Ricostruzioni dogmatiche e dinamiche probatorie: l'imputabilità penale tra colpevolezza e "affirmative defenses"

Translated title of the contribution: Substantive Criminal Law Theory and Evidentiary Dynamics: Criminal Imputability between Culpability and Affirmative Defenses

Research output: Contribution to journalArticle

Abstract

This paper explores, from an evidentiary perspective, the treatment at trial of criminal responsibility of adults and lack thereof due to insanity. While, on the one hand, modern positions in criminal law theory consistently include the subject's mental capacity among the elements of culpability, on the other hand, most of the case law continues to consider it as an external element to the structure of the offense. Such a classification, which is dictated by the need to lighten the prosecutor's burden of proof, has several major consequences on the actual effectiveness of the legal institution. The resulting model resembles that of affirmative defenses of U.S. criminal law, especially with regard to the insanity defense. The way criminal responsibility is handled at trial also provides clues to suggest a taxonomy of the phenomenon known as 'trial modification' of substantive criminal law categories, and to share some thoughts on the delicate relationship between the developments in criminal law theory and the judicial interpretation.
Original languageItalian
Pages (from-to)238-279
Number of pages41
JournalRivista Italiana di Diritto e Procedura Penale
Volume58
Issue number1
Publication statusPublished - 10 May 2015

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