Chapter Six

1. Chapter Six Defenses to Criminal Liability: Excuse Joel Samaha

2. 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.

3. 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.

4. 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

5. 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

6. 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

7. 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

8. 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 wrong • Will: power to control actions

9. 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?

10. Discussion Activity Watch 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

11. 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.

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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 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 away or very reduced years

19. 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

20. 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.

21. 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

22. 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

23. 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

24. Discussion Activity Jack 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?

25. 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

26. 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

27. 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

28. 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.

29. 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

30. 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

31. 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)

32. 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

33. Discussion Activity Read the following article discussing PTSD http://www.ptsd.ne.gov/what-is-ptsd.html Do 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?

34. 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