice.



[FN277]. See supra notes 86-93 and accompanying text. In addition, to the extent that it is considered desirable to have the jury, as representatives of the community, determine whether it is appropriate to grant an excuse, it may be preferable to codify relatively general statements of excusing conditions. See Esquibel v. State, 91 N.M. 498, 576 P.2d 1129, 1132 (1978). In Esquibel the court declined to adopt a detailed list of conditions that should be satisfied to merit a duress defense in prison escape cases. The court reasoned that such detailed factors as prior complaint to prison officials were merely factors that should be considered by the jury in evaluating the defendant's duress excuse. Cf. People v. Lovercamp, 43 Cal.App. 3d 823, 118 Cal.Rptr. 110 (1974) (listing a series of detailed conditions that the defendant charged with prison escape must satisfy to establish a duress defense). Similarly, the Durham insanity rule adopted in the District of Columbia was extremely vague: "an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect." Durham v. United States, 214 F.2d 862, 874-75 (D.C. Cir.1954). None of the essential terms of the defense were defined. Eight years later the Court of Appeals for the District of Columbia determined that more specificity was required, not in order to satisfy constitutional standards, but rather to offer the jury further guidance. McDonald v. United States, 312 F.2d 847, 851 (D.C. Cir.1962); see A. Goldstein, supra note 81, at 84 (principal criticism of Durham was that it was a non-rule).



[FN278]. The excusing condition must exist at the time of and have a causal connection with the conduct constituting the offense. See supra note 82. If the actor causes the excusing condition, relying on the existence of a defense, criminal liability may be appropriate. See supra note 107.



[FN279]. See supra note 274 and accompanying text.



[FN280]. Compare State v. Melekh, 190 F.Supp. 67 (1960) (the actual conditions of diplomatic immunity were not satisfied and the defense was denied) with Vulcan Iron Works v. Polish American Machinery, 479 F.Supp. 1060 (S.D.N.Y. 1979) (conditions for diplomatic immunity were not satisfied, and the defendant was therefore required to testify in a civil case, but contempt charges for prior refusal to testify were dropped). The difference in the results is appropriate, since in Vulcan Iron Works the colorable claim of diplomatic immunity negated any mens rea as to contempt: the diplomat's conduct would not have amounted to contempt if he had immunity. This is not usually the case with nonexculpatory public policy defenses; most often, although the actor is not punishable, the conduct remains criminal.



[FN281]. For example, the current Supreme Court has limited the application of the exclusionary rule when its deterrence of illegal police conduct is outweighed by its cost to society in excluding probative evidence. See, e.g., United States v. Calandra, 414 U.S. 338 (1974). See C. Whitebread, Criminal Procedure: An Analysis of Constitutional Cases and Concepts   2.03(a) (1980). Similarly, while the executive branch is not empowered to criminalize conduct, it may revoke diplomatic immunity. Indeed, the officials of the sending country may also do so. The defense of diplomatic immunity is designed to further the maintenance of foreign relations, and this purpose no longer supports the defense where the sending country waives the immunity. E.g., United States v. Arizti, 229 F.Supp. 53 (S.D.N.Y. 1964) (immunity waived by Uruguay). It is the public policy, rather than the attributes of the defendant or his conduct, that determines the scope of the defense.



[FN282]. In United States v. Salvucci, 448 U.S. 83 (1980), for example, the Court recently limited a defendant's ability to rely upon the exclusionary rule in possession cases, by abolishing the automatic standing rule. Without discussion, it applied the new, more limited rule to the case at hand. See generally Annot., 65 L. Ed.2d 1219 (1981) (discussing retroactive application of Supreme Court constitutional rulings).



[FN283]. Justified aggression may not be resisted, however. See infra note 287 and accompanying text.



[FN284]. E.g., Model Penal Code   3.04(1) (self-defense), 3.06(1) (defense of property) (Proposed Official Draft 1962); Ill.Ann.Stat. ch. 38,   7-1 (Smith-Hurd 1972) (defense of persons); N.Y. Penal Law   35.15(1) (McKinney 1975) (defense of person and property); Tex. Penal Code Ann.   9.33 (Vernon 1974). The term unlawful may be given a special definition. See infra text accompanying notes 295-99.



[FN285]. See, e.g., Model Penal Code   221.2(3)(b) (1980) (providing a defense to criminal trespass if the premises were open to the public and the actor complied with all lawful conditions for remaining); Model Penal Code   3.06(1)(a) (Proposed Official Draft 1962) (the actor may use force to prevent or terminate unlawful entry or trespass).



[FN286]. See, e.g., Model Penal Code   3.11(1) (Proposed Official Draft 1962) quoted and discussed infra at text accompanying notes 295-98. Of course, the defense may only negate an element of a greater offense and leave the actor liable for a lesser included offense. See, e.g., Model Penal Code   210.2(1)(a), .3(1)(a) (1980) (criminal homicide constitutes murder if it is committed purposely or knowingly; manslaughter if it is committed recklessly); id.   2.08(2) (intoxication cannot negate recklessness). In such a case, the actor would be subject to lawful resistance and interference.



[FN287]. See, e.g., Model Penal Code   3.11(1) (Proposed Official Draft 1962). See infra text accompanying notes 295-99 (discussing the Model Penal Code definition of unlawful force). See Robinson, A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability, 23 U.C.L.A.L.Rev. 266, 274-79 (1975); Fletcher, supra note 2, at 760-61, 869-70.

  The rule permitting resistance to an unjustified attack but barring resistance to a justified attack is all that is required to explain the sometimes complex common law and statutory rules of withdrawal and pursuit in self-defense. E.g., Ariz.Rev.Stat.Ann.   13-404(B)(3) (1978); Ill.Ann.Stat. ch. 38,   7-4(c) (Smith-Hurd 1972). If the original instigator is unjustified in his attack, his intended victim will be justified in responding to the unjustified force. Where the victim's response is unnecessary or excessive it will be unjustified, see supra text accompanying notes 68-72, and the attacker's right to use justified defensive force is revived. Or, if the attacker withdraws, further force by the victim would be unnecessary and therefore unjustified and unlawful.



[FN288]. See Robinson, supra note 287, at 278.



[FN289]. See, e.g., Model Penal Code   3.11(1) (Proposed Official Draft 1962) (discussed at text accompanying notes 295-99 infra); Hawaii Rev.Stat.   703-300(3) (1976); N.J.Stat.Ann.   2C:3-11 (West 1981). See Robinson, supra note 287, at 274-79; G. Fletcher, supra note 2, at 760-61, 869-70. Consider a case of the most dramatic excuse, involuntary conduct. A has a sudden heart attack which causes him to lose control of his car. Assuming A has not been culpable in causing or permitting the condition, he will certainly be excused for any resulting harm, such as the death of a pedestrian. D, a threatened pedestrian, seeks to save himself from A and his auto by shooting the car's tires, diverting the car into a building, killing A. To decide that A's lack of culpability makes D's response unjustified, although perhaps excused, would be to condemn D's act of self-preservation as wrongful behavior. See Fletcher, Proportionality and the Psychotic Aggressor: A Vignette in Comparative Criminal Theory, 8 Israel L.Rev. 367, 375 (1973) (discussing the effect of holding that such resistance is excused rather than justified); id. at 369, 378-79 (discussing the justification of such resistance under Soviet and German law). To treat D's defensive act as unjustified would also suggest (1) that an intervenor acting in defense of A (the driver), should be permitted to prevent D from using defensive force to divert A's car and (2) that an intervenor should not be permitted to assist D's defensive force to divert A's car. Such results do not, I believe, accord with our common intuitive judgments. The better rule, advocated here and adopted by Model Penal Code   3.11(1) (Proposed Official Draft 1962), see infra text accompanying notes 295-302, would justify an actor's defensive conduct in response to an excused attack.

  One could argue that a special rule is desirable when the initial aggression is excused because it is not even voluntary, the most extreme form of excuse suggested in the heart attack hypothetical above. The defensive killing of such an involuntary actor no longer serves to condemn unjustified aggression generally because it is so unlike aggression. One might then conclude that the resistor's conduct should only be excused because it does not create a greater good and should not be encouraged. But this argument for the denial of justification is only persuasive if the jurisdiction consistently denies a justification to an actor who takes the life of another who involuntarily threatens the actor without justification. These difficult cases are analogous to that of the person adrift on a plank that will support only one, who fights off the attempts of a drowning person to grab the plank. The drowning person's actions may be purely automatic, as with a reflex action. Is the action of the person on the plank justified or merely excused? Would one encourage a third party to intervene against him? I would think such defensive self-preservation is entirely justified, with all the privileges and protection that that entails. I see no reason to prefer the life of the person in the water to the person on the plank, nor to prefer the death of both. The appearance of aggression by the person in the water tips the balance in favor of the person on the plank; by defending himself, then, this actor has caused no net harm.

  The question is admittedly closer when the aggressor's threat is such that the "aggressor" can hardly be said to have acted. Suppose that A pushes B into C; and that if C does not repel B, killing him in the process, C will plunge to his death. B cannot be said to have acted, but does that require that C's act of self-preservation be held unjustified? I see some value in a rule that, all other things being equal (i.e., competing interests), prefers an innocent victim to an innocent aggressor (or perhaps more accurately, an innocent "threatener"). And permitting defensive force here confirms the disapproval of aggression, albeit in its least condemnable form. I suggest allowing a justification whenever the aggressor is not justified. Contra Fletcher, supra note 2, at 778 (suggesting that adjusting the balance in this way places too much emphasis on motion and not enough on responsibility). The most difficult cases of this nature arise under the lesser evils justification where one person endangers another without even any appearance of "aggression," as when a fetus threatens the life of the mother, or when a fallen partner hangs by a rope from the lead climber who is no longer able to support his partner's weight.



[FN290]. Some would disagree. For example, Fletcher's position is that no preference between an innocent aggressor and innocent victim should be expressed. Supra note 289. This would allow the victim to defend himself, but prevent a third person from assisting that defense. Fletcher, The Psychotic Aggressor, supra note 289, at 372.



[FN291]. See, e.g., Model Penal Code   3.11(1) (Proposed Official Draft 1962). See infra text accompanying notes 295 & 297. Many nonexculpatory defenses are not applicable at the time of the offense and therefore would never present this issue. Persons who claim a defense under a statute of limitations or a defense of double jeopardy, incompetency, or testimonial or plea-bargained immunity were clearly acting unlawfully at the time of the offense. The conditions giving rise to the defense would only be apparent at a later date.



[FN292]. Conn.Gen.Stat.Ann.   53a-19(a) (West 1972).



[FN293]. In some instances there are special provisions, applicable to initial aggressors, which alter the effect of the general rule and disallow the justification for one who initiates the affray. E.g., Conn.Gen.Stat.Ann.   53a-19(c)(2) (West 1972). But this is an inadequate remedy because it fails to provide a justification to the initial aggressor when it may be appropriate, when, for example, the victim grossly overreacts, or when the initial aggressor is a government official executing a lawful death sentence. The better approach is to rely upon an accurate general principle, as described in the text. See supra text accompanying note 67.



[FN294]. E.g., Ala. Code   13A-3-23(a) (1977); Ky.Rev.Stat.Ann.   503.050 (Bobbs-Merrill 1975). These jurisdictions do not adopt the special Model Penal Code definition of "unlawful force" discussed infra in text accompanying notes 295-303. Other jurisdictions define "unlawful force" in a manner that provides little more guidance than the phrase itself. See, e.g., 38,   7-1 comment 3 (Smith-Hurd 1972) (criminal or tortious); Wis.Stat.Ann.   939.46(b) (West 1958) ("either tortious or expressly prohibited by criminal law").



[FN295]. Model Penal Code   3.11(1).



[FN296]. Id.



[FN297]. Id.



[FN298]. Id.



[FN299]. Id.



[FN300]. The Model Penal Code drafters admit that absent the special provisions of their definition, one would be unlikely to interpret "unlawful force" the way they do. After explaining their definition they conclude, "[i]f the resulting concept is an awkward one, we think that difficulty is outweighed by the drafting advantages that it entails." Model Penal Code   3.04 comment 29 (Tent. Draft No. 8, 1958).



[FN301]. The Commentary states: "[t]he definition is designed to include in the force against which it is lawful to defend any use of force which . . . is not itself affirmatively privileged under the Code or under the law of torts." Id. at 28. Privileged force is not defined under the Code, however. If by use of this common tort term the drafters intend to refer to justified conduct, they have possibly introduced more serious problems. See infra text accompanying note 303.



[FN302]. By relying upon the tort concept of privilege, the drafters have adopted by reference a sometimes complex body of law that is often shaped by purposes and rationales entirely different from those which control in criminal law. The commentary itself acknowledges that tort law does not in all cases generate a result appropriate for criminal cases. "Whatever may be thought in tort, it cannot be regarded as a crime to safeguard an innocent person, whether the actor or another, against threatened death or injury which is unprivileged . . . ." Model Penal Code   3.04, comment 29 (Tent. Draft No. 8, 1958).



[FN303]. See supra notes 154-56 and accompanying text.



[FN304]. See W. LaFave & A. Scott, supra note 18, at 462, 502, 515, 553.



[FN305]. See W. LaFave & A. Scott, supra note 18, at 500-01; R. Perkins, supra note 88, at 672-76; G. Williams, supra note 37, at 362; 2 J.F. Stephen, A History of the Criminal Law of England 232 (1883).



[FN306]. Model Penal Code   2.06(7) (Proposed Official Draft 1962). Despite its apparent clarity,   2.06(7) remains ambiguous when it provides that the defendant may be convicted--that is, the unconvictable confederate defense may be excluded--"on proof of the commission of the offense." Id. One obvious interpretation of this language would be that the perpetrator must in fact satisfy all elements, objective as well as culpability elements, of the offense. Under this interpretation, any failure of proof defense, see supra text accompanying notes 9-29, or even possibly an offense modification defense, see supra text accompanying notes 30-55, of the perpetrator would bar conviction of the accomplice. In other words, it would give the accomplice a limited unconvictable perpetrator defense to accomplice liability under   2.06.



[FN307]. See supra note 306 for a reading of Model Penal Code   2.06(2) that comports with this judgment.

  Where the objective elements of the offense are not satisfied by the perpetrator, a defense is often given to an accomplice. See, e.g., Regina v. Richards, [1973] 3 W.L.R. 888. In Richards the perpetrators did not cause the prohibited result, serious bodily injury, but only a less serious injury. Even though the instigator had sought the more harmful result, her conviction for aiding and abetting the more serious offense was reversed. Where the perpetrator's failure of proof defense negates a culpability requirement, the result may be different. The physical harm contemplated by the statute has occurred; if the accomplice purposely assisted the harm with the culpability required for the commission of the substantive offense, he is frequently held liable for that offense. See, e.g., Parker v. Commonwealth, 180 Ky. 102, 201 S.W. 475 (1918) (accomplice could not benefit from the perpetrator's heat of passion defense); Regina v. Cogan [1975] 2 All E.R. 1059 (accomplice held liable as an aider and abettor to rape despite the perpetrator's absence of culpability as to a circumstance element, lack of consent). Contra State v. Hayes, 105 Mo. 76, 16 S.W. 514 (1891) (reversing the conviction of one who aided and abetted a perpetrator who did not intend to commit the substantive offenses of burglary and larceny).



[FN308]. Other writers have come to the same conclusion. See W. LaFave & A. Scott, supra note 18, at 519. Liability for an attempt has been imposed in such circumstances. See, e.g., State v. Mandell, 78 Ariz. 226, 278 P.2d 413 (1954); contra State v. Davis, 319 Mo. 1222, 6 S.W.2d 609 (1928); People v. Adami, 36 Cal.App. 3d 452, 111 Cal.Rptr. 544 (Dist.Ct.App. 1973). The Model Penal Code attempt statute would seem to impose liability in such a case. See Model Penal Code   5.01(1)(a) (Proposed Official Draft 1962) (attempt liability imposed if the actor purposely engages in conduct with the kind of culpability required for the commission of the offense, and if the conduct would constitute the offense if the circumstances were as the actor believes them to be).



[FN309]. The disparity between penalties for reckless homicide and reckless endangerment confirm the continuing significance of resulting harm. See, e.g., Model Penal Code   210.3(1)(a), .3(2) (manslaughter--reckless homicide, a second degree felony), 211.2 (reckless endangering, a misdemeanor) (1980). Similarly, where an actor engages in the prohibited conduct and satisfies all the culpability elements of an offense, he may have a defense if he does not cause the actual harm prohibited. See, e.g., Model Penal Code   2.12(2) (Proposed Official Draft 1962) (providing a defense where the conduct "did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction.").



[FN310]. See supra notes 287-88 and accompanying text. The Model Penal Code seems to generate this result for assistance. Although accomplice liability may be imposed despite the principal's non-prosecution, immunity, or acquittal, Model Penal Code   2.06(7) (Proposed Official Draft 1962), and thus would appear to be permitted even when the principal's conduct is justified, the accomplice would generally be eligible for his own justification defense. See, e.g., Model Penal Code   3.05(1)(a) (defense of others), 3.06(1)(a) (defense of another's property), 3.07(2)(b)(ii) (allowing citizens to assist peace officers) (Proposed Official Draft 1962).

  Problems may arise, however, because some justification defenses specifically include within the defense certain kinds of assistance of justified activity, suggesting that other kinds of assistance are not justified. For example, assistance of a parent in disciplining a child is justified if that assistance is requested. Model Penal Code   3.08(1) (Proposed Official Draft 1962). Similarly, assistance of a public official other than a law enforcement officer is justified if that assistance is required or authorized by law. Model Penal Code   3.03(1)(a) (Proposed Official Draft 1962). While these provisions may be intended as special limitations on all other assistance of the named justified conduct, the Model Penal Code drafters are not entirely successful in imposing liability in such situations, that is, assistance other than that expressly included within the defense. In order for such assistors to be held liable, their activity must first be included in the definition of accomplice liability set out in the complicity section of the Code. Model Penal Code   2.06 (Proposed Official Draft 1962). Section 2.06(7) would permit conviction of an accomplice even where the principal "has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted," Model Penal Code   2.06(7) (Proposed Official Draft 1962); but it does require that there be "proof of the commission of the offense." Id. See supra note 306. Recall that the Model Penal Code includes, improperly I believe, see supra notes 164 & 229 and accompanying text, the absence of justification and excuse as an element of an offense. Id.   1.13(9). One might argue, then, that if the principal has a justification or an excuse there is no offense. This illustrates yet again the confusion introduced by the Model Penal Code's definition of "elements of an offense" to include the absence of justifications and excuses.



[FN311]. See supra note 308; see also Robinson, supra note 287, at 284- 91 (attempt liability is also appropriate for the unknowingly justified actor, discussed supra note 155).



[FN312]. See supra note 67.



[FN313]. The Model Penal Code takes this position. Liability may be imposed on an accomplice despite the principal's non-prosecution, immunity, or acquittal. Model Penal Code   2.06(7) (Proposed Official Draft 1962). Thus an accomplice may be convicted even where the principal is excused. Similarly, Model Penal Code   2.06(2)(a) (Proposed Official Draft 1962) imposes liability on one who, acting with the culpability required for the offense, causes an "innocent or irresponsible person" to engage in the conduct constituting the offense. This would also provide a basis for liability where one causes conduct by an excused actor. See infra notes 316-38 and accompanying text. Fletcher, improperly I believe, concludes that the common law and the Model Penal Code do not recognize the effects of the justification-excuse distinction on third party assistance, Fletcher, supra note 2, at 762, and he argues for recognition of the distinction. Id. at 761-62. He argues that whether an intervenor may assist one under attack properly depends on whether a jurisdiction views self- defense as an excuse or justification. Where it is viewed as an excuse, only a close relative, who would feel "compelled to intervene," may do so. Where the defensive action is justified, however, the right to resist is universal. Id. at 859 (citing StGB   35 as supporting the limited right to resist when the defense is an excuse and Cal. Penal Code   197(3) (West 1970) as limiting the right to resist both excusable and justifiable homicide).



[FN314]. See supra note 291.



[FN315]. Consider United States v. Azadian, 436 F.2d 81 (9th Cir.1971), in which the court affirmed the conviction of a confederate although the principal was acquitted because of a successful entrapment defense. The court noted that this defense did not establish the principal's innocence but granted immunity from prosecution for acts committed. Id. at 83. LaFave and Scott agree with the result if entrapment is considered a public policy defense. W. LaFave & A. Scott, supra note 18, at 518. Arguably the court should also have considered whether the policy of deterring police misconduct is undercut by permitting the conviction of accomplices. On the cost-benefit analysis generally, see supra notes 74-75 and accompanying text. It is, admittedly, a case of balancing. Thus in the right instance the underlying public policy may be strong enough and of such a nature that it is sufficiently furthered by barring conviction of the confederate as well. It might be appropriate, for example, that a legislative aide be included in his boss's legislative immunity when the aide helps prepare a criminally libelous speech for his boss. See Gravel v. United States, 408 U.S. 606, 618 (1972) (holding that the speech or debate clause, U.S. Const. art. I,   6, cl. 9, applies to congressional aides insofar as their activity would be protected if performed by a member of Congress); cf. Doe v. McMillan, 412 U.S. 306 (1973) (whether activity is protected depends on whether it is a legislative act).



[FN316]. Model Penal Code   2.06(2)(a) (Proposed Official Draft 1962); accord Ala. Code   13A-2-22 (1977); Ariz.Rev.Stat.Ann.   13- 303(A)(2) (1978); Ark.Stat.Ann.   41-302(3) (1977); Colo.Rev.Stat.   18- 1-601(2) (1978); Del. Code Ann. tit. 11,   271(1) (1979); Ga. Code Ann.   26-801(b)(2) (1977); Hawaii Rev.Stat.   702-221(2)(a) (1976); Ill.Ann.Stat. ch. 38,   5-2(a) (Smith-Hurd 1972); Ky.Rev.Stat.Ann.   502.010(1)(b) (Bobbs-Merrill 1975); Me.Rev.Stat.Ann.tit. 17-A,   57(2)(A) (1981); N.H.Rev.Stat.Ann.   626:8(II)(a) (1974); N.J.Stat.Ann.   2C:2-6(b)(1) (West 1981); N.D. Cent. Code   12.1-03-01 (1976) (does not specify that other party may be innocent or irresponsible); Ohio Rev. Code Ann.   2923.03(4) (1974); 18 Pa.Cons.Stat.Ann.   306(b)(1) (Purdon 1973); Tex. Penal Code Ann.   7.02(a)(1) (Vernon 1974); Utah Code Ann.   76-2- 202, -203 (1978); Wash.Rev. Code Ann.   9A.08.020 (1977).



[FN317]. Compare Model Penal Code   2.06(2)(a) (Proposed Official Draft 1962), see supra note 316, with Model Penal Code   2.06(3)(a) (Proposed Official Draft 1962). Pursuant to Model Penal Code   2.06(2)(a), liability under a theory of causing crime by an innocent may be imposed where the defendant (1) acts with "the kind of culpability that is sufficient for the commission of the offense," and (2) "causes an innocent or irresponsible person to engage in such conduct." Model Penal Code   2.06(2)(a) (Proposed Official Draft 1962). The first element seems to require that the actor personally satisfy all culpability requirements as to every conduct, circumstance, and result element of the offense. See Model Penal Code   2.02(1) (Proposed Official Draft 1962). The second requires that the actor cause the innocent to act, as defined in Model Penal Code   2.03. Further, under the Code's culpability provisions, this element also mandates a culpability requirement of "recklessness" as to causing such conduct, even though none is specified. Id.   2.02(3). In contrast, the Model Penal Code complicity provisions impose liability where the defendant (1) "aids or agrees or attempts to aid [the perpetrator] in planning or committing [the offense]," (2) "with the purpose of promoting or facilitating the commission of the offense." Model Penal Code   2.06(3)(a) (Proposed Official Draft 1962). The technical requirements of this form of liability thus differ from those of "causing crime by an innocent" in some subtle and complex ways. The actor must be purposeful as to the commission of the offense and to rendering aid, but apparently need not have the culpability required by the offense.



[FN318]. The accomplice may well be held liable under the complicity provision, however. See supra text accompanying notes 306-08.



[FN319]. Model Penal Code   2.04 (currently   2.06) comment 14 (Tent. Draft No. 1, 1953). Federal case law supports imposition of liability where the actual perpetrator does not satisfy the mental element. See, e.g., Morse v. United States, 174 F. 539, 547 (2d Cir.1909) (holding that it was immaterial whether the bank vice-president falsely recorded a transaction himself or caused them to be falsely recorded by unsuspecting employees).



[FN320]. Model Penal Code   4.01, .10 (Proposed Official Draft 1962).



[FN321]. E.g., Model Penal Code   213.6(2) (1980).



[FN322]. Model Penal Code   3.02 to .08 (Proposed Official Draft 1962) codify justification defenses. Case law supports a defense for causing justified conduct by an innocent. On what grounds could one hold an actor liable for causing justified conduct, that is, desirable conduct resulting in no net harm, through a physical or human chain of events? Certainly, if no second human is involved one would say the actor is justified. Should the existence of subsequent human conduct in the chain of events take away the original actor's justification defense? At least one court has specifically addressed the issue and has refused to hold an actor liable for causing another to engage in justified conduct. "How can anyone, no matter how much of an outlaw he may be, have a criminal charge lodged against him for the consequences of the lawful conduct of another person?" Commonwealth v. Redline, 391 Pa. 486, 509, 137 A.2d 472, 483 (1958) (court declined to expand felony-murder doctrine to cover justifiable homicides committed by police officers).



[FN323]. These would include excuses defined in article 2 of the Code,  "General Principles of Liability." E.g., Model Penal Code   2.08 to .10 (Proposed Official Draft 1962) (intoxication, duress, military orders).



[FN324]. E.g., Model Penal Code   2.13 (Proposed Official Draft 1962)  (entrapment); id. at   1.06 (statute of limitations); id.   1.08 (former prosecution).



[FN325]. See supra text accompanying notes 307-15.



[FN326]. But compare the "innocent or irresponsible" language of Model Penal Code   2.06(2)(a) (Proposed Official Draft 1962) with the comprehensive language of id. at 2.06(7) (quoted in text accompanying notes 296-98 supra) which seems to include all possible defenses of a perpetrator.



[FN327]. See supra text accompanying notes 110-23; see infra note 360.



[FN328]. See Model Penal Code   2.06(7) (Proposed Official Draft 1962).



[FN329]. The issue is subsumed under the common law rule that at least one other co-conspirator must be convictable. W. LaFave & A. Scott, supra note 18, 488-90; J. Smith & B. Hogan, Criminal Law 181 (3d ed. 1973); J. Turner, Kenny's Outlines of Criminal Law   449 (18th ed. 1962). Many of the cases are a result of the demands of the agreement requirement. See, e.g., United States v. Masiello, 235 F.2d 279 (2d Cir.1956); Martinez v. People, 129 Colo. 94, 267 P.2d 654 (1954).



[FN330]. Model Penal Code   5.04(1) (Proposed Official Draft 1962). See statutes cited infra note 331 for states adopting similar provisions.



[FN331]. Model Penal Code   5.04(1)(b) (Proposed Official Draft 1962); accord Ariz.Rev.Stat.   13-1006(2) (1978); Or.Rev.Stat.  161.475(1)(b) (1979); 18 Pa.Cons.Stat.Ann.   904(a)(1) (Purdon 1973); Tex. Penal Code Ann.   15.02(c)(3) (Vernon 1974). There are, however, other grounds for an unconvictable confederate defense for conspiracy. Model Penal Code   5.04(1) only provides that a co-conspirator's liability is "immaterial" to the liability of the defendant. Model Penal Code   5.04(1)(b) (Proposed Official Draft 1962). Presumably, the state must still prove that the defendant satisfies all elements of the offense of conspiracy. The crux of the conspiracy offense is the agreement between parties to achieve a criminal objective. See W. LaFave & A. Scott, supra note 18, at 460. Thus where a co-conspirator is found to be innocent of conspiracy because he lacked the requisite knowledge, it has been held that there is no agreement and the defendant cannot be convicted of conspiracy. See, e.g., Rex v. Sequire, 49 Can. C.C. 226 (Ont.Sup.Ct.App.Div. 1928). And where a co-conspirator is a police officer and did not "agree" in the sense that he never really intended to further the criminal objective, the defendant has similarly escaped conviction. See, e.g., Odneal v. State, 117 Texas Crim. 97, 34 S.W.2d 595 (1931). In other words, under one interpretation, the "agreement" requirement calls for not only a particular state of mind of the defendant but also a particular state of mind of his co-conspirator. Thus, any defense the co-conspirator might have that undercuts his intention to agree or the validity of his agreement would prevent proof of the required element of "agreement," barring conviction of the defendant. This "conception of conspiracy as a necessarily bilateral relationship" is rejected throughout the Model Penal Code, which chooses instead to measure the defendant's culpability individually. See Model Penal Code   5.04(1) (Proposed Official Draft 1962). Thus it seems likely that the drafters intended to give the "agreement" requirement a much more narrow interpretation, requiring only that the defendant have actually intended to agree, and that the co-conspirator have shown the outward manifestations of agreeing. An analogous argument can be made for solicitation: no "solicitation" can be said to have occurred when it has not been effectively communicated to the prospective perpetrator. Model Penal Code   5.02(2) explicitly rejects such a defense, however, when it provides that "it is immaterial . . . that the actor fails to communicate with the person he solicits to commit a crime if his conduct was designed to effect such communication." Model Penal Code   5.02(2) (Proposed Official Draft 1962).



[FN332]. Id. at   5.04(1)(b). See Model Penal Code   5.04 comment 171-72  (Tent. Draft No. 10, 1960) (giving as examples a narcotics addict's immunity from violation of a narcotics act, diplomatic immunity, and immunity for persons whose conduct is inevitably incident to the commission of the offense or who are victims of the offense). In another section of the commentary to this section, however, the comment indicates that "an inconsistent disposition or inconsistent verdict in a [co-conspirator's] trial would not affect a defendant's liability." Id. at 105-06.



[FN333]. Model Penal Code   2.06(2)(a) (Proposed Official Draft 1962).



[FN334]. Model Penal Code   2.06(7) (Proposed Official Draft 1962).



[FN335]. The commentary suggests that the section's "irresponsible or immune" language is intended to include what might more properly be described as "innocent" co-conspirators. The commentary cites with disapproval an unconvictable confederate defense in a case where the confederate was innocent "because he lacked the knowledge requisite for guilt of the substantive crime," Model Penal Code   5.04 comment 171 (Tent. Draft No. 10, 1960), and suggests that the result will be different under the Code. Id. But such an innocent agent would not normally be thought of as either "irresponsible" or "immune" from prosecution.



[FN336]. See supra notes 307-15 and accompanying text. This seems to be the actual result in conspiracy cases. See, e.g., People v. Gilbert, 26 Cal.App. 2d 1, 78 P.2d 770 (1938) (grant of testimonial immunity to the defendant's co- conspirator did not bar defendant's prosecution); Farnsworth v. Zerbst, 98 F.2d 541 (5th Cir.1938) (grant of diplomatic immunity to the defendant's co- conspirator did not bar defendant's prosecution).



[FN337]. See supra note 332.



[FN338]. For example, the Commentary suggests that a co-conspirator's failure of proof defense, e.g., lack of knowledge necessary for the substantive crime, should also be irrelevant to the defendant's liability for conspiracy. See Model Penal Code   5.04, comment 171-72 (Tent. Draft No. 10, 1960) (suggesting that a co-conspirator's failure of proof defense, absence of mens rea, should have the same effect on the defendant's liability as a co- conspirator's defense of diplomatic immunity). In addition, the proper treatment of excuses under the provision is unclear. The provision states that the co-conspirator's "irresponsibility" is not a defense for the defendant. Not all excuses, however, undercut an actor's responsibility, as that term is used in the Model Penal Code. See supra note 320 and accompanying text. Similarly, it is unclear whether the term "immunity" is intended to refer to all public policy defenses. Does it include entrapment, or the statute of limitations? See supra note 324.



[FN339]. Cf. Model Penal Code   2.06(7) (Proposed Official Draft 1962) discussed supra text accompanying notes 306-15.



[FN340]. See Mo.Ann.Stat.   222.010 (repealed) (current version at id.   561.016 (Vernon 1979)) (right to contract); Minn.Stat.Ann.   609.165 (Supp.1981) (restoration of civil rights), N.D.Cent. Code   12.1-33-01 (Supp.1979) (civil rights lost during incarceration). See generally Younger, Not Completely Dead--But Seriously Injured: Collateral Consequences of Misdemeanor Arrest and Conviction, 52 Los Angeles Bar J. 50 (1976).



[FN341]. See e.g., Md.Ann. Code art. 27,   18 (1976); Mich. (2d Rev.)   1255 (1979); N.D.Cent. Code   12.1-33-01 to -00.1 (Supp.1979). See generally Special Project, The Collateral Consequences of a Criminal Conviction, 23 Vand.L.Rev. 929 (1970); President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Corrections 88- 92 (1967); Model Penal Code   6.04, .13 (Proposed Official Draft 1962).



[FN342]. Fed.R.Evid. 404 & 609; Okla.Stat.Ann. tit. 21,   65,  68, 505 (West 1958 & Supp.1980); Vt.Stat.Ann. tit. 13,   2907 (1974). See United States v. Keller, 624 F.2d 1154 (3d Cir.1980) (government sought to introduce evidence of a prior prosecution for drug dealing which resulted in acquittal on the basis of entrapment; entrapment was defense in instant case; evidence held inadmissible); Casenote, Excluding Evidence of Prior Crimes When Trial Resulted in Acquittal--State v. Wakefield, 278 N.W.2d 307 (Minn. 1979), 6 Wm. Mitchell L.Rev. 456 (1980) (describing exclusion of prior crime evidence which resulted in acquittal as the minority position). In some cases the evidence may be admissible as substantive proof of intent, motives, scheme or identity. See Annot., 2 A.L.R. 4th 330 (1980).



[FN343]. Many states have enacted habitual or persistent offender statutes. E.g., Conn.Gen.Stat.Ann.   53a-40 (West Supp.1980); Del. Code Ann. tit. 11,   4214 (1979); Hawaii Rev.Stat.   706-606.5 (Supp.1980); Ind. Code Ann.   35-8-8-1 (Burns 1975); N.C.Gen.Stat.   14-7.1 (Supp.1979); N.J.Stat.Ann.   2C:44-3(a) (West 1981); Wyo.Stat.   6-1-109 to -110 (1977). Other states aggravate penalties for recidivists. E.g., Hawaii Rev.Stat.   706-606.5 (Supp.1980); P.R. Laws Ann. tit. 33,   3302 (Supp.1980). See generally Annot., 2 A.L.R. 4th 618 (1980) (discussing the validity of statutes authorizing imprisonment of habitual or repeated traffic offenders).



[FN344]. See, e.g., Del. Code Ann. tit. 11,   403-405 (1979);  Hawaii Rev.Stat.   704-406 to -407, -411 to -412 (1976); N.J.Stat.Ann.   2C:4-6 to -8 (West 1981).



[FN345]. See, e.g., S.1437, 95th Cong., 1st Sess.   4012, 4021  (1977) (authorizing civil action to restrain racketeering and enjoin fraud, respectively). Current federal law permits the issuance of injunctions for violations of the fraud provisions of the Securities and Exchange Act, 15 U.S.C.   77 (1976), and for violations of the Organized Crime Control Act of 1970, 18 U.S.C.   1964 (1976). See Case Comment, Equity's Power to Enjoin Criminal Acts, 16 Wash. & Lee L.Rev. 302, 305 (1959) (discussion of the legislature's power to authorize injunctions of criminal conduct).



[FN346]. See, e.g., N.J.Stat.Ann.   2C:64-4 (West 1981); S.1437,  95th Cong., 1st Sess.   4001 to 4005 (1977).



[FN347]. See W. LaFave & A. Scott, supra note 18, at 12 (innocent converter, children, and insane persons may be liable in tort although not in criminal law).



[FN348]. E.g., 22 U.S.C.   288e(b) (allows the Secretary of State to determine that continued presence of members of international organizations is undesirable; he may give such persons reasonable time to leave and if they do not their immunity may be terminated; Okl.Stat.Ann. tit. 21,   160 (West 1958) (foreign ministers from foreign governments recognized by the United States "are to be returned to their own country for trial and punishment"). It is unclear whether the government can forcefully expel an immune diplomat. See Zinnanti v. INS, 29 Crim.L.Rep. (B.N.A.) 2506 (5th Cir.1981); Ocon-Perez v. INS, 550 F.2d 1153 (9th Cir.1977); Longoria-Castenada v. INS, 548 F.2d 233, 236 (8th Cir.1977); Lennon v. INS, 527 F.2d 187, 194 n. 16 (2d Cir.1975) (all holding that deportation is permissible once a criminal conviction is obtained if that conviction is not overturned in judicial proceeding, but not stating whether deportation would be permissible if conviction is reversed).



[FN349]. The exception may be failure of proof defenses based on lack of culpability, and analogous offense modifications. See supra notes 285-86, 307, 325 and accompanying text. But it seems clear that criminal sanctions of any sort are inappropriate where the objective elements of the offense have not been satisfied.



[FN350]. See, e.g., Model Penal Code   4.08 (Proposed Official Draft 1962). Mandatory automatic commitment has been challenged as a violation of due process and equal protection. See, e.g., In re Lewis, 403 A.2d 1115 (Del. 1979); Clark v. State, 245 Ga. 629, 266 S.E.2d 466 (1980); State v. Kee, 510 S.W.2d 477 (Mo. 1974) (en banc); People ex rel Henig v. Commissioner of Mental Hygiene, 43 N.Y.2d 334, 372 N.E.2d 304, 401 N.Y.S.2d 462 (1977). See also Annot., 50 A.L.R.3d 144 (1973); note 183 supra.



[FN351]. Hawaii has recognized the anomaly of, on the one hand, qualifying an acquittal and providing for commitment in cases of mental irresponsibility and, on the other hand, granting absolute acquittal and unsupervised release to a defendant whose acquittal was based on a physical condition. Hawaii Rev.Stat.   704-400 commentary at 259 (1976). The commentary further notes:

    The rationale for providing for acquittal conditioned on commitment (or  "hospitalization") in cases involving "mental" disease, disorder, or defect ("insanity") is that commitment is necessary to protect other members of society (and the acquitted defendant) from the consequences of repetition of the prohibited conduct. The rationale is no less applicable or persuasive in cases of "physical" conditions resulting in involuntary movements which threaten harm to others. These people too "may present a public health or safety problem, calling for therapy or even for custodial commitment. . . ." While it is true that mandatory commitment bears harshly on a person whose physical condition (or symptom thereof) may be non-recurrent, it bears no less harshly on the person whose mental condition (or symptom thereof) may be non-recurrent--although the frequency of the latter instance may be less than that of the former.

    The answer does not lie in the black-and-white distinction posed by present law: an excusing mental condition means commitment; an excusing physical condition means an unqualified acquittal. The answer lies, as the Code suggests in later sections, in tailoring the disposition of a defendant, acquitted on the basis of disease, disorder, or defect, to the condition of the defendant and to the needs of society. Commitment need not be mandatory because the defendant's disease, defect, or disorder is labelled "mental," nor should it be precluded because his excusing condition is labelled "physical."

Id. at 259. (footnotes omitted). After summarizing the law and policy arguments the commentary concludes:

    [T]he Code, in subsequent sections of this chapter, provides for a flexible disposition of defendants acquitted on the basis of a disease, disorder, or defect which excludes responsibility and, therefore, liability. The disposition is tailored to the condition of the accused; if the condition demands custodial commitment, the same will be ordered notwithstanding the fact that the condition is primarily "physical" rather than "mental"; if the condition does not demand commitment and conditional release or discharge are appropriate, the same will be ordered notwithstanding the fact that the condition has been labelled "mental disease or disorder."

Id. at 262. See id.   704-411 (1976 & Supp.1980) (outlining the uniform procedure).



[FN352]. This is sometimes done under civil commitment procedures. For a discussion of civil commitments, see generally Developments in the Law-- Civil Commitment of the Mentally Ill, 87 Harv.L.Rev. 1190, 1207-45 (1974).



[FN353]. See, e.g., In re Michael B., 44 Cal.App. 3d 443, 118 Cal.Rptr. 685 (1975). The court found that the child did not know right from wrong and could not be adjudicated a delinquent, but indicated that he could receive the same rehabilitation and treatment as a ward of the court as he would as a delinquent.



[FN354]. To the extent that a proposal would suggest continuing governmental authority over all excused defendants, even for non-recurrent excuses, the proposal would be too broad. Cf. Hawaii Rev.Stat.   704-411(c) (1976) (court shall order discharge if it finds that defendant is no longer affected by the disease or defect). See supra note 351.



[FN355]. See, e.g., In re Osborne, 294 A.2d 372 (D.C. 1972); Erickson v. Dilgard, 44 Misc.2d 27, 252 N.Y.S.2d 705 (1962).



[FN356]. Such a proposal would make a finding of innocence rather insignificant. Arguably, a rather stupid or careless individual could be subject to governmental control if his excuse appeared likely to recur. The proposal would differ from Lady Wooton's, see supra note 182, only in the sense that a finding of excuse would be entered before subjecting the person to control. The scheme might well be subject to the same criticisms as Wootton's. See generally Kadish, The Decline of Innocence, 26 Cambridge L.J. 273 (1968).



[FN357]. See, e.g., Jacobson v. Massachusetts, 197 U.S. 11  (1905) (vaccination ordered under police powers). Where important state interests in the health and well-being of other citizens are threatened by individual action, the government may limit autonomy by exerting control over otherwise personal decisions. See, e.g., Roe v. Wade, 410 U.S. 113 (1973) (while a pregnant woman has a fundamental right to obtain an abortion, this right may be superseded by the state's "compelling" interest in the life of the fetus when the fetus has reached viability). Certain excusing conditions might present such severe threats to important state interests that a program of treatment might be justified.



[FN358]. See supra note 348 and accompanying text.



[FN359]. E.g., Model Penal Code   4.06(2) (Proposed Official Draft 1962).



[FN360]. Some would distinguish "factual guilt" and "legal guilt." See H. Packer, The Limits of the Criminal Sanction 166-68 (1968). Here I mean to refer to "factual guilt," but I have some difficulty with Professor Packer's terminology. The term "guilt" necessarily means culpability, blameworthiness. See, e.g., Webster's Seventh New Collegiate Dictionary 370 (1967). Thus, to say that a culpable offender is not "legally guilty" because, for example, the inadmissability of convincing evidence under the exclusionary rule makes him unconvictable, is to distort the meaning of the term "guilty." It improperly implies that the offender is not culpable or blameworthy. "Guilty" and "unpunishable" are less deceptive terms to express the distinction.



[FN361]. One author has noted, in discussing the recent Abscam defendants, that "[a]t some point, surely, law excusing lawlessness must engender either rage or cynicism, neither a happy result for a political democracy nor a happy omen for a society thought to rest on respect for law." Livermore, Enforcement Workshop: Abscam Entrapment, 17 Crim.L.Bull. 69, 72 (1981). Upon conviction the entrapped officials may forfeit their public office. See, e.g., Model Penal Code   306.2 (Proposed Official Draft 1962).



[FN362]. Upon conviction, many jurisdictions would allow the court to restrict the defendant's rights and privileges where the restriction and conviction are reasonably related. See, e.g., Model Penal Code   306.1(1)(d) (Proposed Official Draft 1962).



[FN363]. Upon conviction for repeat offenses, a defendant may typically be sentenced to an extended term of imprisonment. See, e.g., Model Penal Code   7.03(1) (Proposed Official Draft 1962). Section 7.03(2) allows for extended terms of imprisonment if the defendant is found to be a professional criminal. Section 7.03(2) would seem to subject a professional criminal to extended punishment for prior crimes without a finding of legal guilt as to those crimes; thus, it could be compared to the proposal suggested here.



[FN364]. Cf. United States v. Keller, 624 F.2d 1154 (3d Cir.1980) (government could not introduce evidence of defendant's successful entrapment defense for an unrelated but similar offense even though defendant again alleged entrapment).



[FN365]. Cf. United States v. Calandra, 414 U.S. 338 (1974) (in deciding not to extend the exclusionary rule to grand jury proceedings the Court weighed "the potential injury to the historic role and functions of the grand jury against the potential benefits of the rule as applied in [that] context" and determined that the rule should not apply in that context). A similar question arises where one jurisdiction bars prosecution if the defendant has been acquitted in another jurisdiction because of insufficient evidence. See, e.g., Model Penal Code   1.08(1), .10(1) (Proposed Official Draft 1962). Query whether the second jurisdiction should apply this bar if the first jurisdiction employs a broader exclusionary rule.



[FN366]. See, e.g., Fed.R.Evid. 609 (impeachment by prior conviction even though defendant was subsequently pardoned); State v. Clarke, 29 Crim.L.Rep. (B.N.A.) 2459 (La. 1981); Hozer v. State Police & Fireman's Pension Fund Comm., 95 N.J. Super 196, 230 A.2d 508, 511-12 (App.Div. 1967).



[FN367]. There has been resistance to special verdict and special interrogatories in the past, see, e.g., United States v. Spock, 416 F.2d 165 (1st Cir.1969); State v. Simon, 79 N.J. 191, 199-200 (1979).



[FN368]. See supra note 241 and accompanying text.



[FN369]. See, e.g., Model Penal Code   1.08, 4.04 (Proposed Official Draft 1962) (describing circumstances under which prosecution is barred by a former prosecution and incompetency, respectively, to stand trial). See supra notes 116, 122 and accompanying text.



[FN370]. See generally A. Amsterdam, B. Segal & M. Miller, 3 Trial Manual For the Defense of Criminal Cases   193 (1976).

  On the other hand, some defenses, such as entrapment, are often left until after a culpability determination is made and present no problem in this regard. See, e.g., United States v. Jannotti, 501 F.Supp. 1182 (D.Pa. 1980) (court set aside jury verdict, finding entrapment as a matter of law because the prosecution's evidence was insufficient to establish the defendant's predisposition); cf. W. LaFave & A. Scott, supra note 18, at 373 (the procedure for revising the entrapment defense should vary depending on whether the defense is based on a culpability or a nonexculpatory public policy rationale).