Criminal Law CJ 220

1. Criminal Law CJ 220 Chapter 6 Defenses to Criminal Liability: Excuses Andrew Fulkerson, JD, PhD Southeast Missouri State University

2. Excuses - Justification • Ds who plead justification accept responsibility for acts, but claim act was right • Ds who plead excuse admit act was wrong, but claim they not responsible

3. Excuse Defenses • Insanity • Diminished capacity • Intoxication • Age • Mistake • Entrapment

4. Insanity Defense • Rarely used, even more rarely successful • Used in less than 1% of cases • Only 26% of cases where it raised is insanity defense successful

5. Insanity Defense • 80% of those successful insanity defenses, it is result of agreement of prosecution and defense that it is appropriate • Where it is successful,  rarely goes free-institutionalized through civil commitment

6. Right-Wrong Test / M’Naghten Rule • Capacity to tell right from wrong – reason

7. Right-Wrong Test / M’Naghten Rule • 1843 Daniel M’Naghten suffered delusion that Prime Minister Robert Peel was going to kill him • M’Naghten shot at Peel in what he believed was self-defense, but killed his secretary • M’Naghten tried for murder; found not guilty by reason of insanity • On appeal to House of Lords, court established the right-wrong test, M’Naghten rule of insanity\

8. Right-wrong test elements • Mental disease (e. g. paranoia) or defect (e.g. retardation or brain damage) • Cognitive impairment so that defendant doesn’t know • Nature and quality of her act (doesn’t know what she’s doing) or • Difference between right and wrong • Mental disease or defect causes the cognitive impairment

9. Definititions • “Mental disease”– psychosis such as paranoia and schizophrenia • “Mental defect”– retardation so severe person does not know what hey are doing, or that it is wrong. • “Know”– simple cognition (some states); ability to understand significance of the act (other states) • Nature and quality of the act”– know what you are doing

10. Insanity Defense • Section 552.030.1 Missouri Code • Person not responsible for criminal conduct if, at time of conduct, as result of mental disease or defect, he was incapable of knowing and appreciating the nature, quality or wrongfulness of conduct.

11. Defenses • State v. Odell, 676 N.W.2d 646 (Minn. 2004)

12. Durham Rule • replaced the right-wrong test of insanity with the product test of insanity • acts that are product of mental disease or defect excuse criminal liability • Only two states (New Hampshire and Maine, and federal Court of Appeals for District of Columbia accepted this rule, and all but New Hampshire later gave it up. • Argument in favor of the rule, says that a person may know something is wrong but still fail to fully appreciate the criminality of the act.

13. Irresistible impulse test • This test focuses on will (volition) • Three elements • Mental disease or defect • Volitional impairment so that the defendant can’t control her conduct • Mental disease or defect caused inability to control conduct • D knows what he is doing and that it is wrong, but cannot comparison the impulse

14. Irresistible impulse test • Critics: hard for juries to distinguish between “irresistible impulses” and “unresisted impulses.”

15. Irresistible impulse test • John Hinckely found not guilty by reason of insanity of attempting to kill Pres. Reagan using this test of insanity. • Subsequently, some states abolished this test. • Congress amended US Code to limit insanity defense to the M'Naghten Rule-  unable to appreciate nature and quality of wrongfulness of his acts as result of mental disease or defect. Eliminates the product of insanity test and the irresistible impulse test.

16. Substantial capacity test • This test focuses on both reason and will. • Elements • Mental disease or defect • Lacks substantial capacity • Either to appreciate the criminality of his conduct, or • Conform his conduct to the requirements of the law • Mental disease or defect caused the substantial lack of capacity

17. Criminal Law CJ 220 Chapter 8 Defenses to Criminal Liability Andrew Fulkerson, JD, PhD Southeast Missouri State University

18. Defenses • People v. Drew, 583 P.2d 1318 (Cal. 1978)

19. Burden of Proof • Current federal standard: D who asserts insanity defense must prove the defense by “clear and convincing evidence.” • Most states do not follow federal rule. • Most states call insanity an “affirmative defense” • If D offers any evidence of insanity, then burden shifts to govt. to prove that D was sane. • Burden of govt to prove insanity varies from state to state. • by preponderance • by clear and convincing evidence • beyond reasonable doubt

20. Diminished Capacity • Evidence that D suffered mental disease or defect, but not enough to reach level of insanity defense. • Used to negate mens rea for offense. • D could not form required intent to commit crime

21. Diminished Capacity • Most states do not use this defense. • Model Penal Code does allow evidence of diminished capacity to negate mens rea • The few states that allow diminished capacity allow it only to reduce the level of offense in homicide cases • May be used to reduce Murder 2 to Murder 2 • Few states allow it to reduce Murder 1 or 2 to Voluntary manslaughter

22. Defenses

23. Age • At what age does child have mental capacity to be responsible for crime?

24. Age • Common law • under 7 : irrebuttable presumption that child could not form criminal intent • 7 to 14 yrs: rebuttable presumption that child could not form criminal intent. Prosecution could rebut the presumption of no criminal intent, and show that the child had mens rea for criminal liability • over 14 years: child conclusively had capacity to form criminal intent.

25. Age • Half states follow common law approach, with modification of age breaks. • Missouri - infancy no defense • under 12 - exclusive jurisdiction of juvenile court • 12-17 may be certified to circuit court • over 17 - treated as adult

26. Waiver to Adult Courts • Judicial waiver- juvenile court judge - discretion to transfer case to adult court. • Prosecutorial waiver - • Legislative waiver

27. Kent v. U.S. (1966) factors for waiver decision • Seriousness of offense • Whether offense committed in aggressive, violent, premeditated manner • Offense against person • Amount of evidence against the juvenile • Sophistication and maturity of juvenile • Prior record • Threat to public safety

28. Defenses • State v. K.R.L., 840 P.2d 210 (Wash. App. 1992)

29. Duress • Defense of duress also called compulsion • Grounds • No actus reus because no voluntary act (not apply when people put themselves in position to be coerced) • No mens rea-the criminal intent is that of the person who forces

30. Duress • (FOR) Defense is good public policy. Law cannot force one to act against their self-interest • (AGAINST) Not allowing defense encourages people to resist pressure to commit crime. Law should stand as symbol against temptation

31. Duress • Defense of duress varies among jurisdictions • Some states allow defense only for minor offenses • Some states require threats to kill • Some allow threats of bodily harm • None allow threats to property • Timing of threat is a factor-most states threat must be imminent.

32. Criminal Law CJ 220 Chapter 8 Defenses to Criminal Liability Andrew Fulkerson, JD, PhD Southeast Missouri State University

33. Intoxication • Two approaches to intoxication as a defense. • Accountability: one who gets drunk should assume responsibility for actions that occur while he drunk • Culpability: criminal liability depends upon blameworthiness

34. Intoxication • Common law approach based upon accountability. Voluntary intoxication is more of an aggravating factor rather than a mitigating factor. • Most states follow rule that voluntary intoxication is not a defense to crime, and may not be used to negate mens rea. • Involuntary intoxication is always a defense.

35. Intoxication • People v. Velez, 221 Cal.Reptr. 631 (1986)

36. Mistake • Ignorance of law is not an excuse. • Mistake of fact may be a defense. • Reasons for defense of mistake of fact • No intent to commit crime • Encourages people to know the law • Most people are ignorant of many parts of the law Cannot allow people define law for themselves

37. Entrapment • Govt agents get people to commit crimes they would not have commited • Police should catch criminals but not at expense of law abiding people. • Entrapment developed due to difficulty in enforcing consensual crimes like drug offense, prostitution, pornography, gambling.

38. Entrapment • Distinguish between law enforcement encouragement and entrapment. • Encouragement- officers: • pretend to be victims • entice suspects to commit crimes • communicate the enticement to suspects • influence the decision to commit crime

39. Entrapment • Active encouragement- • make repeated requests to commit crime • form personal relationships with suspects • appeal to personal considerations • promise benefits from the crime • supply contraband • help obtain contraband • Encouragement can cross the line to entrapment

40. Entrapment • Majority view: Subjective test of entrapment • D had no initial desire to commit crime • Govt. induced D to commit the crime • Key question-where did the criminal intent originate, with D or with govt. agent?

41. Entrapment • Burden of proof: • If D offers proof that he was entrapped, then • Burden shifts to prosecution to prove that D committed crime of his own will. Pros. Can overcome defense of entrapment by following: • D had prior convictions for the offense • D’s willingness to commit the offense • D’s display of expertise in carrying out the offense • D’s readiness to commit the crime.

42. Defenses • Oliver v. State, 101 Nev. 308, 703 P.2d 869 (1985)

43. Defenses • Depasquale v. State, 104 Nev. 338, 757 P.2d 367 (1988)

44. Syndromes • “Syndromes” affecting mental state • Battered spouse syndrome (has some support) • PMS (has less legal support) • Cultural norms defense (what is acceptable in one foreign culture is not in American culture, and D’s have not assimilated into US culture)

45. Syndromes • State v. Phipps, 883 S.W.2d 138 (Tenn.App. 1994)