Chapter SixDefenses to Criminal Liability: Excuse

Joel Samaha

Chapter Six Learning Objectives

Understand that defendants who plead an excuse defense admit what they did was wrong but argue that, under the circumstances, they were not responsible for their actions.

Understand that the defense of insanity excuses criminal liability when it seriously damages defendants’ capacity to control their acts and/or capacity to reason and understand the wrongfulness of their conduct.

Understand how insanity isn’t the same as mental disease or defect.

Appreciate that very few defendants plead the insanity defense, and those who do, rarely succeed.

Understand how the right-wrong test focuses on defect in reason and cognition.

Understand how the irresistible impulse test focuses on defect in self-control or will.

Understand how the product-of-mental-illness test focuses on criminal acts resulting from mental disease.

Understand how the substantial capacity test focuses on reason and self-control

Know how current trends favor shifting the burden of proof for insanity to defendants.

Learning Objectives (cont.) Understand the difference

between diminished capacity and diminished responsibility and appreciate how they apply only to homicide.

Understand the different processes regarding how the law handles age as a defense and how juvenile courts can use their discretion to transfer a juvenile to adult criminal court.

Understand how it is sometimes okay to excuse people who harm innocent people to save themselves.

Know the four elements of dures

Understand that voluntary intoxication is no excuse for committing a crime, but involuntary intoxication is.

Understand that entrapment is used in all societies even though it violates a basic purpose of government in free societies—to prevent crime, not to encourage it.

Understand why syndrome excuses should be taken seriously despite criticisms of them.

Excuses: Defenses and Failure of Proof Scheme

Failure of Proof Scheme These defenses excuse criminal conduct because the prosecution has failed to prove the needed elements beyond a reasonable doubt

Ex. prosecution fails to prove the crime because defendant raises the issue of whether a mental disease or defect prevented them from forming the mens rea (an element the state has to prove)

Affirmative Defense theory• Prosecution has proved the elements, and

then defendant successfully asserts an affirmative defense Ex. Prosecution proves the elements of murder but

then defendant puts on evidence that they acted in duress

Insanity Myths and Realities about

Insanity Insanity is a legal term, not a

psychological term Insanity only excuses liability

when it seriously damages a person’s capacity to act/reason/understand

Mental disease or mental defect (mentally ill) what psychiatrists testify to, help juries come to conclusion whether person was “insane” under whatever test of insanity is employed in the state

Few people claim insanity; those who do rarely succeed

Those who do succeed in raising insanity defense do not go free; they are generally civilly committed• Ex. John Hinckley

Some states have abolished insanity defense

Some states have adopted guilty but mentally ill verdict

Case: U.S. v Hinckley

Facts: John Hinckley was found not guilty by reason of insanity of the attempted assassination of the president of the United States and committed to St. Elizabeth’s Hospital. The hospital wants to allow Hinckley to have extended visits at his parents home.

Issue: Should his furlough released by expanded?

Holding: Yes. There is not adequate reason to reject the moderate extension of conditional release

Four Tests of Insanity All tests look at defendant’s mental capacity

In states which have retained insanity as a defense, they have one of the following tests

Right-wrong test (aka M’Naghten Rule) -28 jurisdictions

Volitional incapacity (aka Irresistible Impulse Test)—a few jurisdictions

Product Test (aka Durham rule) – only New Hampshire

Substantial capacity test (aka MPC)-14 states, used to be the rule in the federal courts until Hinckley

Right-Wrong Test

Defendant’s mental capacity to know right from wrong

M’Naghten Rule• Defendant had a mental disease

or defect at the time of the crime

• The disease or defect caused the defendant not to know:

the nature and quality of his or her actions

That what he or she was doing

Definitions:• Mental disease does not

include personality disorders• Mental defect refers to mental

retardation or brain damage • “Know”

means awareness or cognition in some states

means understand or appreciate (grasp significance) in other states

Some states don’t define term and leave it to juries

• Nature and quality of act--don’t know what you are doing…example think squeezing lemons when it’s victim’s head.

• Wrong Legal wrong? Morally wrong?

States vary

Right/wrong test focuses on reason/cognition:

Reason: capacity to tell right from wrongWill: power to control actions

Burden of Proof in Insanity Cases Issue of how these defenses are raised, how they play out in

court Since Hinckley, the federal government has required

• the defendant to raise the defense and prove they were insane • to bear the burden of production in presenting evidence, • and to bear the burden of persuasion to a clear and convincing

degree Most states consider insanity an affirmative defense,

• Defendants have to raise the issue• Defendants have to put forth some evidence (burden of

production)• Defendants do not have the ultimate burden of persuasion to

prove they were insane (state must still prove that defendant was not insane) States vary as to the standard of proof: clear and convincing?

Beyond reasonable doubt? Preponderance of evidence?

Discussion ActivityWatch the video link below regarding the insanity defense in the James Holm (The Dark Knight Rising attack) case. Based on what you know about criminal law and the insanity defense to date, discuss whether or not you believe James Holm was insane when he committed this offense.http://www.cbsnews.com/video/watch/?id=7415896n

Case: State v. Odell

Facts: Odell, the defendant, shot and killed his father. Argued he was not guilty due to mental illness

Issue: Did Odell know the nature and wrongfulness of his acts

Holding: Yes. Although Odell suffers from mental illness, he knew he was shooting his father and that shooting him would result in his death.

Irresistible Impulse Test

Can’t blame person or deter others who because of a mental disease or defect lose their self-control and cannot bring their actions into conformance with what the law requires • Bifurcated (two –state) trail:

has state met burden of proof and has defendant established mental illness defense

Generally a supplement to the right/wrong test• Even if person knows what

they are doing is wrong, if they can’t control it, some states allow a verdict of not guilty by reason of insanity if they suffer from mental disease that destroys their volition

• Parsons v. State

Elements from Parsons• Mental disease caused the

defendant to lose the power to choose between right and wrong and to avoid doing the alleged act that the disease destroyed his free will

• The mental disease was the sole cause of the act

Criticisms of test• Doesn’t go far enough, should

include more than sudden impulses

• Issue of whether it requires total lack of control or if defendant can still maintain some control

• Others reject volition utterly because it goes against goals of punishment of deterrence and retribution

Product of Mental Illness Test From Durham v. United States (1954)

• Case criticized right-wrong test because it considers knowledge and reason alone

Only ever used in D.C, New Hampshire and Maine. Now only used in N.H.• Abandoned in D.C. after Hinckley

Acts that are the products of mental disease or defect excuse criminal liability

Extended beyond the purely intellectual knowledge into cognition and will

Substantial Capacity Test

Attempted to remove problems of both M’Naghten and Irresistible Impulse while maintaining the legal nature of both

Emphasizes reason and will Substantial capacity is not complete

mental capacity Individuals with some, but limited capacity may

still be found insane

Substantial Capacity Test (cont.)

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

(wrongfulness) of his conduct• Intellectual awareness isn’t enough to

create culpability Or to conform his conduct to the

requirements of law• Removes the sudden lack of control

requirement

Diminished Capacity Failure of Proof defense rather than

an affirmative defense Defendant will received reduced

penalty if defense is successfully raised (not acquittal)

Defense allows defendant to introduce evidence to negate specific intent in specific crimes (generally murder)

Mental condition made him incapable of forming requisite mens rea

Diminished Capacity Distinguish between diminished responsibility

and capacity• Diminished responsibility

What I did was wrong, but under the circumstances I am less responsible.

State v. Phipps Seeks to be punished for lesser offense

• Diminished capacity Focuses on defendant’s capacity to commit a specific intent

crime If successful, punishment is for general intent crime that

defendant was capable of committing Most states reject both diminished capacity and

diminished responsibility defenses…or allow the court to consider it for sentencing purposes

Excuse of Age The defense of age focuses on

whether defendant was too young to have the capacity to commit a crime (not whether he or she will be tried in juvenile court…whether he or she could be tried at all)

Common law rules regarding age and capacity• Under 7 years of age, children

had no capacity to commit crime• Between 7 and 14 years of age,

it was presumed that children had no capacity, but the state could put on evidence to overcome this presumption

• After 14 years of age, children had the same capacity as adults

Modern:Check statutes to determine minimum age of capacitySome states have no minimum age of capacity and any child could be held liable for their criminal acts

Leads to the issue of jurisdiction …where will the young child be tried

Some states spell out minimum age of capacity –but trend is away or very reduced years

Age and the Jurisdiciton issue Some states deal with the age/capacity issue by

discussing jurisdiction of juvenile court over children of certain ages

Juvenile courts get jurisdiction over children by statute (determined by age of child)

Sometimes adult courts have jurisdiction over children’s trial because of• Legislative exclusion (legislature specifies “juvenile

court has jurisdiction except in these crimes:….”)• Transfer through waiver (juvenile court waives its

jurisdiction over the case and the child’s case is then transfer to adult court)

• waiver to adult criminal court—juvenile court judge exercises jurisdiction to transfer a juvenile to the adult court

Case: State v. K.R.L

Facts: K.R.L, 8 yrs & 2 mo old, entered Alder’s home without her permission. He killed her fish and clamped a plugged in curling iron onto a towel. K.R.L was charged with burglary

Issue: Due to his age, does K.R.L. have the capacity to form intent to commit burglary?

Holding: No. Children under the age of 12 are incapable of committing crime.

The Defense of Duress

Elements of Duress vary from state to state, but generally include

Threats • Sometimes specified, sometimes not• Threats of serious bodily harm• Don’t have to be directed at the person who acted

Immediacy Instant harm, immediate harm, belief that person making

threats will carry the threats out immediately if the crime was not committed

Sometimes states limit duress to certain crimes or say duress is not applicable to some crimes

Example, in most states duress cannot be raised to a murder charge.

Most states require a reasonable belief that the threat is real

Defense of Intoxication Common Law approach

• Voluntary intoxication was not a defense/excuse to criminal behavior Accountability: Those who get drunk should take

the consequences of their actions Culpability: Criminal liability and punishment

depend on blameworthiness• Aggravation rather than an excuse for

criminal misbehavior Modern Trend

• To limit voluntary intoxication as a defense or mitigating factor in sentencing

Intoxication (cont.) Involuntary intoxication

• Common law and modern approach is to find that involuntary intoxication is a valid excuse and complete defense to criminal liability

• Defendants don’t know they are taking intoxicants

• Or Defendant’s were forced to take intoxicants Extreme conditions required

Some states allow defendants to show that their intoxication negated an element of the crime (they could show reckless but not intentional behavior, for example), and when allowed this could be a partial defense (failure of proof type of defense)

Alcohol and other intoxicants are treated similarly

Discussion ActivityJack has been charged with kidnapping and rape of a 25-year-old waitress. He allegedly sexually assaulted her while in her sport utility vehicle. He also allegedly punched her, pulled her hair and put a loaded gun in her mouth. Jack had recently been prescribed Zoloft, an anti-depressant, and had taken his prescribed dosage 2 hours before the alleged offense occurred. Jack’s defense attorney argues that Jack is not guilty due to involuntary intoxication, stating he had an abnormal reaction to the medication. Do you agree or disagree? Why or why not?

The Defense of Entrapment Entrapment argues government agents

got people to commit crimes they wouldn’t otherwise commit

Attitude toward the government’s use of tricks to induce people to commit crimes has changed over times• It’s okay, its not okay, it excuses liability, it

doesn’t excuse liability. No constitutional right not to be entrapped Affirmative defense created by statute Two approaches to entrapment

Entrapment (cont.) Subjective test of entrapment

• Looks at whether the defendant was predisposed to commit the crime

• The defendant has to prove the government pressured the defendant to commit crimes they wouldn’t have without pressure

• Question: where did the criminal intent originate

• Merely providing an enticement is not entrapment

Entrapment (cont.) Government can prove

disposition to commit crimes in one of the following ways: • Prior similar convictions• Willingness to commit similar offenses• Display criminal expertise in carrying out

the offense• Readiness to commit the crime

Case: Oliver v. U.S.

Facts: Oliver, the defendant, took a ten dollar bill from the pocket of an officer disguised as a vagrant. The money was protruding from the pocket of the decoy officer while conducting a “decoy operation”

Issue: Was Oliver entrapped? Holding: Yes. Government agents may not

employ extraordinary temptation to manufacture crime.

Case: DePasquale v. U.S.

Facts: DePasquale, the defendant, aided DeBelloy in taking money out of the hand of a decoy officer. DePasquale was charged and convicted of larceny

Issue: Was DePasquale entrapped? Holding: No. Did not meet the 2 elements

of entrapment

Entrapment (cont.) Objective test of entrapment

• Minority approach• Focuses on the actions that the government

took to induce the individuals to commit the crime

• Would a reasonable law-abiding citizen be tempted to commit the crime because of the government’s acts? (regardless of whether this defendant happened to be predisposed to commit the crime)

• Meant to deter unsavory police conduct

Syndrome Defenses A group of symptoms or signs

typical of a disease, disturbance, or condition (Webster)

License to kill and maim? (Dershowitz)

Some are taken seriously, and should be • Battered Woman Syndrome• Post Traumatic Stress Disorder (PTSD)

Syndrome Defense: PMS

• Shirley Santos case• Three obstacles to proving PMS• Defendants have to prove, despite lack

of medical research, that PMS is a disease

• Defendant has to suffer from PMS, and rarely to medical records document this condition

• PMS has to cause the mental impairment that excuses the conduct and there is too much skepticism

Discussion ActivityRead the following article discussing PTSDhttp://www.ptsd.ne.gov/what-is-ptsd.htmlDo you think PSTD is a valid defense from criminal conduct?Do you think PTSD will have an increase to the numbers of crimes committed in the U.S?Do you think PTSD will have an impact on the types of crimes we see committed in the U.S?

Case: State v. Phipps

Facts: Phipps, the defendant and career soldier, returned home from a tour in Desert Storm, killed Michael Pearson after learning his wife had been living with him and wanted a divorce. Phipps was found to have PTSD

Issue: Is PTSD a defense? Holding: Yes. PTSD could negate

premeditation and purpose to kill