A. State Substantive Criminal Law

Text 1 Why legal history is important

Some aspects of law cannot be understood except through its history. For instance, in the British constitution the House of Lords is part of the legislature. It is also the highest court of appeal. Why should this be?

No one devising a constitution today would choose to confer these powers on the House of Lords. In a democracy, legislators should represent the population as a whole. It should not, like the House of Lords, consist of aristocrats and people appointed for life by the government. Judges should not be part of the legislature. If they are, they are not truly independent.

The House of Lords has this strange combination of powers because the modern House of Lords is the heir of the mediaeval magnates. In the fourteenth century these magnates or peers obtained the right to be summoned to Parliament and to correct errors made by the ordinary courts of law. Their successors have kept these powers in a changed form, though they no longer reflect the balance of forces in Britain.

To explain the powers of the House of Lords historically is not to justify its place in the British constitution today. But the explanation helps to show how law evolves, or fails to evolve. A law for which there was originally a good reason can survive though that reason has vanished. Of course if laws are totally unsuited to new conditions they go under. In western countries the laws that treated women as inferior to men in voting, holding public office, making family decisions, owning property and earning money have over the last century almost vanished. The law has both reflected and helped to further this emancipation.

The House of Lords illustrates the other side of the coin. It does some useful work by amending badly thought-out bills, and has not thwarted the elected legislators in the House of Commons enough to make its abolition a priority. So up to now the House of Lords has survived. Its survival is an example of how laws (in this case a significant part of the constitution) can survive though they no longer serve their original purpose. The survival of laws has something in common with the survival of genes.

Unlike genes, laws are determined by our culture. We can change them. So why do ill-adapted laws often survive? One reason, apart from inertia, is that law aims to provide security, psychological as well as physical. One element in security is being able to know, and feel comfortable with, the formal rules that govern our society and our lives.

So continuity is important, and tells in favour of leaving laws as they are unless they prove utterly unworkable. It also explains why in all systems of law the previous decisions of courts are regularly followed when similar cases come up in the future. If it has once been decided that an elephant is a dangerous animal that decision is likely to be followed, though not all elephants are actually dangerous.

Precedents, as they are called, are important even when they are not formally binding. Not only ordinary people but judges, ministers and civil servants feel more at ease and less open to criticism if they follow past practice, unless there is a strong case for changing it. Justice also requires like cases to be treated alike. So it is not only the laws, but their interpretation, that tends to remain the same.

For historical reasons the laws of different countries can differ sharply. In particular there are differences between the civil law systems of continental Europe, South America and most of Asia and the common law systems of the English-speaking world.

Text 2 Civil law and common law

One important theme is the relation between custom, writing and codes. In civil law systems the main branches of the law are embo­died in written codes, which try to be comprehensive and clear. There are codes of criminal law, of criminal procedure, of private law, of commercial law, and perhaps others.

The codes are meant to contain the main principles of each branch of the law. Other statutes fill in the details. In fact the supplementary laws may be as important as the codes. For example in German tort law the code imposes only liability for fault, but supplementary laws make railways etc. liable for accidents even if they were not at fault. All the same, the codes have a special prestige. They are not lightly altered.

Along with codes and supplementary statutes, scholarly writing, often by university professors, has an important place in civil law systems. Scholars explain and comment on the codes, statutes and decisions of courts. The views of the best of them are treated with respect. Court decisions are also important, but are anonymous. Individual judges remain in the background.

The same elements are to be found in common lawsystems, but in a different order of importance. Some common law systems have codes, but most do not. The statutes (apart from the constitution, if there is a written constitution) are all on a level. The decisions of judges of the higher courts are binding, and much of the law is left to the courts to develop. When a court consists of several judges, each can express a separate opinion. The opinions of individual judges have the sort of prestige that in civil law systems attaches to the opinions of scholars. Scholarly writing has some influence, and its influence is growing, but the opinion of practicing lawyers — professional opinion — is more weighty.

In civil law systems, then, reasoning from general principles(to be found mainly in the codes or in scholarly writing) is the norm. Common lawyers argue more from case to case and tend to mistrust appeals to broad principle.

Suppose someone strikes my name off a database, so that I am not paid a pension to which I am really entitled. Has he committed a wrong against me? A civil lawyer would probably begin by asking whether I had suffered damage, whether the person who struck me off was at fault and whether his fault (if he was at fault) had caused the damage. A common lawyer would ask how like this is to other cases in which liability already exists. Is it like attacking my character ('defaming' me) by saying that I have pretended to pay the pension contributions that were due but have not really done so? Is it like making a false statement that harms me, by saying that I am not entitled to a pension when I am?

Though the contrast is not as sharp as it once was, civil and common lawyers still differ in the way they reason. To understand why they do, we need to understand the importance of writing in legal development. Before writing comes to a society, its laws are customary. But customs without writing tend to be local and variable. Unless they are in the permanent form that writing gives them they seldom spread over a wide area or remain unchanged for long.

TEXT 3 the transformation of english legal science

Part 1

In the late seventeenth and early to mid-eighteenth centuries, the English legal system underwent fundamental changes in its method, that is, in the basic principles by which it operated. The new emphasis on the historicity of English law, that is, on the normative character of its historical development over generations and centuries, was manifested in new ways of systematizing it.

The most obvious methodological manifestation of the new historical jurisprudence was the emergence of the modern doctrine of precedent. Related methodological changes included the transformation of some of the historical forms of action into modern remedies for the protection of rights of property and for enforcement of obligations of contract, tort, and unjust enrichment. Closely connected both with the transformation of the forms of action and with the doctrine of precedent was the resort to legal fictions as a device for adapting older doctrines and procedures to new purposes.

Other changes in legal method were closely connected not only with the new emphasis on the historicity of law but also with new philosophical concepts of truth and justice that grew out of older jurisprudential theories of natural law and positivism. These included the increase in the independence of the jury as a trier of fact and law, the expansion of the rights of the accused in criminal trials, the introduction of the adversary system of presentation of evidence, and the establishment of new criteria of proof in civil and criminal cases.

Finally, the transformation was reflected in a new type of legal literature, namely, modern legal treatises analyzing and systematizing English law as a whole as well as some of its individual branches.

These topics—doctrine of precedent, forms of action, legal fictions, jury trial, rights of the accused, adversary system, evidence, treatises—may seem at first to be only a list of diverse features of the Anglo-American legal system. They may also be seen, however, and are treated in this chapter, not only as legal data but also as interlocking ways in which legal data were understood—that is, as important constituent parts of a coherent body of knowledge about law, and in that sense as elements not only of a legal method in the more technical sense but also of a legal science in the more theoretical sense. Indeed, in the sixteenth and seventeenth centuries the words "method" and "science" were often used inter­changeably, bringing together mode of operation and theory.

TEXT 4 the transformation of english legal science

Part II

To speak of legal science, or a science of law, is to risk serious misunderstanding on the part of those who assume that the only true sciences are the natural sciences, and especially the "hard" natural sciences such as physics and chemistry. This is a contemporary Anglo-American usage; in most other languages, "science" (in German Wissenschaft, in French science, in Russian nauka) has retained its older, broader meaning of a coherent, systematic body of knowledge, combining particular facts with general principles, and is applied not only to the exact natural sciences but also to the less exact social and other humane sciences, including the science of law (Rechtswissenschaft, science de droit, pravovaia nauka).

There is, however, another more serious ambiguity in the application of the word "science" to law, namely, that legal science may refer not only to a body of knowledge about law generated by legal scholars (as the word "physics," for example, refers to a body of knowledge about matter and motion generated by physicists, or the word "geology" to a body of knowledge about the formation of the earth generated by geologists), but also to a body of knowledge generated by the law itself, defining its functions and the ways in which it operates. To say that a given system of law may itself contain, in that sense, a science is by no means to deny that (like medicine, for example) it is also, in its application, an art; it is only to say that principles laid down by its authors and practitioners—legislators, judges, administrators, and others—may expressly define its character, that such principles may be not only statements about law but also statements of law, and that in the Western legal tradition, at least, they are understood to constitute a coherent, systematic body of knowledge relating particular rules and decisions, particular modes of operation, to general legal theories. Even the simplest legal rules—for example, that a certain type of agreement is a legally binding contract, or that to kill another person intentionally and with malice aforethought constitutes the crime of murder —connote general principles of the legal system, such as the principle that contracts give rise to civil obligations enforceable by courts, the principle that some types of homicide are more severely punishable than others, and that certain kinds of distinctions are to be made between civil law and criminal law, et cetera; and these principles are officially declared to be necessary to the achievement of the purpose of law to promote justice and to maintain order. This is only to say that the science of law, like other social sciences, and like the science of language itself, differs from the natural sciences insofar as the participants in legal activities, that is, those who make or apply or administer or practice law, themselves articulate the nature of those activities, and their articulations are an essential part of the science itself. Indeed, in the Western legal tradition the legal actors themselves have for many centuries consciously ascribed to their own declarations of what they themselves are doing the qualities of a systematic, objective, verifiable body of knowledge, a meta-law by which the legal system itself may be analyzed and evaluated.

TEXT 5 the transformation of english legal science

Part III

On the one hand, the rules and principles of English law of the late seventeenth and early to mid-eighteenth centuries may thus be said to have constituted its internal science. The new treatise literature of that period, on the other hand, generated by legal scholars, not only recapitulated the internal legal science but also analyzed, classified, systematized, and evaluated English legal institutions according to criteria drawn partly from within but also partly from outside those institutions, and thus may be said to have constituted an external science of English law. The frequent references to "legal science" made in that literature did not, however, expressly distinguish between its internal and its external aspects. William Blackstone, for example, in initiating in 1753 the first course on English law ever offered in an English university, said that "law is to be considered not only as a matter of practice but as a rational science," grounded on "general principles" inherent in the law itself, and that it is the task of the legal scholar to discern those principles. At the same time, Blackstone followed a method of analysis and synthesis of English law that had been introduced three generations earlier by Matthew Hale, a method that was drawn partly from philosophy, theology, and the natural sciences, as well as from the entire body of Western legal scholarship. Black-stone referred indirectly to that external aspect of the science of law in writing that the teaching of English legal science had been "committed to his charge to be cultivated, methodized, and explained," and that English law should be studied "in a solid, scientific method." Indeed, if only the internal mode of operation of the English legal system were to be taught, without external theoretical analysis and evaluation, it would hardly make sense to teach it in a university course designed, as he said, as part of the general education of "every gentleman and scholar."

It must also be noted that the authors of the first treatises on English law were not professors but judges and practicing lawyers, and their treatises in fact strongly affected the fundamental structural and institutional changes in the English legal system that took place in the late seventeenth and early to mid-eighteenth centuries. Indeed, a principal source of the differences between the new English legal theory and the legal theory that had prevailed previously in the West was the fact that the earlier legal theory was primarily professorial in its origin and nature, whereas the new English legal theory was primarily judicial in its origin and nature. The English Revolution exalted the role of the legal profession as guardian not only of the positive law but also of legal science. This fact, too, contributed to the integration of the internal and external aspects of English legal science— its method in the narrower sense and its theory in the broader sense.

TEXT 6 JUDGES PART I

We in the common law world know what a judge is. He is a culture hero, even something of a father figure. Many of the great names of the common law are those of judges: Coke, Mansfield, Marshall, Story, Holmes, Brandeis, Cardozo. We know that our legal tradition was originally created and has grown and developed in the hands of judges, reasoning closely from case to case and building a body of law that binds subsequent judges, through the doctrine of stare decisis, to decide similar cases similarly. We know that there is an abundance of legislation in force, and we recognize that there is a legislative function. But to us the common law means the law created and moulded by the judges, and we still think (often quite inaccurately) of legislation as serving a kind of supplementary function. We are accustomed, in the common law world, to judicial review of administrative action, and in the United States the power of judges to hold legislation invalid If unconstitutional is accepted without serious question. We know that our judges exercise very broad interpretative powers, even where the applicable statute or administrative action is found to be legally valid. We do not like to use such dra­matic phrases as "judicial supremacy," but when pushed to it we admit that this is a fair description of the common law system, particularly in the United States.

We also know where our judges come from. We know that they attend law school and then have successful careers either in private practice or in government, frequently as district attorneys. They are appointed or elected to judicial positions on the basis of a variety of factors, including success in practice, their reputation among their fellow lawyers, and political influence. Appointment or election to the bench comes as a kind of crowning achievement relatively late in life. It is a form of recognition that brings respect and prestige. The judge is well paid, and if he is among the higher judicial echelons, he will have secretaries and research assistants. If he sits on the highest court of a state or is high in the federal judiciary, his name may be a household word. His opinions will be discussed in the newspapers and dissected and criticized in the legal periodicals. He is a very important person.

TEXT 7 JUDGES PART II

This is what common lawyers mean when they talk about judges. But in the civil law world, a judge is something entirely different. He is a civil servant, a functionary. Although there are important variations, the general pattern is as follows. A judicial career is one of several possibilities open to a student graduating from a university law school. Shortly after graduation, if he wishes to follow a judicial career, he will take a state examination for aspirants to the judiciary and, if successful, will be appointed as a junior judge. (In France and a few other nations, he must first attend a special school for judges.) Before very long, he will actually be sitting as a judge somewhere low in the hierarchy of courts. In time, he will rise in the judiciary at a rate dependent on some combination of demonstrated ability and seniority. He will receive salary increases according to pre-established schedules and will belong to an organization of judges that has improvement of judicial salaries, working conditions, and tenure as a principal objective.

Lateral entry into the judiciary is rare. Although provision is made in some civil law jurisdictions for the appointment of distinguished practicing attorneys or professors to high courts (particularly to the special constitutional courts established since World War II), the great majority of judicial offices, even at the highest level, are filled from within the ranks of the professional judiciary. Judges of the-high courts receive, and deserve, public respect, but it is the kind of public respect earned and received by persons in high places else­where in the civil service.

One of the principal reasons for the quite different status of the civil law judge is the existence of a different judicial tradition in the civil law, beginning in Roman times. The judge (iudex) of Rome was not a prominent man of the law. Prior to the Imperial period he was, in effect, a layman discharging an arbitral function by presiding over the settlement of disputes according to formulae supplied by another official, the praetor. The iudex was not expert in the law and had very limited power. For legal advice he turned to the jurisconsult. Later, during the Imperial period, the adjudication of disputes fell more and more into the hands of public officials who were also learned in the law, but by that time their principal function was clearly understood to be that of applying the emperor's will. The judge had no inherent lawmaking power. He was less limited in medieval and pre-revolutionary times, when it-was not unusual for continental judges to act much like their English counterparts. That, indeed, was the problem: they were interpreting creatively, building a common law that was a rival to the law of the central government in Paris and even developing their own doctrine of stare decisis.

With the revolution, and its consecration of the dogma of strict separation of powers, the judicial function was emphatically re­stricted. The revolutionary insistence that law be made only by a rep­resentative legislature meant that law could not be made, either di­rectly or indirectly, by judges. One expression of this attitude was the requirement that the judge use only “the law” in deciding a case, and this meant, as we have seen in Chapter IV, that he could not base his decision on prior judicial decisions. The doctrine of stare decisis was rejected. An extreme, expression of the dogma of strict separation of the legislative and judicial powers was the notion that judges should not interpret incomplete, conflicting, or unclear legislation. They should always refer such questions to the legislature for authoritative interpretation. It was expected that there would not be very many such situations, and that after a fairly brief period almost all the prob­lems would be corrected and further resort to the legislature for interpretation would be unnecessary. (The history of the retreat from this position will be described in the next chapter.)

TEXT 8 JUDGES PART III

The picture of the judicial process that emerges is one of fairly routine activity. The judge becomes a kind of expert clerk. He is presented with a fact situation to which a ready legislative response will be readily found in all except the extraordinary case. His function is merely to find the right legislative provision, couple it with the fact situation, and bless the solution that is more or less automatically produced from the union. The whole process of judicial decision is made to fit into the formal syllogism of scholastic logic. The major premise is in the statute, the facts of the case furnish the minor premise, and the conclusion inevitably follows. In the uncommon case in which some more sophisticated intellectual work is demanded of the judge, he is expected to follow carefully drawn directions about the limits of interpretation.

The net image is of the judge as an operator of a machine designed and built by legislators. His function is a mechanical one. The great names of the civil law are not those of judges (who knows the name of a civil law judge?) but those of legislators (Justinian, Napoleon) and scholars (Gaius, Irnerius, Bartolus, Mancini, Domat, Pothier, Savigny, and a host of othernineteenth- and twentieth-century Eu­ropean and Latin American scholars). The civil law judge is not a culture hero or a father figure, ashe often is with us. His image is that of a civil servant who performs important but essentially uncreative functions,

It is a logical, if not a necessary, consequence of the quite different status of the civil law judge that he is not widely known, even among lawyers. His judicial opinions are not read in order to study his individual ways of thinking and his apparent preconceptions and biases. Although there are exceptions, the tendency is for the decisions of higher courts in civil law jurisdictions to be strongly collegial in nature. They are announced as the decision of the court, without enumeration of votes pro and con among the judges. In most jurisdictions separate concurring opinions and dissenting opinions are not written or published, nor are dissenting votes noted. The tendency is to think of the court as a faceless unit.

The result is that although there is a superficial similarity of function between the civil law judge and the common law judge, there are substantial disparities in their accepted roles. In part the contemporary civil law judge inherits a status and serves a set of functions determined by a tradition going back to the index of Roman times. This tradition, in which the judge has never been conceived of as playing a very creative part, was reinforced by the anti-judicial ideology of the European revolution and the logical consequences of a rationalistic doctrine of strict separation of powers. The civil law judge thus plays a substantially more modest role than the judge in the common law tradition, and the system of selection and tenure of civil law judges is consistent with this quite different status of the judicial profession.

The establishment of rigid constitutions and the institution of judicial review of the constitutionality of legislation in some civil law jurisdictions has to some extent modified the traditional image of the civil law judge. In some jurisdictions (e.g. Austria, Italy, Germany, and Spain), special constitutional courts have been established. These special courts, which are not part of the ordinary judicial system and are not manned by members of the ordinary judiciary, were established in response to the civil law tradition that judges (i.e. ordinary judges—the modem successors of the Roman iudex and the civil judges of the jut commune) cannot be given such power.

TEXT 9 Lawyers as advisers, not judges

It may seem strange that in the Roman world, which valued law highly, legal experts were advisers rather than judges. But so long as a society thinks that the ruler should do justice personally, the legal input has to come from elsewhere. If the laws are at all intricate, the ruler will not be expert in them. The role of lawyers is then to advise the ruler about the law rather than to sit in judgment themselves.

The idea that the ruler should not himself be a judge, and should not interfere with judges, comes much later. It was not until 1607 that James I of England was told by Chief Justice Coke that he was not learned in the law and so could not judge a lawsuit himself. The king strongly disagreed, but his view was rejected.

In the next century (1748) the French writer Montesquieu argued that, for citizens to be truly free, the main powers of government must be in the hands of different people. So the legislative power of making laws, the executive power of carrying them out and the judicial power of judging whether they had been broken should be separate. This theory (the separation of powers) dominated the American constitution of 1787 and is now widely accepted. Where it is taken seriously judges cannot be dismissed for giving decisions that the government dislikes, but only for corruption or incompetence.

Text 10 the decline of common law

From the late nineteenth century, however, given the changing socio-economic conditions of the times, common law has been steadily eroded by parliamentary legislation. Today statutory law is extremely important; it is supreme where a conflict occurs between it and the common law. Hence reference is frequently made to the doctrine of parliamentary supremacy or sovereignty. Nothing in the long run can compete with parliamentary law. That does not mean to say that judicial precedents have also diminished at the same rate. On the contrary, judicial interpretation of the clauses of a statute remains crucial, particularly when a new Act of Parliament is passed or an existing one amended. The first case - a test case -brought under such an Act will be watched closely by the legal and political professions. The judicial interpretation in that kind of case will, in itself, establish a precedent, but in statutory as opposed to common law. Nonetheless the term 'precedent' is historically associated with the common law. So how do judges make decisions, particularly in common law cases? One way in which they might do so is to use the deductive method. Deduction may be regarded as reasoning from the general to the particular. A rule or a theory is developed in the judicial mind, or held by that mind to exist, and as a result that rule leads logically to a particular conclusion given all the circumstances of the case in hand. Induction is the opposite: reasoning moves from the particular to the general. The circumstances of the case suggest that a particular rule of law be formulated or found. The inductive approach, however, does not necessarily demand a particular conclusion. It is probably rather more accurate to say that English judges generally proceed by analogy, thus avoiding the potential conflicts between deduction and induction.

Analogy is the art of comparison: judges will compare similar problems and similar circumstances. They will see whether two or more apparently like problems might have to be decided differently according to the facts and the circumstances of each case. It is essentially a cautious, pragmatic approach; indeed judges might well be accused of being generally more cautious, or possibly more conservative, than their political masters in Parliament who have been responsible for so much of twentieth-century law. Analogy is reasoning by example: example and comparison have been at the heart of common law over the centuries. In short, analogy is reasoning from the particular to the particular; thus it may be viewed as imperfect or primitive induction.

TEXT 11 Substantive Criminal Law

A. State Substantive Criminal Law

While rooted in English common law, American substantive criminal law is statutory. There are no common law crimes in the United States. In other words, the law of crimes is promulgated by the state legislatures (for each state) and by Congress (for the federal government). Most states, but not the federal government, have a comprehensive 'code' of substantive criminal law made up of general principles of criminal responsibility, laws defining the particular criminal offenses, and laws defining excuses and justifications Criminal sentences, which are discussed later, are also prescribed by Congress and the state legislature.

The state legislatures can promulgate whatever criminal laws they like for their respective jurisdictions, subject only to federal and state constitutional limitations. Thus, for example, neither Congress nor a state legislature can pass a criminal law that punishes free speech because that would violate the First Amendment. The United States Constitution places a few other restrictions on the nature of substantive criminal law. For example, due process requires that criminal offenses be written, available and sufficiently definite so that the citizenry has notice of what conduct has been proscribed. The ex post facto clause (as against the federal government) and the due process clause (as against the states) prohibits applying criminal law to conduct that was innocent when it was performed. State constitutions may also impose certain additional restrictions on the legislature's authority to promulgate criminal offenses.

Two-thirds of the states have adopted in whole or in part the Model Penal Code (MPC) which was drafted in the 1950s and 1960s by the American Law Institute, a prominent law reform organization. The MPC is the most influential work in American substantive criminal law. Its general principles cover:

(1) the purposes of the criminal law;

(2) rules governing interpretation of the code;

(3) allocation of evidentiary burdens of proof; and

(4) the requirement that punishment be proportional to the gravity of the offense.

The bulk of the MPC is devoted to general rules of criminal responsibility (e.g. culpability, causation, accomplice liability, mistake of fact, and mistake of law); specific definition of crimes (e.g. murder, assault, drug trafficking), and excuses and justifications (e.g. necessity, public duty, and duress).

One of the most deeply-rooted principles in American criminal law is that there can be no criminal responsibility without culpability or blameworthiness. Under the MPC, culpability, sometimes referred to as 'mens rea' or 'state of mind', is satisfied by a showing of intent, knowledge, recklessness, or negligence, all of which are carefully defined by the Code. Except in the case of minor offenses and some regulatory crimes, the MPC requires that there be a specified 'culpability' for every element of an offense (conduct, attendant circumstances, result).

Criminal codes set out the prohibitions that constitute the law of crimes— offenses against the person (e.g. murder and rape); offenses against property (e.g. theft and arson); offenses against public order (e.g. disorderly conduct and rioting); offenses against the family (e.g. bigamy and incest); and offenses against public administration (e.g. bribery and perjury). In general, American criminal law 'grades' offenses into several different 'degrees' based upon culpability and extent of harm. For example, homicide is graded into two large categories, murder and manslaughter and, in many jurisdictions, those categories are subdivided into the specific offenses of first degree murder, second degree murder, voluntary manslaughter, and involuntary manslaughter. Similarly, most United States criminal codes contain several degrees of robbery, burglary, larceny, sale of drugs and so forth. The grade of offense affects either the sentence maximum, minimum, or both. Thus, the work of apportioning punishment is divided between the substantive law of crimes and sentencing law.

One of the most unusual features of American (as well as English) substantive criminal law is the law of conspiracy which, among other things, has been used in most 'political trials' and in most organized crime trials. The law of conspiracy makes it a crime to agree with another person to engage in criminal conduct. Thus, conspiracy, like the law of attempts, punishes people for conduct that falls short of a completed offense. All that needs to be proved is that the defendant agreed to commit a criminal act in the future and that any member of the conspiracy took a step in furtherance of the plan. The agreement need not have been explicit or formal; nor is it required that all the co-conspirators agreed with one another as long as they agreed with one of the conspirators to further the goal of the conspiracy.

In a political sense, conspiracy refers to a group of persons united in the goal of usurping or overthrowing an established political power. Typically, the final goal is to gain power through a revolutionary coup d'йtat or through assassination.

Under federal law, defendants can be convicted and punished for both the completed crime and for conspiracy to commit that crime. In addition, federal law makes each conspirator an accomplice in every offense committed by co-conspirators in furtherance of the conspiracy. Members of the same conspiracy can be joined at a single trial. Commentators have frequently criticized the law of conspiracy as amorphous and vague and for, in effect, allowing guilt by association. The MPC's provision on conspiracy reins in the doctrine somewhat.

Although the federal system and a few states rely on common (court-made) law for justifications and excuses, most state criminal codes include statutorily defined excuses and justifications, including self defense; necessity; duress; public duty; involuntary intoxication, and insanity. Self defense is the most often used defense, and it has generated a substantial jurisprudence, comprised of judicial interpretations of statutes, concerning such questions as immediacy, proportionality, and the duty to retreat.

The most controversial defense is the insanity defense, although it is used only infrequently and rarely successfully. Under the MPC, '[a] person is not responsible for criminal conduct if at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law'. A few states have abolished the insanity defense altogether. A number of other states have eliminated the 'lack of capacity to conform' prong of the insanity defense, thereby returning the law to the state that it was in when the English court first announced the insanity defense in the famous McNaughten case.

Insanity has to be specially pled and, if successful, results in a 'not guilty by reason of insanity' verdict. (A few states have recently added a new plea and verdict—'guilty but mentally ill'—which results in a judgment of guilty and a recommendation for psychiatric treatment within the penal system.) Historically, a defendant found 'not guilty by reason of insanity' was committed indefinitely to a mental hospital. The defendant could remain longer in the mental institution than a prison sentence would have required had he been convicted of the offense. The Supreme Court, however, has sharply restricted the terms under which a person can now be held involuntarily in a mental institution. The 'not guilty by reason of insanity' verdict in the case of John Hinckley, who attempted to assassinate President Ronald Reagan, led Congress to pass a federal insanity defense for the first time. (Previously each federal circuit court defined the appropriate insanity doctrine for that circuit.) It provides:

It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.

At the heart of the jurisprudential debate about the insanity defense is a basic conflict between the meaning of insanity to the psychiatrist and its criminal law role in excusing a defendant from criminal responsibility. The various formulations of the insanity defense provide greater or lesser freedom for psychiatrists, testifying as expert witnesses for both sides, to explain their diagnosis of the defendant's mental condition at the time of the offense. Many lawyers and psychiatrists argue that the goal of the criminal justice system—to assess blame and mete out punishment—is fundamentally incompatible with the goal of the mental health system, which is to diagnose and treat. According to the critics, in criminal trials involving an insanity defense, the lawyers and the psychiatrists speak different languages. The problem is exacerbated by American criminal procedure which permits each side to call its own expert witnesses; the prosecution's psychiatrist tells the jury that the defendant was not insane at the time of the offense, and the defense's psychiatrist testifies that he was insane.

In recent years, a great deal of attention has been paid to a spate of so-called 'abuse excuses' like battered woman's syndrome, abused child syndrome, post traumatic stress disorder, and so forth. These excuses have been put forward either (1) as a form of the insanity defense; (2) to establish a self defense rationale; or (3) to mitigate the degree of culpability through a general diminished capacity defense. The battered woman's defense has achieved a degree of success. Many courts permit expert testimony on this syndrome because of its relevance to the defendant's subjective belief in the necessity of defensive force.

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