DEFENSES TO CRIMINAL CULPABILITY Chapter 4 DEFENSE Legal

DEFENSES TO CRIMINAL CULPABILITY Chapter 4

DEFENSE Legal challenge by the defendant May result in reduced charge or acquittal May consist of denial of factual allegations of prosecution Affirmative defense § Offers new facts in effort to negate charges Very important but not always easily understood § Not always agreement on vast array

THE BURDEN OF PROOF AND PRESUMPTIONS Defense has burden of proving any defenses he or she offers § Standard of proof is preponderance of evidence § On whole , evidence supports fact or facts in question Defense can be partial or complete § Reduce charge § Defeat charge Issues complicated due to concept of presumption

THE BURDEN OF PROOF AND PRESUMPTIONS Presumption § § Assumption of fact based on other facts Not a fact but inference from a fact Best known is presumption of innocence Some cannot be refuted, though this is rare § Conclusive presumption Presumption of innocence may be used to illustrate some problems that arise in allocating burden of proof § Hard for prosecutors

THE BURDEN OF PROOF AND PRESUMPTIONS Legislature can try to ease burden by drafting statutes that shift burden of proof on an element to defense § Not constitutionally permitted Problems arise when statute tries to ease burden of proof from prosecutor by use of presumptions

TYPES OF DEFENSES Important to recall meaning and purpose of criminal law Moral or blameworthy element of punishment through criminal law is critical to topic of defenses Lines difficult to draw in particular cases Jurisdictions differ in statutory definitions and judicial interpretations of defenses

TYPES OF DEFENSES: IGNORANCE OR MISTAKE Ignorance generally not acceptable reason for violating law Mistake defense permitted under some circumstances § Pertains to situations in which actors engage in acts they claim they would not have committed had they known behavior was criminal Lack of knowledge may constitute mistake of law or mistake of fact

TYPES OF DEFENSES: IGNORANCE OR MISTAKE Mistake and ignorance of fact § Involves perceptions of world and empirical judgements derived from those perceptions Mistake and ignorance of law § Involve assessment of whether , given certain set of acts, actor would not be violating law Mistake defense may be used to negate mental element of a crime

TYPES OF DEFENSES: IGNORANCE OR MISTAKE Mistake defense may be applied in two situations § When individuals do not know law exists § Lambert v. California (1957) § When individuals are mistaken about an additional element which causes them to misunderstand legal significance of their conduct Can be used as partial defense in some jurisdictions in statutory rape cases

TYPES OF DEFENSES: DURESS Condition in which individual is coerced or induced by wrongful act Defendants must prove they were threatened by unlawful force when they committed crimes for which they are advancing defense § Most courts hold force must be such that it would cause serious bodily injury or death § Threat of harm must be imminent § Most statutes require threat is to actor rather than third party May not be available when defendants recklessly place themselves in positions in which it is probable they will be subjected to duress

TYPES OF DEFENSES: NECESSITY Refers to act that, though criminal in other circumstances, may not be considered criminal because of compelling force of circumstances In most cases, coercive forces in successful case are forces of nature rather than humans § Distinction not always clear Based on assumption person ought to be free to commit some crimes in order to prevent greater harm Successful defenses need not be based on avoiding human injury or death § Can be used when avoiding property damage

TYPES OF DEFENSES: NECESSITY In rare cases, defense permits serious crimes § When necessary to avoid greater harm § Defense not permitted if legal alternative is available that would prevent greater harm Not available for those who created necessity to choose between two evils Unsuccessful use of defense § Defense rejected by court in 2015 § Case of Gigi Jordan

TYPES OF DEFENSES: INFANCY English common law provided children below age of seven could not be convicted of crime § Conclusive presumption they were not capable of forming requisite intent Presumption could be refuted in cases involving children between the ages of 7 and 14 Rebuttable presumption § Presumption that may be refuted by evidence § Existed for children age 14 and over § Could be charged as adults provided enough evidence was prevented to overcome presumption

TYPES OF DEFENSES: INFANCY Most jurisdictions retain some of these distinctions § Less important now due to juvenile courts Many states permit waivers to adult criminal courts of those accused of serious crimes In recent years, U. S. Supreme Court as faced infancy issue in several cases involving sentencing § See Focus 4. 1

TYPES OF DEFENSES: INSANITY Involves state of mind or mental condition that negates defendant’s responsibility for his or her actions Controversial defense Used in less than one percent of all felony cases Most who assert defense are not successful Term insanity is social and legal term § Some assume it to be medical term synonymous with mental illness

TYPES OF DEFENSES: INSANITY When used successfully, results in an acquittal § Does not always result in release of defendant § Some confined to mental hospital for treatment § See Focus 4. 2 Some most recent cases illustrate lack of success Defense and issue of competency to stand trial were focus of 2015 trial of James E. Holmes

TYPES OF DEFENSES: INSANITY TESTS: M’NAGHTEN RULE Traditional and most frequently used test Also know as right-versus-wrong rule Comes from English case M’Naghten (1843) Under rule, defendant must show that as result of defect of reason from disease of mind, defendant: 1. 2. Did not know nature and quality of act committed Did not know act was wrong

TYPES OF DEFENSES: INSANITY TESTS: M’NAGHTEN RULE Main problems with rule have centered on definitions § § Little case law on meaning of phrase disease of the mind Meaning of word know is more serious problem Some courts submit case to jury without defining terms Other words and phrases may present interpretation problems Some critics argue rule emphasizes cognitive part of personality to exclusion of emotional elements § Ability to control behavior not determined solely by cognition

TYPES OF DEFENSES: INSANITY TESTS: IRRESISTIBLE IMPULSE TEST Defendant was unable to control their criminal acts even though they knew acts were wrong Some states have adopted this approach either by statute or court decision Definition of irresistible impulse varies

TYPES OF DEFENSES: INSANITY TESTS: DURHAM RULE Accused not criminally responsible if unlawful act was product of mental disease or mental defect Comes from Durham v. United States (1954) Known as product rule Distinguishes disease from defect Thought rule would assist in eliminating those who are not punishable because they lack moral blame Rule not widely adopted Durham case overruled in 1972 § United States v. Brawner (D. C. Cir. 1972)

TYPES OF DEFENSES: INSANITY TESTS: SUBSTANTIAL CAPACITY TEST Developed by American Legal Institute (ALI) scholars Provides as follows: § Person not responsible for criminal conduct if at time of such conduct as result of mental disease or defect he lacks substantial capacity either to appreciate criminality of conduct or conform conduct to requirements of law § Terms “mental disease or defect” do not include abnormality manifested only by repeated criminal or otherwise antisocial conduct

TYPES OF DEFENSES: INSANITY TESTS: SUBSTANTIAL CAPACITY TEST Test is broader than M’Naghten rule in substitution of appreciate for know Appropriate to introduce expert testimony Test appears to be a compromise Second paragraph written to exclude sociopathic or psychopathic personalities § Paragraph is controversial and rejected by some jurisdictions § Adopted by most jurisdictions that use test

TYPES OF DEFENSES: INSANITY TESTS: GUILTY BUT MENTALLY ILL (GBMI) Alternative to insanity defense Permits finding defendants mentally ill but not insane at time they committed crime(s) charged Michigan statute provides for finding of GBMI if jury is convinced of all of following: § Defendant is guilty of offense § Defendant was mentally ill at time of commission of offense § Defendant not legally insane at time of commission of offense Those found guilty (or plead guilty) may receive sentence that could be imposed under guilty plea alone Difference is obligation of Department of Mental Health to provide treatment while defendant is under its jurisdiction

TYPES OF DEFENSES: INSANITY TESTS: GUILTY EXCEPT INSANE Other states have adopted versions of Michigan GBMI statute Arizona § Guilty except insane § Finding under this statute could result in confinement in state or mental health facility or psychiatric facility of correctional system § Portions of statute upheld by U. S. Supreme Court § Clark v. Arizona (2006)

TYPES OF DEFENSES: ABOLITION OF INSANITY DEFENSE Dissatisfaction with insanity defense has led some jurisdictions to abolish it Idaho Code § “Mental condition shall not be a defense to any charge of criminal conduct” § Code does allow admission of expert testimony to negate intent required for charged offense Some states permit evidence of mental illness to be admitted only for purpose of determining appropriate sentence

TYPES OF DEFENSES: DIMINISHED CAPACITY OR PARTIAL RESPONSIBILITY Those who do not wish to pursue insanity defense may attempt to establish similar defense Defense available when it can be shown defendant’s mental illness, not sufficient to establish insanity, created such lack of capacity defendant could not have achieved requisite intent at time of crime Some jurisdictions abolished this defense

TYPES OF DEFENSES: AUTOMATISM Defense raised by those who can offer evidence they were unconscious or semiconscious when they engaged in an illegal act Can constitute physical problem § If defendant knew or should have known problem existed, would probably not be applicable Can also constitute emotional trauma § Some situations do not apply Preferred by defendants over insanity due to complete acquittal and release of defendant if successful § May result in civil commitment proceedings

TYPES OF DEFENSES: ENTRAPMENT Only applies to actions by government agents or their employees § May be used when agents induce defendant to commit crime he or she would not have been inclined to commit without inducement Successful defense requires proof of two elements: § Government agent induced defendant to commit the crime § Defendant was not otherwise predisposed to the commit crime

TYPES OF DEFENSES: ENTRAPMENT Police may go undercover or may use informants to gain information about criminal activity § Both acceptable as long as police do not go too far § Sorrells v. United States (1932) There are limits to what government may do without committing entrapment § Sherman v. United States (1958) § See Focus 4. 3

TYPES OF DEFENSES: OUTRAGEOUS GOVERNMENT CONDUCT Similar to defense of entrapment Based on assumption that some behavior is so offensive and outrageous that when committed by government agent, cannot be basis for legally collecting evidence to convict defendant United States v. Mosley (10 t h Cir. 1992) § Behavior “must be shocking, outrageous, and clearly intolerable” United States v. Harris (10 t h Cir. 1993) United States v. Tucker (6 t h Cir. 1994)

TYPES OF DEFENSES: SELF-DEFENSE Defense of self and others permitted under certain circumstances General rule is person is permitted to use force to repel actions of another under following circumstances: § § Individual has honest and reasonable belief he or she is Facing unlawful threat of imminent death or serious bodily injury By an aggressor, and Force used was reasonable under circumstances

TYPES OF DEFENSES: SELF-DEFENSE Word reasonable is important § Establishes objective test In some jurisdictions, rules may be different for police officers § May be held to subjective standard § Threatened harm must be imminent and unlawful § Actor must not have provoked attack Does not always include right to use deadly force

TYPES OF DEFENSES: SELF-DEFENSE Deadly force may be limited to situation in which actors have reasonable beliefs it is necessary to protect them from harm § Harm that might cause serious bodily injury or death Model Penal Code definition and use Some jurisdictions require person to retreat before using deadly force § Retreat doctrine § Some have requirements

TYPES OF DEFENSES: SELF-DEFENSE Castle doctrine § Exclusion of retreat doctrine from home Some have retreated from castle doctrine in recent years § Florida Some have extended castle doctrine to social guests § Others are reconsidering stand-your-ground laws American Bar Association in 2013 appointed National Task Force on Stand Your Ground Laws § Presented findings in 2015 and 2016

TYPES OF DEFENSES: DEFENSE OF OTHERS Rules governing use of force to protect others are similar to those for self-defense Actor is justified in using force to protect others if conditions exist that would justify use of force for self-defense for actor and threatened person if believed necessary to protect other person Generally not required special relationship exist between party using force and one being protected

TYPES OF DEFENSES: DEFENSE OF PROPERTY Permitted by jurisdictions Rules more stringent than those for self-defense or defense of others § Differ among jurisdictions Well accepted that deadly force is not allowed Reasonable force permitted to protect from immediate criminal acts of others

TYPES OF DEFENSES: DEFENSE OF PROPERTY Property owner not privileged to use against trespasser if person would be placed in substantial danger of serious bodily injury upon being excluded from property § Rule prohibits use of booby traps or other devices § Can use reasonable devices § Not designed to create serious bodily injury or death § Reasonable care taken to inform potential intruders devices are present

TYPES OF DEFENSES: LAW ENFORCEMENT Conduct criminal under most circumstances may be justified and therefore not criminal when committed by law enforcement officer or private citizen attempting to enforce law Is limit to what they can do to gain evidence Force may be used by officers in certain circumstances § Most critical issue is use of deadly force

TYPES OF DEFENSES: LAW ENFORCEMENT Under common law, officers permitted to use deadly force against fleeing felons Rule changed in Tennessee v. Garner (1985) § U. S. Supreme Court acknowledged importance of crime prevention § Ruled fleeing felon rule unconstitutional

TYPES OF DEFENSES: INTOXICATION Condition that exists when person consumes alcohol or other drugs to extent his or her mental or physical abilities are significantly affected Law recognizes limited intoxication defense § Permitted in some instances which there is evidence it created state of mind similar to that of insane person § Defendant could not form requisite intent required for crime § Can be used in conjunction with irresistible impulse test Defense not recognized in situations in which intoxication is element of crime

TYPES OF DEFENSES: INTOXICATION Defense divided into two types: § Involuntary § Intoxication without choice or will § See Focus 4. 4 § Voluntary § Intoxication brought on by free will § Not a defense in most jurisdictions § In those that have it, cannot negate general intent § May negate specific intent

TYPES OF DEFENSES: DOMESTIC AUTHORITY Stems from ancient laws § Bradley v. State (Miss. 1824) Husbands right to administer such discipline not recognized under modern common or statutory law Current law does recognize right of parents to discipline their children § Some can act in place of parents § In loco parentis

TYPES OF DEFENSES: DOMESTIC AUTHORITY Teachers may also discipline their students Falls under domestic authority provision § Discipline must be reasonable Some states specify by statute teachers may not use corporal punishment § Nebraska supreme court upheld constitutionality of their statute § Daily v. Board of Education of Merrill School District (Neb. 1999)

TYPES OF DEFENSES: DOMESTIC AUTHORITY U. S. Supreme Court has ruled discipline of schoolchildren may include paddling § Ingraham v. Wright (1977) Domestic authority can exist in other situations as well § Persons in charge of trains, theaters, boats, airplanes, and other similar places § Prison officials over inmates § Discipline must be reasonable under all situations

TYPES OF DEFENSES: CONSENT AND CONDONATION Usually not defenses to a crime Issue of consent arises frequently in cases of euthanasia § Frequently person killed is a relative § Law does not permit this cooperation and agreement to negate criminal act In some cases , consent may negate an element of a crime Consent may also be defense to less serious acts § Lawful sports activity § Consent must be given voluntarily and knowingly

TYPES OF DEFENSES: CONSENT AND CONDONATION Condonation § Forgiveness of criminal act by alleged victim Not generally defense to crime in United States § Does not eliminate criminal responsibility of perpetrator for crimes considered offenses against society as well as individual victims § Sometimes victims of less serious crimes permitted to negotiate civil settlements with assailants

TYPES OF DEFENSES: SYNDROME AND STRESS DISORDER DEFENSES Battered Person Syndrome § Syndrome arising from cycle of abuse by special person that leads battered person to perceive violence against abuser is only way to end abuse § In some cases, battered person murders batterer § In some jurisdictions, evidence of battered person syndrome constitutes defense to crime § Element of imminent danger may not be present § Can be used as defense or to reduce sentence after conviction

TYPES OF DEFENSES: SYNDROME AND STRESS DISORDER DEFENSES Extreme Emotional Disturbance § Another type of stress defense § Oregon statute Posttraumatic Stress Disorder (PTSD) § Disorder in which stress is experienced by people who have suffered severe trauma § Symptoms include nightmares, feelings of guilt, disorientation, and reliving the traumatic event(s) § Argued victims of this disorder should not be held accountable for criminal acts because they cannot control their behavior

TYPES OF DEFENSES: SYNDROME AND STRESS DISORDER DEFENSES Posttraumatic Stress Disorder (PTSD) § Studies indicate most likely to occur in among veterans § War combat syndrome § In cases involving combat stress, PTSD expert testimony may be admitted to how defendant was in dissociative state § State v. Felde (La. 1982)

TYPES OF DEFENSES: SYNDROME AND STRESS DISORDER DEFENSES Rape Trauma Syndrome § § § Stress that occurs after forced sex Evidence of syndrome permitted in increasing number of courts Numerous symptoms often present Use of evidence is not limited to female victims Excerpts from cases

TYPES OF DEFENSES: SYNDROME AND STRESS DISORDER DEFENSES Postpartum Depression (PPD) Syndrome § Disorder that some women experience after giving birth § American Psychiatric Association reports approximately three-fourths of all women suffer “baby blues” after giving birth § Most recover in few days § Between 10 and 20 percent experience depression for longer period