Chapter Six

Defenses to Criminal Liability: Excuse

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.

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

Learning Objectives• Understand how insanity is not the equivalent of

mental disease or defect.• Understand how the right-wrong test focuses on

defect in reason and cognition.• Understand how the volitional incapacity 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.

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

Learning Objectives

• Understand the difference between diminished capacity and diminished responsibility and appreciate how they apply only to homicide.

• Understand 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.

Learning Objectives

• 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 Defenses

• Failure of Proof theory– These defenses excuse criminal conduct because the

prosecution has failed to prove the needed elements beyond a reasonable doubt• Example: 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• Example: 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

Insanity (continued)

• 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– Example: John Hinckley

• Some states have abolished insanity defense• Some states have adopted guilty but mentally

ill verdict

Four Tests of Insanity • 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• Substantial capacity test (aka MPC Test)-14

states, used to be the rule in the federal courts until Hinckley

• Product Test (aka Durham rule) – only New Hampshire

Tests of Insanity (continued)

• All tests look at defendant’s mental capacity• Right/wrong test focuses on reason/cognition,

or the capacity to determine right from wrong• Other tests focus on either reason or will

(volition)…the defendant’s power to control their actions

Right-Wrong Test• The Right-Wrong Test is also known as the M’Naghten Rule (Established

1843)– Defendant had a mental disease or defect at the time of the crime– The disease or defect caused the defendant not to know either

– the nature and quality of his or her actions OR – That what he or she was doing

• Definitions:– Mental disease does not include personality disorders (Psychopathic and

sociopathic Personality Disorders)– Mental defect refers to mental retardation or brain damage severe enough

to interfere with action or reason– “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 at he time of the act• Example think squeezing lemons when it’s victim’s head.

– Wrong• Legal wrong? Morally wrong? States vary

– People v. Schmidt (1915)…”Contrary to the laws of god and man”

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

• Generally a supplement to the right/wrong test• Focuses upon a defendants’s inability to control

impulses…Typically “Sudden Impulses”– 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 (1877) – Spells out Application

Irresistible Impulse Test (continued)

• Elements from Parsons– Mental disease caused the defendant to so far 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, crippling deterrence and retribution

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 (continued)

• A person is not responsible for criminal conduct if at the time of such conduct1. As a result of mental disease or defect2. He lacks substantial capacity3. Either to appreciate the criminality (wrongfulness)

of his conduct• Intellectual awareness alone isn’t enough to

create culpability4. Or to conform his conduct to the requirements of

law• The Substantial Capacity Test Removes the

sudden lack of control requirement

People v. Drew (1978)

• Drew became engaged in an argument at a bar, and subsequently assaulted police who responded to the scene.

• At trail, Drew pleaded Insanity (M’Naughten Rule) where the jury was instructed the burden of proof was on the defendant, and he was found guilty, despite unrebutted testimony by 2 expert Witnesses.

• The Appeals court reversed the judgment

Summary of case holding

• Court evaluated M’Naghten rule and set forth many reasons why it should be replaced—particularly in light of modern research

• Court said the test should be the Model Penal Code test and pointed out its advantages

• Court found that defendant could have been found not guilty under MPC test if it had been instructed as to that test (rather than M’Naghten)

• Dissent pointed out that those types of changes in law (abandoning one test and adopting another) should be left to the legislature NOT to the courts

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

• Focuses on acts that are the products or result of mental disease or defect to excuse criminal liability

• Extended beyond the purely intellectual knowledge into cognition and will

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 or Preponderance of evidence.

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– Diminished responsibility

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

• State v. Phipps (1994)– The defendant seeks to be punished for la 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

Age

• The excuse of age focuses on whether a 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)

Age (continued)

• 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

Age (continued)

• Modern Rules regarding age and capacity :– Check statutes to determine minimum age of

capacity– Some 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 younger or very reduced years

Age and the Jurisdiction 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)

– Judicial waiver—juvenile court judge exercises jurisdiction to transfer a juvenile to the adult court

State v. K.R.L. (1992)

• An 8 year old boy was convicted of residential burglary

• The conviction was appealed, on the basis of age and capacity.

• The court reversed the conviction.

Summary of case holding

• Washington’s law held that children under 8 were incapable of committing crimes; children between 8 and 12 were presumed incapable, but that the presumption could be removed by proof that they had sufficient capacity.

• State had to overcome presumption that KRL was incapable. (It bore the “significant burden.”)

• District court found K.R.L capable of committing crime but appellate court found insufficient evidence by state to overcome the presumption.

Age (continued)

• Other age-related issues–Can person be too old to commit a crime?• Example: Old man kills his wife when she

brings back onion rolls instead of bagels…prosecutor declines charges

–Behaviors only criminal for youth• People v. Munoz (1961)—possess switchblade

when under 21

Duress • 4 Elements of the Defense 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…the threat must be imminent• 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 as a defense to a

murder charge.– Most states require a reasonable belief that the threat is

real

Distinguish between Duress and Necessity

• Duress is an excuse, necessity is a justification• Duress always involves threat of injury made

to person accused of committing crime• Necessity presents choices but doesn’t

necessarily involve a threat by another to “commit the crime or else.”

• These are not mutually exclusive

Intoxication

• Common Law approach– Voluntary intoxication was not a defense/excuse

to criminal behavior– (Those who get drunk should take the

consequences of their actions)– Aggravation rather than an excuse for criminal

misbehavior• Modern Trend– To limit voluntary intoxication as a defense or

mitigating factor in sentencing

Intoxication (continued)

• 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

Intoxication (continued)

• 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)– But see Arizona’s statute specifically saying that

temporary voluntary intoxication is not a defense for any criminal act or requisite state of mind

• Alcohol and other intoxicants are treated similarly

Entrapment

• 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

1. Subjective Test2. Objective Test

Entrapment (continued)

• 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

– The Question: Where did the criminal intent originate?• Merely providing an enticement is not entrapment

Entrapment (continued)

• Subjective test of entrapment–Factors considered by the court• Defendant’s prior convictions for similar

offenses• Defendant’s willingness to commit similar

offenses• Defendant’s display of criminal expertise

in carrying out the offense• Defendant’s readiness to commit the

crime

Sherman v. U.S. (1958)

• After weeks of persistent begging and pleading by a federal informant, Sherman procured heroin for the government agent and was arrested and Convicted.

• Sherman appealed on the basis of entrapment

• The US Supreme Court agreed.

Oliver v. U.S. (1985)

• Oliver was arrested for larceny from the person after he pulled a $10 bill openly protruding from the pocket of a police decoy who he first attempted to assist.

• Oliver was convicted and appealed on the basis of entrapment.

• The court agreed.

DePasquale v. U.S. (1988)

• As part of a pick pocketing team working together, selected a decoy officer, posing as tourist, and after repeated efforts, reached into her pocketbook, opened a zippered pocket, and removed cash bait.

• DePasquale was convicted by a jury, and appealed on the basis of entrapment.

• The court disagreed and upheld the conviction.

Summary of entrapment case holdings

• Subjective test of entrapment– Cases:

• Sherman v. U.S.-defendant committed to drug treatment and intent originated with the government, defendant only acquiesced after weeks of begging and pleading by K.

• Oliver v. State—police tempted man who apparently did not approach the decoy to harm him, but rather to help him.

• DePasquale v. State—decoy simply provided the opportunity to commit the crime by DePasquale who was predisposed to commit the crime.

– Factors considered by the court• Defendant’s prior convictions for similar offenses• Defendant’s willingness to commit similar offenses• Defendant’s display of criminal expertise in carrying out the

offense• Defendant’s readiness to commit the crime

Entrapment (continued)• Objective test of entrapment– Minority approach

– Focuses on the actions that the government (the police) 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

Syndrome Defenses

• 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 do

medical records document this condition• PMS has to cause the mental impairment that excuses

the conduct and there is too much skepticism

Syndrome Defenses

• Post-Traumatic Stress Syndrome– Defense arose after Vietnam war– Emotional and mental casualties that were more

serious and lasting than physical impairments from war injuries.

– Treated by states that allow it as either a failure of proof defense or an affirmative defense

State v. Phipps (1994)

• David Phillips, a veteran of Desert Shield who was suffering from PTSD was convicted of the first degree murder of his wife’s lover.

• Phillips appealed on the basis of the Jury Instruction (The instruction being that PTSD is not a defense) virtually nullifying the expert testimony which he sought to relate to his mental state on the element of intent (premeditation and purpose)

• The court agreed.

Summary of case holding • Defendant argued that his PTSD kept him from formulating

the specific intent to commit first degree murder, and that the court erred in instructing the jury that PTSD was not a defense.

• He argued that the jurors should have been allowed to consider whether he had the requisite mens rea. (He put on evidence regarding his lack of specific intent)

• The appellate court held the trial court’s comments about the non-existence of PTSD were erroneous and didn’t reflect state law. The jury should have been able to consider the testimony for the purpose of determining whether the state failed to prove specific intent.