Crim: Defenses

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Excuse

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An excuse defense is one that indicates that, although the actor committed the elements of the offense, and although his actions were unjustified, the law does not blame him for his wrongful conduct. The acquittal does not mean that what the person did was good, permissible, or tolerable—quite the opposite.

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Justification

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A justification renders a nominal violation of the criminal law lawful and therefore exempt from criminal sanctions.

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Justification vs. Excuse

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A justification tends to focus on the wrongfulness of an act or a result; an excuse defense focuses on the actor. The distinction between the two categories of defenses is an important one; it makes a considerable difference to say that an outcome, such as the death of another person, is good (or at least, not bad), as with a claim of self-defense, as distinguished from the claim that the result of the defendant’ conduct was wrong, but that we believe the defendant should not be blamed for her wrongful conduct.

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Duress

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Duress is a threat made by another human being to use force against the defendant or another unless the defendant commits the offense.

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Necessity

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The defense of necessity is available when the accused acted in the reasonable belief that perpetration of the offense would prevent the occurrence of a greater harm or evil.
Necessity is raised only when the pressure to commit the offense is created by the physical forces of nature. If pressure is exerted by other persons, the accused may have the defense of duress, but he cannot escape liability on grounds of necessity.

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Insanity Defense

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A defendant is entitled to an acquittal (usually pursuant to a verdict of NGRI) if, at the time of the crime, he was so impaired by mental illness or retardation as to be “insane” within the meaning of the law.

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Insanity vs. Incompetency to Stand Trial

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Insanity controls the defendant’s state of mind at the time of the crime and must be distinguished from “incompetency to stand trial,” which concerns the defendant’s condition at the time of the trial. Unlike insanity, incompetency to stand trial is not a defense, but it requires that the proceedings be postponed until such time as the defendant regains his competency.

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Insanity vs. Diminished Capacity

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Insanity must be distinguished from “diminished capacity.” The rule of diminished capacity permits a defendant to introduce evidence of mental impairment to show that he lacked the mens rea required for a crime. Insanity, however, is not invoked to disprove mens rea, but rather to show that the defendant lacked the basic capacity to understand that what he was doing was wrong or (in some jurisdictions) to control his conduct.

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Conditions Giving Rise to Insanity

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A traditional mental illness, such as psychosis, can be a basis for an insanity defense.
Many jurisdictions follow the MPC code and provide that the insanity defense cannot be based on “repeated criminal or otherwise antisocial conduct.” This is probably intended to mean that so-called psychopaths are not eligible for the insanity defense. But mental retardation can, if it satisfies the applicable test, render the defendant legally insane.

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Insanity Defense: Cognitive vs. Volitional Components

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The basic issue that divides jurisdictions is whether the legal standard for insanity should be limited to the defendant’s thinking or reasoning abilities (“cognitive impairment”) or should also be permitted based on the defendant’s loss of ability to control his conduct (“volitional impairment”).

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M'Naghten Test

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The M’Naghten test excuses a defendant from criminal liability if, at the time of the crime, he was “laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know what he was doing was wrong.

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Full M'Naghten

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The full M'Naghten test includes both a cognitive incapacity prong and a moral incapacity prong.

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Partial M'Naghten

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Some jurisdictions have eliminated the congitive impairment prong, excusing a defendant only if he suffers from moral incapacity.

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M'Naghten-- Loss of Control Irrelevant

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Under M’Naghten, the defendant’s ability or inability to control his conduct is not relevant. If the defendant could reason and think about his conduct, he is not entitled to acquittal on the ground that mental impairment deprived him of his ability to avoid committing a crime.

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Criticisms of M'Naghten

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The basic criticism of M’Naghten is that it is so limited that it permits conviction of some impaired persons who, because of their illness, could not have avoided committing crimes and thus are not morally blameworthy despite their actions. Some people experience severe impairments that affect only their ability to exercise control over their conduct, yet the M’Naghten test provides them with no defense on this ground.

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Irresistable Impulse Test

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A few jurisdictions added to the M’Naghten test by also permitting legal insanity to apply to cases in which mental illness produced an “irresistible impulse” to act. This component, which adds severe volitional impairment to the insanity test, is generally satisfied if the defendant persuades a judge or jury that he would not have committed the crime even if a policeman were at his side.

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MPC/ALI Test

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The MPC test provides: “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 of his conduct or to conform his conduct to the requirements of law.”

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MPC/ALI test-- Expansion

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The MPC test expands the test of legal insanity significantly. First, it expands the kinds of psychological impairments that can excuse a defendant; now volitional as well as cognitive disability qualifies. Second, the MPC test does not require total impairment; instead, if a person “lacks substantial capacity,” he may be excused.

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The Federal Test

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It is an affirmative defense to any federal prosecution under any federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the quality or the wrongfulness of his acts. Mental disease does not otherwise constitute a defense.

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Federal Test-- Restriction

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This new insanity test is tougher than even the M’Naghten test adopted more than a century ago. The defendant must now suffer from a
severe mental disease or defect.” Moreover, it removes the volitional component of the ALI/MPC test.

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Guilty But Mental Ill (GBMI)

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The GBMI defense permits a jury to find a defendant who raises the insanity defense “guilty but mentally ill” rather than NGRI. A GBMI verdict determines that the defendant is responsible for committing the crime but also recognizes that he was mentally ill at the time.

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Effect of Finding GBMI

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A defendant found guilty but mentally ill is sentenced under regular sentencing provisions. If sentenced to imprisonment, however, the defendant is to be given whatever treatment is indicated. If probation is imposed, treatment may be required as a condition of probation.

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GMBI-- Pro and Con

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Supporters argue that the defense enhances public safety by permitting dangerous mentally ill individuals to be confined in prison rather than prematurely released from mental health facilities. Critics claim that the GBMI defense requires the jury to consider an issue that is not relevant to guilt, sentencing, or release. Critics also claim that the GMBI defense confuses the jury and invites compromise verdicts, thereby allowing juries to avoid the difficult question of whether a mentally ill offender should be held criminally responsible.

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Diminished Capacity

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(1) The use of evidence of mental abnormality or illness to negate mens rea. This would typically result in a lesser offense (e.g., manslaughter instead of murder); (2) To show that the defendant lacked the capacity to form the required intent. For example, evidence that defendant lacked the capacity to premeditate, or deliberate. This would typically result in an acquittal; (3) To try to establish “diminished responsibility.” Sometimes thought of as a back-door “mini” insanity defense that could be used, for example, to reduce murder to manslaughter.prove that the defendant did not have, or could not have formed, the specific intent necessary for the crime charged. This is called the doctrine of "diminished capacity" because it permits the use of evidence to establish that the defendant's capacity was so diminished that he could not have formed the requisite mens rea.

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Diminished Capacity vs. Insanity

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The critical distinctions between diminished capacity and insanity are that diminished capacity is a partial, negating defense (negates an element of the state's case) with the burden on the state to show that the defendant acted with the requisite state of mind while insanity is a complete but affirmative defense - the defendant bearing the burden of proving that he was legally insane.

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Guilty But Mental Ill (GBMI)

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The GBMI defense permits a jury to find a defendant who raises the insanity defense “guilty but mentally ill” rather than NGRI. A GBMI verdict determines that the defendant is responsible for committing the crime but also recognizes that he was mentally ill at the time.

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Effect of Finding GBMI

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A defendant found guilty but mentally ill is sentenced under regular sentencing provisions. If sentenced to imprisonment, however, the defendant is to be given whatever treatment is indicated. If probation is imposed, treatment may be required as a condition of probation.

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GMBI-- Pro and Con

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Supporters argue that the defense enhances public safety by permitting dangerous mentally ill individuals to be confined in prison rather than prematurely released from mental health facilities. Critics claim that the GBMI defense requires the jury to consider an issue that is not relevant to guilt, sentencing, or release. Critics also claim that the GMBI defense confuses the jury and invites compromise verdicts, thereby allowing juries to avoid the difficult question of whether a mentally ill offender should be held criminally responsible.

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Diminished Capacity

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The term "diminished capacity" has at least 3 different meanings: (1) The use of evidence of mental abnormality or illness to negate mens rea. This would typically result in a lesser offense (e.g., manslaughter instead of murder); (2) To show that the defendant lacked the capacity to form the required intent. For example, evidence that defendant lacked the capacity to premeditate, or deliberate. This would typically result in an acquittal; (3) To try to establish “diminished responsibility.” Sometimes thought of as a back-door “mini” insanity defense that could be used, for example, to reduce murder to manslaughter.

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Diminished Capacity vs. Insanity

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The critical distinctions between diminished capacity and insanity are that diminished capacity is a partial, negating defense (negates an element of the state's case) with the burden on the state to show that the defendant acted with the requisite state of mind while insanity is a complete but affirmative defense - the defendant bearing the burden of proving that he was legally insane.

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Intoxication

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The effect of intoxication upon criminal liability depends on whether the accused was voluntarily or involuntarily intoxicated. While involuntary intoxication may be a complete defense, voluntary intoxication is never a defense—although it may sometimes be used to negate mens rea.

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Involuntary Intoxication

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Involuntary intoxication is a complete defense if it so affected the defendant as to render her insane within the meaning of the insanity test adopted in the jurisdiction.

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Permanently Insane from Use of Intoxicants

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A relatively permanent impairment, such as organic brain damage, caused by the defendant’s long-term use of intoxicants, can under the majority approach serve as the basis for an insanity defense despite it link to repeated and voluntary intoxication.

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Voluntary Intoxication

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Voluntary intoxication is never a defense in the sense that it invokes a defensive doctrine (like insanity) unrelated to the elements of the charged offense, but under modern law in most jurisdictions it may be used as evidence to negate some culpable mental states and thus may preclude conviction.

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Voluntary Intoxication As Negating "Specific Intent"

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Under the majority approach, a defendant can rely on voluntary intoxication to negate only a specific intent if one is required by the crime charged. Thus, if the crime charged does not require a specific intent, the defendant’s voluntary intoxication has no bearing on liability.

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Intoxication-- Constitutional Issues

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Defendants have argued that constitutional considerations such as due process permit them to rely on any relevant evidence to challenge whether the prosecution has proved the mens rea required by the crime. A few states have accepted this argument, but in Montana v. Egelhoff, the Supreme Court held (by a 5-4 vote) that the US Constitution permits a state to bar a defendant from using his voluntary intoxication to show he lacked the requisite mens rea.

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Intoxication-- California Rule

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Under a California statute, evidence of voluntary intoxication cannot be used to show that the defendant lacked the capacity to form the mental state required by the crime. However, evidence that the defendant was intoxicated is admissible on the question of whether the defendant actually did form the required mental state.

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Intoxication-- MPC Rule

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Under codes based on the MPC, evidence of voluntary intoxication can be used to show the absence of certain mental state. The MPC itself provides that voluntary intoxication can be used to show the absence of the state of mind required for the crime, provided the state of mind requires proof of purpose or knowledge. If, however, recklessness if sufficient for liability, evidence of voluntary intoxication is immaterial.

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Mistake of Fact

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Ignorance or mistake as to a matter of fact is not a defense in the sense that it invokes a defensive doctrine unrelated to the elements of the charged offense. Rather, it prevents liability where it is shown that the defendant lacked a mental state essential to the charged crime.

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Mistake of Fact-- Rationale

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It is a basic principle of the common law that the defendant cannot be convicted where it is shown that he did not have the necessary mental state. Hence, simple ignorance (i.e., the defendant never thought about the matter), or affirmative mistake (i.e., the defendant thought about the matter but reached a wrong conclusion) that negates an essential mental state is valid.